Cohutta Mills, Inc. v. Bunch
| Decision Date | 08 April 1983 |
| Docket Number | No. 65305,65305 |
| Citation | 166 Ga.App. 395,304 S.E.2d 431 |
| Court | Georgia Court of Appeals |
| Parties | COHUTTA MILLS, INC. v. BUNCH. |
J. Caleb Clarke III, Atlanta, for appellant.
Warren N. Coppedge, Jr., William T. Boyett, Dalton, for appellee. BIRDSONG, Judge.
Default Judgment. Cohutta Mills, Inc. was the owner of a certain house, apparently which it made available to its corporate officers. It made the property available to one Larry Owens at a stipulated free rental with a specific option to buy, at any time, at a price equal to the amount for which the Small Business Administration would agree to release the house from the security deed held by SBA, but subject to the additional mortgage debt owed by Cohutta to a bank. Owens assigned the option to buy to Clara Bunch who under the terms of the option exercised the option the day after the assignment. As soon as it became apparent that Cohutta did not intend to sell under the option, Bunch brought the present suit seeking specific performance or alternatively damages. Initially, Cohutta retained the services of its present counsel. However, after making an answer and counterclaim, Cohutta's counsel withdrew, advising Cohutta to seek other representation.
At a preliminary hearing for the purpose of formulating a pretrial order, Ms. Bunch was represented by counsel but Cohutta was represented by its corporate president, Browen. Browen was informed by the trial judge that a corporation could not be represented in a legal matter by a lay person for that would be tantamount to practicing law without a license. Cohutta then re-retained its initial counsel. A copy of the pretrial order was forwarded to the newly retained counsel. Counsel for Bunch and Cohutta conferred by telephone on several occasions and apparently because Cohutta's counsel was from Atlanta, that counsel did not wish to drive daily to Chatsworth to sit in court awaiting the setting of the trial date. Ms. Bunch's counsel apparently agreed to let the Atlanta counsel know the actual trial date and thus allow Cohutta's counsel to eliminate the daily drive. However, counsel for both sides and Mr. Browen were all aware that the case would be called during the two weeks commencing June 7, 1982. On June 7, the calendar was called and when counsel for Cohutta did not answer the calendar call, counsel for Ms. Bunch, in accordance with local court rules, moved to dismiss the answer and counterclaim based upon non-appearance. The court dismissed the answer and counterclaim and entered judgment for Ms. Bunch directing both a specific performance of the option and monetary damages because Cohutta could not deliver the deed free of the indebtedness to the SBA at the option price.
Several days later, counsel for Cohutta was served with a copy of the judgment. At that point Cohutta moved to set aside the judgment and for a new trial. At a hearing on July 7, 1982, affidavits of counsel for both parties were admitted and considered by the court. Counsel for Ms. Bunch added to the understanding of the parties that he had been willing to appear daily after the call of the calendar and when the case was set for trial, he promised to contact Cohutta's counsel. However, he disputed any understanding that he would answer the call of the case on the first day, but fully expected counsel for Cohutta to appear and answer ready or make any appropriate motions. Counsel for Cohutta made no attempt to contact the court or clerk of court of Murray County to ascertain the status of the case until after receiving service of the default judgment. After hearing argument and considering the evidence, the trial court found a lack of diligence by Cohutta's counsel and concluded that any agreement between opposing counsel did not amount to an agreement to make the initial appearance nor an allowable excuse for non-appearance. The trial court refused the motion for relief from the judgment and denied the motion for new trial. Cohutta brings this appeal enumerating three alleged errors. Held:
1. In its third enumeration, Cohutta complains of the form of the judgment wherein it directs both specific performance and a monetary damage. Diligent search of the brief discloses that counsel has made no mention of this alleged error, neither briefing it nor supporting it in any way by argument or citation of authority. Inasmuch as Cohutta has failed to brief or argue this third enumeration of error, we consider the enumeration to have been abandoned and as presenting nothing for this court to review. O'Kelley v. Hayes, 132 Ga.App. 134(1), 207 S.E.2d 641.
2. An order of dismissal for failure to appear is...
To continue reading
Request your trial