CourtListener 10679762

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315 Ga. 390
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S22Y0940. IN THE MATTER OF TAMORRA A. BOYD.

PER CURIAM.

The State Bar initiated this disciplinary matter in January

2021 with the filing of a formal complaint, charging respondent

Tamorra A. Boyd (State Bar No. 201382) with numerous violations

of the Georgia Rules of Professional Conduct (“GRPC”), see Bar Rule

4-102 (d), stemming from her allegedly having allowed a California

mortgage loan modification company to use her name and license to

operate in Georgia and having failed to provide a Georgia client who

retained Boyd via that loan modification company with the services

for which they contracted. Without holding a hearing, the special

master, LaVonda R. DeWitt, granted the State Bar’s motion for

default, denied Boyd’s request to open the default, and issued a

Final Report and Recommendation in which she recommended that

the Court suspend Boyd for six months as discipline for her conduct.
Boyd filed exceptions seeking review by the Review Board, and after

consideration, the Review Board recommended that this Court

remand the matter to the special master to proceed with a hearing

on the merits or, in the alternative, for a hearing on the motion for

default. We agree that a remand to the special master for a hearing

on the motion for default is appropriate.

On the relevant issues, the record shows that in September

2018 a couple filed a grievance against Boyd with the State Bar, and

it was referred to the State Disciplinary Board (“SDB”) for

investigation. Boyd filed a lengthy, sworn response to the grievance

in October 2018, but the case then stalled for more than a year and

a half until, in May 2020, the SDB found probable cause to charge

Boyd with violations of the GRPC. In spite of State Bar Rules 4-211

(1) and 4-204.4 (a), which generally require a formal complaint to be

filed within 30 days of a probable cause determination unless the

SDB has been granted an extension of time, the Bar did not file the

formal complaint in this Court or request appointment of a special

master until eight months later, on January 28, 2021. On February

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1, 2021, the Bar mailed the formal complaint to the post-office box

Boyd listed as her official address with the Bar’s membership

department, and when the 14-day deadline for Boyd to return an

acknowledgment of service passed, the Bar immediately undertook

to serve Boyd by publication. See Bar Rule 4-203.1 (a) (stating that

a lawyer’s choice to provide only a post-office box address to the

Membership Department constitutes an election to waive personal

service). Service by publication was completed on March 5, 2021,

and, on March 15, 2021, Boyd filed an acknowledgment of service,

but she failed to timely file her answer or to timely seek an extension

of time in which to do so.

On April 27, 2021, the Bar moved for default judgment and

Boyd’s attorney, Ecleynne Mercy, e-mailed the Bar, seeking an

extension of time and explaining that she had been “recently

retained” and that there had been a “significant delay” due to a

“slight misunderstanding” with Boyd’s malpractice insurance

carrier. The same day, the special master directed Boyd to respond

to the Bar’s motion for default within 30 days. On May 27, 2021,

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Boyd filed, through counsel, a response to the motion for default that

referred to several attached documents, including various letters

and e-mails, an affidavit made under oath, and a proposed answer,

most of which were not included in her initial submission. After the

Bar filed a reply brief on May 28, 2021, noting Boyd’s failure to

attach the exhibits, Boyd filed an Amended Response, which

included the previously-omitted exhibits. Considered together,

Boyd’s responses sought to set aside the default and attempted to

make out a proper case for doing so. And, although the two responses

filed by Boyd’s counsel are not entirely consistent, they provide some

evidence that as early as February 4, 2021, Boyd was taking steps

to respond to the formal complaint by contacting her malpractice

insurance company to ask about coverage and submitting the

necessary claim application to obtain coverage; that there may have

been a delay of several weeks before the insurance company actually

approved counsel to represent Boyd; that Boyd immediately

forwarded the approval letter to counsel once counsel was approved

by the insurance company; and that additional delays ensued as

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counsel and the insurance company communicated through Boyd

regarding payment. Notably, in those exchanges, it appears that

Boyd repeatedly forwarded each party’s e-mails to the other

promptly, only to have the other party delay for days or weeks before

forwarding its response. In the end, Boyd’s counsel failed to file her

answer to the formal complaint in a timely manner.

Without holding a hearing, the special master issued an order

on the motion to default and on Boyd’s request to open the default.

