Carnes Brothers Inc. v. Cox

Trial court had authority within the same term of court to vacate its order dismissing plaintiff's case to correct a clerical mistake, reinstate the dismissal order and then grant plaintiff's motion to vacate the dismissal order to substitute a less severe sanction against plaintiff.

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Carnes Brothers, Inc., appeals from the trial court’s order vacating its dismissal of Darlene Cox’s complaint without prejudice for failure to file a pre-trial order in this slip and fall premises liability action. Because we find no abuse of discretion, we affirm.

Cox brought this suit against Carnes Brothers on January 5, 1996, by re-filing her complaint pursuant to the renewal statute, OCGA § 9-2-61. The previous action was dismissed on September 27, 1995, when Cox failed to timely file her portion of the pre-trail order. On September 2, 1997, the trial court notified the parties that pre-trial orders were due on September 30, 1997, for cases scheduled to be on the October 13, 20, and 27, 1997 trial calendars. This was the third time the case had appeared on a trial calendar and the third time Cox was directed to file a pretrial order. Twice, Carnes Brothers filed and served a copy of their portion of the pretrial order on Cox. Cox did not file her portion of the pre-trial order. On September 30, 1997, the trial court dismissed Cox’s complaint without prejudice. The dismissal order was never served upon Cox, however, because the court’s staff misaddressed the envelope. Cox’s attorney, assuming the case was still on the trial calendar, filed a conflicts letter on October 17, 1997.

Carnes Brothers Inc. v. Cox

Trial court had authority within the same term of court to vacate its order dismissing plaintiff's case to correct a clerical mistake, reinstate the dismissal order and then grant plaintiff's motion to vacate the dismissal order to substitute a less severe sanction against plaintiff.

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