McCombs v. Southern Regional Medical Center, Inc.

Judge Harold R. Banke,

concurring in part and dissenting in part.

I fully concur in division 1. But, because the analysis of the majority devolves into procedural quicksand for the three uninvolved Synthes defendants, and because I believe the trial court did not err in finding that the pleading at issue was an answer for those three defendants, I must dissent.

Although the spirit and intent of the Civil Practice Act require that pleadings be liberally construed in favor of the pleader, the majority ignores that imperative. Glisson v. Hosp. Auth. of Valdosta, 224 Ga. App. 649, 654 (1) (481 SE2d 612) (1997). Similarly, the majority disregards our well-established preference that cases be resolved on their merits rather than by default. Ewing v. Johnston, 175 Ga. App. 760, 764 (1) (334 SE2d 703) (1985); see Alex v. Parkway-Boulevard Corp., 157 Ga. App. 269, 270 (1) (277 SE2d 276) (1981).

After holding that these three Synthes defendants failed to file any answer whatsoever, the majority remands this case for consideration of a motion to open default. In so doing, the majority seems to suggest that default would be unfair to these three defendants who apparently had nothing to do with the plaintiff’s injury. Pinned by an *683appellate determination that they completely failed to respond to McCombs’ complaint, it is inconceivable to me that these defendants could demonstrate the requisite grounds of “providential cause” or “excusable neglect” or “proper case” necessary to open default. OCGA § 9-11-55 (b). First Union Nat. Bank &c. v. Floyd, 198 Ga. App. 99, 101 (2) (400 SE2d 393) (1990) (broad ground of “proper case” does not vest court with discretion to open a default for reasons which fall short of a reasonable excuse for failure to answer).

Not only do I disagree with the majority’s result, but also I cannot embrace its analysis. We are bound to liberally construe pleadings to effectuate substantial justice. Having carefully studied the answer at issue in that light, notwithstanding its nomenclature and its confusing references to “Defendant,” “Defendant Synthes,” and to the other Synthes entities by name, I must agree with the trial court’s determination that at least part of it constituted a collective answer of the five Synthes entities.1 In view of the internal ambiguity in this pleading, I cannot agree that the trial court abused its discretion in determining that this pleading was an answer by the Synthes defendants within the meaning of the CPA. Howell v. Styles, 221 Ga. App. 781, 782 (1) (472 SE2d 548) (1996). See Mills v. Bing, 181 Ga. App. 475, 476 (1) (352 SE2d 798) (1987); Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561 (239 SE2d 217) (1977) (pleading requirements to be construed liberally in favor of pleader). See Bosworth v. Cooney, 156 Ga. App. 274, 279 (2) (274 SE2d 604) (1980). See also Brown v. Brown, 217 Ga. App. 245, 246 (457 SE2d 215) (1995).

Moreover, in reaching its result, the majority relies upon subsequent pleadings of other parties and examines the identity of the law firms and attorneys involved in those pleadings. Yet, inexplicably, the majority cites no precedent which authorizes looking beyond the four corners of a pleading when construing it. I believe that the analysis of the sufficiency of an answer should be confined to that answer read in conjunction with the complaint. See Mills, 181 Ga. App. at 476 (1) (content of document determines whether it is a responsive pleading not the document’s nomenclature). See McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 515 (250 SE2d 424) (1978) (CPA does not penalize irrevocably a party for one misstep in pleading). See OCGA § 9-11-8 (f).

Since the objectives of the CPA are to encourage substantial jus*684tice and the resolution of controversies on their merits, it is difficult to imagine how these goals will be furthered by placing these three defendants into default with no guarantee that they can extricate themselves. For these reasons, I must respectfully dissent in part.

Decided July 16, 1998 Martin C. Jones, Sharon S. Whitwell, for appellant. Alston & Bird, Dow N. Kirkpatrick II, Lori G. Baer, Angela T Burnette, Kilpatrick Stockton, Susan A. Cahoon, Alan R. Perry, Jr., for appellees.

In various paragraphs, the answer alternately employs “Defendant,” “Defendant Synthes,” and “these Defendants,” and also makes separate references to “Synthes (U.S.A.),” “Synthes, Inc.,” “Synthes, North America, Inc.” as well as to “Synthes Spine Company, L.P.” Synthes Spine appears to denote itself as “Defendant” in paragraphs 1, 2, 7, 9, 11, 15, 39, 41, 42, 44, 45, and 46. Yet, inexplicably, “Defendant Synthes” is the respondent in paragraphs 14-38, 40, 43, 45, and 47. In any event, some paragraphs may be read as a joint answer.