2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 3 - Pleadings and Motions
§ 9-11-16. Pretrial Procedure; Formulating Issues; Order; Calendar
- Upon the motion of any party, or upon its own motion, the court shall direct the attorneys for the parties to appear before it for a conference to consider:
- The simplification of the issues;
- The necessity or desirability of amendments to the pleadings;
- The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
- The limitation of the number of expert witnesses; and
- Such other matters as may aid in the disposition of the action.
- The court shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. The order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.After entry of the pretrial order, it shall be within the discretion of the court to permit or disallow the presentation of testimony from any expert witness whose name is not contained in the pretrial order; provided, however, that if the additional expert witness is permitted to testify, any opposing party shall be permitted reasonable time to take the deposition of the additional expert witness.The court, in its discretion, may establish by rule a pretrial calendar on which actions may be placed for consideration as provided in subsection (a) of this Code section and may either confine the calendar to jury actions or to nonjury actions or extend it to all actions.
(Ga. L. 1966, p. 609, § 16; Ga. L. 1967, p. 226, § 10; Ga. L. 1968, p. 1104, § 5; Ga. L. 1993, p. 91, § 9; Ga. L. 2002, p. 1244, § 1.1.)Cross references.
- Pre-trial conferences, Uniform Superior Court Rules, Rule 7.
Civil jury trial calendar, Uniform Superior Court Rules, Rule 8.
Pre-trial conferences in probate court proceedings, Uniform Rules for the Probate Courts, Rule 7.U.S. Code.
- For provisions of Federal Rules of Civil Procedure, Rule 16, see 28 U.S.C.Law reviews.
- For article, "Pre-Trial Conference," see 4 Mercer L. Rev. 302 (1953). For article, "Synopses of 1968 Amendments to the Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For annual survey of trial practice and procedure, see 40 Mercer L. Rev. 423 (1988). For survey article on evidence law, see 60 Mercer L. Rev. 135 (2008).JUDICIAL DECISIONS
- General Consideration
- In light of the similarity of the statutory provisions, decisions under Ga. L. 1953, p. 269, §§ 1, 2, are included in the annotations for this Code section.Construction with
§ 9-11-15(b). - Ga. L. 1968, p. 1104, § 5 (see now O.C.G.A. § 9-11-16) must always be considered in light of the mandatory provisions of Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15(b)), relating to amendments to conform to the evidence, and the test of implied amendment of pleadings should always be whether the opposing party had a fair opportunity to defend and offer evidence or was misled. Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 267 S.E.2d 792 (1980); Rockdale Body Shop, Inc. v. Thompson, 222 Ga. App. 821, 476 S.E.2d 22 (1996); Walker v. Sutton, 222 Ga. App. 638, 476 S.E.2d 34 (1996).
Construction with O.C.G.A. § 9-11-16. - Defendant did not waive the issue of attorney's fees by failing to include the issue in the parties' pretrial order under O.C.G.A. § 9-11-16 because a motion for attorney's fees under O.C.G.A. § 9-15-14 could be, according to the language of the statute, made at any time during the action but not later than 45 days after judgment. McClure v. McCurry, 329 Ga. App. 342, 765 S.E.2d 30 (2014).Manifest injustice.
- To prevent ambushing opposing counsel with an unfamiliar witness, Ga. Unif. Super. Ct. R. 7.2(19) provides for mutual disclosure in the pretrial order of all of those who either "will" or "may" be called; as a sanction for non-disclosure, O.C.G.A. § 9-11-16(b) does not allow the calling of an unlisted witness unless the party can show that it is necessary "to prevent manifest injustice." Ballard v. Meyers, 275 Ga. 819, 572 S.E.2d 572 (2002).No authority to set aside valid proceedings.
- This section does not confer authority upon the court to set aside valid proceedings pending in the cause. Riden v. Commercial Credit Plan, 136 Ga. App. 191, 220 S.E.2d 746 (1975).Judge not authorized to vacate, modify, or set aside valid proceedings.
- Georgia Laws 1953, p. 269, §§ 1 and 2 did not, directly or by inference, confer upon judge of the superior court any power to vacate, modify, or set aside valid proceedings pending in the cause in which a pretrial conference is set by the court. Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961), overruled on other grounds, Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982).Withdrawal or amendment of admissions.
- Attempt to withdraw or amend admissions must be accompanied by a showing that the merits of the case will be subserved. Yarbrough v. Magbee Bros. Lumber & Supply Co., 189 Ga. App. 299, 375 S.E.2d 471 (1988).
