Title 9, Chapter 11, Section 40 (9-11-40) (a) Time of trial.

All civil cases, including divorce and other domestic relations cases, shall be triable any time after the last day upon which defensive pleadings were required to be filed therein; provided, however, that the court shall in all cases afford to the parties reasonable time for discovery procedures, subsequent to the date that defensive pleadings were required to be filed; provided, further, that, in divorce cases involving service by publication, service shall occur on the date of the first publication of notice following the order for service of publication pursuant to subparagraph (f)(1)(C) of Code Section 9-11-4, and such divorce cases shall be triable any time after 60 days have elapsed since the date of the first publication of notice. (b) Trial in chambers. The judges of any courts of record may, on reasonable notice to the parties, at any time and at chambers in any county in the circuit, hear and determine by interlocutory or final judgment any matter or issue where a jury trial is not required or has been waived. However, nothing in this subsection shall authorize the trial of any divorce case by consent or otherwise until after the last day upon which defensive pleadings were required by law to be filed therein. (c) Assignment of cases for trial. The courts shall provide for the placing of actions upon the trial calendar: (1) Without request of the parties but upon notice to the parties; or (2) Upon request of a party and notice to the other parties. Except for cause, cases shall be placed upon the calendar in chronological order in accordance with filing dates. Precedence shall be given to actions entitled thereto by any statute. Rule 20. Peremptory calendar Periodically the assigned judge may cause to be delivered to the clerk of the court and published a list of pending civil actions in which the discovery period has expired or criminal cases upon reasonable notice requiring the parties (including the state) or their attorneys to announce whether the actions or cases appearing thereon are ready for trial and when trial should be scheduled. Failure to appear at the calendar sounding or otherwise to advise the judge or appropriate calendar clerk may result in the following disposition: (A) In civil actions, the dismissal without prejudice of plaintiff's action or defendant's answer, counterclaim, or cross claim; and, (B) In criminal cases, the acquitting of the accused defendant or the dead docketing of the case. Rule 14. Dismissal. On its own motion or upon motion of the opposite party, the court may dismiss without prejudice any civil action, or where appropriate, any pleading filed on behalf of any party upon the failure to properly respond to the call of the action for trial or other proceeding. In civil actions or criminal cases the court may adjudge any attorney in contempt for failure to appear without legal excuse upon the call of any proceeding. Andrus v. Andrus, 659 S.E.2d 793, 290 Ga.App. 394 (Ga.App. 03/20/2008) [1] In the Court of Appeals of Georgia FOURTH DIVISION

[2] No. A07A2477 [3] 659 S.E.2d 793, 290 Ga.App. 394, 08 FCDR 1010, 2008.GA.0000466< http://www.versuslaw.com> [4] [5] [6] [7] March 20, 2008 ANDRUS ET AL. v. ANDRUS ET AL. The opinion of the court was delivered by: Smith, Presiding Judge. BARNES, C. J., SMITH, P. J., MILLER, J.

[8] William David Andrus and Jane Andrus, as Executrix and Trustee of the Last Will and Testament of Wheeler Noble Hamilton ("trustees"), appeal from the trial court's order setting aside its previous dismissal of a declaratory judgment action filed against them by William Hamilton Andrus, Catherine Shutters, and Bettye Anderson ("putative heirs"). For the reasons set forth below, we affirm. [9] The record shows that on February 22, 2001, the putative heirs filed a declaratory judgment action in Walker County Superior Court. The action was brought against the trustees seeking a declaration of the rights of the putative heirs with respect to real property in the Hamilton estate. The trustees moved for summary judgment in their favor, and the trial court held a hearing on September 16, 2003. On November 24, 2003, while the motion was still pending, the trial court held a peremptory calendar call "to dispose by Rule 14 of the Georgia Uniform Superior Court Rules those cases in which no action had been taken for some period of time." The clerk of court testified in a subsequent hearing that the case was placed on the peremptory calendar due to a clerical mistake and that the parties did not receive notice of the peremptory calendar call. On November 24, 2003, the trial court dismissed the case after the peremptory calendar call, but the putative heirs did not receive a copy or notice of this order either. [10] On December 11, 2003, after converting the putative heirs's opposition to the trustees' motion for summary judgment into a cross- motion for summary judgment,*fn1 the trial court entered a partial summary judgment order in favor of a putative heir, William Hamilton Andrus, even though it had already dismissed his complaint. On January 12, 2004, the trustees filed a motion for new trial,*fn2 instead of a notice of appeal, and the trial court denied the motion on June 28, 2004. The trustees did not appeal from this order. [11] In March 2007, the trustees filed suit against William Hamilton Andrus in Walker County State Court seeking damages for slander of title, back rent, and trespass. The putative heirs then filed a motion in Walker County Superior Court to set aside the order dismissing their declaratory judgment complaint because it was erroneously issued a few weeks before the trial court granted partial summary judgment in favor of putative heir William Hamilton Andrus. After conducting a hearing and receiving evidence, the superior court found that its order dismissing the case on November 24, 2003, resulted from an

