In Roberts v. Pointer , 301 Ga. App. 531 687 SE2d 848 2009, the Court of Appeals reversed the trial court’s decision to deny Devin Roberts’ motion for continuance, finding that the trial court abused its discretion by essentially excluding an expert witness of Roberts who was not identified in his pretrial motion. We granted certiorari to determine if the Court of Appeals erred in finding that the trial court abused its discretion by denying Roberts’ motion for continuance. For the reasons set forth below, we answer this question affirmatively and reverse the Court of Appeals. The facts of this case show that Roberts, Michael Pointer, and Debra Pointer were involved in an automobile accident for which Roberts’ liability is undisputed. On March 28, 2008, the trial court entered a consolidated pretrial order in which each party identified individuals as witnesses that “may” or “will” testify at trial and “reserved the right to call additional witnesses provided their names and addresses were provided to the other party with sufficient notice prior to trial.” Five weeks prior to trial, Roberts filed an amendment to the pretrial order, adding to the “may call” list an expert witness, Dr. Stephen C. Allen “Dr. Allen”. Two weeks before trial, Roberts moved for a continuance because Dr. Allen would be unavailable to testify during the week set for trial. The motion stated that Dr. Allen would be “testifying regarding the appropriateness of Mr. Pointer’s treatment and whether the services provided and charges incurred were usual and customary.” One week later, the trial court heard and denied Roberts’ motion during a telephone conference with both parties that was not transcribed. As a result, the record contains neither the arguments nor the evidence presented to the trial court in favor of or against the continuance. Later in the trial proceedings, the trial court made a determination that the Pointers could call a lay witness, Reverend Osie Wilson, to testify at trial, despite the fact that Reverend Wilson was added as a witness following the filing of the pretrial order.1 Roberts, both at the trial court and on appeal, argued that the trial court unfairly allowed the testimony of Reverend Wilson, whom the Pointers had only disclosed one week prior to trial, while excluding the testimony Dr. Allen, whom Roberts had disclosed five weeks prior to trial. In response to this argument, the trial court responded by stating that it was allowing the Pointers’ witness because, although Reverend Wilson was not specifically identified in the order, he was part of a “general class of persons” mentioned. Id. at 533. Further, the trial court commented that “there’s a difference in calling a lay witness to testify . . . and in calling an expert that’s not identified or provided for in the pretrial order.”
Considering the facts, the Court of Appeals accepted Roberts’ characterization of the trial court’s actions, concluding that “in denying the motion for continuance, the trial court essentially excluded Dr. Allen.” Id. The Court of Appeals deduced from the brief mention of the telephonic conference in the transcript that the trial court excluded Dr. Allen as a witness “apparently because he was not mentioned in the pretrial order.” Id. emphasis supplied. Thereafter, the Court concluded that such an exclusion was an abuse of discretion, reasoning that “it was not an appropriate remedy . . . and the only appropriate remedy was postponement of trial or mistrial.” This conclusion is not correct for two reasons.
