Denney v. Crenshaw

355 Ga.App. 648

845 S.E.2d 401

DENNEY et al.

v.CRENSHAW.

A20A0212

Court of Appeals of Georgia.

June 19, 2020

Garland Samuel & Loeb, David Edward Tuszynski, Atlanta, for Appellant.

Freeman Mathis & Gary, Sun S. Choy, Atlanta, Sara Elizabeth Brochstein, for Appellee.

Rickman, Judge.

Following the dismissal of Charlene Denney's¹ case for want of prosecution for failing to appear at oral argument on Jason Crenshaw's motion to reconsider the denial of his motion for summary judgment, she appeals. On appeal, Denney contends that the trial court erred by dismissing her case due to her counsel's failure to appear. For the following reasons, we reverse the judgment.

This is not the first appearance of this case in this Court. In a prior appeal, we granted Crenshaw's application for interlocutory review of the denial of his initial motion for summary judgment on official immunity grounds. After this Court reviewed the entire record, however, it "determined that the law and evidence adduced authorized the findings and conclusions made in support of the trial court's decision" and dismissed the appeal. See Denny , 344 Ga. App. XXVI (Case No. A17A1527, decided December 29, 2017) (unpublished).

Following the remittitur, Crenshaw filed a motion for reconsideration again raising an official immunity defense. It appears from Crenshaw's motion that a new trial court judge had been assigned to the case, and Crenshaw stated in his motion "it is important for the [c]ourt to come to its own independent conclusion rather than simply relying on and adopting [the previous judge's] order." Denney filed two written responses to Crenshaw's motion. Notwithstanding Denney's written opposition to Crenshaw's repetitive motion, after Crenshaw moved to dismiss the case, the trial court granted the request for dismissal for want of prosecution pursuant to OCGA § 9-11-41 (b) when Denney's counsel failed to attend oral argument on the motion.

The next day, Denney filed a motion to reconsider the trial court's grant of Crenshaw's motion to dismiss, explaining that her counsel only became aware that he missed the scheduled hearing upon receiving the e-mail notification of the dismissal order. Specifically, Denney's counsel claimed that he missed the hearing because it had "not been entered on [his] calendar after receipt of the ... rule nisi ," which was a first-time occurrence in his 38 years of practice. Nevertheless, the trial court denied Denney's motion for reconsideration of the dismissal.

Denney appeals and contends that the trial court erred by dismissing her case due to her counsel's failure to appear at oral argument on Crenshaw's motion for reconsideration of his motion for summary judgment.

We review a grant of a motion to dismiss pursuant to OCGA § 9-11-41 (b) for an abuse of discretion. See Wallace v. Laughlin , 217 Ga. App. 444, 445 (2), 459 S.E.2d 556 (1995). OCGA § 9-11-41 (b) provides that "[f]or failure of the plaintiff to prosecute or to comply with ... any order of court, a defendant may move for dismissal of an action or of any claim against him."

There are no Georgia appellate decisions holding that a plaintiff's case can be dismissed for want of prosecution for failure to appear at oral argument on a defendant's motion. We have previously held that dismissal under OCGA § 9-11-41 (b) was appropriate when the plaintiff failed to appear at a calendar call and a pretrial conference. See Atlanta Bus. Video v. FanTrace , 324 Ga. App. 559, 561-563, 751 S.E.2d 169 (2013) ; Peachtree Winfrey Assoc. v. Gwinnett County Bd. of Tax Assessors , 197 Ga. App. 226, 226, 398 S.E.2d 253 (1990). These types of proceedings are distinguishable from oral argument on an opposing party's motion for reconsideration of its motion for summary judgment.

Pursuant to Uniform Superior Court Rule 6.3, "[u]nless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict." When considering an initial motion for summary judgment, oral argument "shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled ‘Request for Oral Hearing,’ and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response." Uniform Superior Court Rule 6.3. "Under this rule, whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court. All a party need do is make a written request for oral argument and it shall be held." (Citation and punctuation omitted.) Southern Empire Homes v. Ognio Grading, 277 Ga. App. 215, 216, 626 S.E.2d 173 (2006). Neither party requested oral argument on Crenshaw's motion for reconsideration. Accordingly, the trial court could have decided the motion without oral hearing.