"obvious clerical mistake." The court granted the putative heirs' motion to set aside and vacate that order pursuant to OCGA § 9-11-60 (g). The court also found its "order of . . . December 11, 2003 . . . to be valid." [12] In several related enumerations of error, the trustees assert that the trial court erred by setting aside the November 24, 2003, dismissal order. In the alternative, they argue that if the order was properly set aside, the trial court must also vacate and re-enter its December 11, 2003, order granting partial summary judgment in favor of William Hamilton Andrus. [13] We are guided by our opinion in Carnes Brothers v. Cox, 243 Ga. App. 863 (534 SE2d 547) (2000) (physical precedent only). In Carnes Brothers, we found that a trial court's failure to comply with the requirement of OCGA § 15-6-21 (c), that it provide counsel with notice of its orders, provides justification for the trial court to later set aside such an order under OCGA § 9-11-60 (g)*fn3 . Id. at 864. In this case, the trial court's factual findings show that it failed to comply with OCGA § 15-6-21 (c). As a result, we affirm that portion of its order setting aside and vacating its November 24, 2003 dismissal order. [14] The trustees argue that if this court affirms the action taken by the trial court with regard to the dismissal order, we must also order the trial court to vacate and re-enter its December 11, 2003, order granting summary judgment in favor of William Hamilton Andrus in order to preserve their appeal rights. We disagree. Although the trustees asked the trial court in the motion hearing about the effect of its December 11, 2003 order on their appeal rights, they never moved the trial court to set aside this judgment under OCGA § 911-60. Because there was no motion before the trial court and the trustees have not asserted any grounds to set aside this judgment under OCGA § 9-11-60, we find no merit in this claim. [15] In so holding, we note that after the December 11, 2003, summary judgment order was entered, the trustees filed a motion for new trial, instead of a notice of appeal, and did not attempt to appeal from the denial of their motion for new trial. The trustees therefore have not been deprived of any appeal rights. They were aware of the summary judgment order and did not seek to overturn it on the grounds that they now assert for the first time on appeal: that the trial court had no jurisdiction to issue it after having already dismissed the case.*fn4 [16] Judgment affirmed. Barnes, C. J., and Miller, J., concur. -------------------------------------------------------------------------------Opinion Footnotes -------------------------------------------------------------------------------[17] *fn1 In its order, the trial court states that it converted the opposition based upon the "agreement of the parties and the court[`]s approval." The record before us does not contain a transcript of this hearing. [18] *fn2 In their brief below, the trustees asserted, in part, that the trial court erred by converting the putative heirs's opposition to the trustees' summary judgment motion into an

