PIKSEL AMERICAS, INC. v. PIKSEL, INC

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

SUPREME COURT OF GEORGIA

Case No. S26C1006

October 27, 2026

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

PIKSEL AMERICAS, INC. et al. v. PIKSEL, INC.

The Supreme Court today denied the petition for certiorari in this case.

All the Justices concur.

Court of Appeals Case No. A25A2178

SUPREME COURT OF THE STATE OF GEORGIA

Clerk's Office, Atlanta

I certify that the above is a true extract from the minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk

WARREN, Presiding Justice, concurring.

As explained below, I agree with the Court’s denial of the petition for certiorari in this case, which involves the review of a motion to open default judgment. I write separately to express my concern about the Court of Appeals’s analysis of that issue.

(a) The procedural history of this breach of contract action is somewhat complicated. Petitioners Piksel Americas, Inc., Sampson Acquisitions, Inc., and Rodney Sampson filed an un- timely answer to the complaint, which the respondent moved to strike. Petitioners opposed the motion, claiming that the failure to timely file an answer “was due solely to technical errors made with respect to the e-filing system.” The trial court granted the motion to strike and deemed Petitioners in default. See OCGA § 9-11-55(a) (“If in any case an answer has not been filed within the time required by this chapter, the case shall automatically be- come in default unless the time for filing the answer has been ex- tended as provided by law.”). Petitioners then filed a motion to open default under OCGA § 9-11-55(b), which “[a]t any time be- fore final judgment,” gives a trial court the discretion to “allow the default to be opened for providential cause preventing the fil- ing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.” The trial court denied the motion and entered a final default judgment.

Rather than appealing directly from that judgment, see OCGA § 5-6-34(a)(1)(B) (providing that “Appeals may be taken to the Supreme Court and the Court of Appeals from ... [a]ll final judgments”), Petitioners filed a motion to set the default judg- ment aside under OCGA § 9-11-60(d)(3), which allows a judgment to be set aside based on “[a] nonamendable defect which appears upon the face of the record or pleadings.” The trial court denied the motion to set aside, and Petitioners filed an application for discretionary appeal in the Court of Appeals, see OCGA § 5-6- 35(a)(8) & (b) (“Appeals from orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment … shall be by application ….”), arguing that the trial court erred by deny- ing the motion to set aside and the motion to open default. The Court of Appeals granted the application.

On appeal, the Court of Appeals held that the trial court did not err by denying the motion to set aside the default judg- ment under OCGA § 9-11-60(d)(3) because no nonamendable de- fect appeared on the face of the record. See Piksel Americas, Inc. v. Piksel, Inc., 378 Ga. App. 613, 615–17 (2026). 1 As to the motion to open default, the Court of Appeals said that under OCGA § 9- 11-55(b), default can be opened only “before final judgment”; after a default judgment has been entered, “the default cannot be opened without first setting aside that judgment”; “the first es- sential step against a default judgment is a motion to set aside the judgment under OCGA § 9-11-60(d), and only after that mo- tion has been granted may a court consider whether to open de- fault under OCGA § 9-11-55.” Id. at 617 (quotation marks omit- ted). The court then concluded, “Because the default judgment in this case has not been set aside, we do not consider the denial of the motion to open default.” Id. at 618.

(b) In their petition for certiorari, Petitioners argue that the Court of Appeals erred by refusing to review the denial of the motion to open default under OCGA § 9-11-55(b) on the basis that the default judgment had not been set aside because the court’s

1 Petitioners do not challenge that conclusion in their petition for a writ of certiorari in this Court, so I do not discuss it further.

conclusion conflicts with its decision in Smithson v. Harry Nor- man, Inc., 192 Ga. App. 796 (1989). I agree that the Court of Ap- peals’s holding in this case does not square with its holding in Smithson, and the issue of the reviewability of the entry of a de- fault judgment is a question of gravity. But because there is likely a different basis supporting the Court of Appeals’s ultimate con- clusion, I agree with the denial of certiorari review in this case.