Trial court did not err in allowing the withdrawal of admissions made by operation of law pursuant to O.C.G.A. § 9-11-36(b) because O.C.G.A. § 9-11-16(b), governing pretrial orders, did not apply to limit the trial court's discretion to permit withdrawal of the disputed admissions when the trial court's June 5 scheduling order was not intended as a pretrial order. Velasco v. Chambless, 295 Ga. App. 376, 671 S.E.2d 870 (2008).Mandatory nature of pretrial procedures.
- Pretrial rule in this state differs from the federal rule in that, among other things, pretrial procedures are mandatory in this state if sought by a party or the court, but both rules make the pretrial order itself mandatory. Smith v. Davis, 121 Ga. App. 704, 175 S.E.2d 28 (1970).
It is error for court to refuse to grant pretrial hearing and order when a timely motion to this effect has been entered. Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483, cert. denied, 436 U.S. 921, 98 S. Ct. 2272, 56 L. Ed. 2d 764 (1978).Mandate of pretrial conference.
- It is error for trial court to ignore the mandate of this section requiring a pretrial conference upon timely motion. International Ass'n of Bridge Ironworkers, Local 387 v. Moore, 149 Ga. App. 431, 254 S.E.2d 438 (1979).Failure to enter pretrial order is error.
- It is error for trial court to ignore mandate of this section to make an order. Smith v. Davis, 121 Ga. App. 704, 175 S.E.2d 28 (1970).
Mandatory language of this section makes failure to enter pretrial order error, and the only question remaining is whether the error is harmful. Sheet Metal Workers Int'l Ass'n v. Carter, 144 Ga. App. 48, 240 S.E.2d 569 (1977), rev'd on other grounds, 241 Ga. 220, 244 S.E.2d 860 (1978).
Omission of an issue from a pretrial order is not controlling if evidence pertaining to the issue is introduced without objection, the opposing party is not unfairly surprised, and the issue is actually litigated. Dunkin' Donuts of Am., Inc. v. Gebar, Inc., 202 Ga. App. 450, 414 S.E.2d 683 (1992).
Consolidated pretrial order submitted by the parties but unsigned by the court, which failed to raise a defense mentioned in the answer, did not preclude the defendant from pursuing the defense in a motion prior to trial. Swanson v. State Farm Mut. Auto Ins., 242 Ga. App. 616, 530 S.E.2d 516 (2000).Failure to submit portion of order.
- Because the sole reason why an equitable division matter went to trial without the consolidated pretrial order required by O.C.G.A. § 9-11-16, was the party's failure to submit the party's part of the pretrial order, the party could not be heard to complain of a judgment that the party's own procedure or conduct procured or aided in causing. Graham v. Graham, 291 Ga. 1, 727 S.E.2d 101 (2012).Order not complete.
- Record showed only that the defendant's portion of a proposed consolidated pretrial order was filed, however, it was not a complete pretrial order, or even an order, within the meaning of subsection (b) of O.C.G.A. § 9-11-16, having not been made or signed by the judge. Applied Ecological Sys. v. Weskem, Inc., 212 Ga. App. 65, 441 S.E.2d 279 (1994).Judge not required to sign order.
- Neither O.C.G.A. § 9-11-16 nor Rule 7.2 of the Uniform Superior Court Rules requires the judge to sign a pretrial order proposed by the parties. Swanson v. State Farm Mut. Auto Ins., 242 Ga. App. 616, 530 S.E.2d 516 (2000).
Fact that parties failed to reach any agreements, which trial court stated for the record as the reason for failing to make a pretrial order, affords no legal justification to ignore the mandate to enter such order. Smith v. Davis, 121 Ga. App. 704, 175 S.E.2d 28 (1970).Harmless failure to enter pretrial order.
- Harmless error doctrine applicable to this section is not to be extended loosely; it must clearly appear from the record that failure to enter pretrial order was harmless for the judgment to stand. Sheet Metal Workers Int'l Ass'n v. Carter, 144 Ga. App. 48, 240 S.E.2d 569 (1977), rev'd on other grounds, 241 Ga. 220, 244 S.E.2d 860 (1978).
Pretrial order controls subsequent trial, unless objected to. Brumby v. Brooks, 140 Ga. App. 210, 230 S.E.2d 359 (1976); Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481, 249 S.E.2d 286 (1978).