affirmative motion in favor of the putative heirs. While noting in this brief that no transcript of the summary judgment hearing existed, the trustees did not attempt to prepare a transcript from recollection. See OCGA § 5-6-41 (g). [19] *fn3 OCGA § 9-11-60 (g) provides that clerical mistakes in orders "may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any as the court orders." [20] *fn4 A trial court is not deprived of jurisdiction over a case until a notice of appeal has been filed. Lowe v. Ctr. Neurology Assocs., 288 Ga. App. 166, 168 (1) (653 SE2d 318) (2007). Title 9, Chapter 11, Section 60 (9-11-60) (a) Collateral attack. A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section. (b) Methods of direct attack. A judgment may be attacked by motion for a new trial or motion to set aside. Judgments may be attacked by motion only in the court of rendition. (c) Motion for new trial. A motion for new trial must be predicated upon some intrinsic defect which does not appear upon the face of the record or pleadings. (d) Motion to set aside. A motion to set aside may be brought to set aside a judgment based upon: (1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed. (e) Complaint in equity. The use of a complaint in equity to set aside a judgment is prohibited. (f) Procedure; time of relief. Reasonable notice shall be afforded the parties on all motions. Motions to set aside judgments may be served by any means by which an original complaint may be legally served if it cannot be legally served as any other motion. A judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. Motions for new trial must be brought within the time prescribed by law. In all other instances, all motions to set aside judgments shall be brought within three years from entry of the judgment complained of. (g) Clerical mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. (h) Law of the case rule. The law of the case rule is abolished; but generally judgments and orders shall not be set aside or modified without just cause and, in setting aside or otherwise modifying judgments and orders, the court shall consider whether rights have vested thereunder and whether or not innocent parties would be injured thereby; provided,

however, that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be. Title 15, Chapter 6, Section 21 (15-6-21) (a) In a county with less than 100,000 inhabitants, it shall be the duty of the judge of the superior, state, or city court, unless providentially hindered or unless counsel for the plaintiff and the defendant agree in writing to extend the time, to decide promptly, within 30 days after the same have been argued before him or submitted to him without argument, all motions for new trials, injunctions, demurrers, and all other motions of any nature. (b) In all counties with more than 100,000 inhabitants, it shall be the duty of the judge of the superior, state, or city court, unless providentially hindered or unless counsel for the plaintiff and the defendant agree in writing to extend the time, to decide promptly, within 90 days after the same have been argued before him or submitted to him without argument, all motions for new trials, injunctions, demurrers, and all other motions of any nature. (c) When he or she has so decided, it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision. Said notice shall not be required if such notice has been waived pursuant to subsection (a) of Code Section 9-11-5. (d) If any judge fails or refuses, unless providentially hindered or unless counsel for the plaintiff and the defendant agree in writing to extend the time, to obey the provisions of subsections (a) through (c) of this Code section, or if any judge repeatedly or persistently fails or refuses to decide the various motions, demurrers, and injunctions coming before him in the manner provided by such subsections, such conduct shall be grounds for impeachment and the penalty therefor shall be his removal from office. Title 5, Chapter 6, Section 41 (5-6-41) (a) In all felony cases, the transcript of evidence and proceedings shall be reported and prepared by a court reporter as provided in Code Section 17-8-5 or as otherwise provided by law. (b) In all misdemeanor cases, the trial judge may, in the judge's discretion, require the reporting and transcribing of the evidence and proceedings by a court reporter on terms prescribed by the trial judge. (c) In all civil cases tried in the superior and city courts and in any other court, the judgments of which are subject to review by the Supreme Court or the Court of Appeals, the trial judge thereof may require the parties to have the proceedings and evidence reported by a court reporter, the costs thereof to be borne equally between them; and, where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant's expense. Where it is determined that the parties, or either of them, are financially unable to pay the costs of reporting or transcribing, the judge may, in the judge's discretion, authorize trial of the case unreported; and, when it becomes necessary for a transcript of the evidence and proceedings to be prepared, it shall be the duty of the moving party to prepare the transcript from recollection or otherwise.

