SCOTT v. W. S. BADCOCK CORPORATION

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Docket Number

63054.

Attorney(S)

B. T. Edmonds, Jr., for appellant. Ronnie J. Lane, Kenneth L. Hornsby, for appellees.

Judges

POPE, Judge.

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Smart Summary

Factual and Procedural Background

This case arises from an action for damages filed in Seminole Superior Court. The plaintiff-appellant's action was dismissed by the trial court on March 9, 1981, due to her failure to answer or make any announcement within three minutes of the call of the case for a pretrial conference, while the defendants-appellees were present and announced ready. The plaintiff subsequently filed a "Motion for Reconsideration" on March 25, 1981, seeking to set aside the dismissal on the ground that she had received no notice of the pretrial conference. The trial court denied this motion on July 22, 1981, and the plaintiff appealed the denial on August 13, 1981.

Legal Issues Presented

Whether the trial court erred in dismissing the plaintiff's action for failure to appear at the pretrial conference.
Whether the trial court erred in denying the plaintiff's motion to set aside the dismissal based on an alleged lack of notice of the pretrial conference.
Whether the trial court was required to make findings of fact and conclusions of law pursuant to Code Ann. § 81A-152.

Arguments of the Parties

Appellant's Arguments

The plaintiff contended that she received no notice of the pretrial hearing, which was a nonamendable defect appearing on the face of the record.
The plaintiff argued that the pretrial calendar listed only Laronce Beard as her attorney, and since her counsel, B. T. Edmonds, Jr., was not listed, this constituted a lack of notice.

Appellees' Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Weeks v. Weeks, 243 Ga. 416 (1979)	Authority of trial court to dismiss for failure to appear at pretrial hearing under Code Ann. § 81A-141(b).	Confirmed that dismissal for failure to appear at pretrial is legally supported.
Turner v. T T Oldsmobile, 154 Ga. App. 228 (1980)	Supports dismissal authority under Code Ann. § 81A-141(b).	Reinforced the applicability of dismissal for failure to appear.
Riden v. Commercial Credit Plan, 136 Ga. App. 191 (1975)	Previously conflicting authority on dismissal for failure to appear.	Overruled by this opinion in favor of Weeks and Turner.
Brown v. C. S. Nat. Bank, 245 Ga. 515 (1980)	Absence of attorney's name on trial calendar is a nonamendable defect and lack of notice.	Considered but distinguished because an attorney of record was listed on the calendar in this case.
Trice v. Howard, 130 Ga. App. 895 (1974)	Supports that listing an attorney of record on pretrial calendar negates nonamendable defect.	Applied to conclude no nonamendable defect existed here.
Dalton City Co. v. Dalton Mfg. Co., 33 Ga. 243 (1862)	Definition and recognition of attorney of record status.	Used to support that both attorneys named were attorneys of record.

Court's Reasoning and Analysis

The court analyzed the plaintiff's motion, treating it as a motion to set aside the dismissal order, which must be based on a nonamendable defect apparent on the face of the record under Code Ann. § 81A-160(d). It found that the dismissal order clearly stated the reason as plaintiff's failure to respond at the pretrial conference, satisfying Code Ann. § 81A-152(a).

The court reaffirmed established authority under Code Ann. § 81A-141(b) and the cases Weeks and Turner that authorize dismissal for failure to appear at a pretrial hearing, explicitly overruling the conflicting precedent in Riden.

Regarding the plaintiff's claim of lack of notice, the court acknowledged the principle from Brown v. C. S. Nat. Bank that absence of an attorney’s name on a trial calendar is a nonamendable defect. However, the court found that both attorneys, Edmonds and Beard, were attorneys of record from the outset, as evidenced by the complaint and summons, even though only Beard's name appeared on the pretrial calendar. Because an attorney of record was listed, no nonamendable defect appeared on the face of the record.

Consequently, the trial court did not err in denying the motion to set aside the dismissal.

Holding and Implications

The court's final decision was to affirm the judgment of the trial court denying the plaintiff's motion to set aside the dismissal.