Stipulation by counsel contained in a pretrial order is binding not only as a part of the pretrial order, but also, so long as it is before the court, it is binding because it is a stipulation by the parties upon which a resolution of the issue is to be made, and is binding even though it might in some manner contradict or conflict with the pleadings. Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 204 S.E.2d 789 (1974).
Evidence contrary to stipulation by counsel in a pretrial order is not admissible; since such stipulation is binding, it may not be disproved. Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 204 S.E.2d 789 (1974).No amendment of pretrial order without leave of court or consent of adverse party.
- Once a pretrial order has been entered, a party may not amend without leave of court or consent of the opposite party; such order, when entered, limits the issues for trial to those not disposed of by admissions and agreement of counsel, and controls the subsequent course of the action, unless modified at trial to prevent manifest injustice. Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980).
If litigant desires modification of pretrial order, application should be made to the trial judge either before or during the trial for such modification. Gilbert v. Meason, 145 Ga. App. 662, 244 S.E.2d 601 (1978).Timeliness of motion to amend pretrial order filed at trial.
- Motion to amend pretrial order and proffered amendment filed at trial cannot, as a matter of law, be untimely. Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973).Objection to expert witnesses not timely filed.
- In a tenant's action against the leasing agent of the tenant's apartment complex alleging that the tenant was injured by soot emitted from the apartment's heating system, the trial court properly refused to exclude expert opinions on behalf of the tenant on the ground that the opinions were inadmissible under former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702); although the agent had notice that the tenant intended to rely on the experts' opinions, the agent did not assert the agent's claim until the last business day before the trial and therefore failed to seek a timely ruling no later than the final pretrial conference contemplated under O.C.G.A. § 9-11-16 as required by former § 24-9-67.1(d). Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 640 S.E.2d 620 (2006).Pre-trial order did not preclude defendant's challenging fraud claim.
- Trial court did not err in denying the plaintiff's motion to preclude the defendants from contesting the merits of a fraud claim under the doctrines of res judicata and collateral estoppel because the bankruptcy court's discussion of the fraud issue was in the context of the court's ruling on whether the automatic stay should be modified so that the pending state court litigation could proceed and was not entitled to preclusive effect. Gajaanan Inv., LLC v. Shahil & Sohail Corp., 323 Ga. App. 694, 747 S.E.2d 713 (2013).Modification or amendment of pretrial order at trial in court's discretion.
- Discretion is reposed in trial judge as to whether to allow modification or amendment of pretrial order at the trial. Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973); Khoury Constr. Co. v. Earhart, 191 Ga. App. 562, 382 S.E.2d 392 (1989).
In the absence of an abuse of discretion, a trial court's action in creating, enforcing, and modifying a pretrial order will not be disturbed on appeal. Although the words "borrowed servant" did not appear in a crane company's answer to a complaint alleging its employee was negligent or in the pretrial order, the issue was raised through the company's motion for summary judgment; permitting the company to amend the pretrial order led to neither prejudice arising out of surprise nor waiver as a matter of law, so there was no abuse of discretion in the trial court allowing the company to amend the pretrial order. Gibson v. Tim's Crane & Rigging, Inc., 266 Ga. App. 42, 596 S.E.2d 215 (2004).Modification of pretrial order as to damages.
- Since a pretrial order stated that the damages cap in the Tort Claims Act, O.C.G.A. § 50-21-20 et seq., would apply, the trial court abused the court's discretion by implicitly modifying the pretrial order to support a judgment in excess of the cap. Dep't of Human Resources v. Phillips, 268 Ga. 316, 486 S.E.2d 851 (1997).
To disallow proffered amendment and construe pretrial order as preventing support of case by evidence works a manifest injustice on the party moving for such amendment. Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973).Rescission of pretrial order on court's motion not authorized.
- This section does not provide any authority for a trial judge to rescind a pretrial order on the judge's own motion. Smith v. Billings, 132 Ga. App. 201, 207 S.E.2d 683 (1974).
It must lie within court's power to impose appropriate sanctions to make effective court's pretrial orders. Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973).
No harsher sanctions to ensure effectiveness of pretrial orders should be imposed than are necessary to vindicate court's authority. Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973).
"Calendar Call of Inactive Cases" is an order of court when properly drawn and signed by the judge, and upon proof of mailing to counsel's last known address, court is authorized to dismiss cases listed for want of prosecution. Roark v. Northeast Sales Distrib. Co., 124 Ga. App. 10, 183 S.E.2d 83 (1971).
