No. 1

March 6, 2010

Georgia Cases and Comments

Supersedeas & Post-Judgment Modification

R.A.F. v. Robinson

Case No. S10A0044, 2010 Ga. LEXIS 109 (Feb. 1, 2010)

This case presents another variation on the problem of what a trial court may continue to do after a notice of appeal is filed. The underlying case dealt with a mandamus petition, which seeks an order from the trial court to an official to perform a non-discretionary act, or to exercise the official's discretion. In this case, the plaintiff wanted DHR to investigate whether his daughter had been mistreated at an educational facility. This describes the procedural setting:

The trial court conducted a hearing on the motion to dismiss and entered a written order dismissing the petitions with prejudice on May 18, 2009. On May 28, 2009, appellants filed a motion for reconsideration, or in the alternative, application for certificate of immediate review, as well as a "third amended and restated petition for mandamus." ...

Note that a dismissal of petitions is usually a final judgment, which would not require a certificate of immediate review. Many different types of motion pass under the nomenclature of a "motion for reconsideration," some of which toll the 30-day period for filing a notice of appeal, and some of which do not. The court does not inform us of which kind this is.

... Appellees opposed all post-dismissal motions. Appellants sought and obtained leave to file an out-of-time appeal from the May 18, 2009 order, pursuant to which a timely notice of appeal was filed on July 14, 2009. ...

Granting of such relief is also odd. It is available in criminal cases where the criminal defendant loses the right to a normal appeal through counsel's error (see McFadden et al., Georgia Appellate Practice, § 11:15), but this was a civil case. The court gives no explanation for its availability here, which would be interesting in itself, but this comment assumes that the notice of appeal was timely and focuses on what follows.

... On July 29, 2009, the trial court entered another order dismissing the petition for mandamus with prejudice as well as all motions and amended petitions filed by appellants.2 In explanation for its ruling, the court noted that the: "requested action is moot; [petitioners] failed to state a claim upon which relief can be granted; [petitioners] failed to assert a clear legal right [to the requested relief]; and [petitioners] have an adequate remedy at law."

fn2 We note that "even though a notice of appeal may [in certain circumstances] divest the trial court of jurisdiction, such divestiture does not become effective during the period in which a motion for new trial may be filed." Griffin v. Loper, 209 Ga. App. 504, 505 (433 SE2d 653) (1993). As the 30-day time period for filing a motion for new trial had not expired when the trial court entered its second order dismissing all appellant's claims, the court retained jurisdiction to enter the order. Id.; OCGA § 5-5-40.

The Court held that a trial court had jurisdiction to enter the second order because of a general right to for the trial court to act within the time for a motion for new trial, presumably from the time of the order granting leave to file an out-of-time appeal. It is unclear whether a second notice of appeal was filed from this second judgment.

 

This case raises several interesting appellate issues, but let us focus on the trial court's jurisdiction to issue a dispositive order after a notice of appeal has been filed.

First, the Supreme Court could have affirmed the decision below because the final judgment of May 18 precluded further amendments and the motion for reconsideration did not prevent the transfer of jurisdiction based on the filing of the notice of appeal. But it did not do that. It held that the trial court has jurisdiction to act on the motion for reconsideration. Though the trial court denied the motion and left matters as they were, if it had jurisdiction, it could have granted the motion, and it could have granted any further relief against either party.

Second, note that the Court did not attribute the trial court's power to the failure of the appellant to pay court costs. According to OCGA § 5-6-46(a),

In civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant.

In McFadden et al., Georgia Appellate Practice, § 14:5, we note a division of authority as to whether the costs include or exclude the costs of preparation of the appellate record, and we argue that the better interpretation is that such costs are excluded. But the Supreme Court did not rest on that ground. Under footnote 2 in R.A.F., the trial court would have plenary authority to amend, vacate, or augment its ruling for any reason during the thirty day period for filing a motion for new trial, even if the appellant had paid all costs including the docketing fee in the appellate court.

That strikes me as novel. Numerous cases in a variety of contexts hold that the notice of appeal (or comparable applications for discretionary appeals) precludes the trial court's ability to rule on pending motions for reconsideration. See, e.g., Pineres v. George, 284 Ga. 483, 484 (2008); Fortson v. Hotard, 299 Ga. App. 800, 804 (2009).

As a general rule, in civil actions other than injunctions, a trial court, upon the filing of a notice of appeal, loses jurisdiction to modify or enforce a judgment which is the subject of the appeal during the period of supersedeas. ... Davis v. Harpagon Co., 281 Ga. 250, 253 (8) (637 SE2d 1) (2006); see Cohran v. Carlin, 249 Ga. 510, 512 (291 SE2d 538) (1982) ("[T]he notice of appeal . . . does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal.") (citation omitted); see also In the Interest of A.R.B., 209 Ga. App. 324 (433 SE2d 411) (1993) (trial court divested of jurisdiction to act on pending reconsideration motion after application filed).

Guthrie v. Wickes, 295 Ga. App. 892, 893-894 (2009).

Omitting the unusual points noted in discussing R.A.F., the essential sequence of events is that the trial court granted a final judgment to the defendant; the plaintiff filed a motion for reconsideration and an amendment to the complaint; the plaintiff later filed a notice of appeal; and the trial court denied reconsideration and granted an even more final judgment against all versions of the complaint. Compare this sequence with the one in State v. White, 282 Ga. 859, 860 (2008), in which

The trial court granted Appellees' motions to dismiss on January 19, 2007. On February 12, the [appellant] State filed a motion for reconsideration, to which several exhibits, including affidavits, were attached. On February 15, the State filed a notice of appeal from the grant of Appellees' motions to dismiss. On that same day, the trial court signed an order denying the State's motion for reconsideration, but that order was not entered until February 16.

In that case, which involves the same sequence of events, the court stated that

[A]t the time the order denying the motion for reconsideration would otherwise have become effective, the trial court had already been divested of jurisdiction over the case pursuant to the State's previously filed notice of appeal.

So how do these cases differ, if they differ?

The most obvious try is that the plaintiff could seek a new trial in R.A.F., but not in State v. White or the other cases. However, it is unclear whether the plaintiff in R.A.F. could have filed a motion for a new trial -- there is no obvious finding of fact that the plaintiff could challenge, and it is unclear whether the appellants in the other cases could not have filed a motion for a new trial. It is abundantly clear, though, that the plaintiff did not file a motion for a new trial. Had the motion for reconsideration sufficed as a de facto motion for new trial, it would not have been necessary to grant an out-of-time appeal, and the time to appeal would have only commenced to run on its denial, in which case the Court's footnote 2 was pointless.

Griffin v. Loper, the case cited for the proposition in footnote 2, dealt with a case in which the notice of appeal was filed after a valid motion for new trial was filed. Such a motion does suspend the finality of the judgment until it is disposed of, but the recognition of this fact does not support the claim that the trial court has jurisdiction to modify the final judgment for the entire thirty day period in which a motion for new trial might have been, even though a notice of appeal has already been filed.

I respectfully submit that the suggestion in R.A.F. should not be followed in cases in which a notice of appeal has been filed, the trial costs have been paid, and no timely motion for a new trial has been filed.