FIRST DIVISION

BARNES, P. J.,

GOBEIL and MARKLE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

June 15, 2021

In the Court of Appeals of Georgia

A21A0577. SHANNON v. HATCH.

MARKLE, Judge.

After Warren Shannon failed to appear for trial, the trial court entered final

judgment against him. In this discretionary appeal, Shannon appeals from the trial

court’s denial of his motion to set aside the judgment, contending that the trial court

abused its discretion because the judgment was the functional equivalent of an

improper dismissal with prejudice based solely on his nonappearance. Because we

conclude that the final judgment is a nonamendable defect on the record, we reverse.

“Generally, we review a trial court’s ruling on a motion to set aside for abuse

of discretion. However, where the facts are undisputed and the issues presented on

appeal involve questions of law, we review the trial court’s ruling de novo.” Davis

v. Crescent Holdings & Investments, 336 Ga. App. 378 (785 SE2d 51) (2016).
The facts are not in dispute. Shannon sued William D. Hatch for negligence

arising from an accident in which Hatch’s vehicle struck Shannon, a pedestrian. In

early January 2020, the trial court issued an order granting the parties’ joint motion

to continue the trial of this matter, and notified them that the case had been placed on

the court’s March 2, 2020 trial calendar. 

The week prior to the call of the calendar, court staff e-mailed the parties’

counsel, directing them to appear on March 2, 2020. Counsel for both parties

appeared at the call of the trial calendar, and the trial court informed them that the

case was in line to be tried and that they were on a two-hour call.

1 On the morning of

March 3, 2020, court staff e-mailed the parties’ counsel, notifying them that the case

would likely be called the following morning, and that they would receive further

confirmation later that same day. Thirty minutes later, court staff e-mailed both

counsel again, directing the parties to appear for trial the following morning. Neither

Shannon nor his counsel appeared for trial on March 4, 2020. Hatch announced ready

for trial and requested that the trial court enter judgment in his favor. After

confirming with the court clerk and his staff that they had received no

communications from Shannon, the trial court entered final judgment in Hatch’s

1

 The call of the trial calendar was not transcribed. 

2
favor. Shannon moved to set aside the judgment, which the trial court denied. We

granted Shannon’s application for discretionary appeal, and this appeal followed. 

In related enumerations of error, Shannon argues that the trial court abused its

discretion by denying his motion to set aside because the final judgment effectively

and improperly dismissed his claims with prejudice based solely on his failure to

appear for trial.

2 We conclude that the final judgment is a nonamendable defect on the

record, and therefore reverse.3

2 Although Shannon contests the sufficiency of the trial notice, we presume he

received proper notice for purposes of this appeal since we reverse on other grounds.

See Barner v. Binkley, 304 Ga. App. 73 (695 SE2d 398) (2010). However, we take

this opportunity to note that Shannon’s counsel emphatically blames the trial court

for his absence at trial because the trial court purportedly announced at the calendar

call that it would notify counsel to appear for trial by phone, but instead sent an email. Interestingly, at the motion hearing, both the trial judge and opposing counsel

denied that the court had directed counsel to await a phone call. Moreover, Shannon’s

counsel did not deny that he received the e-mails, but instead admitted that he simply

did not read them. This apparent disregard for communications from the court,

especially when counsel’s case is on an active trial calendar, is troubling, and we

express our decided disapprobation of counsel’s conduct. See Rule 1.3 of the Georgia

Rules of Professional Conduct found in Bar Rule 4-102 (d).

3 Hatch argues that Shannon waived any argument with respect to OCGA § 9-

11-60 (d) (3) because he referenced only OCGA § 9-11-60 (d) (2) in his motion to set

aside. Although it is true that Shannon did not specifically name subpart (d) (3) of

that Code section in his motion, he contended that the final judgment was a

nonamendable defect on the record, which is the ground addressed in OCGA § 9-11-

60 (d) (3). To find that Shannon thus waived his argument here would amount to

placing form above substance, which we decline to do.

3
Pursuant to OCGA § 9-11-60 (d) (3), a trial court is authorized to set aside its

judgment due to “[a] nonamendable defect which appears upon the face of the record

or pleadings.” Under Georgia law, a trial court’s dismissal of a claim with prejudice

where the claim could only be properly dismissed without prejudice amounts to a

nonamendable defect on the record. Bonner v. Green, 263 Ga. 773 (438 SE2d 360)

(1994); Skipper v. Paul, 356 Ga. App. 281, 283 (2) (846 SE2d 444) (2020) (physical

precedent only). And, pursuant to OCGA § 9-11-41 (b),4a dismissal for failure to

prosecute is not an adjudication on the merits and thus is without prejudice. Chrysler

Financial Svcs. Americas v. Benjamin, 325 Ga. App. 579, 581 (1) (754 SE2d 157)

(2014); Wolfpack Enterprises v. Arrington, 272 Ga. App. 175, 176 (1) (612 SE2d 35)

(2005) (“A dismissal with prejudice based solely on want of prosecution or failure to

appear is improper.”). In this same vein, Uniform Superior Court Rule (“USCR”) 14

provides that “the court may dismiss without prejudice any civil action . . . upon the

failure to properly respond to the call of the action for trial[.]” (emphasis supplied).

4 OCGA § 9-11-41 (b) provides, in pertinent part: “For failure of the plaintiff

to prosecute or to comply with this chapter or any order of court, a defendant may

move for dismissal of an action or of any claim against him. . . . A dismissal for

failure of the plaintiff to prosecute does not operate as an adjudication upon the

merits[.]”

4
Hatch argues that the trial court did not dismiss Shannon’s claims here, but

issued a final judgment following trial, which was authorized under the rule set forth

in Kraft, Inc. v. Abad, 262 Ga. 336 (417 SE2d 317) (1992). In Kraft, our Supreme

Court held that the permissive language of OCGA § 9-11-41 (b) and USCR 14 does

not confine a trial court to dismissing a case without prejudice for a party’s

nonappearance at trial; rather, a trial court may continue the case or proceed with the

trial of the case in that party’s absence. Kraft, 262 Ga. at 336. 

There is one key distinction between Kraft and the subject case, however. In

Kraft, the trial court “heard evidence,” whereas here, Hatch announced ready to

proceed to trial and merely requested a final judgment in his favor based purely on

Shannon’s absence. Kraft, 262 Ga. at 336. Moreover, although it appears that a jury

pool was present in the courtroom at the time, the record does notshow that they were

sworn or impaneled. In other words, there was no trial in this case.5 See Preferred

Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 274 (4) (329 SE2d 900) (1985) (“the trial

does not begin until the jury has been impaneled and sworn.”) (citation omitted). 

5 Shannon did not waive his right to a jury trial based solely on his

nonappearance for trial. Barner, 304 Ga. App. at 77 (3). In fact, the record showsthat

he repeatedly demanded and expected a jury trial. 

5
Consequently, there was no adjudication on the merits here, and the trial court

was authorized only to dismiss this case without prejudice if it chose to dispose of

this case under these circumstances. OCGA § 9-11-41 (b); USCR 14; see Chrysler

Financial Svcs. Americas, 325 Ga. App. at 581 (1); Wolfpack Enterprises, 272 Ga.

App. at 176 (1). But by issuing final judgment, the trial court effectively dismissed

the case with prejudice. Therefore, as a matter of law, the final judgment is a

nonamendable defect on the record, and the trial court abused its discretion by

denying Shannon’s motion to set aside. Bonner, 263 Ga. at 773; OCGA § 9-11-60 (d)

(3).

Judgment reversed. Barnes, P. J., and Gobeil, J., concur.

6