(d) Where a trial in any civil or criminal case is reported by a court reporter, all motions, colloquies, objections, rulings, evidence, whether admitted or stricken on objection or otherwise, copies or summaries of all documentary evidence, the charge of the court, and all other proceedings which may be called in question on appeal or other posttrial procedure shall be reported; and, where the report is transcribed, all such matters shall be included in the written transcript, it being the intention of this article that all these matters appear in the record. Where matters occur which were not reported, such as objections to oral argument, misconduct of the jury, or other like instances, the court, upon motion of either party, shall require that a transcript of these matters be made and included as a part of the record. The transcript of proceedings shall not be reduced to narrative form unless by agreement of counsel; but, where the trial is not reported or the transcript of the proceedings for any other reason is not available and the evidence is prepared from recollection, it may be prepared in narrative form. (e) Where a civil or criminal trial is reported by a court reporter and the evidence and proceedings are transcribed, the reporter shall complete the transcript and file the original and one copy thereof with the clerk of the trial court, together with the court reporter's certificate attesting to the correctness thereof. In criminal cases where the accused was convicted of a capital felony, an additional copy shall be filed for the Attorney General, for which the court reporter shall receive compensation from the Department of Law as provided by law. The original transcript shall be transmitted to the appellate court as a part of the record on appeal; and one copy will be retained in the trial court, both as referred to in Code Section 5-6-43. Upon filing by the reporter, the transcript shall become a part of the record in the case and need not be approved by the trial judge. (f) Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth. If anything material to either party is omitted from the record on appeal or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court. The trial court or the appellate court may at any time order the clerk of the trial court to send up any original papers or exhibits in the case, to be returned after final disposition of the appeal. (g) Where a trial is not reported as referred to in subsections (b) and (c) of this Code section or where for any other reason the transcript of the proceedings is not obtainable and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter as referred to in subsection (e) of this Code section. In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.


(h) Where any amendment or other pleading or paper which requires approval or sanction of the court in any proceeding before being filed of record is disallowed or sanction thereof is refused, the amendment, pleading, or paper may nevertheless be filed, with notation of disallowance thereon, and shall become part of the record for purposes of consideration on appeal or other procedure for review. (i) In lieu of sending up a transcript of record, the parties may by agreement file a stipulation of the case showing how the questions arose and were decided in the trial court, together with a sufficient statement of facts to enable the appellate court to pass upon the questions presented therein. Before being transmitted to the appellate court, the stipulation shall be approved by the trial judge or the presiding judge of the court where the case is pending. (j) In all cases, civil or criminal, any party may as a matter of right have the case reported at the party's own expense. Hammonds v. Sherman, 627 S.E.2d 110, 277 Ga.App. 498 (Ga.App. 02/06/2006) [1] In the Court of Appeals of Georgia SECOND DIVISION [2] No. A05A1873 [3] 627 S.E.2d 110, 277 Ga.App. 498, 6 FCDR 464, 2006.GA.0000166< http://www.versuslaw.com> [4] February 6, 2006 [5] [6] [7] HAMMONDS v. SHERMAN. The opinion of the court was delivered by: Ruffin, Chief Judge. RUFFIN, C. J., JOHNSON, P. J., BARNES, J.

[8] The trial court dismissed Chantel Hammonds' personal injury action without prejudice because her attorney failed to appear at a peremptory calendar call. Hammonds appeals, asserting that the trial court erred in dismissing her case because her attorney did not receive proper notice of the calendar call.*fn1 Finding no error, we affirm. [9] Hammonds' personal injury action appeared on a peremptory civil calendar for February 25, 2005 issued by the Paulding County Superior Court. Hammonds contends that her attorney, Nicole Hamilton, did not receive a copy of the calendar from the clerk's office. Instead, the clerk of court mailed a copy to Hammonds' previous counsel, George Pennebaker. Hammonds admits that on January 20, 2005, Pennebaker notified the superior court clerk in writing that the calendar was sent to him in error, as he had withdrawn from the case. She further concedes that Pennebaker sent a copy of the letter to her new counsel. [10] Upon receiving Pennebaker's letter, Hamilton called the clerk's office on January 23, 2005, to inquire about the February 25, 2005 calendar call. The person to whom she spoke was unable to give her any information about the calendar call, but took Hamilton's name and number. Hamilton contends that she never received either a return telephone call from

