Appellate Practice and Procedure - Roland F. L. Hall

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2008
• Citation: Vol. 60 No. 1

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, 2007 and May 31, 2008. 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. Discretionary Appeals v. Direct Appeals

Several cases during the survey period dealt with the sometimes difficult determination of whether discretionary or direct appeal procedures should be used. In Cooney v. Burnham,¹ the plaintiff, an attorney, brought an action against the defendant, his client, seeking legal fees, prejudgment interest, litigation expenses, and attorney fees expended in bringing the suit. At trial, the jury returned a verdict for the plaintiff. When the trial court entered judgment based on the verdict, the court denied the plaintiff's request for prejudgment interest and attorney fees. The plaintiff's direct appeal from the judgment was dismissed by the Georgia Court of Appeals on the basis that because the judgment was less than $10,000, the plaintiff should have followed the discretionary appeal procedure set forth in the official code of Georgia Annotated (O.C.G.A.) Sec. 5-6-35(a)(6).²

The Georgia Supreme Court granted certiorari,³ and the plaintiff argued that because his appeal involved issues of liability rather than damages, the direct appeal procedure was applicable.⁴ Under O.C.G.A. Sec. 5-6-35(a)(6), an application to appeal is required when the judgment is between one cent and $10,000.⁵ The plaintiff contended that because he received a "zero recovery" on his claims for prejudgment interest and attorney fees, this was an adverse finding by the trial court on liability, and the statute did not apply.⁶ The supreme court held that because the claims for prejudgment interest and attorney fees were dependent on the primary claim for legal fees, the failure to recover any amount on these ancillary claims could not transform the judgment of $6,000 into a finding of adverse liability.⁷ Accordingly, because the judgment appealed from was one for damages within the scope of O.C.G.A. Sec. 5-6-35(a)(6), the direct appeal procedures could not be used.⁸ The supreme court affirmed the court of appeals dismissal of the plaintiff's direct appeal.⁹

In Zitrin v. Georgia Composite State Board of Medical Examiners,¹⁰ a group of physicians filed an action seeking a declaratory judgment that Georgia law prohibits physicians from participating in executions, an entry of an order requiring the Georgia Composite State Board of Medical Examiners (State Board) to investigate physicians who participated in executions by lethal injection, and a reversal of the State Board's decision not to conduct an investigation. (Before filing suit, the physicians filed a request for investigation with the State Board, which had denied the request.) The trial court dismissed the physicians' complaint, and the physicians filed a direct appeal.¹¹

The State Board moved for dismissal of the appeal on the ground that the physicians failed to follow the discretionary appeal procedures of O.C.G.A. Sec. 5-6-35(a)(1),¹² which states that appeals from decisions of the superior courts reviewing decisions of state and local agencies must comply with the discretionary appeal procedures.¹³ The State Board argued that section 5-6-35(a)(1) applied because the subject matter of the claim involved the decision of a state administrative agency. The State Board relied on prior decisions which held that parties cannot use the Declaratory Judgment Act¹⁴ to obtain direct appeal of agency decisions, but instead they must use the discretionary appeal procedures under the Georgia Administrative Procedure Act (APA).¹⁵ The State Board was thus arguing that the physicians' declaratory judgment action was essentially an appeal of the State Board's administrative decision.¹⁶

The court of appeals held that because the physicians' claim for declaratory relief could have been brought regardless of whether the physicians sought review of the State Board's denial of the request for an investigation, the claim for declaratory relief was independent of the claim asserted under the APA, and the cases cited by the State Board were not controlling.¹⁷ Thus, the physicians could appeal the denial of their request for a declaratory judgment claim using the direct appeal procedures and include their claim under the APA in the appeal.¹⁸ The court of appeals held that the physicians were not required to use the discretionary appeal process and denied the motion to dismiss the appeal.¹⁹

B. Selecting the Correct Appeal Procedure

In Stubbs v. Pickle,²⁰ the plaintiff brought an action against his former attorney for malpractice. Subsequently, the plaintiff added the defendant's law firm as a codefendant. The trial court entered a default judgment against the law firm, and the law firm requested an interlocutory appeal from the default judgment. The plaintiff had also filed a motion for summary judgment, and the trial court had entered an order striking the defendant-attorney's brief in response to the summary judgment motion as untimely. The defendant-attorney joined in the law firm's appeal from the default judgment to challenge the striking of his brief.²¹

