Maupin v. Vincent, 538 S.E.2d 529 (Ga. Ct. App. 2000). · Go Syfert
Maupin v. Vincent, 538 S.E.2d 529 (Ga. Ct. App. 2000). Cases Citing This Book View Copy Cite
8 citation events (8 in the last 25 years) across 1 distinct court.
Strongest positive: Lee Haddock & Associates, LLC v. Barlow (gactapp, 2014-06-19)
Top citers, strongest first. 3 distinct citers. How cited ↗
discussed Cited as authority (rule) Lee Haddock & Associates, LLC v. Barlow
Ga. Ct. App. · 2014 · confidence medium
“The trial court has the power to impose appropriate sanctions to make effective its pretrial orders [, including dismissal of claims for failure to appear at a hearing to consider the pre-trial order,] and appellate courts review the action taken for abuse of discretion.” Robinson v. Williams, 280 Ga. 877, 878 ( 635 SE2d 120 ) (2006); Maupin v. Vincent, 245 Ga. App. 635, 635-636 ( 538 SE2d 529 ) (2000).
discussed Cited as authority (rule) General Electric Capital Corporation v. Browning Mulch Company, Inc. (2×)
Ga. Ct. App. · 2010 · confidence medium
“An order of dismissal for failure to appear is discretionary with the trial court and is not subject to review by this court in the absence of an abuse of discretion.” (Punctuation and footnote omitted.) Maupin v. Vincent, 245 Ga. App. 635, 636 (1) ( 538 SE2d 529 ) (2000).
discussed Cited "see, e.g." ODUOK v. FULTON DeKALB HOSPITAL AUTHORITY Et Al. (2×)
Ga. Ct. App. · 2017 · signal: see also · confidence medium
See also Maupin v. Vincent, 245 Ga. App. 635, 635-636 (1) ( 538 SE2d 529 ) (2000) (trial court has authority to dismiss claim without prejudice for failure to appear at pre-trial hearing). 31 Edens v. O’Connor, 238 Ga. App. 252 (1) ( 519 SE2d 691 ) (1999); see also Randall v. Randall, 274 Ga. 107, 109 (2) ( 549 SE2d 384 ) (2001) (“Compliance with the notice requirement is mandatory, not discretionary.”) (citation omitted). 32 See Hammonds v. Sherman, 277 Ga. App. 498, 498-499 ( 627 SE2d 110 ) (2006).
Retrieving the full opinion text from the archive…
MAUPIN
v.
VINCENT
A00A1475.
Court of Appeals of Georgia.
Aug 22, 2000.
538 S.E.2d 529
2000 Ga. App. LEXIS 1036
Mozley, Finlay son & Loggins, Eric D. Griffin, Jr., for appellant., Smith, Currie & Hancock, Stephen G. Joy, for appellee.
Phipps.
Cited by 4 opinions  |  Published
Phipps, Judge.

The issues in this case are whether the trial court’s dismissal with prejudice of Walter Maupin’s counterclaim due to his failure to attend a pre-trial conference and the subsequent judgment in favor of Robert Vincent on his complaint were proper under Uniform State Court Rule 7.1 or Rule 14 or OCGA § 9-11-41 (b). We conclude that the trial court’s actions were an abuse of discretion and therefore reverse.

On October 1, 1998, Vincent filed a complaint against Maupin. Maupin filed an answer and asserted a counterclaim. The Fayette County State Court ordered all parties to appear at a pre-trial conference on September 9, 1999. Maupin failed to appear at the pre-trial conference, and as a result, the trial court dismissed his counterclaim with prejudice and entered judgment in favor of Vincent on his complaint in the amount of $12,065.33, plus post-judgment interest.

1. Did the trial court err in dismissing Maupin’s countérclaim with prejudice because of his failure to appear at a pre-trial conference? The trial court has authority to dismiss a counterclaim for fail[*636] ure to appear at a pre-trial hearing.[1] “An order of dismissal for failure to appear is discretionary with the trial court and is not subject to review by this court in the absence of an abuse of . . . discretion.”[2] But, dismissal for failure to prosecute does not operate as an adjudication on the merits.[3] [4] Moreover, Uniform State Court Rule 7.1 explicitly states that failure to appear at the pre-trial conference without legal excuse “shall authorize the court to remove the action from any trial calendar ... or impose any other appropriate sanction, except dismissal of the action with prejudice.” Uniform State Court Rule 14 states “[o]n its own motion or upon motion of the opposite party, the court may dismiss without prejudice any civil action, or where appropriate, any pleading filed on behalf of any party upon the failure to properly respond to the call of the action for trial or other proceeding.” Thus, we find that the trial court abused its discretion by dismissing Maupin’s counterclaim with prejudice.

Decided August 22, 2000. Mozley, Finlay son & Loggins, Eric D. Griffin, Jr., for appellant. Smith, Currie & Hancock, Stephen G. Joy, for appellee.

2. Maupin claims that the trial court abused its discretion by entering judgment in favor of Vincent on his complaint when Maupin failed to appear at the pre-trial conference. In Ambler v. Archer f the Supreme Court of Georgia addressed the question of appropriate sanctions for failure to appear at a pre-trial hearing. Less drastic sanctions, such as contempt and an award of attorney fees, are preferred over striking an answer because they allow the presentation of the merits of the case.[5] We conclude that the “withdrawal from the defendant of the right to introduce any evidence in his own behalf bearing upon the issues of fact in the case [was unduly harsh and an abuse of discretion].”[6]

Judgment reversed.

Johnson, C. J., and Smith, P. J., concur.
1

OCGA § 9-11-41 (b), (c); see Peachtree Winfrey Assoc. v. Gwinnett County Bd. of Tax Assessors, 197 Ga. App. 226 (398 SE2d 253) (1990).

2

(Citation and punctuation omitted.) All South Mini Storage #2 v. Woodcon Constr. Svcs., 205 Ga. App. 393 (422 SE2d 282) (1992).

5

Id. at 289; Littrell v. Ghrist, 212 Ga. App. 465, 466 (442 SE2d 306) (1994).

6

(Punctuation omitted.) Ambler, supra at 289 (1).