Appellate Practice and Procedure - Roland F. L. Hall

• Publication year: 2009

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

I. Introduction

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia appellate courts between June 1, 2008 and May 31, 2009.¹ 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

Several cases during the survey period dealt with the sometimes difficult determination of which appeal procedure should be used. For example, in Davis v. Deutsche Bank National Trust Co.,² the plaintiff creditor—the assignee of a mortgage company—brought an action against the defendant debtors, seeking foreclosure on property owned by the defendants' mother that was used as collateral for a loan. The plaintiff also sought damages for bad faith, claiming that when the defendants executed the security deed, the defendants stated they were the owners ofthe property. The defendants' mother sought to intervene in the suit, and the plaintiff moved for partial summary judgment against the defendants. In a single order, the trial court denied the motion to intervene and granted partial summary judgment to the plaintiff.³

The defendants' mother filed a direct appeal from the order denying her motion to intervene. The plaintiffs contended that the appeal should be dismissed for failure to follow the interlocutory appeal procedures.⁴ The Georgia Supreme Court noted that although the grant of a partial summary judgment ordinarily may be directly appealed pursuant to section 9-11-56(h) of the Official Code of Georgia Annotated (O.C.G.A.),⁵ in a multi-party case the appeal may only be filed by one with standing to pursue it—the losing party.⁶ The court held that the mere fact that the trial court joined its ruling on the motion to intervene with the ruling granting the partial summary judgment to the plaintiff did not make the defendants' mother a party to the suit or confer standing on her to appeal the grant of partial summary judgment to the plaintiff.⁷ Because there was no order from which the defendants' mother could file a direct appeal, the appeal was dismissed.⁸ However, the court noted that under the procedures of O.C.G.A. Sec. 5-6-34(a),⁹ the defendants' mother could have sought an interlocutory appeal.¹⁰

In American Medical Security Group, Inc. v. Parker,¹¹ the plaintiffs brought a motion for contempt against the defendants for abuse of the discovery process. As a discovery sanction, the trial court struck the defendants' answer and entered a default judgment against the defendants for liability. When the defendants filed a notice of appeal, the plaintiffs argued that the order was a discovery order that was not subject to direct appeal, and the trial court dismissed the notice of appeal. The defendants appealed from the dismissal of the notice of appeal. The Georgia Court of Appeals also dismissed the appeal, ruling that a trial court's order dismissing an unauthorized interlocutory appeal is itself an interlocutory order and that the defendants failed to comply with the interlocutory appeal procedures when appealing the order.¹²

The Georgia Supreme Court granted the defendants' petition for certiorari.¹³ The supreme court initially determined that whether the court of appeals erred in dismissing the defendants' appeal turned on whether the trial court's order providing discovery sanctions was directly appealable because a trial court's order dismissing a properly filed direct appeal is itself subject to a direct appeal.¹⁴

The defendants argued that the order providing sanctions was directly appealable because the trial court in essence had found that the defendants committed an act of contempt by violating the discovery order. Accordingly, pursuant to O.C.G.A. Sec. 5-6-34(a), the order should have been considered directly appealable. Further, the defendants argued that the order was not an order imposing discovery sanctions because under the circumstances such an order would not be directly appealable.¹⁵

The supreme court held that the sanction of dismissing the defendants' answer and entering a default judgment could not be considered a punishment for either criminal or civil contempt.¹⁶ Because the order was unconditional and was not intended to coerce compliance with the prior discovery order, the court reasoned that the order did not constitute punishment for civil contempt.¹⁷ The supreme court determined that although the trial court had labeled the defendants' violation of the discovery order as an act of contempt, the defendants' appeal was not a contempt case and was thus not directly appealable because the trial court did not impose punishment for criminal contempt or attempt to coerce compliance with the prior discovery order.¹⁸ The supreme court stated that to hold otherwise would "permit direct appeals of all interlocutory discovery orders that require a finding of wilfulness," and might cause a trial court to forgo issuing sanctions to avoid the significant delay in the trial caused by a direct appeal.¹⁹ Therefore, the supreme court held that the court of appeals properly dismissed the defendants' appeal.²⁰