(i) In Smithson, the defendant (like Petitioners here) failed to timely file an answer, was deemed in default, and filed a motion to open default under OCGA § 9-11-55(b). See 192 Ga. App. at 796. And, like in this case, the trial court denied the motion and then entered a default judgment. See id. But, unlike in this case, the defendant then directly appealed the denial of the motion to open default, see OCGA § 5-6-34(a)(1)(B), and the plaintiff sought to dismiss the appeal on the basis that the defendant failed to attack the default judgment “by one of the methods provided in OCGA § 9-11-60.” Smithson, 192 Ga. App. at 796. The Court of Appeals held that before a final default judgment is entered, a defaulting party must file a motion to open default under OCGA § 9-11-55(b), but once final judgment is entered, “the provisions of OCGA § 9-11-55(b) are inapplicable and the case must proceed under OCGA § 9-11-60.” Id. The Court of Appeals accordingly determined that the defendant’s motion to open default under OCGA § 9-11-55(b), which was filed prior to the entry of final judgment, “was proper and no motion pursuant to OCGA § 9-11- 60 was necessary or appropriate,” and— noting that a default judgment is “a final and appealable judgment”—the court denied the plaintiff’s motion to dismiss. Id.

The Court of Appeals’s holding in this case is not in accord with its holding in Smithson. Smithson made clear that a denial of a properly filed motion to open default under OCGA § 9-11-

55(b) (that is, a motion filed before the entry of final judgment) is reviewable on appeal after a final judgment of default is entered. But here, although Petitioners filed their OCGA § 9-11-55(b) mo- tion prior to the entry of final judgment, the Court of Appeals re- fused to consider it on the basis that the final judgment had been entered (and Petitioners’ motion to set aside had not succeeded). Though the circumstances in Piksel are analogous to Smithson, the Court of Appeals made no mention of Smithson. And the cases that the Court of Appeals relied on do not support its conclusion because none of those cases involved a motion to open default un- der OCGA § 9-11-55(b) that was filed before the entry of default judgment. Rather, in those cases, the defaulting party attempted to open default after a default judgment had been entered, which is not permitted under the plain language of OCGA § 9-11-55(b). See The Pantry, Inc. v. Harris, 271 Ga. App. 346, 346 (2005) (re- jecting the defendant’s argument that the trial court failed to open default where the defendant filed only a motion to set aside, which the trial court denied, after default judgment was entered and never filed a motion to open default, and explaining that the trial court could consider whether to open default under OCGA § 9-11-55 only if it had granted the motion to set aside); Chugh Shopping Center., Inc. v. Ameris Bank, 323 Ga. App. 243, 244, 247 & n.17 (2013) (citing Harris and declining to reach the defend- ant’s remaining claims after vacating the denial of the defend- ant’s motion to set aside the default judgment and remanding the case to the trial court for it to properly assess that issue, where the defendant first sought to open default (in addition to filing the motion to set aside) after default judgment had been entered); Granite Loan Solutions, LLC v. King, 334 Ga. App. 305, 310 (2015) (holding that because the defendant filed a motion to open default under OCGA § 9-11-55(b) after the entry of final judg- ment, the trial court could not open the default without first set- ting aside the final judgment); Samsung Electronics America, Inc. v. Brewer, 368 Ga. App. 608, 616–17 (2023) (vacating the trial court’s order granting the defendant’s motion to set aside a de- fault judgment and remanding the case for the court to reconsider that motion and explaining that the Court of Appeals’s consider- ation of the trial court’s denial of the defendant’s motion to open default, which was filed after the trial court granted the motion to set aside, would be premature).

Moreover, the Court of Appeals’s holding here—that a properly filed denial of a motion to open default under OCGA § 9- 11-55(b) (that is, one filed before entry of default judgment) is not reviewable after the entry of default judgment—essentially insu- lates such a motion from appellate review. I see nothing in the text of OCGA § 9-11-55(b) that limits an appellate court’s author- ity to review a motion brought under that provision. And alt- hough a defaulting party could, in addition to filing a motion to open default, file a motion to set aside under OCGA § 9-11-60(d)— as Petitioners did here—the requirements for granting those mo- tions are distinct, such that whether the defaulting party obtains appellate review of only a motion to open default, only a motion to set aside, or both could alter the outcome of the case. Compare OCGA § 9-11-55(b) (providing that a trial court “may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court” and that “the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial”) with OCGA § 9-11- 60(d)(3) (providing that a motion to set aside may be brought to set aside a judgment based on “[a] nonamendable defect which appears upon the face of the record or pleadings. Under this par- agraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed”).

Given all this, it appears that the Court of Appeals’s deci- sion not to review the denial of Petitioners’ motion to open default under OCGA § 9-11-55(b) on the basis that a final judgment had been entered and not set aside was incorrect.