Motion in limine is similar in purpose and function to a preliminary ruling on evidence at a pretrial conference, controlling the subsequent course of the action, unless modified at trial to prevent manifest injustice; it is an interlocutory ruling, appealable with the final judgment. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 260 S.E.2d 20 (1979).
Trial court did not abuse the court's discretion in denying a county's motion in limine concerning an order of the Environmental Protection Division of the Georgia Natural Resources Department, and orders in a prior administrative action, because the documents were evidence that the county had an ownership interest in the dam at issue in the case; if the trial court's rulings concerning evidence that went to the ownership of the dam were erroneous, those errors were rendered harmless by the trial court's direction of a verdict against the county on the issue of ownership. Forsyth County v. Martin, 279 Ga. 215, 610 S.E.2d 512 (2005).Dismissal of party not authorized.
- While the pretrial procedure under O.C.G.A. § 9-11-16 has broad general application, the method for dismissing an action is specifically provided under O.C.G.A. § 9-11-41, and the dismissal of a party is not within the purview of the pretrial procedure. Georgia Am. Ins. Co. v. Mills, 183 Ga. App. 707, 359 S.E.2d 697 (1987).Dismissal of claim for failure to include too harsh a sanction when no prejudice.
- Trial court erred by denying a contractor's motion to amend the final pre-trial order by refusing to consider evidence admitted in support of the contractor's breach of contract claim, and by dismissing the claim based on the contractor's failure to submit the contractor's portion of a pre-trial order as required by O.C.G.A. § 9-11-16(b); a lesser sanction was appropriate, given there was no prejudice to the owner. Lee Haddock & Assocs., LLC v. Barlow, 328 Ga. App. 279, 759 S.E.2d 622 (2014).
Petition couched in loose pleading could be remedied by motion to strike the improper or irrelevant portion, and pretrial conference and order outlining the issues to be tried. Wallace v. Bleakman, 131 Ga. App. 856, 207 S.E.2d 254 (1974) (decided under Ga. L. 1953, p. 269, §§ 1, 2).Pretrial order not required if no pretrial conference.
- Trial court was not required, under O.C.G.A. § 9-11-16(b), to issue a pretrial order when no pretrial conference was held. Rolleston v. Estate of Sims, 253 Ga. App. 182, 558 S.E.2d 411 (2001), cert. denied, 537 U.S. 1030, 123 S. Ct. 560, 154 L. Ed. 2d 445 (2002).Pretrial order controlling absent modification.
- Pretrial order limiting issues for trial and reciting agreements made by the parties as to any of the matters considered, when entered, controls the subsequent course of the action and determines the issues on which the case is submitted to the jury, unless modified at the trial, pursuant to an application therefor made before or during trial, to prevent manifest injustice. Tolbert v. Free, 111 Ga. App. 811, 143 S.E.2d 440 (1965) (decided under Ga. L. 1953, p. 269, §§ 1, 2).
Pretrial order, limiting issues for trial, controls subsequent course of the action unless modified at the trial. Metropolitan Transit Sys. v. Barnette, 115 Ga. App. 17, 153 S.E.2d 656 (1967) (decided under Ga. L. 1953, p. 269, §§ 1, 2).
Agreement of the parties at a pretrial conference limits issues for trial to those not disposed of by agreement. Polk v. Fulton County, 96 Ga. App. 733, 101 S.E.2d 736 (1957) (decided under Ga. L. 1953, p. 269, §§ 1, 2).Stipulation binding unless modified.
- Stipulation at pretrial conference, whereby the plaintiff admitted the truth of certain allegations, which was made part of the record, became binding between the parties when the stipulation was not modified by any subsequent order of the court, and the course of action on trial of the case on that issue was governed and controlled by that stipulation. Bank of Ga. v. Aiken, 98 Ga. App. 782, 106 S.E.2d 817 (1958) (decided under Ga. L. 1953, p. 269, §§ 1, 2).
If litigant desires modification of a pretrial order, application should be made to the trial judge, either before or during the trial, for such modification. Dumas v. Beasley, 218 Ga. 349, 128 S.E.2d 59 (1962) (decided under Ga. L. 1953, p. 269, §§ 1, 2).Pretrial conference motion properly denied.
- Motion for a pretrial conference that was not filed until after the case was placed on a ready list for trial was properly denied as untimely. Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 491 S.E.2d 909 (1997).
