Cooper v. Pollard

1

COOPER et al. v. POLLARD et al.

MORGAN v. COOPER et al.

POLLARD v. COOPER et al.

Nos. A24A0389, A24A0449, A24A0450

Court of Appeals of Georgia, First Division

December 21, 2023

BARNES, P. J., GOBEIL and PIPKIN, JJ.

PIPKIN, JUDGE

These consolidated appeals challenge orders entered by the Superior Court of Mitchell County in a quo warranto action. More specifically, Case Nos. A24A0449 and A24A0450 challenge the trial court's order entering default judgments in the quo warranto action, and Case No. A24A0389 is an appeal from an order in which the court refused to rule on a motion for contempt of the default judgment due to the automatic supersedeas set out in OCGA § 5-6-46 (a). We have expedited these appeals and, as more fully set forth below affirm in all three cases.

1. Pertinent to these appeals, the record shows that Corey B Morgan and Venterra Pollard (collectively "Respondents") were elected as District 1 council

members for the City of Camilla, Georgia ("City") on December 31, 2019 and 2021,^[1]respectively. In November 2022 David Cooper and Joe Bostick (collectively "Petitioners") filed an "Application for Leave of Court to File an Information in the Nature of a Petition for Quo Warranto" and a "Verified Petition for Quo Warranto" seeking to remove Respondents from the council on the basis that they did not meet the residency requirements imposed by Georgia law and the Charter for the City.^[2] The petition sought a declaration concerning Respondents' ability to serve as council members under both OCGA § 9-6-60, the quo warranto statute, and OCGA § 9-4-1, the declaratory judgment statute.

Petitioners request to proceed with a quo warranto inquiry was granted; thereafter, Petitioners served Respondents with the quo warranto petition, along with interrogatories and requests for production of documents. Respondents, both of whom appeared pro se, filed answers to the petition and unverified responses and objections to the discovery requests. As explained more fully below, Respondents resisted Petitioners' discovery efforts, and Petitioners filed several motions to compel and motions to strike Respondents' answers and defenses based on discovery violations. After several hearings and the entry of several orders compelling discovery, the trial court, in a 30-page order, granted Petitioners' motion to strike and entered a default judgment on their quo warranto petition ("final judgment"). In addition to extensive fact-finding and determinations about Respondents' discovery violations, the order also contained specific declarations that Respondents were not residents of the City, that they lacked the authority to act as members of the council, and that their positions were vacant. Respondents, who have continued to represent themselves throughout these proceedings, timely filed separate notices of appeal from the final judgment^[3]; Morgan's appeal was docketed in this Court as Case No. A24A0449, and Pollard's appeal was docketed in this Court as Case No. A24A0450.

After the trial court entered its final judgment, Petitioners believed that Respondents continued to participate in council activities as if they had not been removed from office, prompting Petitioners to file an emergency motion for contempt, as amended, in the trial court. Following a hearing, the trial court entered an order to the effect that it had been divested of jurisdiction to rule on the motion when Respondents filed their notices of appeal and paid costs and, accordingly, refused to entertain the motion ("supersedeas order"). Petitioners filed a notice of appeal from that order, and that appeal has been docketed in this Court as Case No. A24A0389.

Case No. A24A0389

2. We turn first to Petitioners' challenge to the trial court's supersedeas order.^[4]In pertinent part, OCGA § 5-6-46 (a) provides that "[i]n civil cases, the notice of appeal . . . shall serve as supersedeas upon payment of all costs in the trial court by the appellant[.]" Thus, "'[a]s 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 S.E.2d 1) (2006)." Mughni v. Beyond Mgmt. Group, Inc., 349 Ga.App. 398, 402 (3) (825 S.E.2d 829) (2019).

