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In Marsh v. Way, 170 Ga. App. 300, supra, the Court of Appeals vacated the judgment of the trial court in favor of the plaintiff for $255,000 entered after trial without a jury, and remanded the case for findings of fact and conclusions of law as to damages (not as to liability, which had been determined by the default).
Summary of this case from Marsh v. WayOpinion
67548.
DECIDED MARCH 14, 1984.
Wrongful death. Camden Superior Court. Before Judge Scoggin, Senior Judge.
Richard A. Brown, Jr., John E. Bumgartner, for appellant.
Orion L. Douglas, for appellee.
Plaintiff filed his complaint in this wrongful death action on December 3, 1982. Defendant was served on the same date. Defendant failed to file an answer. The case having become in default and 15 days having elapsed after the date of default, the issue of damages was tried before the trial court without a jury. Judgment in favor of the plaintiff for $255,000 with interest and costs was filed on March 25, 1983. On April 25, 1983, defendant filed her motion for new trial, or, in the alternative, motion to set aside the judgment, or, motion for relief from judgment. In support of her motion on alternative grounds defendant filed affidavits in regard to the circumstances resulting in her default. Defendant appeals from the denial of all of her alternative motions. Held:
"Other than for certain narrow statutory exceptions not relevant to this case, the preparation of written findings of fact and conclusions of law is mandatory in all superior court cases tried without a jury, unless the parties waive this requirement in writing. Cochran v. Cochran, 154 Ga. App. 326 (2) ( 268 S.E.2d 728) (1980); see also Doyal Dev. Co. v. Blair, 234 Ga. 261 ( 215 S.E.2d 471) (1975); Fred R. Surface Assoc. v. Worozbyt, 148 Ga. App. 639 ( 252 S.E.2d 67) (1979). The trial court is required to `ascertain the facts and . . . state not only the end result of (its) inquiry but the process by which it was reached.' Beasley v. Jones, 149 Ga. App. 317, 319 ( 254 S.E.2d 472) (1979); PSI Pneumatic Structures, Inc. v. C. S. Newnan Bank, 159 Ga. App. 766 ( 285 S.E.2d 576) (1981). . . There is no evidence that this requirement was waived in this case. In these circumstances this court, under the mandatory language of the statute, must vacate the judgment of the trial court and remand the case for preparation of written findings of fact and conclusions of law as to all material issues. High Point Sprinkler Co. v. George Hyman Constr. Co., 160 Ga. App. 192 ( 286 S.E.2d 763) (1981); Dorsey v. West, 156 Ga. App. 142 ( 273 S.E.2d 922) (1980)." Broussard v. Williams, 164 Ga. App. 545 ( 298 S.E.2d 269). See also C H Couriers v. American Mut. Ins. Co., 166 Ga. App. 853, 854 (3) ( 305 S.E.2d 500).
Plaintiff incorrectly relies upon such cases as Smith v. Mack, 161 Ga. App. 95, 96 ( 289 S.E.2d 299), and Galanti v. Emerald City Records, 144 Ga. App. 773, 774 (3) ( 242 S.E.2d 368), for the proposition that OCGA § 9-11-52 (a) (formerly Code Ann. § 81A-152 (a)) is inapplicable. These cases are predicated on that portion of OCGA § 9-11-52 (a) (Code Ann. § 81A-152 (a)) which provides that: "Findings of fact and conclusions of law are unnecessary on decisions of motions under Code Section 9-11-12 [formerly Code Ann. § 81A-112] or 9-11-56 [formerly Code Ann. § 81A-156] or any other motion except as provided in subsection (b) of Code Section 9-11-41 [formerly Code Ann. § 81A-141 (b)]." (Emphasis supplied.) See also Henry v. Adair Realty Co., 141 Ga. App. 182, 183-184 (2) ( 233 S.E.2d 39).
The case sub judice is an action ex delicto so that pursuant to the provisions of OCGA § 9-11-55 (a) (formerly Code Ann. § 81A-155 (a)) the judgment of the trial court follows and is predicated in part upon an evidentiary hearing. An order of the trial court following an evidentiary hearing is more than a decision of a motion as contemplated by the exception in OCGA § 9-11-52 (a) (Code Ann. § 81A-152 (a)) and is subject to the requirement of findings of fact and conclusions of law. Bob Bennett Enterprises v. Trust Co. Bank, 153 Ga. App. 344 ( 265 S.E.2d 311).
"Since the trial court failed to make the required findings and since that requirement was not waived, `the appeal is remanded with direction that the trial judge vacate the judgment, prepare, or cause to be prepared, appropriate findings of fact and conclusions of law, and enter a new judgment thereon, after which the losing party shall be free to enter another appeal if [it] should wish to do so.' Spivey v. Mayson, 124 Ga. App. 775, 777 ( 186 S.E.2d 154)." C H Couriers v. American Mut. Ins. Co., 166 Ga. App. 853, 854 (3), supra.
Appeal remanded with direction. Deen, P. J., and Sognier, J., concur.