MILLER, P. J., BROWN and GOSS, JJ.
trial court granted summary judgment to Cumming Family
Medicine, Inc. ("Cumming") in its action against D.
Janene Holladay for breach of a settlement agreement.
Holladay appeals, contending that the trial court erred in
granting the motion without holding a hearing. We agree.
record reflects that Cumming filed its complaint for breach
of the parties' settlement agreement on January 16, 2018,
along with plaintiff's first request for admissions,
first continuing interrogatories, and request for production
of documents. Holladay was served on January 25, 2018, and
filed an answer on February 23, 2018, admitting the
settlement agreement, but denying any default on her part.
Holladay did not respond to the discovery requests. On March
5, 2018, Cumming moved for summary judgment. On March 16,
2018, the trial court issued a rule nisi on the motion as
follows: "Plaintiff's Request for Hearing on
Plaintiff's Motion for Summary Judgment having been
considered, it is hereby ordered that a hearing be had before
me on the 24th day of April, 2018, at the Madison County
Courthouse . . . to show cause why the relief sought by the
Defendant (sic) should not be granted." Holladay did not
file a response to the motion for summary judgment. In an
order entered on April 13, 2018, 11 days before the scheduled
hearing, the trial court granted Cumming's motion for
Superior Court Rule ("USCR") 6.3 provides:
Unless otherwise ordered by the court, all motions in civil
actions, including those for summary judgment, shall be
decided by the court without oral hearing, except motions for
new trial and motions for judgment notwithstanding the
However, oral 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.
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 .
. . and it shall be held." (Punctuation and footnote
omitted.) Carroll Anesthesia Assoc. v. Anesthecare,
230 Ga.App. 269 (1) (495 S.E.2d 897) (1998). Where one party
files such a request, the opposing party is permitted to rely
on the fact that a hearing will be held without having to
file a duplicate request. See Landsberg v. Powell,
278 Ga.App. 13, 14 (627 S.E.2d 922) (2006). See also
Carroll Anesthesia, 230 Ga.App. at 269 (1)
("[a]lthough [the opposing party] certainly could have
filed a separate request, it would have been cumulative and
unnecessary under USCR 6.3, which requires that one of the
parties request argument") (punctuation and footnote
omitted). Conversely, a trial court is not required to hold
oral argument in the absence of a separate written request,
but may order a hearing on its own motion. See Kelley v.
First Franklin Financial Corp., 256 Ga. 622, 623 (351
S.E.2d 443) (1987); Condon v. Vickery, 270 Ga.App.
322, 325 (2) (606 S.E.2d 336) (2004).
contends that Holladay "'was given an opportunity to
be heard and chose not to avail herself of that opportunity.
If she had wished to present oral argument, she need only
have made a written request therefor [pursuant to USCR 6.3]
and it would have been permitted.'" Relying on
Hunt v. Thomas, 296 Ga.App. 505 (675 S.E.2d 256)
(2009), Cumming further argues that Holladay's
"silence and inaction resulted in a waiver of her right
to complain on appeal that the trial court erred in failing
to hold a hearing on the motion for summary judgment."
These arguments, however, ignore the rule nisi, on which
Holladay was authorized to rely. While we acknowledge that it
appears neither party filed a request for oral argument, once
the trial court issued the rule nisi setting the summary
judgment hearing for April 24, 2018, Holladay had a right to
rely on that hearing date until the trial court vacated or
withdrew the rule nisi, regardless of whether (a) she
responded to the motion or (b) Cumming actually filed such a
request. See Rothstein v. DeKalb County Hosp. Auth.,
153 Ga.App. 69, 70 (264 S.E.2d 550) (1980) (reversing trial
court's grant of default judgment entered prior to
hearing on summary judgment and finding that defendant was
entitled to hearing on his motion for summary judgment where
trial court had issued a rule nisi setting the hearing). See
also Kelley, 256 Ga. at 623 (trial court has power
to order hearing on its own motion); Landsberg, 278
Ga.App. at 15 (plaintiff's failure to file a response to
defendant's motion for summary judgment did not waive
plaintiff's right to an oral hearing:
"[N]otwithstanding USCR 6.2's 30-day requirement,
OCGA § 9-11-56 (c) entitled [plaintiff] to file opposing
affidavits until the day before the hearing [-] even if held
more than 30 days after service of the motion").
Court has repeatedly held that a party's failure to
respond to a motion for summary judgment does not waive the
right to present oral argument on the motion; the party only
waives its right to present evidence in opposition
to the motion. See Vincent v. Bunch, 227 Ga.App. 480
(1) (489 S.E.2d 592) (1997). The purpose of a summary
judgment hearing "is to provide counsel with an
opportunity to persuade the court and to provide the court
with an opportunity to interrogate counsel."
Landsberg, 278 Ga.App. at 15. For this reason, a
trial court's failure to hold oral argument is reversible
error and cannot be considered harmless. See Barker v.
Elrod, 291 Ga.App. 871 (1) (663 S.E.2d 289) (2008).
Accordingly, we vacate the trial court's order granting
summary judgment to Cumming and remand the case back to the
trial court for oral argument on the motion for summary
vacated and case remanded with direction.
Miller, P. J., and Goss, J., concur.