the clerk's office or a copy of the calendar. Hamilton was not present for the calendar call on February 25, 2005, and the trial court dismissed the case without prejudice. [11] A trial court may dismiss a civil action without prejudice for failure to appear at a peremptory calendar call.*fn2 We review such a dismissal for abuse of discretion.*fn3 There is a presumption that the clerk gave proper notice of the calendar call, and the burden is on Hammonds to show that she was not notified.*fn4 [12] In general, publication of a court calendar in the county's legal organ of record is sufficient notice to the parties in a pending action that they must appear.*fn5 Hammonds does not contend that the calendar for February 25, 2005, was not published, and there is nothing in the record to suggest that it was not. Accordingly, Hammonds has not met her burden of showing that she was not provided with proper notice of the calendar call.*fn6 [13] Moreover, Hammonds' counsel admits that she knew the calendar call was scheduled for February 25, 2005, but merely did not know the hour or location. We are at a loss as to why counsel failed to obtain this information from Hammonds' former attorney or from the clerk's office in the month after she learned of the calendar call.*fn7 And where a party has actual notice of a court date, any defect in the notice given by the court is harmless.*fn8 Because Hammonds' counsel had actual notice of the calendar call, the trial court did not abuse its discretion in dismissing Hammonds' case without prejudice.*fn9 [14] Judgment affirmed. Johnson, P. J., and Barnes, J., concur. -------------------------------------------------------------------------------Opinion Footnotes -------------------------------------------------------------------------------[15] *fn1 An action dismissed without prejudice may be renewed "either within the original applicable period of limitations or within six months after the . . . dismissal, whichever is later." OCGA § 9-2-61 (a) & (c); see OCGA § 9-11-41 (e). If the dismissal occurs after the expiration of the statute of limitations, however, only one renewal is permitted. Id. at (a). When the dismissal occurred here, the statute of limitations had expired on Hammonds' claims, and her action had already been renewed once. Thus, Hammonds was unable to renew her action, and this appeal ensued. [16] *fn2 See Unif. Super. Ct. R. 20 (A); Unif. Super. Ct. R. 14; OCGA § 9-11-41 (b). [17] *fn3 See McKnight v. Wyrick, 247 Ga. App. 584, 585-586 (544 SE2d 507) (2001). [18] *fn4 See Murer v. Howard, 165 Ga. App. 230, 231 (299 SE2d 151) (1983). [19] *fn5 See Daniels v. Burson, 257 Ga. App. 318, 319-320 (1) (571 SE2d 184) (2002); Davis v. Butler, 240 Ga. App. 72, 77 (2) (522 SE2d 548) (1999); compare TMS Ins. Agency v. Galloway, 205 Ga. App. 896, 898 (424 SE2d 71) (1992) (notice of hearing on motion must be served on party). [20] *fn6 See Automated Medical Svcs. v. Holland, 166 Ga. App. 57, 58-59 (1) (303 SE2d 127) (1983). [21] *fn7 See Hinson v. Castellio, 168 Ga. App. 301, 301-302 (308 SE2d 705) (1983) (trial court did not abuse discretion in dismissing case where attorney was "confused" as to

when case set for trial). [22] *fn8 See Redding v. Raines, 239 Ga. 865, 865-866 (2) (239 SE2d 32) (1977); Potter v. Wal Computers, 220 Ga. App. 437, 440 (3) (469 SE2d 691) (1996); Glennco Inc. v. Silver Shoes, Inc., 164 Ga. App. 30, 31-32 (295 SE2d 357) (1982). [23] *fn9 See Floyd v. Logisticare, Inc., 255 Ga. App. 702, 703 (1) (566 SE2d 423) (2002); Glennco, supra. Title 9, Chapter 11, Section 41 (9-11-41) (a) Voluntary dismissal; effect. Subject to the provisions of subsection (c) of Code Section 9-11-23, of Code Section 9-11-66, and of any statute, an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case. After the plaintiff rests his case, permission and an order of the court must be obtained before dismissal. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. A dismissal under this subsection is without prejudice, except that the filing of a third notice of dismissal operates as an adjudication upon the merits. (b) Involuntary dismissal; effect thereof. For failure of the plaintiff to prosecute or to comply with this chapter or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine the facts and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. The effect of dismissals shall be as follows: (1) A dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits; and (2) Any other dismissal under this subsection and any dismissal not provided for in this Code section, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, does operate as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise. (c) Dismissal of counterclaim, cross-claim, or third-party claim. This Code section also applies to the dismissal of any counterclaim, cross-claim, or third-party claim. (d) Cost of previously dismissed action. If a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed. (e) Dismissal for want of prosecution; recommencement. Any action in which no written order is taken for a period of five years shall automatically stand dismissed, with costs to be taxed against the party plaintiff. For the purposes of this Code section, an order of continuance will be deemed an order. When an action is dismissed under this subsection, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.


