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BOCKER v. CRISP (2012)

Court of Appeals of Georgia.

BOCKER v. CRISP et al.

No. A11A1512.

Decided: January 18, 2012

J. Robert Thompson, for Bocker. John Thomas Mroczko, Cartersville, Michael Alexander Prieto, for Pam Crisp.

After conducting a trial in this case without defendant Mark Bocker or his attorney present, the superior court entered judgment against Bocker and in favor of Pam Crisp. Bocker appeals from the judgment, contending that the court abused its discretion in (1) denying his motion for continuance when illness prevented him from appearing at the trial of the case, and (2) denying his motion to reconsider the ruling on the motion for continuance and to set aside the judgment. For the reasons that follow, we affirm.

Crisp filed a petition in probate court seeking, inter alia, removal of Bocker as administrator of her stepfather's estate and damages for his alleged breach of fiduciary duties. After conducting a hearing, the probate court entered judgment in favor of Crisp, removing Bocker as administrator and awarding her damages.1 Bocker appealed the judgment to superior court. The court scheduled the trial of the case for December 15, 2010.

On December 13, 2010, Bocker's attorney filed a motion for continuance on the grounds that he (counsel) had not recovered from knee replacement surgery. Attached to the motion was a physician's affidavit stating that Bocker's attorney was unable to resume normal activity for at least two more weeks. The attorney also stated in the motion that he had received information that Bocker had been admitted to a rehabilitation facility for treatment, that Bocker would not be permitted to leave the facility prior to January 19, 2011, and that Bocker's stay may be extended beyond that date. Thus, Bocker's attorney stated, it was not possible for either he (counsel) or Bocker to appear in court on December 15. No documents were attached to support the attorney's claim that Bocker was unable to appear in court.

Bocker's attorney further stated in the motion that opposing counsel had “consented to a continuance of this matter to January 26, 2011.” Bocker's attorney then “move[d] this Court for a continuance of the scheduled hearing in this matter to January 26, 2011, or such later date as may be convenient for the Court.” Bocker's attorney prepared and presented to the court an “ORDER FOR CONTINUANCE,” which provided: “it appearing that good cause exists to grant said Motion and that opposing counsel have consented thereto, it is therefore ORDERED, that said hearing be continued to January 26, 11 at 9:00 o'clock A. M., in Courtroom _ [_, 2011, at _ o'clock _. M., in Courtroom _].” The letter “D” was handwritten in the space following the first “Courtroom” and a line was drawn through the material inside the brackets. The order was signed by Bocker's attorney, by opposing counsel (by Bocker's attorney with express permission), and by the court. Bocker's attorney served the motion for continuance and proposed order on opposing counsel by mail on December 10, 2010. The order signed by the attorneys and the court was filed on December 13, 2010.

On January 24, 2011, Bocker filed an amended motion for continuance. In it, Bocker's attorney stated that Bocker was still in a rehabilitation facility and would not be released until February 26, at the earliest. Thus, Bocker's attorney asserted, Bocker would not be able to appear in court until early March and counsel could not proceed without Bocker's assistance and testimony; his attorney requested a continuance of the hearing until March 7, 2011 (or such later date as may be convenient for the court). No documentation was attached to support the claim that Bocker was ill or otherwise prevented from appearing in court.

On January 26, 2011, the case came on for a hearing before the superior court. The court noted in its judgment that Bocker had filed an amended motion for continuance, that the court had not excused Bocker or his attorney from appearing, and that Bocker and his attorney failed to appear “at the hearing scheduled for January 26, 2011.” The court denied Bocker's amended motion for continuance and, after hearing the issues and considering the full record and all submissions and arguments, entered judgment against him.

1. Bocker contends that the trial court erred in denying his amended motion for continuance. He asserts that illness prevented his court appearance and that he was entitled to a continuance under OCGA § 9–10–154, which provides:

If either party is providentially prevented from attending the trial of a case, and the counsel of the absent party will state in his place that he cannot go safely to trial without the presence of the absent party, the case shall be continued, provided the continuances of the party have not been exhausted.

To be entitled to a continuance pursuant to OCGA § 9–10–154, a party must present evidence of some character, under oath, that the absent party was in fact providentially prevented from attending the trial of the case.2 In Georgia, all applications for continuances are addressed to the sound legal discretion of the trial court.3

In this case, Bocker failed to present any evidence under oath that he was prevented from attending the trial of the case. “A statement by counsel of the absent party ․ that [the party] was ill and could not attend court was not a sufficient showing in support of the motion” for continuance.4 Because factual assertions contained in a party's brief to the lower court are not evidence,5 Bocker's attorney's assertions in the amended motion for continuance regarding Bocker's health were not evidence.6 Given Bocker's failure to present any sworn evidence that he was in fact providentially prevented from attending the trial of the case, the superior court did not abuse its discretion in denying his amended motion for continuance.7

2. Bocker contends that the court abused its discretion in failing to set aside its judgment, as requested in his motion for reconsideration, because his attorney had no notice of the January 26, 2011 trial date. Bocker argues that he was entitled to have the judgment set aside pursuant to OCGA § 9–11–60(d)8 based on the court's failure to give his attorney notice of the trial date.9 We review a trial court's ruling on a motion to set aside judgment under OCGA § 9–11–60(d) (as well as a ruling on a motion for reconsideration) for abuse of discretion.10

OCGA § 9–11–40(c) pertinently provides that:

The courts shall provide for the placing of actions upon the trial calendar: (1) Without request of the parties but upon notice to the parties; or (2) Upon request of a party and notice to the other parties.

Here, the court placed the case on the January 26, 2011 trial calendar upon Bocker's request (with the consent of the other parties and pursuant to a consent order signed by the court). Therefore, pursuant to OCGA § 9–11–40(c)(2), the court was not required to provide Bocker with notice of the trial date he specifically requested in the order he prepared. The cases upon which Bocker relies are inapposite, as they did not involve a consent order setting forth a particular trial date and the holding of the trial on that date; and, not only did the instant case involve a consent order that set forth the date on which the trial was later held, the consent order here was prepared, signed, presented to the court and served upon opposing parties by the party claiming to have had no notice of the trial date.11

Where parties have a case in court, it is their duty to attend and look after their interests. They can not remain away without sufficient cause and subsequently have set aside a judgment properly rendered against them. They are bound to take notice of the time and place of trial and of when their presence is required.12

Bocker's attorney requested that the trial be held on January 26, 2011, obtained consent of opposing counsel for that date, prepared and submitted a proposed consent order to the court scheduling trial for that date, and served opposing counsel with the proposed consent order setting forth that date as the trial date.13 Under the circumstances presented in this case, Bocker's attorney had a duty to attend court on January 26 and look after his (and Bocker's) interests. The trial court did not abuse its discretion in denying Bocker's motion to set aside the judgment based on the claim that his attorney had no notice of the trial date.14

Judgment affirmed.

PHIPPS, Presiding Judge.

ANDREWS and McFADDEN, JJ., concur.

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BOCKER v. CRISP (2012)

Docket No: No. A11A1512.

Decided: January 18, 2012

Court: Court of Appeals of Georgia.

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