(ii) The problem for Petitioners, however, is that there is likely a different basis supporting the Court of Appeals’s ultimate conclusion that the denial of the motion to open default was not subject to appellate review. As the Respondent points out, there is a crucial procedural difference between this case and Smithson. In Smithson, the defendant directly appealed the denial of the motion to open default and entry of default judgment under OCGA § 5-6-34(a)(1)(B), whereas here, Petitioners filed an appli- cation for discretionary appeal from the order denying their mo- tion to set aside, see OCGA § 5-6-35(a)(8) & (b). When a direct appeal is taken pursuant to OCGA § 5-6-34, an appellate court reviews

all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below …, without regard to the appeal- ability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was ap- pealable by some other express provision of law con- tained in this Code section, or elsewhere.

OCGA § 5-6-34(d) (explaining that this provision applies “[w]here an appeal is taken under any provision of subsection (a), (b), or (c)

of this Code section”). See also, e.g., Martin v. Williams, 263 Ga. 707, 709–10 (1994) (explaining that OCGA § 5-6-34(d) “permit[s] a party to raise on the appeal of a directly appealable order issues regarding an order that, standing alone, is subject to the applica- tion requirements of § 5-6-35”).

But it appears that OCGA § 5-6-34(d) does not apply when an appeal is taken under OCGA § 5-6-35. As discussed above, the plain language of OCGA § 5-6-34(d) limits its application to ap- peals taken under subsections (a), (b), or (c) of that statute. Cf. State v. Lynch, 286 Ga. 98, 102 (2009) (explaining that OCGA § 5- 6-34(d) applies “only where an appeal is taken under any provi- sion of subsection (a), (b), or (c) of this Code section” and rejecting the State’s argument that the statute applied to appeals pursuant to OCGA § 5-7-1 (cleaned up)). Moreover, appeals taken under OCGA § 5-6-35 must be brought by way of an application that “specif[ies] the order or judgment being appealed,” OCGA § 5-6- 35(b), and an appellate court generally limits its review to the ap- plicant’s enumerations of error regarding that order or judgment. Petitioners, in their cert petition, point to OCGA § 5-6-35(g), which provides that after a notice of appeal is filed following the grant of an application for discretionary appeal, “[t]he procedure … shall be the same as in other appeals,” arguing that this text supports interpreting OCGA § 5-6-34(d) more broadly than its plain text suggests. But that argument disregards the canon that specific statutes (such as OCGA § 5-6-34(d)) prevail over general ones (such as OCGA § 5-6-35(g)). See, e.g., Martin v. Fulton County Board of Registration & Elections, 307 Ga. 193, 212 & n.18 (2019).

In any event, the Court of Appeals did not address the proper procedures for appealing the denials of the motion to open default and the motion to set aside in this case. And although I am skeptical of the conclusion that the denial of the motion to open default was not subject to appellate review on the basis that the default judgment was entered and not set aside, it seems that Petitioners’ failure to directly appeal the denial of the motion to open default and the entry of default judgment, and to instead file an application for discretionary review, may have foreclosed ap- pellate review of that issue. 2 Accordingly, this case is not the proper vehicle for this Court to address the Court of Appeals’s conclusion.

I therefore agree with the Court’s decision to deny certio- rari and note that we should consider addressing this issue if it arises again in an appropriate case.

2 Although this Court held in Martin that OCGA § 5-6-34(d) permits an order that, standing alone, would be subject to the application requirements of OCGA § 5-6-34 to be added to the appeal of an order that is directly appeal- able, see 263 Ga. at 710, it appears that we have not expressly addressed the converse situation: whether an order that is directly appealable under OCGA § 5-6-34 may be added to the appeal of an order for which an application for discretionary appeal is required under OCGA § 5-6-34. But the Court of Ap- peals did not engage with that issue here. Nor did it determine whether Peti- tioners’ appeal fell under OCGA § 5-6-35(j), which provides that when an ap- peal in a case enumerated in OCGA § 5-6-34(a), but not in OCGA § 5-6-35(a), “is initiated by filing an otherwise timely application for permission to appeal … without also filing a timely notice of appeal, the appellate court shall have jurisdiction to decide the case and shall grant the application.” Thus, this is not the appropriate case for this Court to address these issues, either.