Torok v. Yost , 194 Ga. App. 94 ( 1989 )

Benham, Judge.

This appeal follows the trial court’s grant of appellee’s motion to dismiss appellants’ personal injury lawsuit (case no. A89A1228) and abusive litigation lawsuit (case no. A89A1241) for failure to comply timely with an order entered by the trial court. We reverse.

1. The order at issue was entered on August. 5, 1988, after the trial court held a hearing to give direction to the parties, who had been unable to formulate a joint pre-trial order. The trial court’s order, among other things, noted that special damages must be pleaded with particularity under OCGA § 9-11-9 and ordered appellants to file a “pleading of special damages by dollar amount.” The order did. not give a deadline for appellants’ compliance. In October, appellee filed a motion to dismiss due to appellants’ failure to comply with the order to amend their pleadings. Appellants amended their complaint to plead special damages by dollar amount on November 14, ten days after the trial court held a hearing on the motion to dismiss. The trial court granted appellee’s motion to dismiss on January 9, 1989.

As noted previously, the trial court’s order did not set a time within which appellants had to amend their pleadings. The Civil Practice Act provides that “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). While the records contain several proposed pre-trial orders submitted by each party, neither record contains a pre-trial order signed by the trial court and entered. See OCGA § 9-11-16 (b). Thus, appellants’ amendment, filed prior to the entry of a pre-trial order, was proper and timely and should have been considered by the trial court. See Rushing v. Ellis, 124 Ga. App. 621 (1) (184 SE2d 667) (1971). Since appellants amended their complaint as ordered by the trial court, the trial court erred in dismissing appellants’ lawsuit for failing to obey the trial court’s order. Graham v. Dev. Specialists, 180 Ga. App. 758 (350 SE2d 294) (1986), is distinguished since there the trial court gave the plaintiffs a time certain within which they were to file the more definite statement sought by the defendants. Id. at 760.

Appellee maintains that OCGA § 9-11-12 (e) gave appellants 15 days to obey the trial court’s order. Relying on Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974), appellee asserts that compliance with an order that refers to OCGA § 9-11-9 is governed by the time limitations set forth in OCGA § 9-11-12 (e). However, according to the language of OCGA § 9-11-12 (e), it comes into play after a party moves for a more definite statement and the motion is granted. No such motion was made or granted in the case at bar. In Cochran, the Supreme Court held that a pleading involving a special matter (fraud, mistake, etc.) should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief, and noted that a motion for more definite statement was the proper means for seeking more particularity. See Bryant v. Bryant, 236 Ga. 265 (223 SE2d 662) (1976). However, as stated earlier, that is not the setting for the case at bar. Here, no motion for a more definite statement preceded appellee’s motion to dismiss, and the motion to dismiss did not have as its basis a failure to state a claim, but contended instead that appellant had not timely complied with an order of the court.

2. In light of the holding in Division 1, appellee’s motion for the imposition of a penalty for frivolous appeal is denied.

Judgments reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Sognier and Pope, JJ., concur. Deen, P. J., Birdsong and Beasley, JJ., dissent.