2. Parrish contends that the trial court did not properly interpret its independent duty to protect the substantial rights of a minor. Relying primarily on OCGA § 9-11-17 (c) and our Supreme Court's holding in Mosley v. Lankford , 244 Ga. 409, 260 S.E.2d 322 (1979), Parrish argues that the trial court failed to fulfill its role in protecting the interests of a minor by approving the consent order dismissing the claims against the two doctors without first examining whether S. P.’s claims were indeed barred by the statute of limitation. However, his reliance on these authorities is misplaced.

The clear import of OCGA §§ 9-11-17 (c) and 29-4-7 when construed in pari materia is that "a guardian ad litem need not be appointed for a minor who has a regular guardian, except in case the interest of the minor is adverse to that of his guardian." Marshall v. Citizens c. Nat. Bank, 54 Ga. App. 123, 128 (1) ( 187 S.E. 240). Mosley v. Lankford, 244 Ga. 409 ( 260 S.E.2d 322) is distinguishable. Under the attendant circumstances, the trial court did not abuse its discretion in denying appellants' motion for the appointment of a guardian ad litem for the children.

The trial court abused its discretion in dismissing this case. See OCGA § 9-11-41 (b); Mosley v. Lankford, 244 Ga. 409 ( 260 S.E.2d 322); Hancock v. Oates, 244 Ga. 175 ( 259 S.E.2d 437); see also Maolud v. Keller, 153 Ga. App. 268 ( 265 S.E.2d 86). Appellant's petition having been erroneously dismissed, it follows that the grant of attorney fees and costs to the opposing party must be vacated.

The burden is clearly on the appellant to show that the trial judge failed to exercise his discretion in the matter. Where he fails to do so, as in Mosley v. Lankford, 244 Ga. 409 ( 260 S.E.2d 322) (1979) the refusal to set aside the dismissal for lack of prosecution is error. In Mosley the plaintiff was a minor and was entitled to representation, and it appeared from the face of the record both that no one appeared in his behalf (although his father was acting as next friend) and that the court failed to appoint a guardian ad litem in his behalf.

Plaintiffs also cite to Taylor v. General Motors Corp., 717 So.2d 747, 750 (Miss. 1998), in which the court upheld dismissal of a case, but noted that as to the minor plaintiff, the dismissal was without prejudice because the statute of limitations on his claim did not begin to run until he reached the age of majority. See also Mosley v. Lankford, 260 S.E.2d 322, 410-11 (Ga. 1979) (holding that court erred in dismissing minor's claims with prejudice absent a hearing). Plaintiffs argue that the same policy considerations implicated in Mominee prohibit the application of the double dismissal rule to minors; to cut off the rights of Wendell II, who had no say in the dismissal of the previous actions, would be unfair, and he should not be required to sue his parents to obtain relief.

Wallace v. Laughlin, 217 Ga. App. 444, 445 (2) ( 459 S.E.2d 556) (1995) (reversing a dismissal for failure to prosecute as an abuse of discretion) is distinguishable, as there was evidence in that case that the court had orally continued the action, even though there was no written continuation order. Relying on Mosely v. Lankford, 244 Ga. 409 ( 260 S.E.2d 322) (1979) and Maolud v. Keller, 153 Ga. App. 268 ( 265 S.E.2d 86) (1980), plaintiff contends a dismissal should not be based solely on absence, and the order in this case indicates it was. But Mosely and Maolud involved orders dismissing cases with prejudice (entered prior to November 1982, the effective date of an amendment to OCGA § 9-11-41 providing that all dismissals for failure to prosecute would be without prejudice), and therefore do not control here.