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Barker v. Elrod

The trial court erred in denying the appellant's motion for a new trial without holding the mandated hearing.

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Russell Lee Barker, administrator of the estate of Ester H. Blackburn, filed an initial notice of appeal on November 15, 2006, from the trial court’s denial of his motion for new trial on October 16, 2006, and the entry of a final order on August 17, 2006, in this dispute over an estate. By supplemental notice of appeal, filed February 2, 2007, he also appeals from the trial court’s January 10, 2007 denial of his motion to establish transcript of the bench trial. 1. Barker’s first enumeration is that the trial court erred in ruling on his motion for new trial without holding a hearing as he requested, in violation of USC Rule 6.3.

The motion for new trial was filed on September 18, 2006, and included a request that a hearing be set down. A Rule Nisi setting the hearing for November 10, 2006, at 9:00 a.m. was filed on October 13, 2006. On October 16, 2006, however, the trial court entered its order denying Barker’s motion for new trial. USC Rule 6.3 provides that, “unless otherwise ordered by the court,” a motion for new trial “shall be decided” after an “oral hearing.” Here, the trial court did not issue an order excepting the motion filed by Barker from this procedural requirement. Instead, it summarily denied the motion without holding the mandatory hearing. The appellate courts of Georgia have “consistently refused to find that the failure to hold oral argument is harmless error. To hold otherwise ‘would not encourage adherence to the Uniform Rules and would render the mandated hearing a hollow right.’ Cits.” Heston v. Lilly , 242 Ga. App. 902 1 531 SE2d 784 2000.Green v. McCart , 273 Ga. 862, 863 1 548 SE2d 303 2001.

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