dissenting.
1. I strongly disapprove of appellant’s counsel’s apparent disregard of an order of this court directing the filing of a brief and enumeration of errors in this case no later than 4:30 p.m. on April 15, 1985. As noted by the majority, these documents were actually filed in this court at 4:14 p.m. on April 17, 1985. Nevertheless, because the record discloses reversible error, appellees’ motion to dismiss the appeal should be denied, and counsel directed to show cause why he should not be held in contempt pursuant to Rule 14 of this court.
2. In the case at bar, the trial court granted appellees’ motion for summary judgment on the ground of res judicata holding that the dismissal of the earlier action operated as an adjudication on the merits. OCGA § 9-11-41 (b) provides that a defendant may move for dismissal of an action when the plaintiff fails to prosecute or to comply with the chapter or any court order. The dismissal of appellant’s first action for her failure to appear at the pre-trial hearing, therefore, was correct. Scott v. W. S. Badcock Corp., 161 Ga. App. 826 (2) (289 SE2d 769) (1982). The dismissal, however, did not preclude appellant from refiling the cause of action against appellees. Under former Code Ann. § 81A-141 (b) (now OCGA § 9-11-41 (b)), when a dismissal for failure to prosecute was involuntary and the trial court did not specify that such dismissal was without prejudice, the dismissed action was res judicata as to essentially the same action brought at a later time. Krasner v. Verner Auto Supply, 130 Ga. App. 892, 894-95 (204 SE2d 770) (1974).
However, on November 1, 1982 OCGA § 9-11-41 (b) became effective, and it provides that a dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits. In Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785 (324 SE2d 494) (1984), we held that since under OCGA § 9-11-41 (b) a dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits, such a dismissal cannot be with prejudice. This holding has been affirmed by the Supreme Court. Aetna Cas. &c. Co. v. Leach, 254 Ga. 265 (330 SE2d 596) (1985). It follows that the trial court erred in granting appellees’ motion for summary judgment.
I am authorized to state that Judge Carley and Judge Benham join in this dissent.
*246Decided September 26, 1985. Thomas L. Bingley, for appellant. Arthur L. Myers, Jr., for appellees.