All South Mini Storage No. 2, Ltd. v. Woodcon Const. Services, Inc.
Decision Date | 08 September 1992 |
Docket Number | No. A92A1139,A92A1139 |
Citation | 205 Ga.App. 393,422 S.E.2d 282 |
Parties | ALL SOUTH MINI STORAGE # 2, LTD. et al., v. WOODCON CONSTRUCTION SERVICES, INC. et al. |
Court | Georgia Court of Appeals |
Dana A. Azar, Atlanta, for appellants.
Cornelison & Associates, Rex P. Cornelison III, Roswell, for appellees.
Appellees filed an action against appellants for breach of contract, alleging that appellants failed to pay for construction services performed by appellees. Appellants filed an answer and counterclaim against appellees, contending that appellees failed to perform the work in a workmanlike manner. On November 27, 1990, the trial court entered an order directing all parties to appear at a pretrial conference on January 28, 1991. When appellants failed to appear at the scheduled pretrial conference, the trial court entered an order striking appellants' answer, entering a default judgment against appellants for $17,950 plus interest and attorney fees and dismissing appellants counterclaim with prejudice. Appellants appeal from that order, asserting that the trial court abused its discretion in entering a default judgment for appellees and in dismissing appellants' counterclaim with prejudice.
We first address appellants' argument that the trial court erred in dismissing their counterclaim with prejudice. Peachtree Winfrey Assoc. v. Gwinnett County Bd. of Tax Assessors, 197 Ga.App. 226, 398 S.E.2d 253 (1990). However, a dismissal for failure to prosecute does not operate as an adjudication on the merits. OCGA § 9-11-41(b)(1). Therefore, a dismissal for failure to prosecute must be without prejudice, and the trial court abused its discretion in dismissing with prejudice appellants' counterclaim. Leach v. Aetna Cas., etc., Co., 172 Ga.App. 785, 324 S.E.2d 494 (1984).
We next address appellants' argument that the trial court erred in striking their answer and entering a default judgment in favor of appellees. Appellants contend that this sanction was unduly harsh. We agree. In Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973), the Supreme Court of Georgia discussed the issue of the appropriate sanctions for failure to comply with a pretrial order. The Supreme Court stated: ...
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...of dismissing her answer and counterclaim was too harsh a penalty for non-appearance. See All South Mini Storage #2 v. Woodcon Constr. Svcs. , 205 Ga. App. 393, 394, 422 S.E.2d 282 (1992) (some penalties "are too drastic if less harsh sanctions are appropriate[ ]").10 See Wright , 270 Ga. a......
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...failure to file pre-trial information sheet form or attend calendar call as previously ordered); All South Mini Storage # 2 v. Woodcon Constr. Svcs., 205 Ga.App. 393-394, 422 S.E.2d 282 (1992) (entry of default judgment for defendant's failure to appear at pre-trial conference was too harsh......
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...imposed overly harsh sanctions. We agree. The present case is controlled by our opinion in All South Mini Storage # 2, Ltd. v. Woodcon Constr. Svcs., 205 Ga.App. 393, 422 S.E.2d 282 (1992), in which we reversed the trial court's order striking the defendant's answer and dismissing its count......