XFINITY MOBILE v. CARRIE W. RISHER

• Court: Court of Appeals of Georgia
• Decided: January 10, 2024
• Docket: A23A1544
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., LAND and WATKINS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

January 10, 2024

In the Court of Appeals of Georgia A23A1544. XFINITY MOBILE et al. v. RISHER.

LAND, Judge.

In January 2021, Carrie W. Risher filed suit against Xfinity Mobile and Comcast

of Georgia/Pennsylvania, LLC (“Comcast”), alleging that the company took money

from her bank account after she stopped receiving services. Comcast appeals from the

superior court’s order denying its motion for new trial, arguing that the superior court

erred in, among other things, failing to grant Comcast a hearing on its motion for new

trial. We agree and reverse.

The record shows that in January 2021, Risher filed suit in magistrate court

against Comcast, alleging that Comcast had wrongfully withdrawn $560 from her bank account despite the termination of her account.1 Risher sought $560 in damages,

punitive damages of not less than $10,000, and attorney fees of not less than $4,000.

A sheriff’s deputy personally served the complaint on Comcast’s registered agent in

Lawrenceville, and Comcast filed a timely answer through its non-attorney employee.2

The magistrate court initially entered a default judgment against Comcast, but

in August 2021, the magistrate court granted Comcast’s motion to set aside the

default judgment. In December 2021, the magistrate court held a hearing at which

Comcast appeared, and the magistrate court entered judgment in favor of Comcast on

December 31, 2021.

On January 18, 2022, Risher appealed the judgment to the superior court and

certified that a true and correct copy of the notice of appeal was sent by mail to

Comcast’s registered agent in Lawrenceville. According to the notice of filing issued

by the superior court, further notices were sent care of Comcast’s non-attorney

employee to a Brunswick address unaffiliated with Comcast. Comcast averred that it

1 Risher filed a second action against Comcast in the magistrate court, and the magistrate court entered judgment in favor of Risher for $1,500 in that second action. Comcast does not appeal this ruling. 2 See Eckles v. Atlanta Technology Group, 267 Ga. 801, 806-807 (485 SE2d 22) (1997). 2 did not receive any notice of the appeal or any notices from the clerk of superior court

about the appeal until December 19, 2022, when its registered agent received an order

rescheduling a “hearing” for December 28, 2022.

On December 21, Comcast informed the superior court clerk’s office that

Comcast had not received any notice of the appeal or any subsequent pleadings or

notices sent to the Brunswick address. On December 22, Comcast requested a

continuance via email so that Comcast could find counsel,3 and the clerk indicated that

the request would be forwarded to the superior court. During this time, Comcast

attempted to retain legal representation but was unable to do so. On December 28, the

morning of the scheduled hearing, the clerk informed Comcast that it would need to

electronically file its request for a continuance. The Comcast employee, who was

“unfamiliar” with Georgia’s e-filing system, was unable to do so prior to the hearing.

Comcast’s request for continuance was denied and a bench trial was held that day;

Comcast did not appear as it had yet to retain local counsel. The superior court struck

Comcast’s answer due to Comcast’s failure to appear “despite proper notice” of the

hearing and held a bench trial regarding Risher’s damages. The superior court entered

3 See Eckles, 267 Ga. at 805 (2). 3 judgment in Risher’s favor, granting $10,000 in actual damages, $25,000 in punitive

damages, $10,000 in attorney’s fees, and $312 in costs. Comcast filed a motion for

new trial, which was denied four days later without a hearing. This Court granted

Comcast’s application for discretionary appeal.

1. Comcast argues that the superior court erred in failing to grant Comcast a

hearing on its motion for new trial. We agree.

“Uniform Superior Court Rule 6.3 requires, unless otherwise ordered by the

court, that a motion for new trial in a civil action shall be decided by the trial court

only after an oral hearing, even if the moving party does not request such a hearing.”

(Punctuation omitted; emphasis supplied.) Triola v. Triola, 292 Ga. 808, 808 (741

SE2d 650) (2013). “[I]f the trial court denies a motion for new trial in a civil case

without issuing an order excepting the motion from this procedural requirement, and

without holding the mandatory hearing, the error will not be deemed harmless on

appeal; instead, the order denying the motion must be reversed and the case remanded

with direction that the trial court comply with Rule 6.3 before disposing of the

motion.” (Citation and punctuation omitted.) Id.

4 In this case, it is undisputed that the trial court did not hold a hearing on

Comcast’s motion for new trial. The trial court’s order denying the motion does not

refer to Rule 6.3 or to Comcast’s right to a hearing, and there is no separate order

excepting the motion from the oral-hearing requirement in the record. Under these

circumstances, the failure to hold a hearing is reversible error, and “we must reverse

the trial court’s judgment and remand the case with direction that the court comply

with Rule 6.3 before ruling on [Comcast’s] motion for new trial.” See Triola, 292 Ga.

at 808.

2. Because we reverse the trial court’s denial of Comcast’s motion for new trial

on procedural grounds, we do not consider Comcast’s other arguments on appeal .

See Triola, 292 Ga. at 808-809 (“We do not reach [appellant’s] enumerations

addressing the merits of the trial court’s ruling on the motion for new trial, as the

issues raised thereby must be asserted in the trial court on remand.”) (citation and

punctuation omitted).

Judgment reversed. Barnes, P. J., and Watkins, J., concur.