Appellate Practice and Procedure - Roland F. L. Hall

• Publication year: 2010

Appellate Practice and Procedure

by Roland F. L. Hall*

I. Introduction

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia Court of Appeals between June 1, 2009 and May 31, 2010.¹ The cases discussed fall into the following categories: (1) appellate jurisdiction; (2) preserving the record; and (3) miscellaneous cases of interest.

II. Appellate Jurisdiction

A. Selecting the Correct Appeal Procedure

As can be seen from the cases discussed below, it is not always easy to decide which appeal procedure should be used. In Owens v. Green Tree Servicing LLC,² a dispossessory action, the defendant appealed from the trial court's issuance of a writ of dispossession and contended that the trial court erred when it rejected his defense of wrongful foreclosure. The defendant filed a separate appeal from the trial court's order requiring him to pay rent into the registry of the court pending resolution of the first appeal.³

The Georgia Court of Appeals affirmed the trial court's order in the first appeal in part because the defendant failed to include a trial

* Partner in the firm of Autry, Horton & Cole, Atlanta, Georgia. Mercer University (B.A., magna cum laude, 1991); Mercer University, Walter F. George School of Law (J.D., magna cum laude, 1994). Member, Mercer Law Review (1992-1994); Senior Managing Editor (1993-1994). Member, State Bars of Georgia and Florida.

1. For analysis of Georgia appellate practice and procedure law during the prior survey period, see Roland F. L. Hall, Appellate Practice and Procedure, Annual Survey of Georgia Law, 61 Mercer L. Rev. 31 (2009).

2. 300 Ga. App. 22, 684 S.E.2d 99 (2009).

3. Id. at 22-23, 684 S.E.2d at 100.

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transcript in the record.⁴ However, the more interesting point was raised in the second appeal, in which the plaintiff argued that the defendant was required to follow the interlocutory appeal procedures that required the defendant to pay rent pending appeal.⁵ The court of appeals held that the cases cited by the plaintiff⁶ on this point were inapposite because in those cases "the appeal was from an order directing [a] tenant to pay rent pending the disposition of the disposses-sory case."⁷ In Owens the issue of dispossession had already been decided, and the payment of rent pending appeal was ordered pursuant to a post-judgment order.⁸

The court of appeals held that a post-judgment order that requires payment of rent pending appeal is similar to a post-judgment order that requires the posting of a supersedeas bond and is subject to direct appeal.⁹ The court of appeals ultimately dismissed the second appeal as moot in light of its disposition of the first appeal.¹⁰

In Torres v. Piedmont Builders, Inc.,¹¹ after the property owners became involved in a dispute with their homebuilder, they filed a motion with the Superior Court of Fulton County, Georgia for appointment of an arbitrator to resolve the dispute. Although the owners argued that the construction contract neither specified the arbitrator nor any procedure for selecting one, the superior court dismissed the action and ordered that the arbitration be administered by an arbitration firm named in the contract. After the owners filed a direct appeal, the homebuilder argued that the appeal should be dismissed for failure to follow the interlocutory appeal procedures.¹²

The homebuilder relied on prior cases holding that the grant of a motion to compel arbitration cannot be directly appealed under section 5-6-34(a)(4) of the Official Code of Georgia Annotated (O.C.G.A.)¹³ and must be appealed under O.C.G.A. § 5-6-34(b)¹⁴ using the applicable

4. Id. at 23-24, 684 S.E.2d at 100-01.

5. Id. at 24, 684 S.E.2d at 101.

6. Carter v. Landel/Arundel, Inc., 172 Ga. App. 115, 322 S.E.2d 108 (1984); Wall v. T.J.B. Servs., Inc., 141 Ga. App. 437, 233 S.E.2d 810 (1977).

7. Owens, 300 Ga. App. at 24, 684 S.E.2d at 101.

8. Id.

9. Id. at 24-25, 684 S.E.2d at 101.

10. Id. at 25, 684 S.E.2d at 101.

11. 300 Ga. App. 872, 686 S.E.2d 464 (2009).

12. Id. at 872, 686 S.E.2d at 465.

13. O.C.G.A. § 5-6-34(a)(4) (1995 & Supp. 2009).

14. Id. § 5-6-34(b).

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interlocutory appeal procedures.¹⁵ However, the court of appeals distinguished those cases because they did not involve final judgments.¹⁶ The court held that the appeal arose from a final order that dismissed the owners' initial action in its entirety.¹⁷ Under o.C.G.A. § 5-6-34(a)(1),¹⁸ the appeal was from a final judgment and was therefore directly appealable.¹⁹

In In the Interest of J.N.,²⁰ a case involving deprivation proceedings concerning two juveniles, an order was entered terminating a plan for reunification of the children with the parents and placing the children in the custody ofrelatives. The juveniles' biological father petitioned for modification of the order, requesting that the children be immediately transferred into his custody or that he be awarded regular visitation. The juvenile court denied the petition, and the father filed a direct appeal.²¹