Trial court did not abuse the court's discretion in refusing to admit the construction company's transaction reports, which were created two months before the trial court's pretrial order was filed, as the reports were not listed in the pretrial order despite the fact that the reports could have been produced well in advance of trial and the construction company's bookkeeper was permitted to testify concerning their contents to rehabilitate the bookkeeper's credibility and the data contained in the reports was included in summary form in job cost reports that had been introduced into evidence. Sunflower Props. v. Yocum, 261 Ga. App. 142, 581 S.E.2d 648 (2003).
Cited in Hirsch's v. Adams, 117 Ga. App. 847, 162 S.E.2d 243 (1968); Hunter v. A-1 Bonding Serv., Inc., 118 Ga. App. 498, 164 S.E.2d 246 (1968); State Hwy. Dep't v. Peters, 121 Ga. App. 167, 173 S.E.2d 253 (1970); Cohn v. Combs, 126 Ga. App. 292, 190 S.E.2d 546 (1972); Yeomans v. Smith, 130 Ga. App. 574, 203 S.E.2d 926 (1974); Sims v. American Cas. Co., 131 Ga. App. 461, 206 S.E.2d 121 (1974); Cooper v. Rosser, 232 Ga. 597, 207 S.E.2d 513 (1974); Mays v. Citizens & S. Nat'l Bank, 132 Ga. App. 602, 208 S.E.2d 614 (1974); Howland v. Weeks, 133 Ga. App. 843, 212 S.E.2d 487 (1975); Altamaha Convalescent Ctr., Inc. v. Godwin, 137 Ga. App. 394, 224 S.E.2d 76 (1976); White v. Georgia Power Co., 237 Ga. 341, 227 S.E.2d 385 (1976); Milton Inn, Inc. v. Spiva, 138 Ga. App. 843, 227 S.E.2d 525 (1976); Hogan v. City-County Hosp., 138 Ga. App. 906, 227 S.E.2d 796 (1976); Pilkenton v. Eubanks, 139 Ga. App. 673, 229 S.E.2d 146 (1976); Edwards v. Delvero, 139 Ga. App. 880, 229 S.E.2d 763 (1976); Joyner v. William J. Butler, Inc., 143 Ga. App. 219, 237 S.E.2d 685 (1977); Mullinax v. Shaw, 143 Ga. App. 657, 239 S.E.2d 547 (1977); Wise, Simpson, Aiken & Assoc. v. Rosser White Hobbs Davidson McClellan Kelly, Inc., 146 Ga. App. 789, 247 S.E.2d 479 (1978); Price v. Price, 243 Ga. 4, 252 S.E.2d 402 (1979); Cielock v. Munn, 244 Ga. 810, 262 S.E.2d 114 (1979); Marshall v. Fulton Nat'l Bank, 152 Ga. App. 121, 262 S.E.2d 448 (1979); Darwin v. Metropolitan Atlanta Rapid Transit Auth., 158 Ga. App. 635, 281 S.E.2d 361 (1981); Gosnell v. Waldrip, 158 Ga. App. 685, 282 S.E.2d 168 (1981); Graham Bros. Constr. Co. v. C.W. Matthews Contracting Co., 159 Ga. App. 546, 284 S.E.2d 282 (1981); Edwards v. Davis, 160 Ga. App. 122, 286 S.E.2d 301 (1981); Phillips v. Marcin, 162 Ga. App. 202, 290 S.E.2d 546 (1982); Hill Aircraft & Leasing Corp. v. Tyler, 161 Ga. App. 267, 291 S.E.2d 6 (1982); Tyner v. Sheriff, 164 Ga. App. 360, 297 S.E.2d 114 (1982); Mulkey v. GMC, 164 Ga. App. 752, 299 S.E.2d 48 (1982); Hasty v. Russell, 165 Ga. App. 276, 300 S.E.2d 317 (1983); McGuire v. Winkler, 167 Ga. App. 104, 306 S.E.2d 70 (1983); State v. Croom, 168 Ga. App. 145, 308 S.E.2d 427 (1983); Michaels v. Kroger Co., 172 Ga. App. 280, 322 S.E.2d 903 (1984); National Old Line Ins. Co. v. Lane, 172 Ga. App. 519, 323 S.E.2d 707 (1984); Worth v. Georgia Farm Bureau Mut. Ins. Co., 174 Ga. App. 194, 330 S.E.2d 1 (1985); D. Jack Davis Corp. v. Karp, 175 Ga. App. 482, 333 S.E.2d 685 (1985); John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 333 S.E.2d 856 (1985); Jacobsen v. Muller, 181 Ga. App. 382, 352 S.E.2d 604 (1986); Estate of Norton v. Hinds, 182 Ga. App. 35, 354 S.E.2d 663 (1987); Dixon v. Borg-Warner Acceptance Corp., 186 Ga. App. 843, 368 S.E.2d 800 (1988); Ostroff v. Coyner, 187 Ga. App. 109, 369 S.E.2d 298 (1988); Atlanta Gas Light Co. v. Redding, 189 Ga. App. 190, 375 S.E.2d 142 (1988); Sweetheart Prods., Inc. v. Cohen, 198 Ga. App. 684, 402 S.E.2d 547 (1991); Nelson