Skip to main content

WORLEY v. WINTER CONSTRUCTION COMPANY

Reset A A Font size: Print

Court of Appeals of Georgia.

WORLEY v. The WINTER CONSTRUCTION COMPANY et al.

No. A10A0620.

Decided: April 28, 2010

Daniel Kirkland McCall, for Appellant. James T. Budd, David Todd Markle, Brett Alan Miller, for Appellee.

Jo Worley sued The Winter Construction Company and Big Dog Demolition, Inc., for injuries sustained when she tripped over a pipe at a construction site inside Perimeter Mall. Worley filed the complaint electronically. Winter Construction received notice of the lawsuit by certified mail, and filed an answer. In its answer, Winter Construction asserted the defenses of insufficiency of service of process and expiration of the statute of limitation. Winter Construction filed a motion to dismiss or in the alternative for summary judgment, reasserting those defenses. Winter Construction filed and served the motion electronically. Big Dog Demolition filed an answer and moved for summary judgment. The trial court dismissed the action against Winter Construction with prejudice and granted summary judgment to Big Dog Demolition. Worley appeals from both judgments.

1. Worley contends the trial court erred in granting Winter Construction's motion to dismiss with prejudice when Winter Construction failed to serve its motion to dismiss in the manner required by OCGA § 9-11-5. Specifically, Worley complains that: (a) the statute does not permit service only by e-mail; and (b) Winter Construction's attorney misled the trial court by indicating in his certificate of service that he served her with the motion by U.S. mail. This enumeration is without merit.

OCGA § 9-11-5(b) permits pleadings subsequent to the original complaint to be served by e-mail transmission provided that certain requirements are met. Despite Worley's claim, the statute does not require that pleadings served by e-mail also be served by U.S. mail. Worley does not claim that any of the statute's electronic delivery requirements were not met. Worley has shown no grounds for reversal .1

The fact that Winter Construction's attorney indicated that the motion was delivered by U.S. mail when it was delivered electronically is of no legal consequence. Proof of service may be made by any proof satisfactory to the court, and failure to make proof of service does not affect the validity of service.2 Here, the record contains evidence that the motion was delivered to Worley electronically. Thus, service was not invalidated as a result of the fact that counsel incorrectly indicated the manner of service on the proof of service form.

2. Worley contends the trial court erred in not allowing oral argument when Winter Construction requested oral argument on its motion for summary judgment. Worley relies on Uniform Superior Court Rule (USCR) 6.3, which provides, in pertinent part, that:

oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading ․ 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.

Here, however, the trial court did not grant Winter Construction's motion for summary judgment without a hearing. Instead, the court granted Winter Construction's motion to dismiss without a hearing (two months after the motion was filed and after no response was filed by Worley). We point out that the defense of insufficiency of service of process is not properly a basis for a motion for summary judgment, but is a basis for a motion to dismiss.3 USCR 6.3 and the cases upon which Worley relies are inapplicable to a motion to dismiss.4 Under USCR 6.3, a motion to dismiss can be decided without oral hearing. This enumeration is without merit.

3. Worley contends the trial court erred in not allowing oral argument pursuant to Big Dog Demolition's summary judgment motion. However, because Big Dog Demolition did not request oral argument, it was incumbent on Worley to request a hearing within five days after the time for her response to Big Dog Demolition's motion.5 Worley never filed a response to Big Dog Demolition's motion for summary judgment nor requested a hearing regarding the summary judgment motion. There was no error.

4. Worley contends the trial court erred in denying her request for oral argument on her Motion to Reconsider and Vacate. Worley made her oral argument request pursuant to USCR 6.3. However, USCR 6.3 specifically provides that, unless otherwise provided by the court, motions other than those for new trial and judgment notwithstanding the verdict (or for summary judgment with a proper hearing request) are to be decided without oral hearing.6 We note that a motion to reconsider can be ruled upon by the trial court without notice to either party,7 and prior to the expiration of the time period within which a party is allowed to respond.8 Worley has not shown she had a right to oral argument on the motion to reconsider and vacate the order.

Judgment affirmed.

FOOTNOTES

1.  See Harman v. McAfee (Case A09A2315, decided March 8, 2010).

2.  OCGA § 9-11-5(b).

3.  McCullers v. Harrell, 298 Ga.App. 798, 800(2) (681 S.E.2d 237) (2009).

4.  See Stewart v. Turner, 229 Ga.App. 119, 120(1) (493 S.E.2d 251) (1997).

5.  USCR 6.3.

6.  USCR 6.3 provides: “Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.”

7.  Rogers v. Rockdale County, 187 Ga.App. 658, 660(1) (371 S.E.2d 189) (1988).

8.  Butler v. Bolton Rd. Partners, 222 Ga.App. 791, 792(1) (476 S.E.2d 265) (1996).

JOHNSON, Judge.

MILLER, C.J., and PHIPPS, P.J., concur.

Copied to clipboard