SOUTHERN EMPIRE HOMES INC v. OGNIO GRADING INC

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Court of Appeals of Georgia.

SOUTHERN EMPIRE HOMES, INC. v. OGNIO GRADING, INC.

No. A05A2299.

Decided: January 11, 2006

Robert K. Prater, Newnan, for Appellant. Mark D. Gropp, Wasson, Sours & Harris, P.C., Atlanta, for Appellee.

Ognio Grading, Inc. (Ognio) sued Southern Empire Homes, Inc. (Southern Empire) to foreclose a special lien.   Ognio moved for summary judgment, which the trial court granted.   On appeal, Southern Empire contends, and Ognio concedes, that the trial court erred in granting summary judgment to Ognio without first scheduling a hearing for oral argument as requested in writing by Southern Empire.   We agree that the trial court erred in failing to hold oral argument, and therefore reverse.

 Pursuant to Uniform Superior Court Rule 6.3,

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,” ․ 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 Southern Empire filed a request for a hearing on Ognio's motion for summary judgment, the trial court had no discretion to deny the request.   We therefore reverse the grant of summary judgment to Ognio 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, 648-649(1), 455 S.E.2d 358 (1995).

Judgment reversed and case remanded with direction.

MILLER, Judge.

BLACKBURN, P.J., and BERNES, J., concur.