v. Zant, 261 Ga. 358, 405 S.E.2d 250 (1991); City of Monroe v. Jordan, 201 Ga. App. 332, 411 S.E.2d 511 (1991); Southern Cellular Telecom, Inc. v. Banks, 208 Ga. App. 286, 431 S.E.2d 115 (1993); Bridges v. DOT, 209 Ga. App. 33, 432 S.E.2d 634 (1993); Welch v. Welch, 244 Ga. App. 685, 536 S.E.2d 583 (2000); Bailey v. Edmundson, 280 Ga. 528, 630 S.E.2d 396 (2006); McKesson Corp. v. Green, 286 Ga. App. 110, 648 S.E.2d 457 (2007); Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346 (2008); Grot v. Capital One Bank (USA), N. A., 317 Ga. App. 786, 732 S.E.2d 305 (2012); Eagle Jets, LLC v. Atlanta Jet, Inc., 321 Ga. App. 386, 740 S.E.2d 439 (2013); Ford Motor Co. v. Conley, 294 Ga. 530, 757 S.E.2d 20 (2014); Rivera v. Washington, 298 Ga. 770, 784 S.E.2d 775 (2016); Vineyard Indus. v. Bailey, 343 Ga. App. 517, 806 S.E.2d 898 (2017), cert. denied, No. S18C0480, 2018 Ga. LEXIS 314 (Ga. 2018).Issues
Formulation and simplification of the issues are two purposes of the pretrial procedures established by this section. Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973); Godfrey v. Kirk, 161 Ga. App. 474, 288 S.E.2d 301 (1982).Duty of court to formulate issues to show real contentions.
- It is the duty of the court, to the extent practicable and possible, to eliminate uncontroversial issues and formulate remaining issues to show the real contentions of the parties. Smith v. Davis, 121 Ga. App. 704, 175 S.E.2d 28 (1970).
Any issue not raised in agreed pretrial order expressly superseding pleadings is waived. Keeley v. Cardiovascular Surgical Assocs., 236 Ga. App. 26, 510 S.E.2d 880 (1999).
Issue clearly outside scope of pretrial order is generally not viable issue in the trial of the case. Ackley v. Strickland, 173 Ga. App. 784, 328 S.E.2d 549 (1985); Tahamtan v. Tahamtan, 204 Ga. App. 680, 420 S.E.2d 363 (1992), overruled on other grounds, Holland v. Caviness, 292 Ga. 332, 737 S.E.2d 669 (2013).Preservation of issues.
- Plaintiff preserved the issue of litigation expenses by including in the proposed verdict form (which was part of the pretrial order) a finding of attorneys' fees based on stubborn litigiousness. Parks v. Breedlove, 241 Ga. App. 72, 526 S.E.2d 137 (1999).Issue not raised in pretrial order considered on appeal.
- After minority shareholders brought direct and derivative claims against the president of a corporation for breach of fiduciary duty, even though the defendant did not raise the propriety of the plaintiffs' direct claim in the pretrial order, nor raise the issue until the plaintiff's motion for directed verdict after the close of the evidence, the issue would be considered, since interests other than those of the defendant were at stake, i.e., the rights of corporate creditors and possibly shareholders not parties to the action. Dunaway v. Parker, 215 Ga. App. 841, 453 S.E.2d 43 (1994).Failure to raise insufficiency of process waives issue.
- While the better practice in proceedings under O.C.G.A. § 9-11-16 is to make specific reference as to the disposition of preliminary matters such as those raised pursuant to O.C.G.A. § 9-11-12(b) (defenses), the trial court does not abuse the court's discretion in concluding that the defendant who knows that the service of process upon the defendant is insufficient from the time the defendant's answer is filed but, nevertheless, purposefully neglects to pursue this issue at the pretrial conference, waives the insufficiency of service of process defense and thus consents to the jurisdiction of the trial court. Georgia Power Co. v. O'Bryant, 169 Ga. App. 491, 313 S.E.2d 709 (1983).Issue of damages not waived.
