PIKSEL AMERICA INC v. PIKSEL INC (2026)

This appeal challenges a trial court order denying a motion to set aside a default judgment. The appellants contend that they attempted to file an answer — or at least a document that ought to have been construed as an answer — on the evening of the day it was due, but that the clerk of court improperly refused to file it. See Alexander v. Gibson, 300 Ga. 394, 395, 794 S.E.2d 597 (2016) (“[S]tate court clerks have the legal duty to file pleadings, not to ascertain their legal effect. These duties of the clerk relating to the filing of pleadings are ministerial in nature and do not involve the exercise of discretion.”) (citations and punctuation omitted). But here, the rejected filing is not in the record, and as the trial court found, the appellants provided no testimony specifying “what was or was not among [those] submissions.” So in reviewing the denial of the motion to set aside, we must defer to the trial court's finding that the document which the appellants attempted to file that evening did not constitute an answer. It follows that there has been no showing that the trial court abused its discretion, and that we must affirm.¹

1. Facts and procedural posture

On January 20, 2023, Piksel, Inc. (“Piksel”) filed a breach of contract complaint against Piksel Americas, Inc., Sampson Acquisitions, Inc., and Rodney Sampson (“defendants”). Those defendants were served with the complaint on January 30, 2023.² On March 2, 2023, after the 30-day deadline set out in OCGA § 9-11-12 (a) had expired, the defendants contacted Piksel's counsel and requested consent to an extension of time for the defendants to file an answer. Piksel's counsel agreed to the requested extension until March 15, 2023.

The defendants did not meet that agreed-upon deadline, and instead asked Piksel to agree to another extension. After the parties could not agree on the length of another extension, the defendants filed a motion with the trial court requesting an extension of time to file an answer. The trial court granted the motion, extending the time for the defendants to file an answer until March 31, 2023. The defendants, however, again failed to file their answer by that extended date; rather, on March 31, 2023, they filed a document, identified by the court as only “Exhibit A,” which was rejected because “all exhibits must be filed with a leading document[.]” The defendants then attempted to file an answer on April 3, 2023, but it was rejected for failure to pay fees. On April 6, 2023, the defendants successfully filed an answer.

Piksel subsequently filed a motion to strike the untimely answer. In opposing the motion to strike, the defendants filed an affidavit of their attorney stating that his office staff had attempted to file an answer electronically on March 31, 2023, and he believed they had done so. The attorney's affidavit further stated that on April 3, 2023 his office “received notice that [the purported answer] had been rejected because of technical reason ‘#11’ the exhibits to the answer were filed in such a way as to appear as if they were not attached to the answer proper.” A copy of that notice was exhibited with the affidavit. It appears to be an email from “no-reply@efilingmail.tylertech.cloud” reporting on behalf of the Clerk of the Superior Court of Fulton County that the filing, identified as only an exhibit, “has been reviewed and has been returned for further action” because “all exhibits must be filed with a leading document[.]” The attorney's affidavit also claimed that “[t]he failure to timely file Defendants’ Answer was due solely to technical errors made with respect to the e-filing system,” although it did not specify any such errors or clarify if those unidentified errors were made by the attorney and his staff or by the filing system

The trial court granted Piksel's motion to strike the untimely answer and deemed the defendants in default under OCGA § 9-11-55 (a) (“If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law.”).

The defendants then moved the court to exercise its discretion to open default under OCGA § 9-11-55 (b). But the court denied the motion, finding that the defendants had failed to show providential cause, excusable neglect, or a proper case for opening default, and that Piksel would be prejudiced by opening default. After Piksel filed a motion for default judgment, the trial court granted the motion and entered default judgment in favor of Piksel in the amount of $368,542.

A month later, the defendants filed a motion to set aside the default judgment pursuant to OCGA § 9-11-60 (d) (3), arguing that the record contained a nonamendable defect in that they had in fact timely submitted their answer on March 31, 2023, but it was rejected due to problems with the court's electronic filing system. The trial court denied the motion to set aside, finding that the evidence did not reflect a problem with the court's electronic filing system, but instead showed that the defendants had improperly filed only a “standalone” exhibit without “a lead document (i. e., an Answer).”

The defendants then filed an application for discretionary appeal with this court, which was granted. This appeal followed.

2. Motion to set aside

The defendants enumerate that the trial court erred in denying their motion to set aside because there is a nonamendable defect on the face of the record in that they were never in default, having timely filed their answer on March 31, 2023. We cannot agree.

“A motion to set aside may be brought to set aside a judgment based upon ․ [a] nonamendable defect which appears upon the face of the record or pleadings.” OCGA § 9-11-60 (d) (3). “[I]f the record shows on its face that the default was entered on an improper basis, there is a nonamendable defect on the face of the record.” Redan Shops, LLC v. FSFP Atlanta, LLC, 366 Ga. App. 691, 693, n. 4, 883 S.E.2d 902 (2023) (citation and punctuation omitted). See also Stamey v. Policemen's Pension Fund Bd. of Trustees, 289 Ga. 503, 504-506 (1), 712 S.E.2d 825 (2011) (affirming trial court order setting aside default judgment where face of the record affirmatively showed that defendant had timely filed an answer). In deciding a motion to set aside, “the trial judge becomes the finder of fact based on the [record] evidence presented.” City of Atlanta v. Holder, 309 Ga. App. 811, 815, 711 S.E.2d 332 (2011). “This [c]ourt reviews a trial court's ruling on an OCGA § 9-11-60 (d) motion to set aside for abuse of discretion. A trial court abuses its discretion when it issues a ruling that is unsupported by any record evidence or misstates or misapplies the law.” Colclough v. Dep't of Human Servs., 367 Ga. App. 567, 570 (1), 887 S.E.2d 407 (2023) (citations omitted; emphasis added). See also Singh v. Hammond, 292 Ga. 579, 581 (2), 740 S.E.2d 126 (2013) (when trial court is finder of fact, its factual findings are not set aside unless clearly erroneous).