Because the record in this case shows that the failure to appear occurred at oral argument on an opposing party's motion to reconsider a motion for summary judgment that had already been litigated, Denney had filed two written responses to the motion, neither party requested oral argument, and Denney diligently prosecuted the case prior to the oral argument at issue, the trial court abused its direction in dismissing this case pursuant to OCGA § 9-11-41 (b). See generally Wallace , 217 Ga. App. at 445 (2), 459 S.E.2d 556 ; Massengale v. Moore , 194 Ga. App. 328, 329 (2), 390 S.E.2d 439 (1990). We therefore reverse the trial court's order dismissing Denney's case.²

Judgment reversed.

Brown, J., concurs. Dillard, P. J., dissents.*

*THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2 (a).

Dillard, Presiding Judge, dissenting.

Trial judges wield an enormous amount of power. In many cases, they have done so in ways that seemed unnecessarily harsh to this former practitioner. This is such a case. Here, the trial judge ordered the parties to appear at a hearing, and Denney's counsel failed to do so. He received the order, but the hearing date was not calendared at his office. This is something that could happen to any attorney, and had I been the trial judge, I would have shown Denney's counsel mercy and reinstated the case. But I am not the trial judge, and this Court is not at liberty to second guess the trial court's dismissal of Denney's action when its decision was unquestionably authorized by law. So, for these reasons and those that follow, I respectfully dissent.³

In considering Denney's enumerations of error, we are tasked with determining whether the trial court erred in dismissing the case under OCGA § 9-11-41 (b), which provides for an involuntary dismissal without prejudice when there has been a "failure of the plaintiff to prosecute or to comply with this chapter or any order of court ...."⁴ And importantly, an involuntary dismissal under OCGA § 9-11-41 (b) "does not operate as an adjudication upon the merits,"⁵ is within the trial court's discretion, and is "not subject to review by this [C]ourt in the absence of an abuse of that discretion."⁶ Indeed, we will not substitute our judgment for that of the trial court when "there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion."⁷ With these guiding principles in mind, I find no merit in Denney's enumerations of error.

1. Denney argues that her counsel's failure to appear at the hearing on Crenshaw's motion to reconsider was not a proper reason to involuntarily dismiss her case under OCGA § 9-11-41 (b). Specifically, Denney asserts that OCGA § 9-11-41 (b) "does not permit dismissal for failure to attend a motions hearing." But OCGA § 9-11-41 (b) provides, in relevant part, that "[f]or failure of the plaintiff to prosecute or to comply with this chapter or any order of court , a defendant may move for dismissal of an action or of any claim against him."⁸ Additionally, and importantly, a dismissal under OCGA § 9-11-41 (b) "does not operate as an adjudication upon the merits[.]"⁹ So, while Denney claims our cases hold that dismissal under these circumstances is in error (e.g. , dismissal for the failure to appear at a summary-judgment hearing), the cases she cites do not stand for that proposition.

Specifically, Denney's argument relies on our decisions in Tahoe Carpet Industries v. Aetna Business Credit ,¹⁰ Holt v. Bray ,¹¹ and Massengale v. Moore .¹² In Tahoe Carpet Industries , the trial court struck the defendant's response to the plaintiff's motion for partial summary judgment when the defendant failed to make an appearance at the summary-judgment hearing, and the court thereafter granted partial summary judgment to the plaintiff.¹³ Then, on appeal, the plaintiff argued that the trial court properly struck the defendant's response under the so-called "three-minute rule," which at that time existed as Uniform Superior Court Rule 41 and was codified as Code Ann. § 24-3341.¹⁴ This rule provided that when a case is sounded for trial, the parties shall "immediately announce ready, or move to continue; if three minutes should elapse before the announcement or motion to continue, the plaintiff's case will be dismissed, or the defendant's answer stricken."¹⁵ And with that in mind, we held in Tahoe Carpet Industries that it was "quite clear that Rule 41 of the trial courts ... applies to the sounding of cases for trial and not to the calling of a motion for summary judgment."¹⁶

One year later, in Holt , a plaintiff appealed from the trial court's striking of the amended complaint and supporting affidavit due to lack of prosecution, and the subsequent grant of summary judgment to the defendant.¹⁷ The defendant argued that the trial court's order amounted to a dismissal under former Code Ann. § 81A-141 (b), now OCGA § 9-11-41 (b). But we flatly rejected this claim, concluding that "[n]either the court's order nor anything...