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DRIGGERS v. STYLE CREST PRODUCTS INC

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Court of Appeals of Georgia.

DRIGGERS et al. v. STYLE CREST PRODUCTS, INC.

No. A04A0891.

Decided: September 15, 2004

Franklin, Taulbee, Rushing, Snipes & Marsh, William K. McGowan, Statesboro, for appellants. Arnall, Golden & Gregory, Blake E. Lisenby, Macon, for appellee.

Dennis Driggers and Dewayne Driggers (the Driggers) appeal from the trial court's grant of summary judgment to Style Crest Products, Inc. (Style Crest).   In addition to arguing that summary judgment was inappropriate, the Driggers contend that the trial court erred in granting summary judgment without holding oral argument when it was requested in writing.   We agree that the trial court erred in failing to hold oral argument and reverse.

Style Crest sued the Driggers and others 1 to recover the balance on a commercial account, alleging that the Driggers personally guaranteed the debt.   Style Crest filed a motion for summary judgment, and the Driggers filed both a response to that motion and a “Request for Oral Hearing.”   The trial court subsequently granted summary judgment to Style Crest without holding the requested hearing.   Contending that they never received a copy of the entry of the summary judgment order, the Driggers filed a motion to set aside the judgment.   The trial court granted the motion to set aside, vacated its summary judgment order, and issued a new order again granting summary judgment to Style Crest.

 1. The Driggers first contend that the trial court erred in failing to hold an oral hearing as required by Uniform Superior Court Rule (USCR) 6.3.   We agree.

 The rule provides that

oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled “Request for Oral Hearing,” and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.

“Under this rule, whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court.   All a party need do is make a written request for oral argument and it shall be held.”  (Citation and punctuation omitted.)  Vincent v. Bunch, 227 Ga.App. 480(1), 489 S.E.2d 592 (1997).   Since the Driggers filed a request for a hearing on Style Crest's motion for summary judgment, the trial court had no discretion to deny the request.   We therefore reverse the grant of summary judgment to Style Crest, and remand this case to the trial court with instructions that oral argument be held on the motion.   See Pit Stop v. Jackson, 216 Ga.App. 648-649(1), 455 S.E.2d 358 (1995).

2. In light of our holding in Division 1, the Driggers' remaining enumeration is moot.

Judgment reversed and case remanded with direction.

FOOTNOTES

1.   Style Crest also sued Trius, Inc. and John Morgan.

MILLER, Judge.

ANDREWS, P.J., and ELLINGTON, J., concur.

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