concurring specially.
The appeal is from the order dismissing the complaint for two reasons, failure to file a proposed pretrial order and failure to appear at a scheduled pretrial conference. Both of these requirements are governed by USCR 7.1 and 7.2 and may be imposed by the court pursuant to authority granted therein, by virtue of Ga. Const. 1983, Art. VI, Sec. IX, Par. I. The rule allows broad discretion in fashioning sanctions for violations, expressly precluding only dismissals “with prejudice.”
The trial court here simply dismissed the complaint. This makes it one without prejudice, because it was done for failure of plaintiff to prosecute. OCGA § 9-11-41 (b) (1). A plaintiff’s failure to follow the administrative rules and move his case along as ordered by the court pursuant to those rules would constitute failure to prosecute, just as would the failure to appear at the call of the case for trial. Dismissal for the latter reason can only be without prejudice. Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785 (324 SE2d 494) (1948), aff’d 254 Ga. 265 (330 SE2d 596) (1985).
Thus, even if appellant had cited Rule 7 he would not be entitled to reversal, because we would first have to conclude that the trial court abused its discretion in ordering this sanction. Considering the reasons appellant has offered to prove legal error, and the fact that his counsel’s motion for leave of absence was not filed until a week after the scheduled conference (although she says dehors the record that she delivered it to the judge the day after the scheduled hearing and before he entered the dismissal order), it is difficult to characterize the court’s dismissal as abusive. For one thing, at the time the question of dismissal was before the court, no motion for leave of absence was pending.
What has led this case astray is that the appeal is from the order of dismissal, while the complaint on appeal is that the court failed to exercise its discretion under USCR 16 to grant the requested leave of absence. The court never ruled on that motion, as it was filed after the dismissal. Although appellant impliedly sought a ruling within his motion to set aside the order of dismissal, as a favorable nunc pro tunc ruling on the leave of absence request would form a basis for setting aside the dismissal, the court lost jurisdiction of both. This occurred because on the same day as the motion to set aside was filed, a notice of appeal was also filed. Thus there is nothing to review insofar as an application of USCR 16 is concerned.