348 Ga. App. 354
Ga. Ct. App.2019Background
- Cumming filed suit on Jan 16, 2018 for breach of a settlement agreement and served Holladay on Jan 25, 2018.
- Holladay answered Feb 23, 2018 admitting the agreement but denying breach; she did not respond to plaintiff’s discovery requests.
- Cumming moved for summary judgment on March 5, 2018; the trial court issued a rule nisi scheduling oral argument for April 24, 2018.
- Holladay filed no response to the summary-judgment motion and no written request for oral argument; neither party filed a formal USCR 6.3 request.
- The trial court granted summary judgment on April 13, 2018—11 days before the scheduled rule nisi hearing.
- The appellate court vacated the judgment and remanded for oral argument, finding the trial court erred by deciding before the scheduled hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred by granting SJ without holding a hearing after issuing a rule nisi | Cumming: Holladay waived any right to complain because she failed to request oral argument or respond; hearing was unnecessary | Holladay: She was entitled to rely on the court’s rule nisi scheduling oral argument; court could not grant SJ before that hearing unless rule was withdrawn | Court: Vacated SJ and remanded for oral argument because the rule nisi created a right to the scheduled hearing and trial court’s early grant was reversible error |
| Whether a party’s failure to file a USCR 6.3 request waives a hearing when the court schedules one | Cumming: No hearing required absent a written USCR 6.3 request; silence equals waiver | Holladay: A court-ordered rule nisi creates an enforceable hearing date that a party may rely on | Court: A rule nisi scheduling argument binds until withdrawn; parties may rely on it and hearing must be held |
| Whether failure to respond to a summary-judgment motion forfeits right to oral argument | Cumming: Silence and inaction waive appellate complaint about lack of hearing | Holladay: Failure to respond waives only right to present opposing evidence, not right to oral argument if hearing was scheduled | Court: Failure to respond does not waive right to oral argument; only waives right to present evidence in opposition |
| Whether omission of oral argument is harmless error | Cumming: Implicitly, decision was correct and harmless despite no hearing | Holladay: Omission is reversible error because hearing provides opportunity to persuade and be examined | Court: Failure to hold oral argument after scheduling is reversible error and not harmless |
Key Cases Cited
- Carroll Anesthesia Assoc. v. Anesthecare, 230 Ga. App. 269 (1998) (party’s written request under USCR 6.3 entitles it to oral argument)
- Landsberg v. Powell, 278 Ga. App. 13 (2006) (opposing party may rely on another party’s request for argument; failure to respond does not waive right to hearing)
- Kelley v. First Franklin Financial Corp., 256 Ga. 622 (1987) (trial court may order hearing on its own motion)
- Rothstein v. DeKalb County Hosp. Auth., 153 Ga. App. 69 (1980) (defendant entitled to hearing where court issued rule nisi setting hearing)
- Vincent v. Bunch, 227 Ga. App. 480 (1997) (failure to respond to SJ does not waive right to present oral argument)
- Barker v. Elrod, 291 Ga. App. 871 (2008) (trial court’s failure to hold oral argument on SJ is reversible error)