Peterson v. American Intern. Life Assur. Co. of New York, A91A2245

• Decision Date: 17 March 1992
• Docket Number: No. A91A2245,A91A2245
• Citation: 417 S.E.2d 402,203 Ga.App. 745
• Parties: PETERSON v. AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK.
• Court: Georgia Court of Appeals

Page 402

417 S.E.2d 402

203 Ga.App. 745

PETERSON v. AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK.

No. A91A2245.

Court of Appeals of Georgia.

March 17, 1992.

Reconsideration Denied April 2, 1992.

Certiorari Denied Oct. 8, 1992.

Furman Smith, Jr., Atlanta, for appellant.

Wiles & Wiles, John J. Wiles, N. Jackson Cotney, Jr., and A. Frank Settlemyer, Marietta, for appellee.

COOPER, Judge.

Appellant appeals from the grant of summary judgment to appellee.

In July 1990, appellee filed a dispossessory action against appellant in which it sought a judgment for past due rent in the amount of $13,324.99, interest, late charges and attorney fees. In June 1991, appellee filed simultaneously a first amendment to its dispossessory action and a motion for summary judgment. In the amendment, appellee substituted its original prayer for judgment with a revised prayer for judgment for past due rent in the amount of $42,928.30, and increased amounts for interest, late charges and attorney fees. The motion for summary judgment was served on appellant by deposit in the mail on June 18, 1991. Appellant alleges that on the day a response to the motion for summary judgment was due, counsel for both parties orally agreed to an extension of time to respond to the motion. A written stipulation extending the response time was mailed to the trial court on July 23, 1991, and was received by the trial court on July 26, 1991. On July 24, 1991, counsel for appellant began a leave of absence which had been previously granted by the court. On July 25, 1991, the court issued an order granting summary judgment to appellee due to the lack of response from appellant. The court ordered that appellee recover from appellant $42,928.30 in past due rent plus interest, late charges and attorney fees prayed for in the first amendment to the dispossessory action. When appellant's counsel returned from his leave of absence, there was not sufficient time for the trial court to reconsider its order before the time for appeal expired; therefore appellant filed the instant appeal, raising two enumerations of error.

1. Appellant first contends that the trial court erred in granting summary judgment to appellee before appellant had the opportunity to respond when the parties had stipulated to an extension of time. Pursuant to Uniform State Court Rule 6.2 and OCGA § 9-11-6(e), appellant had 33 days to respond to appellee's motion for summary judgment. See Pyramid Constr. Co. v. Star Mfg. Co., 195 Ga.App. 644, 645, 394 S.E.2d 598 (1990). Appellant's response, therefore, was due on July 22, 1991. No response was filed by that date. "Under the circumstances, appellant had sufficient notice that judgment was imminent and gave up his opportunity to be heard." Spikes v. Citizens State Bank, 179 Ga.App. 479(1), 347 S.E.2d 310 (1986). Even accepting appellant's assertion that an oral agreement to extend the response time was reached on July 22, 1991, that agreement was not filed with the court for another four days. In the interim and three days after the response time had expired, the court issued its order. " 'A request for an extension of time governed by the CPA must be made before the expiration of the original period prescribed by the statute (OCGA § 9-11-6(b)), and "by written stipulation of counsel filed in the action ..." [Cit.] A private agreement between counsel extending time to file pleadings is not binding except when in compliance with this code section and it is filed with the court. (Cit.)' [Cit.]" Fadum v. Liakos, 186 Ga.App. 556(1), 367 S.E.2d 843 (1988). Whatever stipulation was reached, it was not binding on the court at the time the order was issued; therefore the court did not err in granting summary judgment to appellee.

2. Appellant next argues that the trial court erred in entering a judgment which included an award of rent and other charges which accrued in the interim between the date of the original complaint and the first amendment to the dispossessory action. Appellant contends that such claims could only be asserted via supplemental pleading pursuant to OCGA § 9-11-15(d) under the authority of Nickerson v. Candler Bldg., 156 Ga.App. 396(5), 274 S.E.2d 582 (1980). This court in Nickerson held that " ' "[e]ach...