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D. Janene Holladayv.Cumming Family Medicine, Inc.

CourtCourt of Appeals of Georgia
Docket No.A18A2070
DecidedJanuary 9, 2019
JudgesCourt of Appeals of Georgia
Tags
CivilCivil ProcedureContract LawSummary JudgmentAppellate ProcedureVacaturRemand
Case Summary

Cumming Family Medicine sued D. Janene Holladay for breach of a settlement agreement and moved for summary judgment. The trial court issued a rule nisi setting a hearing for April 24, 2018, but granted summary judgment on April 13, before that hearing occurred. Holladay appealed. The Court of Appeals vacated the order and remanded for oral argument. Georgia procedure permits a summary-judgment hearing when a party makes a written request, and a trial court may also order a hearing on its own motion. Once this trial court issued a rule nisi setting a hearing, Holladay was entitled to rely on that date unless the court first withdrew or vacated it. Her failure to respond to the motion did not waive the right to oral argument; it waived only the opportunity to present opposing evidence. The purpose of the hearing was to allow counsel to persuade the court and the court to question counsel. Because the court decided the motion before the scheduled hearing, the error was reversible and the case returned for argument.

Opinion

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D. Janene Holladay V. Cumming Family Medicine, Inc. — The Atlanta Gleaner