Floyd v. Logisticare, Inc., 255 Ga.App. 702, 566 S.E.2d 423 (Ga.App. 06/10/2002) [1] Georgia Court of Appeals [2] No. A02A0585 [3] 255 Ga.App. 702, 566 S.E.2d 423, 2002.GA.0000801 <http://www.versuslaw.com> [4] June 10, 2002 [5] [6] [7] FLOYD v. LOGISTICARE, INC. Blackburn, C. J., Johnson, P. J., Miller, J. The opinion of the court was delivered by: Johnson, Presiding Judge.

[8] In 1997, Terri Floyd entered into a contract with Automated Dispatch Solutions, Inc., to provide transportation services for Medicaid patients. In 1998, she sued Automated Dispatch Solutions' successor, Logisticare, Inc., for alleged breach of the contract. The lawsuit was removed from state court to federal district court, where Floyd voluntarily dismissed the action. [9] In 1999, Floyd again sued Logisticare for breach of contract. Logisticare counterclaimed for damages and attorney fees based on a clause in the contract which provides that the prevailing party in a dispute under the contract is entitled to such fees and related expenses. The trial court scheduled a peremptory calendar call for the case, and notified Floyd and Logisticare to appear for the calendar call. [10] Floyd failed to appear at the calendar call, so the trial court dismissed her complaint for want of prosecution. Floyd's attorney moved the court to reinstate the complaint. She claimed that she had not appeared for the call because she was covering a matter in a different court for another lawyer, and because there had been a glitch in her system for keeping track of court appearance conflicts. [11] The trial court held a hearing on Floyd's motion to reinstate her complaint and on Logisticare's still-pending claim for attorney fees and expenses. After the hearing, the court denied Floyd's motion to reinstate, and invited the parties to submit further briefs and affidavits on the issue of attorney fees. The court thereafter found that Logisticare is the prevailing party under the contract, and awarded it attorney fees and expenses in the amount of $9,278. Floyd appeals. [12] 1. Floyd contends that the trial court erred in denying her motion to reinstate her complaint. The contention is without merit. [13] Dismissal of an action for failure of the plaintiff to prosecute does not operate as an adjudication on the merits. *fn1 Such a dismissal is discretionary and is subject to appellate


review for abuse of discretion. *fn2 Likewise, the denial of a motion to reinstate a dismissed action is discretionary. *fn3 [14] Floyd has not shown that the trial court abused its discretion. She makes no claim that she did not receive notice of the calendar call, only that her own conflict notification system failed. It was Floyd's responsibility to appear at the call or contact the court to clarify the status of the case. *fn4 Because she failed to fulfill her responsibility, the trial court had no obligation to reinstate her complaint and did not abuse its discretion in refusing to do so. *fn5 The trial court's denial of the motion to reinstate Floyd's claim is therefore affirmed. [15] 2. However, the trial court did err in awarding attorney fees to Logisticare. The claim for attorney fees, and the trial court's award, were based on a clause in the contract which provides: "The prevailing party in any proceeding to resolve dispute or to enforce its rights under this Agreement shall be entitled to receive its reasonable attorney's fees and related out-of-pocket costs and expenses related to such proceeding in addition to any other relief it may be awarded." [16] Contrary to the finding of the trial court, Logisticare is not yet the prevailing party simply because Floyd's complaint has been dismissed, without prejudice, for lack of prosecution. The Georgia Supreme Court has considered the meaning of the phrase "prevailing party" as used in various cases for purposes of recovering attorney fees, and has found that the phrase requires some actual relief on the merits of a claim. [17] Common to all the cases cited is the requirement that a claim for attorney fees be based on obtaining at least some of the relief sought. A succinct but thorough expression of that requirement was stated by the U. S. Supreme Court in establishing a standard for determining whether a plaintiff is a prevailing party for the purpose of seeking attorney fees in an action pursuant to 42 USCA § 1983: a plaintiff prevails when actual relief on the merits materially alters the legal relationship between the parties by modifying the defendant's behavior in any way that directly benefits the plaintiff. *fn6 [18] In the instant case, Logisticare has obtained no actual relief on the merits of either Floyd's claim or its counterclaim for damages. Rather, all that has happened is that Floyd's claim has been dismissed without prejudice, which of course means that there has been no adjudication on the merits. *fn7 Because Logisticare has not obtained relief on the merits, it is not the prevailing party, and therefore it is not entitled to attorney fees pursuant to the contract. *fn8 The trial court's award of attorney fees and expenses is therefore reversed. [19] Judgment affirmed in part and reversed in part. Blackburn, C. J., and Miller, J., concur. -------------------------------------------------------------------------------Opinion Footnotes -------------------------------------------------------------------------------[20] *fn1 OCGA § 9-11-41 (b).