Also of interest in this case is the concurring opinion of Justice Benham, in which he discussed the expansion by the appellate courts of the trial courts' authority to dismiss a notice of appeal.²¹ As Justice Benham noted, the trial courts only have statutory authority, pursuant to O.C.G.A. Sec. 5-6-48(c),²² to dismiss appeals in circumstances when "there has been an unreasonable delay in filing the transcript or in transmitting the record to the appellate court."²³ However, a series of decisions by the court ofappeals and the supreme court allowed the trial courts to dismiss appeals on other grounds, including the grounds that (1) the judgment was not yet appealable,²⁴ (2) the question presented had become moot,²⁵ and (3) the notice of appeal was untimely.²⁶ In contrast, Justice Benham noted that the appellate courts had restricted the trial courts' authority to dismiss appeals in other cases.²⁷ Further, Justice Benham noted that the expansion of the trial courts' ability to dismiss appeals had resulted in additional work for the appellate courts, such as in the instant case when the trial court's dismissal ofthe appeal on the ground that the decision was not then appealable required review by both the court of appeals and the supreme court.²⁸ Remarking that "[i]t is not supposed to be that difficult," Justice Benham called for a return to abiding by the statutory grant of authority to the trial courts to dismiss appeals.²⁹

In Rhymes v. East Atlanta Church of God, Inc.,³⁰ the plaintiffchurch brought an action for damages against the defendants along with a petition to quiet title. A special master conducted an evidentiary hearing on the quiet title claim and filed a report with the trial court finding in favor of the plaintiff church. The defendants filed exceptions to the special master's report and also filed pleadings seeking a jury trial. The trial court adopted the special master's report and decided that the plaintiff church held title to the property. In a separate order, the trial court granted the plaintiff's motion to strike the pleadings requesting a jury trial because the request was not made prior to the special master's hearing. The defendants subsequently filed a notice of direct appeal.³¹

The defendants contended that a direct appeal could be filed pursuant to O.C.G.A. Sec. 5-6-34(a)(1), which allows a direct appeal to be taken from all final judgments.³² The supreme court held that because the case involved multiple claims and "[t]he trial court neither expressly determined that there [was] no just reason for delay nor expressly directed the entry of final judgment," there was no final judgment from which the defendants could take a direct appeal.³³ Although the trial court's order adopting the special master's report was designated "Final Judgment and Order," the supreme court held that such designation was not controlling and that the order did not adjudicate the plaintiff's other claims.³⁴ The court also overruled the decision of the court of appeals in Re-Max Executives, Inc. v. Wallace³⁵ to the extent the court of appeals held that the designation of a judgment as "final" is controlling.³⁶ Because the defendants were not entitled to file a direct appeal and failed to follow the interlocutory appeal procedures, the supreme court dismissed the appeal.³⁷

In Board of Regents of the University System of Georgia v. Canas,³⁸ another case examining the final judgment rule, the plaintiff, a patient with HIV/AIDS, brought tort claims against the board of regents. The board contended that it was immune from suit on the basis of sovereign immunity. The trial court denied the board's motion to dismiss the plaintiff's administrative failure to warn claim and held that the board was not immune from suit on sovereign immunity grounds.³⁹ Based on the defendant's failure to comply with the interlocutory appeal procedures of O.C.G.A. Sec. 5-6-34(b),⁴⁰ the plaintiff moved to dismiss the appeal.⁴¹

The court of appeals held that the order appealed from, the trial court's order denying the defendant's motion to dismiss, was not a final judgment and was not an order made directly appealable by statute.⁴² Generally, the court of appeals lacks jurisdiction over a direct appeal filed from an interlocutory ruling.⁴³ But a narrow exception applies, pursuant to the collateral order doctrine, when an order "'resolve[s] an important issue completely separate from the merits ofthe action'" and is "'effectively unreviewable on appeal from a final judgment.'"⁴⁴ The court of appeals held that because sovereign immunity is more than a "mere defense to liability, and is effectively lost if a case is erroneously permitted to go to trial," an order denying...