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General Elec. Capital Corp. v. Browning Mulch Co. Inc.

The trial court erred in dismissing the plaintiff's claim, because the trial court could only dismiss without prejudice for failure to appear and no evidence in the record showed that the other party filed a brief.

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General Electric Capital Corporation “GECC” appeals the trial court’s order dismissing with prejudice their Petition for Immediate Writ of Possession and for Damages. GECC filed its petition against Browning Mulch, Inc., f/k/a BFB Logistics, Inc. d/b/a Georgia Nuggets, Inc., Browning Straw Company, Inc. and Bobby F. Browning collectively “Browning” on February 21, 2008.1 On February 26, the trial court entered a Temporary Restraining Order against Browning and an Immediate Writ of Possession as to certain personal property in the possession of Browning Mulch, BFB Logistics and Browning Straw. Browning Mulch and BFB Logistics filed a joint Answer and Counterclaim to the Petition, and Bobby Browning filed a separate Answer and Counterclaim. Browning Straw did not file an answer or otherwise enter an appearance below.

The matter was placed on the June 23, 2009 calendar call, but GECC moved for a continuance. Subsequently, on July 13, 2009, the trial court issued an order directing the parties to prepare and file a pretrial brief by 4 p. m. on July 31, 2009, and to appear for trial on August 10, 2009. The record contains no evidence that either party prepared a pretrial brief in the case.

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