- When a nuisance claim was made in the initial complaint, the defense was not prejudiced by the failure to specify a recovery for damages under the theory of nuisance because nuisance was a central theory of recovery from the outset of the case and, therefore, the trial court erred in finding that the plaintiffs waived the issue. Baumann v. Snider, 243 Ga. App. 526, 532 S.E.2d 468 (2000).
Since the pre-trial order specified that a company's damage recovery was limited to the theory of lost profits, alternate recovery theories could not be considered, even though the theory of lost profits was too speculative to allow any recovery. SMD, L.L.P. v. City of Roswell, 252 Ga. App. 438, 555 S.E.2d 813 (2001).
Filing of pretrial memorandums by counsel for both parties did not eliminate necessity for a pretrial order pursuant to this section, since such memorandums did not resolve all of the issues which arose during the trial, and they lacked the authoritative and binding effect which only the judge's order could have, providing an advance ruling on the admissibility of certain evidence. Malcolm v. Cotton, 128 Ga. App. 699, 197 S.E.2d 760 (1973).
Pretrial order should be liberally construed to allow consideration of all questions fairly within the ambit of contested issues. Echols v. Bridges, 239 Ga. 25, 235 S.E.2d 535 (1977); Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 428 S.E.2d 426 (1993).Discretion to preclude issues.
- Question of precluding issues is within discretion of the trial judge. Echols v. Bridges, 239 Ga. 25, 235 S.E.2d 535 (1977).Testimony of witness not named in pretrial order.
- Decision whether to allow a party to introduce at trial (either in the case-in-chief or in rebuttal) the testimony of a witness not named in the pretrial order is a matter within the discretion of the trial court. Nease v. Buelvas, 198 Ga. App. 302, 401 S.E.2d 320 (1991).
When, in a personal injury action, the issue of "serious injury" was not contained in the pretrial order, but the order provides that the extent of the plaintiff's injuries and damages is the sole question for determination by the jury, the "serious injury" issue is obviously a part of this general issue relating to injuries and damages, and the pretrial order and subsection (b) of O.C.G.A. § 9-11-16 did not prevent submission of that issue to the jury. Fleet Transp. Co. v. Holland, 166 Ga. App. 337, 304 S.E.2d 76 (1983).
Party cannot object for the first time on appeal to specification of issues contained in pretrial order. Brumby v. Brooks, 140 Ga. App. 210, 230 S.E.2d 359 (1976); Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481, 249 S.E.2d 286 (1978).Failure to include defense in order is waiver.
- When the defendant seasonably asserted the defense of insufficient service of process in the defendant's answer, but a pretrial conference order subsequently entered after the submission of the other parties' pretrial statements made no reference to this defense, the failure to list the defense in the pretrial order as one of the issues to be resolved in the case waived the previously asserted objection. Long v. Marion, 257 Ga. 431, 360 S.E.2d 255 (1987); Rice v. Cropsey, 203 Ga. App. 272, 416 S.E.2d 786, recons. denied, overruled on other grounds by Coen v. Aptean, Inc., 2020 Ga. LEXIS 103 (Ga. 2020), cert. denied, 203 Ga. App. 907, 416 S.E.2d 786 (1992).
Trial court did not err by failing to instruct the jury on the Statute of Frauds because, while the defendant made an oral, non-specific request, the defendant did not offer a written charge adjusted to the facts of the case; the defendant did not include the defense of Statute of Frauds in the pretrial order and did not move to modify that order; the defendant did not raise the defense of the Statute of Frauds simply by stating that the defendant intended to rely on all applicable statutes governing contracts and all applicable legal principles and rules of contract law, quasi-contracts, and equitable remedies and relief; and the defendant's promise to the plaintiffs was one of indemnity, which generally fell outside the Statute of Frauds. Zambetti v. Cheeley Invs., L.P., 343 Ga. App. 637, 808 S.E.2d 41 (2017).Pretrial order did not preclude bad faith recovery.
