Cramer, Inc. v. Southeastern Office Furniture Wholesale Co.

• Court: Georgia Court of Appeals
• Writing for the Court: CARLEY; QUILLIAN, P.J., and BIRDSONG
• Citation: Cramer, Inc. v. Southeastern Office Furniture Wholesale Co., 171 Ga.App. 514, 320 S.E.2d 223 (Ga. App. 1984)
• Decision Date: 22 June 1984
• Docket Number: No. 67993,67993
• Parties: CRAMER, INC. v. SOUTHEASTERN OFFICE FURNITURE WHOLESALE COMPANY et al.

Page 223

320 S.E.2d 223

171 Ga.App. 514

CRAMER, INC. v. SOUTHEASTERN OFFICE FURNITURE WHOLESALE COMPANY et al.

No. 67993.

Court of Appeals of Georgia.

June 22, 1984.

Rehearing Denied July 10, 1984.

Alan E. Cohen, T. Gordon Lamb, Atlanta, for appellant.

Mark L. Golder, Atlanta, for appellees.

CARLEY, Judge.

Appellant brought suit against Southeastern Office Furniture Wholesale Company ("Southeastern") and Bank of the South, N.A., ("Bank") to recover an alleged indebtedness. On the day of trial, T. Gordon Lamb, who was counsel of record for appellant, was not present in court. Instead, an attorney Cohen from Lamb's firm appeared and participated in the proceedings. A pretrial conference was held, after which a bench trial was conducted. When the trial began, appellant announced that its only witness had failed to appear. Appellant then attempted to introduce into evidence a copy of a document, but the proffered evidence was ruled inadmissible. Having thus presented no evidence whatsoever in support of its claim, appellant rested. Thereafter, pursuant to OCGA § 9-11-41(b), the Bank moved for the entry of an order of involuntary dismissal of the case on the ground that appellant had failed to establish a right to relief. The motion was granted not only as to the Bank, but also as to Southeastern. Additionally, the trial court sua sponte invoked the provisions of OCGA § 9-15-7 and ordered that costs be paid by T. Gordon Lamb personally. Appellant appeals.

1. Appellant first enumerates as error the involuntary dismissal of its claim against both defendants in the case, inasmuch as Southeastern failed to appear for trial. Appellant asserts that, prior to trial Southeastern had agreed to the entry of a consent judgment. However, the record contains no such agreement, and no consent judgment was entered. Furthermore, when the trial court inquired into Southeastern's absence from the proceedings, appellant offered no explanation and made no mention of any settlement agreement. Appellant neither voluntarily dismissed Southeastern from the case nor sought the entry of a default or a consent judgment against it. Thus, Southeastern remained a party to the proceedings, and appellant failed to make out a claim against it or against appellee. Accordingly, an involuntary dismissal of the complaint as against both defendants was proper.

The trial court did not err in entering such an order of dismissal, even though Southeastern did not make a formal motion therefor. While it is true that OCGA § 9-11-41(b) contemplates a motion by a defendant, Kalin v. Pfarner, 124 Ga.App. 816, 186 S.E.2d 365 (1971), the court may exercise its inherent power to dismiss sua sponte. Cf. Krasner v. Verner Auto Supply, 130 Ga.App. 892, 204 S.E.2d 770 (1974); Kelly v. Chrysler Corp., 129 Ga.App. 447, 199 S.E.2d 856 (1973).

2. Appellant next asserts that the trial court erred in "refusing to accept" a voluntary dismissal of the action under OCGA § 9-11-41(a). The record and transcript do not indicate that a voluntary dismissal was ever filed, or even discussed. Matter which is inserted in an appellate brief but which does not appear in the record transmitted by the trial court cannot be considered by this court and cannot afford a basis for reversal. See Taylor v. Bentley, 166 Ga.App. 887, 305 S.E.2d 617 (1983).

3. Appellant also contends that the trial court abused its discretion in failing to continue the case. However, there is nothing in the record to indicate that a motion for continuance was made. In the absence of such a motion, there was no error in going forward with the proceedings. Davis v. Barnes, 158...