Here, there was evidence in the record supporting the trial court's findings that the defendants did not file their answer on March 31, 2023, and that they instead filed only an exhibit without an answer on that date. That evidence included the court document showing that the filed exhibit had been returned because it was not filed with an answer, the attorney's admission in his affidavit that the answer had not been timely filed due to unspecified “technical errors,” and the answer in the record showing on its face that it was not successfully filed with the clerk until April 6, 2023. See Dannenfelser v. Squires, 365 Ga. App. 819, 822 (1), 879 S.E.2d 506 (2022) (the endorsement of the clerk as to the date of filing is the best evidence of the filing of such paper and is presumed to be correct unless rebutted by evidence showing another date of delivery).

Contrary to the defendants’ claims, the attorney's affidavit upon which they relied did not show that an answer had actually been filed on March 31, 2023, or that there was a failure of the electronic filing system. In the affidavit, the attorney never stated that an answer was in fact filed by the deadline; he averred no personal knowledge about the actual filing on that date, stating only that unidentified members of his office staff had attempted the filing; and while he said that the untimely filing was caused by technical errors made with the e-filing system, he did not identify any such purported errors or clarify if they were made by him and his staff or by the system. See Cross v. Wilmington Trust, Nat'l Ass'n, 360 Ga. App. 747, 749-750 (1) (b), 860 S.E.2d 212 (2021) (affidavits that are not based on personal knowledge have no probative value); Tomsic v. Marriott Int'l, 321 Ga. App. 374, 377 (2) (a), 739 S.E.2d 521 (2013) (affidavit in support of motion to open default did not satisfy requirement that affidavit be made with personal knowledge).

Moreover, the defendants provided no affidavit or testimony from any office staff explaining what they filed or otherwise contradicting the return from the court showing that only an exhibit without an answer was filed on March 31. Nor have they offered evidence rebutting the presumption that answer was not filed until April 6, 2023, as shown by the clerk's endorsement, or evidence showing any failure of the electronic filing system. Compare S. T. C., Inc. v. Ralph + Rita Venture, LLC, 376 Ga. App. 130, 133-135, 918 S.E.2d 154 (2025) (vacating dismissal for untimely filing because even though entry of filing by the clerk is presumed correct, undisputed evidence showed that attorney had timely submitted filing in person at the clerk's office); Barbour v. Sangha, 346 Ga. App. 13, 15-16 (2), 815 S.E.2d 228 (2018) (date of filing is an issue for the trial court to resolve and the evidence supported court's finding that answer was improperly rejected due to failure of electronic filing system).

Regardless, even if the defendants had identified conflicting evidence, such conflicts were for the trial court, as the finder of fact, to resolve. See Mercer Univ. v. Stofer, 306 Ga. 191, 202 (5), 830 S.E.2d 169 (2019) (where there is a conflict in the evidence, it is for the fact finder to resolve the conflict); City of Atlanta, supra (on a motion to set aside, the trial court is the finder of fact). Under these circumstances, the trial court did not abuse its discretion in finding that a nonamendable defect does not appear on the face of the record and in denying the motion to set aside the default judgment. See Oxmoor Portfolio v. Flooring & Tile Superstore of Conyers, 320 Ga. App. 640, 644-645 (2), 740 S.E.2d 363 (2013) (trial court abused its discretion in setting aside default judgment where defendant, who had not amended defective answer as permitted by law, failed to show nonamendable defect on the face of the record).

3. Opening default

In a separate enumeration of error, the defendants seek to challenge the trial court's denial of their motion to open default under OCGA § 9-11-55 (b). But under that code section, a default can only be opened “before final judgment[.]” Granite Loan Solutions v. King, 334 Ga. App. 305, 310 (3) (c), 779 S.E.2d 86 (2015) (citation, punctuation, and emphasis omitted). After a default judgment, “the default cannot be opened without first setting aside that judgment.” Samsung Electronics America v. Brewer, 368 Ga. App. at 608, 616 (3), 890 S.E.2d 498 (2023). Indeed, the first essential step against a default judgment is a motion to set aside the judgment under OCGA § 9-11-60 (d), and only after that motion has been granted may a court consider whether to open default under OCGA § 9-11-55. Chugh Shopping Ctr. v. Ameris Bank, 323 Ga. App. 243, 247 (3), n. 17, 746 S.E.2d 855 (2013). Because the default judgment in this case has not been set aside, we do not consider the denial of the motion to open default. See The Pantry v. Harris, 271 Ga. App. 346, 347 (2), 609 S.E.2d 692 (2005) (appellants cannot circumvent the requirements of OCGA § 9-11-60 to reach the question of whether the trial court abused its discretion in not opening default).

Judgment affirmed.

FOOTNOTES

1.   Oral argument was held on October 22, 2025, and is archived on the Court of Appeal's website. See Court of Appeals of the State of Georgia, Oral Argument, Case No. A25A2178 (Oct. 22, 2025), available at https://vimeo.com/1129970586.

2.   The complaint also named Piksel France, SAS as a defendant. But Piksel France was not served with process along with the other defendants, default judgment was not entered against Piksel France, and it is not a party to this appeal.

McFadden, Presiding Judge.

Rickman, P. J., and Hodges, J., concur.