Bryant v. BMC of Georgia, Inc.

Carley, Judge. Appellant-plaintiff filed this negligence action against appelleedefendant to recover damages for injuries he received while a patient at a hospital operated by appellee. In preparation for trial, the trial court ordered counsel for appellant to prepare and submit the plaintiff’s portion of the pre-trial order to opposing counsel by September 7, 1987, and to appear at the pre-trial conference on September 10, 1987. When appellant failed to comply with each of the requirements of the trial court’s order, the trial court dismissed the action. Appellant appeals from the trial court’s order of dismissal filed on September 15, 1987. 1. In the sole enumeration of error, appellant urges that the trial court abused its discretion in denying his trial counsel’s request for a leave of absence. Uniform Superior Court Rule 16 provides in pertinent part: “Applications for leaves of absence must be in writing and shall be served upon opposing counsel at least 5 days (if such service is made personally) prior to submission to an appropriate judge of the court in which an action pends; such service shall be accomplished at least 10 days prior to submission to such judge if service upon opposing counsel is other than personal. This period of time may be waived if opposing counsel consents in writing to the application. This procedure permits opposing counsel to object or to consent to the grant of the application, but the application is addressed to the discretion of the court.” Our examination of the record reveals that although appellant’s counsel claims to have attempted to serve opposing counsel with a request for leave of absence on September 8, 1987, opposing counsel did not receive the request until September 14, 1987. Said request was received by opposing counsel in an envelope postmarked September 11, 1987, the day after the pre-trial conference was to have taken place. No request for leave of absence was actually filed with the trial court until September 17, 1987, two days after the order of dismissal [125] had been entered and seven days after counsel had failed to appear at the pre-trial conference. Due to appellant’s trial counsel’s complete failure to comply with the requirements of Rule 16 of the Uniform Superior Court Rules, we conclude that there was absolutely no abuse of discretion in connection with the trial court’s denial of counsel’s application for leave of absence. Accordingly, appellant’s sole enumeration of error is without merit. 2. Our determination that there is no merit in appellant’s sole enumeration of error would ordinarily dispose of the appeal. However, the dissent urges that the trial court must be reversed under Rule 7.1 of the Uniform Superior Court Rules. Appellant’s enumeration of error asserts only the abuse of discretion in connection with the denial of the leave of absence. In fact, the actual enumeration of error is, as stated, by appellant, as follows: “The Trial Court erred in entering its order of September 11, 1987 dismissing appellant’s case where it failed to exercise discretion in its application of Uniform Superior Court Rule 16 where appellant’s attorney, as solo practitioner, attempted to apprise the court of her automobile accident and injuries both prior to the court date and after the court date.” Nowhere in that enumeration nor, in fact, in the brief, has counsel for appellant made any reference whatsoever to Rule 7.1 of the Uniform Superior Court Rules nor has she contended that the trial court acted in a manner prohibited by said rule in dismissing the case. “This court has no jurisdiction to consider grounds which . . . are not enumerated as error according to OCGA § 5-6-40. [Cits.]” Sunn v. Trophy Marine, 176 Ga. App. 68, 69 (2) (334 SE2d 884) (1985). In Hurston v. Ga. Farm Bureau &c. Ins. Co., 148 Ga. App. 324, 326 (2) (250 SE2d 886) (1978), the author of the dissent in this case stated as follows: “Appellant attempts to enlarge upon her first enumeration of error. . . . ‘An enumeration of error cannot be enlarged to include other issues not made therein.’’ [Cit.]” (Emphasis supplied.) “We do not know of any law or rule of practice and procedure that authorizes the Court of Appeals ... to examine the entire record and grant a new trial upon a ground of their own making and not upon a ground specified by the appellant. The duty of the appellate court is to correct errors alleged to have been made in the trial court and not to manufacture them.” Hess Oil & Chem. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70) (1970). Accordingly, the judgment of the trial court is affirmed. Judgment affirmed. Birdsong, C. J., McMurray, P. J., and Sognier, J., concur. Beasley, J., concurs specially. Deen, P. J., Banke, P. J., Pope and Benham, JJ., dissent.