[21] *fn2 Broadwater v. City of Danville, 184 Ga. App. 886, 888 (2) (363 SE2d 316) (1987). [22] *fn3 In Re Anderson, 171 Ga. App. 918, 919 (2) (321 SE2d 417) (1984). [23] *fn4 Ector v. Unison Ins. Co., 228 Ga. App. 520, 521 (3) (492 SE2d 287) (1997). [24] *fn5 In Re Anderson, supra. [25] *fn6 (Citations omitted.) Magnetic Resonance Plus v. Imaging Systems Int'l. 273 Ga. 525, 529 (3) (543 SE2d 32) (2001). [26] *fn7 See Ector, supra. [27] *fn8 See Morris v. Morris, 222 Ga. App. 617, 618 (1) (475 SE2d 676) (1996) (voluntary dismissal of action was not an adjudication of the merits, so defendant was not a prevailing party entitled to attorney fees). MORGAN v. STARKS. A94A0354. (214 Ga. App. 265) (447 SE2d 651) (1994) POPE, Chief Judge. Judgment affirmed. McMurray, P. J., Birdsong, P. J., Beasley, P. J., Johnson, Blackburn, JJ., and Senior Appellate Judge Harold R. Banke concur. Andrews and Smith, JJ., dissent. Motion to set aside. Clayton State Court. Before Judge Benefield. This personal injury case was dismissed without prejudice when neither party appeared for a peremptory calendar call. See Uniform Superior Court Rule 20 (A). The court failed to notify the parties of the dismissal, however, and neither party discovered it. Approximately nine months later, the parties learned the case had been dismissed. 1 Citing Cambron v. Canal Ins. Co., 246 Ga. 147 (1) (269 SE2d 426) (1980), plaintiff then moved the court to set aside the judgment and reenter a new order dismissing the case, thereby enabling plaintiff to refile her action within six months. See OCGA 9-11-41. The trial court granted this motion, and defendant appealed. In Cambron, the Supreme Court held that where the losing party is not informed of the entry of an appealable order until after the time for appeal has run, a motion to set aside the judgment based on a clerical error under OCGA 9-11-60 (g) should be granted and the order should be reissued to allow a timely appeal. 246 Ga. at 147-149 (1). Defendant points out that the order entered in Cambron was the denial of a motion for new trial and the Court in that case relied in part on the trial court's obligation to notify the losing party of its decisions under OCGA 15-6-21 (c). Since OCGA 15-6-21 (c) appears to cover only a trial court's decisions on motions, and the trial court's order dismissing this case for failure to prosecute was not made in response to a motion, defendant argues that the trial court erred in utilizing the procedure set forth in Cambron here. We disagree. While the language of OCGA 15-621 (c) appears to apply only to decisions on motions, the logic of mandating notice to allow the losing party to take appropriate action applies with even stronger force to final judgments, including dismissals for failure to prosecute; add we have in fact indicated that the notice requirement and the reasoning of Cambron apply to final judgments as well as

