Appellate Practice and Procedure - Roland F. L. Hall

• Publication year: 2004

Appellate Practice and Procedureby Roland F. L. Hall^*

I. Introduction

This Article surveys noteworthy decisions addressing appellate practice and procedure handed down by the Georgia appellate courts.¹ The reviewed decisions fall into the following categories: (1) appellate jurisdiction; (2) preserving the record; (3) notice of appeal; (4) timeliness of appeal; and (5) miscellaneous cases of interest. Although there were no dramatic developments during the survey period, the courts addressed several topics of interest to the practitioner, particularly in the areas of preserving issues for appeal and correctly drafting the notice of appeal.

II. Appellate Jurisdiction

Several cases during the survey period dealt with the sometimes difficult determination of whether an order or judgment is "final" for purposes of filing a direct appeal under section 5-6-34 of the Official Code of Georgia Annotated ("O.C.G.A.").² In Williams v. City of Atlanta,³ the administrator of plaintiff's estate moved to be substituted as a party after plaintiff passed away. The trial court denied the motion for substitution because of the administrator's failure to properly serve all defendants with the motion. After plaintiffre-served all defendants, plaintiff filed a motion for reconsideration, which was also denied by the trial court. On the basis of O.C.G.A. section 9-11-25(a)(1),⁴ which provides for dismissal of an action against a deceased party if a proper party is not substituted within 180 days of the filing of the suggestion of death, plaintiff asserted in its notice of appeal that the trial court's order was, in effect, a final order.⁵ The court of appeals disagreed and held that because dismissal was not automatic under the statute, and the trial court did not dismiss the complaint, the trial court's order denying substitution was not a final appealable order.⁶ The court of appeals dismissed the administrator's appeal as premature.⁷

In Standridge v. Spillers,⁸ plaintiff brought a direct appeal from an order denying his motion for default judgment and asserted that his appeal was an appeal of a final judgment.⁹ The court of appeals raised the issue of jurisdiction on its own motion.¹⁰ As noted by the court of appeals, the denial of a motion for default judgment was typically an interlocutory ruling that was not directly appealable.¹¹ In this case, however, the trial court's order made findings of fact that barred the relief requested by plaintiff and left no remaining issues to be resolved. The trial court's order was effectively a final ruling on the merits of plaintiff's action.¹² The court of appeals held that under the circumstances, the trial court's order was a final judgment, and accordingly, the court of appeals had jurisdiction over plaintiff's direct appeal.¹³

In Morton v. Fuller,¹⁴ plaintiffs brought an action against their automobile insurer in plaintiffs' county of residence. After the case was transfered to another county, the trial court dismissed plaintiffs' action without prejudice for failure to add a necessary party. Defendant contended the dismissal was not an appealable final judgment, and, in any event, plaintiffs should not be allowed to raise the issue of venue.¹⁵ The court of appeals disagreed and held that although the dismissal without prejudice might allow plaintiffs to recommence the action at a later time, the dismissal was still an appealable final judgment because no other claims were pending.¹⁶ In addition the court of appeals held that the issue of venue was properly before it because whether the first court erred in granting defendant's motion to transfer was related to plaintiffs' appeal from the "final judgment."¹⁷ Concluding that the transfer of the action was in error, the court of appeals reversed the lower court's decision.¹⁸

When an appellant seeks review of claimed errors in multiple orders of the trial court, but not all orders are directly appealable, the appellant still has an opportunity to obtain direct review of all its claims of error.¹⁹ For example, in Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC,²⁰ plaintiffs contended that the court of appeals had jurisdiction over only one of defendants' claims of error. That claim of error arose from the trial court's grant of partial summary judgment to plaintiffs, an order that was directly appealable under O.C.G.A. section 9-11-56(h).²¹ According to plaintiffs, defendants' other claims of error, including claims arising from the trial court's denial of summary judgment to defendants on other counts of plaintiffs' complaint, were not directly appealable and were improperly "packaged" with the single appealable claim. Thus, these claims could not be reviewed by the court of appeals.²² The court of appeals, relying upon prior supreme court precedent, held that when a direct appeal is taken, other rulings or orders issued in the case that affect proceedings in the trial court may be raised on appeal.²³ The court of appeals noted that the "rule is designed to avoid 'appellate rule by installment,'"²⁴ and held that "[b]ecause the 'packaged' claims are sufficiently related to the directly appealable claim and 'may affect the proceedings below,'" it would review all of defendants' claims.²⁵