In the order, the special master properly noted that the Civil

Practice Act generally applies to Bar disciplinary matters, see Bar

Rule 4-221.2 (b) (“In all proceedings under this Chapter occurring

after a finding of Probable Cause . . . the procedures and rules of

evidence applicable in civil cases under the laws of Georgia shall

apply.”); see also In the Matter of Turk, 267 Ga. 30, 30 (1) (471 SE2d

842) (1996) (“OCGA § 9-11-55 (b) applies in disciplinary

proceedings.”). She also noted that in order to authorize the opening

of a default under the Civil Practice Act in a Bar disciplinary case,

a respondent must show “providential cause,” “excusable neglect,”

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or a “proper case,” and the rules require that her “showing shall be

made under oath, shall set up a meritorious defense, shall offer to

plead instanter, and shall announce ready to proceed with the trial.”

OCGA § 9-11-55 (b); see also Turk, 267 Ga. at 30 (1).

After reviewing the record, the special master held that Boyd

had ignored the Bar Rules by failing to file a timely answer, failing

to timely request an extension of time in which to file an answer,

and failing to initiate any contact with the Bar before it filed its

motion for default; that her exhibits contradicted her claim that her

insurance company delayed in appointing counsel for this matter;

and that she had not “provided a reasonable explanation for her

failure to timely answer.” Based on these findings, the special

master concluded that Boyd had not shown excusable neglect; that

she had not shown that this is a “proper case” for opening default;

and that she had not even established the conditions precedent to

consideration of her claims of excusable neglect or a proper case1

1 Boyd did not argue that the default should be opened on the ground of

providential cause.

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since the only allegations of fraud and criminal activity that she

made in her effort to establish a meritorious defense were vague and

conclusory and since the assertions made in her responses to the

Bar’s motion for default were not made under oath. Thus, the special

master declined to open the default and, instead, granted the Bar’s

motion for default. Two months later, the special master entered a

Report and Recommendation, finding that the facts and violations

alleged in the formal complaint were deemed admitted by Boyd’s

default and recommending a six-month suspension for Boyd’s

admitted violations. Boyd sought review by the Review Board of both

the finding as to default and the recommended level of discipline.

The Review Board considered the record as a whole and

determined that Boyd had been responsive to these proceedings and

had repeatedly demonstrated her desire to proceed with the case on

the merits. The Review Board ruled that Boyd’s failure to timely

answer the formal complaint was inconsistent with her other

conduct in these proceedings and was addressed by the filing of her

response to the motion for default. Given the strong public policy in

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favor of resolving cases on the merits rather than by default, the

Review Board concluded that after consideration of “all the facts,”

this was a proper case to open default. See Exxon Corp. v. Thomason,

269 Ga. 761, 761 (1) (504 SE2d 676) (1998) (holding that OCGA § 9-

11-55 (b) should be liberally construed to keep with the “strong

public policy of this state favoring resolution of cases on their

merits”); In the Matter of Lasonde, 260 Ga. 843 (400 SE2d 322)

(1991) (case remanded to the special master for opening of default

under the policy of resolving cases on the merits); see, e.g., OCGA §

9-11-1 (providing that the Civil Practice Act “shall be construed to

secure the just, speedy, and inexpensive determination of every

action”); OCGA § 9-11-8 (f) (providing that “[a]ll pleadings shall be

so construed as to do substantial justice”). It accordingly

recommended that this Court accept its findings in that regard and

remand this case to the special master to proceed with a hearing on

the merits, a hearing on the motion for default, or at least a hearing

on what factors might exist in aggravation and mitigation of

discipline.

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The State Bar filed lengthy exceptions to the Review Board’s

Report and Recommendation, arguing, in pertinent part, that this

Court should reject the Review Board’s recommendations because

the Review Board improperly applied the law to find that Boyd had

made a proper case for opening the default and that the record does

not support the Review Board’s conclusion that Boyd presented a

“meritorious defense.” Boyd has not responded to the State Bar’s

exceptions.2

After reviewing the record and pretermitting whether the

Review Board exceeded its authority in this case, we conclude that

under the circumstances of this case, a hearing should be held on

the State Bar’s motion for default and on Boyd’s request that the

special master open the default. At the outset, we note that trial

courts have “very ample powers” to open defaults and that the

proper-case ground for opening a default should be liberally applied

2 Boyd filed a “Motion for Continuance” on September 27, 2022, in which

she sought an extension of time to file her response to the State Bar’s
exceptions. Because this request was filed more than three months after the
date her response was due, it was dismissed as untimely. See Supreme Ct. R.
12.