decisions on motions. See Intertrust Corp. v. Fischer Imaging Corp., 198 Ga. App. 812 (1) (403 SE2d 94) (1991); Atlantic-Canadian Corp. v. Hammer &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22) (1983); Jefferson-Pilot Fire &c. Co. v. Combs, 166 Ga. App. 274 (304 SE2d 448) (1983). Accordingly, we approve the trial court's utilization of the Cambron procedure to allow the merits to be reached in this case. The dissent suggests plaintiff should be unable to rely on Cambron because she was at "fault" to some degree in failing to appear at the peremptory calendar call, thereby causing the dismissal. 2 However, all dismissals for failure to prosecute are to some degree the plaintiff's "fault"; yet the legislature has mandated that cases dismissed on this ground be renewable. It was not the dismissal (which was plaintiff's "fault") which prevented adjudication on the merits, but rather the court's failure to notify the parties of the dismissal continued negotiating after the case was dismissed and discovered the dismissal only when they acknowledged that a settlement was not possible and asked for a pre-trial conference. Contrary to plaintiffs contention, however, assertions in briefs are not evidence which this court can consider. Fortunately, this information is not necessary to our decision. (which was not). We do not consider notification of parties when a case is dismissed to be either a novel notion or an undue burden on the court; and where a court fails to notify parties of a dismissal and a plaintiff is unable to pursue its action on the merits as a result, the court does not abuse its discretion by vacating the dismissal and reentering a new one. Defendant also contends the trial court was without jurisdiction to set aside the judgment of dismissal because the motion to set aside was brought after the expiration of the term in which it was entered. See Goode v. O'Neal, Banks &c., 165 Ga. App. 162 (300 SE2d 191) (1983). However, Goode holds only that the court's inherent power to set aside a judgment for any "meritorious reason" is limited to motions to set aside filed in the same term. See 165 Ga. App. at 162. Motions to set aside for the reasons set forth in OCGA 9-11-60 may be granted as long as the motion is brought "within three years from entry of the judgment complained of," OCGA 9-11-60 (f), and plaintiff's motion in this case was brought well within that three-year period. SMITH, Judge, dissenting. I respectfully dissent. I agree in theory with the majority that the reasoning of Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980) may apply to final judgments in an appropriate case. However, the holding of Cambron is one born of necessity. At the risk of overstatement, in its broadest sense Cambron remedies a situation where the losing party was not to blame for the failure to timely take steps to remedy an adverse judgment. See, e.g., Tucker Station, Ltd. v. Chalet I, 203 Ga. App. 383, 384 (1) (417 SE2d 40) (1992). So long as there is a supportable finding that the losing party was not at fault in failing to timely pursue the right of review or other remedy available to her, I would find no abuse of discretion in applying the Cambron procedure. However, no such finding can be supported in the present case.


First, the majority ignores the fact that plaintiff herself caused the dismissal by failing to appear at a peremptory calendar call. Second, even if I were willing to concede that plaintiff's failure to appear was the result of excusable neglect, the failure to timely discover and endeavor to correct that omission for nine months remains. Third, the majority relies on the establishment of a novel notice requirement which serves no valid purpose. This plaintiff knew, or should have known, that she missed the calendar call; she knew, or should have known, the potential consequences of her failure to appear. Under the circumstances there is simply no excuse for Starks's failure to apprise herself of the status of her case during the course of the succeeding six to nine months, and no conceivable basis on which to make a presumption to the contrary. Compare Wright v. Archer, 210 Ga. App. 607, 608 (1) (436 SE2d 775) (1993). Finally, while it is not proper to address the question of whether Starks is the victim of attorney neglect, I suggest that if such neglect exists, the procedure outlined in Cambron is not the proper method to address it. As a matter of law, Starks (or her present or former counsel) is at least partially to blame for her failure to appear at calendar call and for thereafter losing her right to refile her cause of action. The trial court's application of Cambron to these facts was therefore an abuse of discretion. I am authorized to state that Judge Andrews joins in this dissent. Shepherd & Brown, Timothy N. Shepherd, Lane, O'Brien, Caswell & Taylor, Stephen J. Caswell, Cramer & Peavy, Timothy C. Cramer, for appellee. Notes 1 In her brief, plaintiff asserts that (1) her counsel did not know of the peremptory calendar call because she had changed attorneys without notifying the court and (2) the parties 2 The dissent also suggests plaintiff was at "fault" in failing to discover the dismissal on her own despite the lack of notice. As this type of "fault" is present in any case where a party has lost its right to pursue the merits of an action due to lack of notice of a court's decision, it does not distinguish this situation from that in Cambron. DECIDED JULY 13, 1994 -- RECONSIDERATION DENIED JULY 29, 1994.