The failure to answer or otherwise respond to a properly served complaint within 30 days of service is called a default and causes the party who has been served to lose the right to contest the matters in the complaint, which are then presumed to be true. A default may be opened as a matter of right within 45 days of service and thereafter may only be opened with the permission of the court. It is critical that parties respond to complaints and other pleadings in a timely manner or they risk losing their right to contest the matters raised in those pleadings.

In this Action, the CRC HOA and John Richards failed to file their responses in the Quiet Title Action when they were due. Bose, Mommies and FH Partners moved for a default judgment and the CRC HOA and Richards filed a motion to open default, explaining their error and accusing the other side's attorneys of "sandbagging" them. The parties appeared for a hearing before Judge Bagley and explained their respective positions as set forth in detail in the default hearing transcript.

At any time before entering a final judgment, the trial court, in its discretion, may allow the defendant(s) to open a default, upon payment of costs: (a) for providential cause which prevented filing of a plea; (b) for excusable neglect; or (c) where the Court determines that a proper cause has been made for default to be opened. O.C.G.A. § 9-11-55(b); Johnson v. American National Red Cross, 253 Ga. App. 587 (2002); C.W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, (1990). In addition to the foregoing requirements, Defendants must also: (1) make a showing under oath; (2) offer to plead instanter; (3) announce ready to proceed with trial; and (4) set up a meritorious defense. O.C.G.A. § 9-11-55(b). It is a well-settled principle of Georgia's appellate courts that default judgment is a drastic sanction that should be invoked only in extreme circumstances. Exxon Corporation v. Thomason, 269 Ga. 761 (1998); Ford v. Saint Francis Hospital, 227 Ga. App. 823 (1997). Whenever possible, cases should be decided on their merits. Gilliam v. Love, 275 Ga. App. 687 (2005).

The foregoing law is what Judge Bagley considered and applied when making his decision regarding the request of Mommies, Bose and FH Partners to provide them with a determination that the Agreement Regarding Development does not bind the Equestrian Center Property.