This decision directly upholds the dismissal of the plaintiff's action for failure to appear at the pretrial conference and confirms that the presence of any attorney of record listed on the pretrial calendar negates a claim of nonamendable defect due to lack of notice. No new precedent beyond the overruling of Riden v. Commercial Credit Plan was established. The effect is to reinforce the trial court's discretion and procedural requirements in managing pretrial proceedings.

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SCOTT v. W. S. BADCOCK CORPORATION et al.

POPE, Judge.

Plaintiff-appellant brings this appeal from the denial of her "Motion for Reconsideration." She enumerates as error the validity of the trial court's order dismissing her action and also that court's failure to make findings of fact and conclusions of law pursuant to Code Ann. § 81A-152.

The record shows that plaintiff's action was dismissed by an order dated March 9, 1981. The reason for the dismissal recited in the order was plaintiff's failure to answer or make any announcement within three minutes of the call of the case for a pretrial conference, defendants-appellees being present and announcing ready. On March 25, 1981 plaintiff filed a "Motion for Reconsideration" by which she requested the trial court to set aside its order of dismissal on the ground that she had received no notice of the pretrial conference. Plaintiff's motion was denied on July 22, 1981 and her notice of appeal was filed on August 13, 1981.

1. Although plaintiff's motion was denominated a "Motion for Reconsideration," the relief requested thereby was to set aside the trial court's order dismissing the action; we will treat plaintiff's motion accordingly. A motion to set aside must be predicated upon some nonamendable defect which appears on the face of the record. Code Ann. § 81A-160 (d). The judgment in this case recites on its face that the action was dismissed because plaintiff failed to respond to the calendar call of the case for a pretrial conference. This order met the requirements of Code Ann. § 81A-152 (a).

2. "The authority of the trial court to dismiss plaintiff's complaint for failure to appear at a pretrial hearing is clearly established by Code Ann. § 81A-141(b) and Weeks v. Weeks, 243 Ga. 416 ( 254 S.E.2d 366) [(1979)]." Turner v. T T Oldsmobile, 154 Ga. App. 228 (1) ( 267 S.E.2d 833) (1980). The opinion of this court in Riden v. Commercial Credit Plan, 136 Ga. App. 191 ( 220 S.E.2d 746) (1975), is in conflict with the foregoing authority and will no longer be followed.

3. Counsel for plaintiff, B. T. Edmonds, contends that he received no notice of the pretrial hearing and that this lack of notice is shown on the face of the record. Indeed, the subject pretrial calendar lists only the name of Laronce Beard as attorney for plaintiff. Our Supreme Court has held that the absence of the attorney's name on a trial calendar is a defect on the face of the record, that such defective calendar does not constitute notice of trial, and that such lack of notice constitutes a nonamendable defect on the face of the record as contemplated by Code Ann. § 81A-160 (d). Brown v. C. S. Nat. Bank, 245 Ga. 515 ( 265 S.E.2d 791) (1980).

The record in this case discloses that the complaint itself, as well as the other documents which plaintiff requested to be included in the record transmitted to this court, were signed by B. T. Edmonds as attorney for plaintiff. However, the summons attached to the complaint directed defendants to serve their answers thereto upon Laronce Beard as plaintiff's attorney. Accordingly, both Edmonds and Beard were attorney of record ab initio. Accord, Dalton City Co. v. Dalton Mfg. Co., 33 Ga. 243 (2) (1862); Black's Law Dictionary 164 (4th ed. 1968). There is nothing in the record on appeal to indicate that this status has changed. Since the pretrial calendar listed thereon an attorney of record, no nonamendable defect appears on the face of the record in this case, and the trial court did not err in denying plaintiff's motion to set aside. Trice v. Howard, 130 Ga. App. 895 (3) ( 204 S.E.2d 808) (1974). Compare Brown v. C. S. Nat. Bank, supra.

The Civil Practice Act requires that the summons issued upon the filing of a complaint shall state the name and address of the plaintiff's attorney, if any. Code Ann. § 81A-104 (b). The summons in the case at bar names only Beard as plaintiff's attorney.

Judgment affirmed. Quillian, C. J., and McMurray, P. J., concur.