RICKY HUTCHINS v. GEORGIA POWER ELECTRIC COMPANY

── RICKY HUTCHINS v. GEORGIA POWER ELECTRIC COMPANY ── Court: Court of Appeals of Georgia Date: May 26, 2026 Category: General FIFTH DIVISION BROWN, C. J., RICKMAN, P. J., and MERCIER, J. 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.gov/rules May 26, 2026 In the Court of Appeals of Georgia A26A0643. HUTCHINS v. GEORGIA POWER ELECTRIC COMPANY et al. RICKMAN, Presiding Judge. Ricky Hutchins appeals from the trial court’s order dismissing his case against Georgia Power Electric Company (“Georgia Power”) and the Georgia Public Service Commission (the “PSC”) (collectively, the “Appellees”). Hutchins argues that the trial court erred by dismissing his case for want of prosecution and denying his motion for reconsideration, rehearing, and to set aside the judgment because the trial court failed to provide him notice of a scheduling hearing. For the following reasons, we reverse. Hutchins filed a complaint against the Appellees in November 2024 alleging, among other things, that the Appellees “acted in concert ... to commit theft by deception and fraud ... by conspiring through illegal billing of Municipal Franchise Fees.” In December 2024, the PSC filed its answer and a motion to dismiss. In January 2025, Georgia Power filed its answer and a motion to dismiss. On January 13, 2025, the trial court sent an e-mail to Hutchins and the Appellees to notify them that it would hold a scheduling conference on January 17, 2025. After Hutchins failed to appear for the scheduling conference, the trial court dismissed his case for want of prosecution. On January 27, 2025, Hutchins filed a motion for reconsideration, rehearing, and to set aside the judgment, contending that he had not received notice of the scheduling conference. On February 5, 2025, the trial court denied Hutchins’s motion for reconsideration. This appeal followed. 1. In two closely related enumerations of error, Hutchins argues that the trial court erred by dismissing his case for want of prosecution and by denying his motion for reconsideration, rehearing, and to set aside the judgment under OCGA § 9-11- 60(d), which authorizes a trial court to set aside a judgment based on “[a] nonamendable defect which appears upon the face of the record.” OCGA § 9-11- 2 60(d)(3). Hutchins contends that he did not receive notice of the January 17 scheduling conference, and that the lack of notice was a nonamendable defect appearing on the face of the record. We agree. We review a trial court’s order dismissing a case for want of prosecution for abuse of discretion. McKnight v. Wyrick, 247 Ga. App. 584, 585-86 (544 SE2d 507) (2001). We also review a trial court’s ruling on a motion to set aside a judgment under OCGA § 9-11-60(d)(3) for abuse of discretion. Fiffee v. Jiggetts, 353 Ga. App. 730, 734(2) (839 SE2d 224) (2020). “A trial court may dismiss without prejudice any civil action ... upon the failure to properly respond to the call of the action for trial or other proceeding.” Oduok v. Fulton DeKalb Hosp. Auth., 340 Ga. App. 205, 211(2)(a) (797 SE2d 133) (2017) (punctuation omitted). “Dismissal for failure to attend a [proceeding], however, is proper only if the court provided the absent party with notice of the proceeding.” Id. Furthermore, “[a]n order that is based on a hearing and entered against a party without notice to that party of the hearing is subject to a motion to set aside on the ground of a non[]amendable defect where the lack of notice appears on the face of the record.” Fiffee, 353 Ga. App. at 735(2) (punctuation omitted). 3  The Appellees argue that the trial court