Appellant asserts that the facts in Cheuvront, supra, are distinguishable from this case on appeal because 1) Cheuvront was not a garnishment action which allows a statutory “second bite of the apple” to modify the default 2) the communication by the plaintiffs’ counsel was directly with the party defendant not a registered agent 3) there was no second notification remedying any prior misleading communication. The Court in Cheuvront clearly distinguishes its own ruling from cases in which the judgments were upheld stating “Compare Mitchell v. Speering, 239 Ga. App. 472, 472-474; (1999) (default judgment upheld where defendant did nothing after being served with the complaint and moved to set aside judgment on the ground that the court clerk's office provided misinformation about service); First Dixie Properties, Inc. v. Chrysler Corp., 202 Ga. App. 145, 147; (1991) (default judgment upheld where defendant failed to file an answer …show more content…
It appears that only when appellant attempted to enforce the default judgment did appellee hire local counsel to set aside the judgment”. Id. The explicit notice referred to by the Court, supra, was a subsequent communication which corrected the earlier misleading communication regarding the settlement agreement. These facts are similar to this case on appeal. NAH, after speaking with PLS’ attorney, subsequently received actual written notice in accordance with former O.C.G.A. § 18-11-91 (2010) (amended 2016) that PLS intended to proceed with the case (by receiving a copy of the default judgment) and had 60 days to modify the judgment. Instead, it took no action at all. The Court found in First Dixie Properties, supra, that this failure to act constituted “negligence” as defined by O.C.G.A. §