Herringdine v. Nalley Equipment Leasing

• Decision Date: 11 May 1999
• Docket Number: No. A99A0246.,A99A0246.
• Citation: 238 Ga. App. 210,517 S.E.2d 571
• Parties: HERRINGDINE v. NALLEY EQUIPMENT LEASING, LTD.
• Court: Georgia Court of Appeals

517 S.E.2d 571

238 Ga. App. 210

HERRINGDINE v. NALLEY EQUIPMENT LEASING, LTD.

No. A99A0246.

Court of Appeals of Georgia.

May 11, 1999.

Reconsideration Denied May 25, 1999.

Certiorari Denied November 12, 1999.

Richardson & Chenggis, George G. Chenggis, Atlanta, for appellant.

Bodker, Ramsey & Andrews, Thomas Rosseland, Atlanta, for appellee. ELDRIDGE, Judge.

On January 27, 1995, a verdict and judgment was rendered against Jesse Walter Herringdine, a/k/a J.W. Herringdine, a/k/a J. Walter Herringdine, defendant-appellant, individually in Civil Action 91-A-37217-2, State Court of DeKalb County.

On January 13, 1998, defendant filed a motion to set aside the judgment pursuant to OCGA § 9-11-60(d)(2) on the basis of "[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant." The matter was docketed as a new and separate action, Civil Action Number 98-A-40835-2. Nalley Equipment Leasing, Ltd. ("Nalley"), the plaintiff-appellee, timely answered. Nalley filed a motion for summary judgment and requested oral argument on its motion. In two separate written requests, defendant asked for oral argument on the motions to set aside and summary judgment under USCR 6.3. Defendant also filed his response to Nalley's motion for summary judgment.

Without a hearing or prior notice, the trial court entered an order dismissing the motion to set aside. Defendant's request for discretionary appeal was granted, and a notice of appeal was filed.

1. Defendant's first and second enumerations of error go to the dismissal of the motion to set aside because it was improperly filed as a separate action, and the defendant contends that the trial court erred in dismissing the motion for such reason. We agree. However, since the trial court went on to rule on the merits of the motion to set aside, the case can be decided on the merits without a remand.

Under the Civil Practice Act ("CPA"), liberal pleadings and procedure are mandated. See Bradberry v. Bradberry, 232 Ga. 651, 653-654(4), 208 S.E.2d 469 (1974). Cases should be decided on the merits, rather than on procedural technicalities. Ambler v. Archer, 230 Ga. 281, 286-287, 196 S.E.2d 858 (1973).

The rules set forth in the [CPA] are intended to promote and not to obstruct the administration of justice and thus enable the Court to do substantial justice rather than to decide cases upon technicalities which have no relationship whatever to the rights of the parties to the litigation.

[ 517 S.E.2d 574]

(Citation and punctuation omitted.) Mundt v. Olson, 155 Ga.App. 145, 270 S.E.2d 344 (1980). Cases are not to be dismissed except where it appears beyond doubt that the party can prove no set of facts to support the relief sought. Sheppard v. Yara Eng. Corp., 248 Ga. 147, 150, 281 S.E.2d 586 (1981). Under OCGA § 9-11-8(f) "[a]ll pleadings shall be so construed as to do substantial justice." "The `title' applied to pleadings is not binding on the court; we judge a pleadings by its contents, not by its name. Frost v. Frost, 235 Ga. 672, 674(1), 221 S.E.2d 567 [ (1975) ]." Bank of Cumming v. Moseley, 243 Ga. 858, 859, 257 S.E.2d 278 (1979). Where justice requires, the court should treat pleadings as if there had been a proper designation. Gwinnett Commercial Bank v. Flake, 151 Ga.App. 578, 580(1), 260 S.E.2d 523 (1979).

Defendant's

complaint was an effort to set aside the judgment of the [trial] court because of fraud. As such efforts are properly brought as motions to set aside the judgment under OCGA § 9-11-60(d)(2), and as it is the substance and function of the pleadings which are determinative (Holloway v. Frey, 130 Ga.App. 224, 227, 202 S.E.2d 845 [ (1973) ]), we must treat [defendant's] complaint as a motion to set aside the judgment in which relief was denied.

Manley v. Jones, 203 Ga.App. 173, 174, 416 S.E.2d 744 (1992).

It is well established however, that there is "no magic in nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name." Holloway v. Frey, [supra at 227, 202 S.E.2d 845]. Since the [separate action to set aside] fulfills all the requirements of a [motion to set aside] under [OCGA § 9-11-60(d)(2) ], it will be so construed.

Frost v. Frost, supra at 674, 221 S.E.2d 567.

2. Defendant's third and fourth enumerations of error are that the trial court erred in dismissing his motion because he "failed to provide the court with the original affidavit of the forensic document examiner, attaching only a copy to his motion," and he "failed to provide the trial court with any evidence of the alleged forgery or fraud."