The court of appeals first considered whether the father had the right to file a direct appeal pursuant to O.C.G.A. § 5-6-34(a)(11),²² which allows a direct appeal from all child custody case judgments or orders.²³ It was determined to be unclear whether the phrase "child custody cases" included child deprivation proceedings when the juvenile court entered a child custody order.²⁴ While the court noted that a deprivation proceeding may require child custody determinations, it also stated that the primary purpose of such a proceeding is to determine whether the child is deprived rather than to determine child custody issues.²⁵ Thus, the court concluded that O.C.G.A. § 5-6-34(a)(11) does not authorize a direct appeal.²⁶

However, the court of appeals did hold that pursuant to O.C.G.A. §§ 5-6-34(a)(1) and 15-11-3,²⁷ the juvenile court's order was a final judgment; thus, it was directly appealable.²⁸ Section 15-11-3 provides that

15. Torres, 300 Ga. App. at 872, 686 S.E.2d at 465 (quoting Pace Constr. Corp. v. Northpark Assocs., 215 Ga. App. 438, 439, 450 S.E.2d 828, 829 (1994)).

16. Id.

17. Id. at 872, 686 S.E.2d at 465-66.

18. O.C.G.A. § 5-6-34(a)(1) (1995 & Supp. 2009).

19. Torres, 300 Ga. App. at 872-73, 686 S.E.2d at 466.

20. 302 Ga. App. 631, 691 S.E.2d 396 (2010).

21. Id. at 631, 691 S.E.2d at 397.

22. O.C.G.A. § 5-6-34(a)(11) (Supp. 2009).

23. Id.; In the Interest of J.N., 302 Ga. App. at 631-32, 691 S.E.2d at 397-98.

24. In the Interest ofJ.N., 302 Ga. App. at 632, 691 S.E.2d at 398 (internal quotation

marks omitted).

25. Id.

26. Id. at 632-33, 691 S.E.2d at 398.

27. O.C.G.A. § 15-11-3 (2008).

28. In the Interest ofJ.N., 302 Ga. App. at 634, 691 S.E.2d at 399.

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appeals from a final judgment of a juvenile court "shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court,"²⁹ while § 5-6-34(a)(1) provides that all final judgments of a superior court are by direct appeal.³⁰ The court of appeals concluded that the juvenile court order placing the children in the long-term custody of relatives clearly constituted a final order from which a direct appeal could have been taken.³¹ As a result, the juvenile court's order denying the father's petition to modify the final order in that proceeding was itself a final order from which a direct appeal could be taken.³² The court overruled its decision in In the Interest of B.S.H.³³ to the extent it held otherwise.³⁴ In that case, the court stated that an appeal from an O.C.G.A. § 15-11-40(b)³⁵ motion was only available by application.³⁶

In In the Interest of J.L.K.,³⁷ a juvenile who was determined to be delinquent by the Lowndes County, Georgia Juvenile Court filed two separate motions for reconsideration, modification, or vacatur of the orders entered regarding his disposition. The juvenile court denied both motions, and the juvenile filed a direct appeal from the denial of the second motion.³⁸ The court of appeals initially considered whether it had jurisdiction over the appeal.³⁹

On appeal, the juvenile argued that the juvenile court should have set aside the order on the basis of O.C.G.A. § 15-11-40(a)(3),⁴⁰ which allows a juvenile court order to be set aside if such is required by newly discovered evidence.⁴¹ The juvenile also argued that the order should have been set aside on the basis of O.C.G.A. § 15-11-70(d),⁴² which allows the juvenile court to terminate an order of disposition of a child determined to be delinquent if the purposes of the order have been accomplished.⁴³

29. O.C.G.A. § 15-11-3.

30. O.C.G.A. § 5-6-34(a)(1).

31. In the Interest of J.N., 302 Ga. App. at 634, 691 S.E.2d at 399.

32. Id.

33. 236 Ga. App. 879, 514 S.E.2d 70 (1999).

34. In the Interest ofJ.N., 302 Ga. App. at 634, 691 S.E.2d at 399.

35. O.C.G.A. § 15-11-40(b) (2008).

36. In the Interest of J.N., 302 Ga. App. at 634, 691 S.E.2d at 399 (quoting In the Interest ofB.S.H., 236 Ga. App. at 882, 514 S.E.2d at 73).

37. 302 Ga. App. 844, 691 S.E.2d 892 (2010).

38. Id. at 844, 691 S.E.2d at 893.

39. Id.

40. O.C.G.A. § 15-11-40(a)(3).

41. Id.; In the Interest ofJ.L.K., 302 Ga. App. at 846, 691 S.E.2d at 894.

42. O.C.G.A. § 15-11-70(d) (2008).

43. Id.; In the Interest ofJ.L.K., 302 Ga. App. at 845-46, 691 S.E.2d at 894.

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The court of appeals noted that in at least one prior opinion, it had held that an appeal from a denial of an O.C.G.A. § 15-11-40 motion must be...