First Community Bank v. Bryan Starr & Associates, Inc.

417 S.E.2d 330, 203 Ga. App. 696, 26 Fulton County D. Rep. 19, 1992 Ga. App. LEXIS 602

• Court: Court of Appeals of Georgia
• Decided: January 29, 1992
• Docket: A91A1547
• Status: Published

Opinions

Andrews, Judge.

1. In its first enumeration of error, defendant/appellant First Community claims that the trial court committed procedural error in granting plaintiff/appellee Bryan Starr & Associates, Inc. (Starr & Associates) motion for summary judgment in this action involving a lien arising out of the following facts. Starr & Associates served by mail a motion for summary judgment and a supporting affidavit on January 16, 1991. On February 14, 1991, the superior court granted defense counsel’s motion for a leave of absence from February 19, 1991, through February 28, 1991. On February 22, 1991, prior to the end of this leave, the superior court granted Starr & Associates’ renewed motion for summary judgment.

The response to the motion for summary judgment was due 33 days after service of the motion, on February 18, 1991, which was a legal holiday. See generally Rule 6.2 of the Uniform Rules for the Superior Court; OCGA §§ 9-11-56; 9-11-5 (b); 9-11-6 (e); Pyramid Constr. Co. v. Star Mfg. Co., 195 Ga. App. 644 (394 SE2d 598) (1990). Thus, the period within which First Community was required to respond to the motion was extended by one day to February 19, 1991, which date fell within defense counsel’s leave of absence. See OCGA § 9-11-6 (a).

First Community argues that the superior court’s order granting Starr & Associates’ motion for summary judgment was improper since such motion was granted during its leave of absence. First Community cites Rule 16 of the Uniform Rules for the Superior Court which provides: “[a] leave when granted shall relieve any attorney from all trials, hearings, depositions and other legal proceedings in that matter.” First Community claims that the leave of absence extended the period of time allowed to respond to the motion for summary judgment.

We cannot accept First Community’s argument since we do not interpret the “proceedings” from which an attorney is excused by a leave of absence to include filing deadlines. Few Georgia cases interpret Rule 16 and no cases directly address the obligations from which an attorney is relieved by a leave of absence. See generally Dial v. Turner, 179 Ga. App. 689 (347 SE2d 305) (1986); Birts v. State, 192 Ga. App. 476 (385 SE2d 120) (1989); Bryant v. BMC of Ga., 188 Ga. App. 124 (372 SE2d 280) (1988). Nonetheless, we interpret the “legal proceedings” from which an attorney is excused by a leave of absence to mean appearances before a court, not filing deadlines.

This conclusion is supported by statutory authority which demonstrates that a leave of absence is not the mechanism for extending filing guidelines. OCGA § 9-11-6 (b) specifically outlines the procedure by which an attorney may extend the period for filing a summary judgment responsive brief. Thus, in order to extend the response period, First Community should have followed the statutory provisions regarding that situation.

We have fully examined the record and conclude that First Community’s remaining arguments regarding alleged error in the trial court’s granting of summary judgment are without merit, or are improperly before this court.

2. First Community’s second enumeration of error, which claims that the trial court erred in denying its motion for reconsideration, or, in the alternative, its motion to set aside judgment, is also without merit.

Judgment affirmed.

Sognier, C. J., Carley, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman concur. McMurray, P. J., Birdsong, P. J., and Beasley, J., dissent.