The court of appeals granted the law firm's request for an interlocutory appeal, noting that the default judgment was, in fact, directly appealable.²² On appeal, the plaintiff argued that the court of appeals lacked jurisdiction to consider the defendant-attorney's challenge to the order that struck his response to the motion for summary judgment.²³

The plaintiff maintained that even though the law firm's application for appeal had been granted on the ground that final judgment was entered against the law firm, no final judgment had been entered against the defendant-attorney, who had failed to follow the interlocutory appeal procedures for appealing the ruling on the motion to strike.²⁴ The defendant-attorney relied on O.C.G.A. Sec. 5-6-34(d),²⁵ pursuant to which the court of appeals, when considering issues correctly raised in a direct appeal, can also consider any other nonfinal rulings entered in the case.²⁶

The court of appeals held that the defendant-attorney could not use O.C.G.A. Sec. 5-6-34(d) to challenge the trial court's interlocutory ruling striking his response.²⁷ The directly appealable order involved only the law firm, and the defendant-attorney could not use the law firm's direct appeal to challenge the interlocutory ruling relating only to the defendant-attorney.²⁸ Because the defendant-attorney did not follow the interlocutory appeal procedures, the court of appeals lacked jurisdiction to review the order striking his response.²⁹

C. Standing

In the Interest of J.R.P.³⁰ arose from a finding by a juvenile court that J.R.P. was deprived because of the lack of a guardian or custodian. After a subsequent hearing, the juvenile court had awarded permanent custody to J.R.P.'s cousin. J.R.P.'s grandmother, who had cared for J.R.P. for several years after his mother's death,³¹ appealed from the deprivation ruling but failed to timely seek review of the custody order.³² The court of appeals held that the grandmother lacked standing to appeal the deprivation ruling because the grandmother was not the child's legal guardian or custodian.³³ Thus, the grandmother could not show that the deprivation ruling affected her rights.³⁴ The court of appeals further held that even if the grandmother did have standing, the issues raised by her appeal were moot.³⁵ Because the grandmother's appeal challenged only the deprivation order, any ruling concerning the order would have no effect on the cousin's permanent legal custody of J.R.P.³⁶ The court of appeals affirmed the juvenile court's order.³⁷

D. Miscellaneous Jurisdictional Issues

In First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc.,³⁸ the supreme court addressed the issue of whether a direct appeal could be filed from an order dismissing a complaint for failure to prosecute the action in the name of the real party in interest.³⁹ The case arose from a dispute between the parties over the ownership of church property, and the plaintiffs brought suit to quiet title to the property. The defendant brought a counterclaim to quiet title in its own name. The defendant claimed that because the plaintiffs did not have the approval from a majority of their congregation, they lacked authority to file the complaint. The defendant filed a motion to dismiss or, in the alternative, for summary judgment. The trial court granted the motion for summary judgment, finding that it lacked subject matter jurisdiction over the plaintiffs' claims because the plaintiffs lacked the capacity to file the complaint. However, the trial court did not dismiss the defendant's counterclaim, and the counterclaim remained pending.⁴⁰

Upon the plaintiffs' appeal to the supreme court, the court examined whether it had jurisdiction to consider the appeal.⁴¹ The supreme court noted that because the order dismissing the complaint did not qualify as a final judgment (because the counterclaim was still pending) and the plaintiffs had not sought a certificate of immediate review, the appeal was subject to dismissal unless another exception to the final judgment rule applied.⁴²

Because the trial court had titled its order as an "Order on Motion for Summary Judgment," it appeared that the plaintiffs could bring a direct appeal pursuant to O.C.G.A. Sec. 9-11-56(h)⁴³ from an order granting summary judgment.⁴⁴ However, after examining the substance of the order, the supreme court held that a "dismissal for lack of subject matter jurisdiction is not a summary judgment, regardless of how it is styled" because a trial court has no power to enter a judgment on the merits if it...