(a) Petitioners acknowledge the general applicability of OCGA § 5-6-46, but, citing Bankers Life and Cas. Co. v. Cravey, 209 Ga. 274 (71 S.E.2d 659) (1952) and other mandamus cases, they argue that the automatic supersedeas provisions of OCGA § 5-6-46 (a) do not apply to cases involving extraordinary remedies. We disagree that Bankers should be read so broadly. First, and without belaboring the point, Bankers was decided prior to the adoption of both the Appellate Practice Act in 1965 and the Georgia Constitution of 1983, and it is apparent that the Court's analysis based on the then-existing supersedeas statute and since-revised constitutional provision would be materially different today. Bankers, 209 Ga. at 275-277. More importantly, we cannot simply engraft the reasoning in Bankers, or any other mandamus case, onto this case because the statute governing mandamus appeals specifically says - as it said at the time Bankers was decided - that those appeals" shall be heard . . . under the same laws and rules as apply in injunction cases." OCGA § 9-6-28 (b). Bankers, 209 Ga. at 277 (same). And our law is clear that there is no automatic supersedeas in an appeal from an order granting an injunction. See OCGA § 9-11-62 (a) ("Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal.").^[5]

There is no comparable language, however, in the statutes governing quo warranto. OCGA § 9-6-64 (a) directs a party dissatisfied with the final decision in a quo warranto proceeding to "file an appeal as in other cases[.]" While this language also appears in the mandamus statute, see OCGA § 9-6-28 (a), as explained above, the mandamus statute goes on to say in subsection (b) that appeals in those cases are "under the same laws and rules as apply in injunction cases[,]" while the quo warranto statute merely goes on to say that "the duties of the clerk shall be the same as in other cases" where appeals are filed. OCGA § 9-6-64 (a). Moreover, there is no doubt that the legislature knows how to exempt classes of cases from the automatic supersedeas provisions because not only did it do so in injunction and mandamus cases, but it also has done so in election contest cases, which often concern issues similar to those adjudicated in quo warranto cases. See OCGA § 21-2-528. But Petitioners have not cited, and we have not found, anything in the specific statutes governing quo warranto proceedings, or any other statute, that exempts a judgment issued in a quo warranto proceeding from the automatic supersedeas provisions of OCGA § 5-6-46 (a). Accordingly, because we have found neither a statute nor controlling decisional law specifically exempting quo warranto proceedings from the automatic supersedeas provisions of OCGA § 5-6-46 (a), the trial court's order is not subject to reversal on this basis.

(b) Petitioners also argue that the automatic supersedeas provisions of OCGA § 5-6-46 do not apply because they sought, and the trial court granted, injunctive relief. Although, as stated above, it is true that orders granting injunctive relief are not subject to the automatic supersedeas set out in OCGA § 5-6-46 (a), we disagree that injunctive relief was granted here. The difference between a declaratory judgment and an injunction has been explained before: "A declaratory judgment is a means by which a superior court simply declares the rights of the parties or expresses its opinion on a question of law without ordering anything to be done. An injunction, by contrast, imposes an affirmative duty on the party enjoined to either perform - or refrain from performing - a specified act." (Citations and punctuation omitted.) Burton, 297 Ga. at 549-550 (4). In their quo warranto petition, Petitioners sought a "Declaration of Quo Warranto Judgment" specifically referencing both OCGA § 9-6-60 (quo warranto statute) and 9-4-1 (declaratory judgment statute). And in their "Prayer for Relief," Petitioners sought "declaratory relief," judgment in quo warranto, attorney fees, expenses of litigation, and "such other and further relief as justice requires." In the final judgment, the trial court set out the relief granted as a series of adjudications and declarations and did not mention injunctive relief.^[6] Further, Petitioners raised this argument in the trial court in support of their motion for contempt, and, although the trial court did not specifically address this issue in its supersedeas order, the trial court implicitly rejected this argument by concluding the automatic superseadeas applied here. Burton, 297 Ga. at 550 (4) (in deciding whether automatic supersedeas applied, trial court properly interpreted its order as declaratory judgment, not injunction). Accordingly, this argument is also unavailing and the supersedeas order is affirmed.

Case No. A24A0449

3. We turn now to the Respondents' challenges to the final judgment. In Case No. A24A0449, Morgan raises three enumerations of error: (a) that the trial court abused its discretion by striking his answer and defenses, (b) that the trial court erred by refusing to allow him to introduce certain evidence at one of the hearings, and (c) that the trial court erred by denying his motion to dismiss....