Monday, July 12, 2010
The Danberts argued that NGLV's submission to Towns County did not meet Section 503 of the Towns County Revised Subdivision Regulations ("Regulations"). That regulation states that "Access to every subdivision shall be provided over a public street or a public access street. Access cannot be provided over private easement." The Danberts argued that Chinquapin Ridge Road is not a "public street or a public access street" and that it is a private easement that cannot provide proper access to a subdivision. The regulations provide no definition of public street or private easement. The Danbert's deed described the easement only by stating that it is "subject to easements as shown on the plat." The plats contain no further text on the issue.
In the absence of definitions in the Regulations, the Danberts urged that the term public street used in Section 503 must be synonymous with the definition of the term "public road" used in OCGA § 32-1-3(24) and that further there is no difference in the Regulations between "public street" and "public access street." They also contended that because there is no record that Chinquapin Ridge Road was dedicated to or accepted by the County, it cannot be considered to be "intended or used" by the public within the meaning of OCGA § 32-1-3(24). Some case law states that a right of public access to a road does not occur until the road has been dedicated and accepted by the governing body.
The court found several flaws in the Danberts' argument. First, their contention ignored the fact that the County did not choose to use the term "public road" that was defined in the Georgia Code, but instead chose to use other terms undefined by the Georgia Code. No evidence indicated that the County felt that the definitions in the Georgia Code were pertinent. Moreover, the Regulations did not require an express or implied dedication as set forth in the case law because the definition of "street" included a "public or dedicated thoroughfare." Apparently, the court decided that the inclusion of the term "public ... thoroughfare" instead of referring only to a "dedicated thoroughfare" meant that access in Town County did not have to be through a dedicated road. Evidence as to whether members of the public had been able to access Chinquapin Road over the easement was conflicting. Thus, the court held, the trial court did not abuse its discretion to reject an injunction because the trial court concluded that the Danberts failed to show a violation of the Regulations, and that access to NGLV's property by virtue of the easement was over "a public street" or "public access street" under Section 503 of the Regulations. The bottom line in this case is that the Court went to some length to rule in favor of the development of the land, but limited the scope of the holding to the Regulations of rural Towns County and language identical to them.
Monday, July 5, 2010
Decision One pleaded for the court to use its equitable power to rescind the sale. It submitted an affidavit of a paralegal for the company that was the servicer of the nonjudicial foreclosure process for the law firm that represented Decision One in the foreclosure sale. The affidavit stated that prior to the foreclosure sale date the servicer was informed by another entity via a program known as MortgageServ of the total debt amount and the servicer was instructed to calculate the opening bid. Due to a "clerical error" the affiant mistakenly calculated the opening bid at $27,750 when in fact the opening bid should have been $333,000. When the law firm received the results of the high bid of only $54,000 it was apparent that a mistake had been made. In other words, Warren bought the property for $279,000 less than the minimum bid was supposed to be. Now that is a steal!
The Court of Appeals made short work of Decision One's argument for equity to intervene. Decision One relied upon a prior case where a contractor was permitted to rescind a bid based on a unilateral miscalculation after establishing four factors: (1) enforcement of the mistake would have been unconscionable; (2) the mistake related to the substance of the consideration; (3) the mistake occurred regardless of the exercise of ordinary care; and (4) the other party had not been prejudiced. Here, the court held that Decision One had made no effort to establish that ordinary care had been exercised or that Warren would not be prejudiced by the rescission. Thus, it upheld the sale of the land.
Less Than 60 Days to Judgment Day: Court of Appeals Grants Default Judgment for Failing to Answer in 30 Days, In Spite of Acknowledgment of Service, Answer Filed Before Motion
On July 8, 2009, BCB moved for a default judgment on the ground that Satnum failed to timely file an answer to the complaint. Satnum responded that it timely filed its answer within the 60 days as allowed by OCGA § 9-11-4(d). The trial court ruled that OCGA § 9-11-4(d) was not implicated by the waiver at issue and therefore Satnum was required to answer within 30 days as set forth in OCGA § 9-11-12(a), which it had not done. The court granted the default judgment. Satnum appealed, arguing that pursuant to OCGA § 9-11-4(d) he was entitled to a 60 day answer deadline. The Court of Appeals disagreed.
The court ruled that because there was no statement invoking OCGA § 9-11-4(d), the acknowledgment executed by Satnum had been executed under OCGA § 9-10-73 instead. OCGA § 9-10-73 simply states that "the defendant may acknowledge service or waive process by a writing signed by the defendant or someone authorized by him." It does not mention any change in the deadline to answer set forth in OCGA §9-11-12(a). The procedures for waiving service in OCGA § 9-11-4(d) set forth the way that a plaintiff may avoid the cost of service of a summons and sets forth which defendants have a duty to avoid unnecessary service costs. Section 9-11-4(d)(3) states that a plaintiff may notify such a defendant of the filing of the action and request that the defendant waive service of a notice and sets forth specific rules for the form of the request. The rules require that the the request (A) be in writing (B) by first class mail or other reliable means (C) mailed with a copy of the complaint identifying the court (D) make specific reference to this code section and shall inform the defendant, by means of the text prescribed in subsection (l) of the Code section, of the consequences of compliance and of failure to comply with the request; (E) set forth the date the request is sent and (F) allow a reasonable time to return the waiver, at least 30 days from the date sent or 60 days if the addressee is out-of-state. In turn OCGA § 9-11-4(d)(5) states that a defendant that returns the waiver in a timely manner has until 60 days after the date on which the request was sent to answer the complaint.
The request for acknowledgment of service sent in this case, drafted by BCB and submitted to Satnum, (1) made no reference to OCGA § 9-11-(4) and (2) did not use the form set forth in subsection (l) of the statute. Therefore, found the court, the answer was due in 30 days and not 60, and the default judgment was affirmed.
What this means is that defendants cannot gain themselves 60 days to answer a complaint merely by offering to acknowledge service of a complaint they know has been filed. Furthermore, even if a plaintiff requests a waiver of service, agreeing to the waiver is not mandatory unless the plaintiff follows the procedures of OCGA § 9-11-4. Finally, if the plaintiff does not follow OCGA § 9-11-4 but requests a waiver of service and the defendant agrees to it, the defendant still has only 30 days to answer the complaint absent some other agreement to extend the time to answer.