Since the motion to set aside the judgment was not a separate action but a post judgment proceeding in the case, then summary judgment was not a proper procedural motion to address the post judgment issues. A motion to set aside the judgment under OCGA § 9-11-60(d) is a distinct procedure where the trial judge is the finder of fact.

Thus, the issue is when does evidence have to be tendered to the trial court in order to decide the motion to set aside judgment?

The trial court shall give directions as to how evidence is to be presented, either by affidavit, deposition, oral testimony, or any combination, and notice of any hearing on the motion to set aside the judgment. See OCGA §§ 9-11-43(b); 9-11-60(d)(2); Johnson v. Johnson, 244 Ga. 155-156(2), 259 S.E.2d 88 (1979); Johnson v. Aetna Fin., 139 Ga.App. 452, 453(2), 228 S.E.2d 299 (1976). However, absent a written request in a separate pleading requesting an oral hearing, the trial court can properly hold no oral argument, which would put counsel on notice that they must file of record their evidence immediately. USCR 6.3. In this case even though the defendant made a written request for oral argument, as did the plaintiff, both on the motion to set aside and for summary judgment, no hearing was conducted and no order either granting or denying the requests was sent, which also would tell counsel when they must file their evidence in the event that it had not been done previously; the better practice is for the trial court in writing to either grant or deny the oral argument or otherwise inform counsel when the evidence had to be filed of record. USCR 6.3; Montgomery v. City of Sylvania, 189 Ga.App. 515, 376 S.E.2d 403 (1988). Further, OCGA § 9-11-6(d) requires that motions supported by affidavits be filed with the motion, however, the trial court has the discretion to extend the time in a proper case to file such evidence. Riberglass, Inc. v. ECO Chem. Specialties, 194 Ga.App. 417, 419(1), 390 S.E.2d 616 (1990); Wall v. C & S Bank of Houston County, 145 Ga.App. 76, 78-79, 243 S.E.2d 271 (1978), overruled on other grounds, McKeever v. State of Ga., 189 Ga.App. 445, 375 S.E.2d 899 (1988). Therefore, Herringdine had to file his evidence with his motion to set aside the judgment or request an extension of time to file so that the other side has adequate notice and opportunity to respond to such evidence; however, he did neither. See Southwest Ga. Prod. Credit Assn. v. Wainwright, 241 Ga. 355, 356(1), 245 S.E.2d 306 (1978); Bailey v. Dunn, 158 Ga.App. 347, 348, 280 S.E.2d 388 (1981); Fairington, Inc. v. Yeargin Constr. Co., 144 Ga.App. 491, 492(1), 241 S.E.2d 608 (1978). The opposing affidavits or evidence must be filed one day prior to any hearing. Operation Rescue v. City of Atlanta, 259 Ga. 676, 677-678, 386 S.E.2d 126 (1989). However, the respondent, in the absence of a notice of a hearing filed with the motion, runs the risk of having no evidence in the record if no hearing is requested or granted by the trial court. The hearing or determination by the trial court cannot come less than five days after the filing of the motion unless the trial court in its discretion orders either a longer or shorter period. Burger Chef Sys. v. Newton, 126 Ga.App. 636, 638-639(1), 191 S.E.2d 479 (1972). For either party to file affidavits after the statutory prescribed time requires a request for extension and leave of the court or a finding of excusable neglect and of an extension by the trial court. Big Canoe Corp. v. Williamson, 168 Ga.App. 179, 180-181, 308 S.E.2d 440 (1983); Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga.App. 448, 449(1), 278 S.E.2d 40 (1981). In this case, Herringdine failed to comply with the statutory requirements of filing his affidavits and other evidence.

Under OCGA § 9-11-60(d)(2), oral argument and hearing on a motion to set aside judgment under the amended 1987 Uniform Superior Court Rules is at the discretion of the trial judge, whether or not such hearing is requested by the parties. USCR 6.3; Montgomery v. City of Sylvania, supra. Absent a hearing, there arises a problem as to how and when evidence is tendered. See OCGA § 9-11-43(b). The trial judge decides all factual issues before the court. See Wright v. Archer, 210 Ga.App. 607, 608(1), 436 S.E.2d 775 (1993); Smith v. Wood, 174 Ga.App. 799(1), 331 S.E.2d 636 (1985); Wolfe v. Rhodes, 166 Ga.App. 845, 847, 305 S.E.2d 606 (1983); Montgomery v. USS Agri-Chemical Div., 155 Ga.App. 189, 190(1), 270 S.E.2d 362 (1980).

Prior to the 1987 rules amendment, the trial court would hold a hearing where affidavits, depositions, documentary evidence, and limited oral testimony were received, which remains the better practice. OCGA § 9-11-43(b). Following the amendment of USCR 6.3, parties who desire to raise evidentiary issues must attach affidavits to their pleadings to insure that such evidence is put before the trial court. See Montgomery v. USS Agri-Chemical Div., supra. Now the trial court can ignore a request for oral argument. However, when the trial court decides an OCGA § 9-11-60(d)(2) motion without a hearing, this creates certain procedural problems regarding the tender of evidence.

Nalley did not file a motion to dismiss; the...