January 25, 2012
Authored by: Luke Lantta
Pam Crisp filed a petition in a Georgia probate court seeking removal of Mark Bocker as administrator of her stepfather’s estate and damages for Bocker’s alleged breach of fiduciary duties. After a hearing, the probate court removed Bocker as administrator, appointed the county administrator as Bocker’s successor, and awarded damages to Crisp. Bocker appealed the judgment to superior court.
The trial of the case was set for December 15, 2010. Two days before the trial was set to begin, Bocker’s attorney filed a motion for continuance and noted that opposing counsel consented to a continuance of the matter until January 26, 2011. This continuance was granted.
Two days before the trial was set to begin, on January 24, 2011, Bocker filed an amended motion for continuance. This continuance was not granted, and neither Bocker nor his attorney appeared at the trial. That did not work in Bocker’s favor.
At the start of the trial, the trial court denied Bocker’s amended motion for continuance and, after hearing the issues and considering the full record and all submissions and arguments, entered judgment against him.
In Bocker v. Crisp, the Georgia Court of Appeals determined that the trial court did not abuse its discretion in denying Bocker’s motion for continuance and in denying Bocker’s motion to reconsider the ruling on the motion for continuance and to set aside the judgment.
Although Bocker contended in his motion that illness prevented him from appearing at the trial, Bocker failed to follow the continuance statute. Specifically, Bocker failed to present any “evidence under oath” that he was prevented from attending the trial of the case. The mere statements in the motion for continuance that Bocker’s illness prevented him from attending trial were not “evidence.”
Thus, Bocker lost the opportunity to essentially have re-tried the case against him that resulted in his removal as administrator of an estate and entry of an award of damages against him.