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so as to keep with the policy of deciding cases on their merits, see

Bowen v. Savoy, 308 Ga. 204, 209 (839 SE2d 546) (2020). And, as the

Review Board noted, defaults in disciplinary cases most often

involve respondents who completely fail to respond to disciplinary

proceedings. See In the Matter of Wadsworth, 312 Ga. 159 (861 SE2d

104) (2021); In the Matter of Davis, 311 Ga. 797 (860 SE2d 467)

(2021). Here, the record suggests that Boyd cooperated and

participated in the Bar’s investigation of the complaint and

processes. Although she admittedly failed to file a timely response

after acknowledging service, as she worked with her insurance

carrier to obtain counsel, and her pleadings were imperfect in both

form and substance, her omissions do not appear to rise to the level

of failure to engage with, or affirmative disregard for, the

disciplinary process.

Accordingly, we vacate the special master’s order granting the

Bar’s motion for default, the special master’s Report and

Recommendation, and the Review Board’s Report and

Recommendation, and we remand this matter to the special master

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with direction that she set a hearing on the Bar’s motion for default

and Boyd’s request to open the default.3 If, after that hearing, the

special master decides to open the default, the matter should

proceed with discovery and a hearing on the merits of the formal

complaint. See Bar Rule 4-213. If the special master again grants

the motion for default, she may consider whether it would be

appropriate to set a hearing to consider any matters in mitigation or

aggravation of punishment. Compare In the Matter of Fagan, 314

Ga. 208, 212-213 n.1 (876 SE2d 242) (2022) (“[T]he Bar Rules do not

give the [s]pecial [m]aster authority to sua sponte invite and receive

any evidence, including mitigation, when a party is currently in

3 Because we remand this case to the special master for a hearing on the

Bar’s motion for default and Boyd’s request to open the default, we note that
the special master, in deciding that Boyd had not met her burden of showing a
“proper case” under OCGA § 9-11-55 (b), relied on Boyd’s failure to “provide[ ]
a reasonable explanation for the failure to timely answer” and failed to
consider “all the facts,” as required by the default judgment statute. See
Bowen, 308 Ga. at 208. As we recently explained in Bowen, however, the plain
language of OCGA § 9-11-55 (b) instructs that when determining whether a
proper case exists for the opening of default, the absence of a reasonable
explanation is not dispositive, and a special master must consider all of the
facts, including whether the failure to file a timely answer resulted from
“willful or gross negligence” and “[w]hether [the State Bar] will be harmed or
prejudiced by opening the default.” Id. at 208-209.

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default.”) with In the Matter of Farnham, 312 Ga. 65, 70 (860 SE2d

547) (2021) (directing special master to set a hearing on mitigating

and aggravating factors where respondent submitted pleadings to

the special master raising the possibility that such factors existed,

if, on remand, the State Bar’s motion to strike is granted). Compare

Bar Rule 4-212 (a) (providing only that if the respondent fails to

timely answer a formal complaint, “the facts alleged and violations

charged in the formal complaint shall be deemed admitted”) with

Bar Rule 4-208.1 (b) (providing that if notice of discipline is not

timely rejected, the respondent “shall be in default” and “shall have

no right to any evidentiary hearing”).

Vacated and remanded with direction. All the Justices concur.

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Decided December 20, 2022.

Suspension.

Paula J. Frederick, General Counsel State Bar, William D.

NeSmith III, Deputy General Counsel State Bar, Jenny K.

Mittelman, James S. Lewis, Assistant General Counsel State Bar, for

State Bar of Georgia.

The Foster Firm, Ecleynne Mercy, for Boyd.

In the Supreme Court of Georgia

Decided: December 20, 2022

S22Y0940. IN THE MATTER OF TAMORRA A. BOYD.

PER CURIAM.

The State Bar initiated this disciplinary matter in January

2021 with the filing of a Formal Complaint, charging respondent