First Community Bank of Cherokee v. Bryan Starr &Amp; Associates, Inc., 203 Ga. App. 696, 417 S.E.2d 330 (1992)
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Judgment affirmed. Sognier, C. J., Carley, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman concur. McMurray, P. J., Birdsong, P. J., and Beasley, J., dissent.
Summary
Judgment affirmed. Sognier, C. J., Carley, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman concur. McMurray, P. J., Birdsong, P. J., and Beasley, J., dissent.
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William R. Harp, Henning, Aitkens, Snellings & Kearns, Stanley T. Snellings, for appellant.
1. In its first enumeration of error, defendant/appellant First Community claims that the trial court committed procedural error in granting plaintiff/appellee Bryan Starr & Associates, Inc. (Starr & Associates) motion for summary judgment in this action involving a lien arising out of the following facts. Starr & Associates served by mail a motion for summary judgment and a supporting affidavit on January 16, 1991. On February 14, 1991, the superior court granted defense counsel's motion for a leave of absence from February 19, 1991, through February 28, 1991. On February 22, 1991, prior to the end of this leave, the superior court granted Starr & Associates' renewed motion for summary judgment.
The response to the motion for summary judgment was due 33 days after service of the motion, on February 18, 1991, which was a legal holiday. See generally Rule 6.2 of the Uniform Rules for the Superior Court; OCGA
First Community argues that the superior court's order granting Starr & Associates' motion for summary judgment was improper since such motion was granted during its leave of absence. First Community cites Rule 16 of the Uniform Rules for the Superior Court which provides: "[a] leave when granted shall relieve any attorney from all trials, hearings, depositions and other legal proceedings in that matter." First Community claims that the leave of absence extended the period of time allowed to respond to the motion for summary judgment.
We cannot accept First Community's argument since we do not interpret the "proceedings" from which an attorney is excused by a leave of absence to include filing deadlines. Few Georgia cases interpret Rule 16 and no cases directly address the obligations from which an attorney is relieved by a leave of absence. See generally Dial v. Turner,
This conclusion is supported by statutory authority which demonstrates that a leave of absence is not the mechanism for extending filing guidelines. OCGA
We have fully examined the record and conclude that First Community's remaining arguments regarding alleged error in the trial court's granting of summary judgment are without merit, or are improperly before this court.
2. First Community's second enumeration of error, which claims that the trial court erred in denying its motion for reconsideration, or, in the alternative, its motion to set aside judgment, is also without merit.
MCMURRAY, Presiding Judge, dissenting.
I cannot agree with the constricted construction, adopted by the majority, of Rule 16 of the Uniform Rules for the Superior Court. The plain purpose of a provision for a leave of absence for counsel is so that the attorney may briefly turn his back on the practice of law without endangering the rights of a client. Whether the reason for a leave of absence is as pleasant as a well earned vacation or as tragic as a medical emergency, the purpose is not well served if the clock continues to run on a myriad of deadlines and rights are deemed to expire during the leave of absence. Under the view adopted by the majority, the term "leave of absence" is a serious misnomer as any perception of relief from the attorney's responsibilities is in large part illusory.
I would broadly construe the reference in Rule 16 to "other legal proceedings," and would hold that, subsequent to the filing of the complaint and initial appearance on behalf of defendant, a leave of absence extends filing deadlines. It follows, that in my view, the mechanisms set forth in OCGA
BEASLEY, Judge, dissenting.
This court does not have jurisdiction in this case to address the issue of whether a leave of absence forestalls the time for filing a response to a motion for summary judgment.
That is an issue which was raised in defendant's motion for reconsideration or, in the alternative, motion to set aside judgment under OCGA
Defendant did not move for an extension of time for filing the notice of appeal, OCGA
The notice of appeal in this case brings to our review only the order and judgment of the trial court entered February 22, establishing the priority of plaintiff's lien over that of defendant/appellant bank and granting judgment against the other defendant, which is not a party to this appeal.
In addition to the merits of the motion for reconsideration and/or set aside being unaddressable by this court because the trial court's jurisdiction had been ousted in the first place and because it did not rule on the merits in the second place, this court has no jurisdiction to decide the merits because defendant/appellant bank did not file an application for appeal of the order denying the motion. See OCGA
I am authorized to state that Presiding Judge Birdsong joins in this dissent.
Freed, Lester & Freed, Gary S. Freed, Janice A. Singer, Ross J. Adams, for appellee.
1992
Notes:
1. For right to direct appeal of grant of summary judgment, see OCGA
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This document cites
- Supreme Court of Georgia - CAMBRON et al. v. CANAL INSURANCE COMPANY., 246 Ga. 147, 269 S.E.2.d 426 (1980)
- Supreme Court of Georgia - JOHNSON v. BARNES., 237 Ga. 502, 229 S.E.2.d 70 (1976)
- Georgia Court Of Appeals - Intertrust Corporation v. Fischer Imaging Corporation Et Al., 198 Ga. App. 812, 403 S.E.2d 94 (1991)
- Georgia Court Of Appeals - Littlejohn v. Tower Associates Ltd. Et Al., 163 Ga. App. 37, 293 S.E.2d 33 (1982)
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