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Sunset Help, LLC v. Cmty. & S. Bank

Court of Appeals of Georgia

March 10, 2015

SUNSET HELP, LLC et al.
v.
COMMUNITY & SOUTHERN BANK

Summary judgment; hearing. Carroll Superior Court. Before Judge Simpson.

Judgment reversed and case remanded for further proceedings.

Smith Conerly, Charles S. Conerly, David A. Luzum, for appellants.

Busch White Norton, Bryan E. Busch, Shane P. Stogner, Laura H. Mirmelli, for appellee.

ANDREWS, Presiding Judge. McFadden and Ray, JJ., concur.

OPINION

Andrews, Presiding Judge.

Community & Southern Bank filed an action against Sunset Help, LLC, John P. Malloy, Sr., and Patrick Malloy to recover money due on a promissory note. The Superior Court of Carroll County granted the Bank's motion for summary judgment, and Sunset Help appeals. Because we conclude that the trial court failed to conduct an oral hearing as required by Uniform Superior Court Rule (USCR) 6.3, we reverse the trial court's order granting the Bank's motion for summary judgment and remand for further proceedings.

[331 Ga.App. 58] Following initial discovery, the Bank filed a motion for summary judgment on January 6, 2014. On February 5, 2014, the Bank and Sunset Help executed a stipulation that provided that " [Sunset Help] shall have through and including Monday, February 17, 2014, to respond to [the Bank's] previously-filed motion for summary judgment." Pursuant to the terms of the parties' stipulation, Sunset Help filed its response to the Bank's motion on February 17, 2014. Contemporaneously with its response, Sunset Help filed a cross-motion for summary judgment. On February

Page 771

20, 2014, Sunset Help filed a separate pleading entitled " Defendants' Request for Oral Hearing." After additional briefing, and without conducting a hearing, the trial court entered an order on May 7, 2014 granting the Bank's motion and denying Sunset Help's cross-motion. This appeal followed.

1. Sunset Help contends that the trial court erred in awarding summary judgment to the Bank without first conducting the oral hearing requested by Sunset Help. We agree.

USCR 6.3 provides, in relevant part:

[O]ral argument on a motion for summary judgment 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.

" 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." Carroll Anesthesia Assoc. v. Anesthecare, Inc., 230 Ga.App. 269 (495 S.E.2d 897) (1998). See also Green v. Raw Deal, Inc., 290 Ga.App. 464, 466 (1) (659 S.E.2d 856) (2008); Southeast Reducing Co. v. Wasserman, 213 Ga.App. 763 (445 S.E.2d 859) (1994). Furthermore, a trial court's failure to hold oral argument following a timely request " cannot be considered harmless error, because doing so would not encourage adherence to the Uniform Rules and would render the mandated ...


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