The court of appeals further clarified the ability of non-parties to appeal from orders or judgments affecting their rights.²⁶ In BEA Systems, Inc. v. WebMethods, Inc.,²⁷ plaintiff-appellee brought an action under the Georgia Trade Secrets Act of 1990²⁸ against defendant, a former employee of plaintiff, seeking injunctive relief that would prohibit defendant from using plaintiff's trade secrets in defendant's employment with plaintiff's competitor, a non-party. The trial court entered an interlocutory injunction restraining the competitor without making a finding that the competitor acted in concert with the employee, and the competitor appealed.²⁹

Although appellee argued that the competitor, as a non-party to the action, lacked standing to appeal, the court of appeals held that because the injunction directly affected the competitor, the competitor had standing to appeal.³⁰ The court of appeals based its holding on a series of federal court decisions in which non-parties adversely affected by injunctions were held to have standing to appeal.³¹ The court of appeals noted that its conclusion directly followed from the court's prior holding that a non-party becomes a party with standing to appeal when judgment is entered against that party.³²

III. PRESERVING THE RECORD

The cases decided during the survey period, addressing preservation of error, illustrate the importance of properly preserving issues for appeal. Several of these cases, however, demonstrate that all hope is not lost for appealing an issue, even when such an issue is not directly raised in the trial court. For example, in Rouse v. Metropolitan Atlanta Rapid Transit Authority,³³ decided by the court of appeals sitting en banc, plaintiff sued defendants Metropolitan Atlanta Rapid Transit Authority ("MARTA") and Millar (the elevator service company) for negligence from injuries she received in a MARTA station when her foot was caught in a gap at the bottom of the escalator. Plaintiff alleged that defendants were negligent in allowing the escalator to be used when a dangerous condition existed, and that MARTA failed to use reasonable care in monitoring the escalator's condition. Defendants moved for summary judgment, arguing that they had no prior knowledge of the escalator's condition, and that no evidence showed negligence in maintaining the escalator. The trial court granted summary judgment to defendants.³⁴

On appeal the court of appeals noted that defendants were subject to the standard of care applicable to common carriers and were thus required to exercise extraordinary diligence to protect plaintiff from the danger of injury.³⁵ Plaintiff contended that evidence in the record showed that defendants did not exercise extraordinary diligence because defendants failed to install a comb plate switch that would have automatically turned off the escalator and prevented her injury.³⁶ Defendants contended that because plaintiff failed to raise the "comb plate switch" argument in the trial court, the argument could not be considered by the court of appeals.³⁷

Although the court of appeals acknowledged that plaintiff, in response to defendant's summary judgment motion, failed to argue that defendants had a duty to install the switch, the court of appeals nevertheless held that plaintiff's argument could be considered on appeal.³⁸ The court of appeals held, with no citation to authority, that because plaintiff raised the argument that defendants failed to exercise extraordinary diligence, such argument included any issue of failure to exercise extraordinary diligence raised by the evidence before the trial court.³⁹ The court of appeals relied upon the deposition testimony of a former employee of one of the defendants, who testified that such a safety switch existed but had not been installed on all escalators in the MARTA system.⁴⁰ According to the court of appeals, such evidence in the record, combined with plaintiff's general arguments concerning the standard of care, was sufficient to preserve the issue for appeal.⁴¹ The court of appeals further held that defendants' failure to install such a switch presented a question of fact, and accordingly reversed the judgment of the trial court.⁴²

The dissent, comprised of four judges, noted that plaintiff did not allege in her complaint, nor did she argue in response to summary judgment, that defendants had any duty to add a safety feature, such as the comb plate switch, to make the escalator safer than its original design, and that the trial court had never ruled upon the issue.⁴³ The dissent argued that the claim was not properly raised below and quoted prior authority for the proposition that the purpose behind summary judgment "is thwarted...