- Jury was properly charged on bad faith as an avenue for attorney fees pursuant to O.C.G.A. § 13-6-11 as a pretrial order did not exclude bad faith as an avenue of recovery; the trial court did not err in charging the jury that the jury could award attorney fees if the defendants had acted in bad faith, had been stubbornly litigious, or had caused the client unnecessary trouble and expense. As the trial court did not err in charging on bad faith, the trial court did not compound the error or commit reversible error by charging the jury that "where a jury (was) authorized to find fraud, it (was) authorized to find bad faith." Gerschick v. Pounds, 281 Ga. App. 531, 636 S.E.2d 663 (2006), cert. denied, No. S07C0191, 2007 Ga. LEXIS 95 (Ga. 2007).Attorneys' fees determined in bifurcated proceeding under Uniform Deceptive Trade Practices Act.
- When an alleged Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. § 10-1-370 et seq., violation is one of several claims being tried, the UDTPA contemplates a bifurcated proceeding. The statute anticipates that the fact finder will first determine the prevailing party before the trial court makes a decision as to whether an award of attorney fees is warranted. Logically, therefore, neither party would present evidence as to their attorney fees during the trial, and the issue is not required to be raised in the pretrial order. Bearoff v. Craton, 350 Ga. App. 826, 830 S.E.2d 362 (2019).Addition of claim not an abuse of trial court's discretion.
- In a breach of contract suit involving a construction contract, the trial court did not abuse the court's discretion by allowing a modification of a pretrial order to include a theory of recovery for negligent construction because the order was subject to modification to conform to the evidence that was admitted. Fields Bros. Gen. Contrs., Inc. v. Ruecksties, 288 Ga. App. 674, 655 S.E.2d 282 (2007).
Use of witness not listed in pretrial order.
- Of itself, this section does not prohibit use of a witness not listed in the pretrial order. Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973).
On appeal, party may not argue the merits of issues excluded from consideration on the trial of the case. Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481, 249 S.E.2d 286 (1978).
Even when pretrial order limits witnesses to those whose names are furnished to the opposite side prior to trial, the judge in exercising the judge's discretion as to the allowance of witnesses not so named should take into serious consideration whether such testimony is acceptable for purposes of rebuttal, and whether a sanction less serious than forbidding use of the witnesses should be applied. Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 227 S.E.2d 77 (1976).Sanction too harsh.
- Refusal of court to permit counsel for caveators to will to call any witness other than themselves was too harsh a sanction to impose on account of failure of their counsel to attend second pretrial hearing or to formulate, in cooperation with opposing counsel, a pretrial order embodying a list of proposed witnesses. Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973).
Am. Jur. 2d.
- 23 Am. Jur. 2d, Depositions and Discovery, §§ 10, 197. 62 Am. Jur. 2d, Pretrial Conference and Procedure, §§ 1, 2, 7 et seq.
20A Am. Jur. Pleading and Practice Forms, Pretrial Conference and Procedure, § 1.C.J.S.
- 35B C.J.S., Federal Civil Procedure, § 926 et seq. 88 C.J.S., Trial, §§ 7, 8, 53 et seq.ALR.
- Effect upon disposition of the cause of the insufficiency of the agreed statement of facts to warrant a judgment for the party having the affirmative, 97 A.L.R. 301.
Judicial stipulation or formal admission of facts by counsel as available upon a subsequent trial, 100 A.L.R. 775.
Pretrial conference procedure as affecting right to discovery, 161 A.L.R. 1151.
Power of court to adopt general rule requiring pretrial conference as distinguished from exercising its discretion in each case separately, 2 A.L.R.2d 1061.
Binding effect of court's order entered after pretrial conference, 22 A.L.R.2d 599.
Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection, 73 A.L.R.2d 12.
Propriety and effect of permitting counsel having burden of issues in civil case to argue new matter or points in his closing summation, 93 A.L.R.2d 273.
Trial court's appointment, in civil case, of expert witness, 95 A.L.R.2d 390.
Appealability of order entered in connection with pretrial conference, 95 A.L.R.2d 1361.
Validity and construction of state court's pretrial order precluding publicity or comment about pending case by counsel, parties, or witnesses, 33 A.L.R.3d 1041.
Assertion of privilege in pretrial discovery proceedings as precluding waiver of privilege at trial, 36 A.L.R.3d 1367.
Failure of party or his attorney to appear at pretrial conference, 55 A.L.R.3d 303.
Propriety of allowing state court civil litigant to call expert witness whose name or address was not disclosed during pretrial discovery proceedings, 58 A.L.R.4th 653.
Propriety of allowing state court civil litigant to call nonexpert witness whose name or address was not disclosed during pretrial discovery proceedings, 63 A.L.R.4th 712.ARTICLE 4 PARTIES