                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, 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.
                                http://www.gaappeals.us/rules


                                                                       May 31, 2017




In the Court of Appeals of Georgia
 A17A0444. HEATH v. COLOR IMPRINTS USA, INC. et al.

      BRANCH, Judge.

      This is the second appearance of this case before us. In Heath v. Color Imprints

USA, 329 Ga. App. 605, 605 (765 SE2d 751) (2014) (“Heath I”), we reversed the trial

court’s grant of summary judgment as to defendant Color Imprints USA, Inc., in

plaintiff Richard Heath’s action on account against the company and its owners,

Michael and John Saylor, but affirmed the grant as to the Saylors. Upon the return of

the remittitur from this Court, however, the trial court dismissed Heath’s action as a

sanction for failing to file a supplemental brief well before his first appeal. On this

appeal, Heath argues that the trial court abused its discretion when it dismissed his

action. We agree and reverse.

      In July 2012, Heath brought this action for $41,833.77 against Color Imprints,

Inc., and that company’s owners, the Saylors, for services Heath rendered as an
accountant. On September 17, 2013, the trial court held a hearing as to whether

defendants could withdraw admissions deemed admitted as a result of their failure to

respond to Heath’s requests.1 During this September 2013 hearing, Heath requested

time for additional briefing on the question whether the withdrawal would prejudice

him.2 The trial court agreed and ordered that Heath file a brief by October 10, 2013.

Heath failed to file this supplemental brief, however.

      On December 2, 2013, Heath filed an amended complaint reducing the amount

sought to $25,000. On December 12, 2013, defendants moved for an order finding

Heath in contempt and for sanctions, including dismissal, as to Heath’s failure to file

the supplemental brief. On the same day, the trial court issued a rule nisi scheduling

      1
        See OCGA § 9-11-36 (a) (2) (a request for admission “is admitted unless,
within 30 days after service of the request or within such shorter or longer time as the
court may allow, the party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed to the matter, signed
by the party or by his attorney”), (b) (“the court may permit withdrawal or amendment
when the presentation of the merits of the action will be subserved thereby and the
party who obtained the admission fails to satisfy the court that withdrawal or
amendment will prejudice him in maintaining his action or defense on the merits.”).
      2
        See Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726, 727 (1)
(405 SE2d 764) (1991) (“A court may grant a motion to withdraw (1) when the
presentation of the merits will be subserved thereby and (2) the party obtaining the
admission fails to satisfy the court that the withdrawal will prejudice maintaining his
action or defense on the merits. The burden as to the first prong is on the party
moving to withdraw and the burden as to the second prong is on the respondent.”),
citing Whitemarsh Contractors v. Wells, 249 Ga. 194, 195 (288 SE2d 198) (1982).

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a hearing on defendants’ motion for contempt and sanctions for January 15, 2014. On

January 6, 2014, however, the trial court granted summary judgment to all three

defendants.

      At the January 15 hearing3 on defendants’ motion for contempt and sanctions,

Heath told the court that he was abandoning his former position that defendants

should not be allowed to withdraw their admissions. At the conclusion of the hearing,

the trial court made an oral ruling that Heath’s complaint would be dismissed as a

sanction for his wilful violation of the court’s order, pursuant to his request, to file

an additional brief on this issue. When Heath asked that the entry of the order of

dismissal be delayed, the court agreed that it would not enter the dismissal until

February 6.

      In the meantime, on January 28, Heath filed a notice of appeal, and asserted on

appeal that the trial court had erred in allowing defendants to withdraw their

admissions such that its grant of summary judgment was also error. In Heath I, we

affirmed the grant of summary judgment as to the Saylors, but reversed the grant of

summary judgment to Color Imprints, concluding that the trial court had abused its

discretion when it allowed Color Imprints to withdraw its admissions and that an


      3
        Although a transcript of this hearing has not been included in the appellate
record, the trial court quoted the transcript in its order.

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issue of fact remained as to the amount owed to Heath by the company. 329 Ga. App.

at 608-609 (2), (3) (b). The parties did not raise, and we did not address, the propriety

of the pending dismissal. See id. at 605-606.

      On the return of the remittitur following the issuance of our opinion on

November 13, 2014, the trial court filed an order in which it recounted the history of

the case, noted that Heath had disregarded its September 2013 order to file the

supplemental brief he had requested, and entered an order dismissing the action “for

[Heath’s] wilful failure to comply” with that order. On appeal from this dismissal,

Heath argues that the trial court abused its discretion in dismissing his appeal for

failing to file the supplemental brief as ordered. We agree.

      Under OCGA § 9-11-41 (b), a trial court may dismiss an action “[f]or failure

of the plaintiff to prosecute or to comply with this chapter or any order of court[.]”

After a motion for dismissal, the trial court, sitting “as trier of the facts[,] may then

determine the facts and render judgment against the plaintiff[.]” Id.; see also Weeks

v. Weeks, 243 Ga. 416 (254 SE2d 366) (1979) (OCGA § 9-11-41 (b) “authorizes the

trial court, upon motion, to dismiss any action for failure of the plaintiff to comply

with an order of the court”). OCGA § 9-11-60 (h) also provides, however, that “any

ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all

subsequent proceedings in that case in the lower court and in the Supreme Court or

                                           4
the Court of Appeals as the case may be.” Thus “[a]lthough the law of the case rule

has formally been abolished[,] it still applies to rulings by one of the appellate courts;

they are binding in all subsequent proceedings.” Davis v. Silvers, 295 Ga. App. 103,

105 (670 SE2d 805) (2008) (punctuation and footnote omitted); see also IH

Riverdale, LLC v. McChesney Capital Partners, LLC, 292 Ga. App. 841, 843 (666

SE2d 8) (2008).

      Heath’s supplemental brief was ordered in 2013 on the question whether Heath

would be prejudiced by defendants’ withdrawal of the admissions — the very topic

this Court addressed in Heath I. In our 2014 opinion, we noted that Heath had not

filed a brief on the issue and went on to hold that although the trial court did not

abuse its discretion in allowing the Saylors to withdraw their admissions, the court

had abused its discretion in allowing Color Imprints to do the same. 329 Ga. App. at

608-609 (2) (a), (b). Our holding in Heath I thus mooted the issue of defendants’

withdrawal of their admissions such that the trial court violated the law-of-the-case

rule when it returned to that issue in the context of whether to enter an order of

dismissal against Heath. Although Heath should have either filed the supplemental

brief he himself had requested or obtained the trial court’s permission not to do so,

this trial court nonetheless abused its discretion when it dismissed Heath’s action for

his failure to file a brief on an issue settled by this Court on his first appeal. We

                                            5
therefore reverse the dismissal and remand for further proceedings on the factual

issue of the amount owed, if any, by Color Imprints to Heath. See Heath I, 329 Ga.

App. at 609 (3) (b); Davis, 295 Ga. App. at 105 (affirming earlier grant of summary

judgment on fraud claim when the parties were attempting to relitigate “the same

issue already decided” on a second appeal) (footnote omitted).

      Judgment reversed and case remanded. McFadden, P. J., and Bethel, J.,

concur.




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