Temple v. Hillegass

344 Ga.App. 454

810 S.E.2d 625

TEMPLE

v.HILLEGASS et al.

A17A1719

Court of Appeals of Georgia.

February 5, 2018

Andy Clark Law, M. Andrew Clark, Suwanee, for appellant.

Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, J. Robb Cruser, Kathleen M. Hurley, Jena G. Emory, Norcross, for appellees.

McFadden, Presiding Judge. In Temple v. Hillegass , 340 Ga. App. 189, 796 S.E.2d 899 (2017), we vacated the trial court order dismissing Tandra Temple’s appeal for delay in transmitting the record to the appellate court. We directed the trial court to make the findings required by OCGA § 5-6-48 (c) about the delay. Temple now appeals the trial court’s post-appeal order that again dismissed her appeal but this time contained those required findings. Because the trial court entered the order before it had received the remittitur from the first appeal, it lacked jurisdiction and its order is a nullity and void. We thus vacate the order and remand the case to the trial court.¹

"[A]n appellate court maintains jurisdiction over a case until it has issued the remittitur and the remittitur has been received and filed in the clerk’s office of the court below. Only then does the trial court regain jurisdiction to take further action with respect to the judgment appealed." Massey v. Massey , 294 Ga. 163, 166 (3), 751 S.E.2d 330 (2013) (citation and punctuation omitted). Since the trial court lacked jurisdiction to enter it, the order Temple appeals is a nullity and void. See Chambers v. State , 262 Ga. 200, 201-202, 415 S.E.2d 643 (1992) ; Tavakolian v. Agio Corp. , 309 Ga. App. 652, 653-654 (1), 711 S.E.2d 33 (2011).

The appellees "concede[ ] that the trial court erred by entering the order[ ], but nevertheless urge[ ] us to affirm the trial court’s order on the basis that [Temple] can show no harm .... This [c]ourt, however, cannot ignore the nullity of the trial court’s actions." Atkins v. Estate of Callaway , 329 Ga. App. 8, 10 (1), 763 S.E.2d 369 (2014) (physical precedent only). See also Grant v. State , 304 Ga. App. 133, 137-138 (2), 695 S.E.2d 420 (2010) (declining to review for the sake of judicial economy the merits of an order void for lack of jurisdiction), overruled on other grounds by Mayor & Aldermen of the City of Savannah v. Batson-Cook Co. , 291 Ga. 114, 728 S.E.2d 189 (2012).

The appellees cite two cases for the proposition that we should address the merits of the appeal because Temple has not shown harm. The first case, Dept. ofTransp. v. Petkas , 189 Ga. App. 633, 377 S.E.2d 166 (1988), is distinguishable. It did not involve the appeal of a judgment the trial court lacked jurisdiction to enter. The second case, Monterrey Mexican Restaurant of Wise v. Leon , 282 Ga. App. 439, 638 S.E.2d 879 (2006), does support the appellees’ position. In that case, we observed that we had dismissed the appellants’ prior appeal for lack of jurisdiction. Id. at 440, n.3, 638 S.E.2d 879. The appeal that was then before the court was an appeal of the amended order entered after our dismissal of the earlier, jurisdictionally-flawed appeal but before the remittitur for the jurisdictionally-flawed appeal had been filed in the trial court. Id. at 440 n. 4, 638 S.E.2d 879 We held that, "[a]lthough the lower court was technically without jurisdiction to enter the [a]mended [o]rder, nonetheless we are entertaining this appeal in the interest of judicial economy." Id. at 440, n. 4, 638 S.E.2d 879.

But, as our Supreme Court has held, this sort of jurisdictional defect cannot be waived. Tolbert v. Toole , 296 Ga. 357, 361 (2), 767 S.E.2d 24 (2014). Thus we must reject the appellees’ invitation to ignore the jurisdictional flaw and overrule Monterrey Mexican Restaurant of Wise , 282 Ga. App. at 439, 638 S.E.2d 879, to the extent it implies that we can do so.

Temple requests that we order the trial court to reassign the case to another judge since the trial court has twice erroneously dismissed Temple’s appeal. We deny Temple’s request. Compare Dowdy v. Palmour , 251 Ga. 135, 143 (3), 304 S.E.2d 52 (1983) (deciding that another judge should hear contempt matter on remand where the announcement of punishment was delayed until conclusion of the trial and the original judge had reacted to the contumacious conduct in such manner as to become involved in the controversy); Newton v. Golden Grove Pecan Farm , 309 Ga. App. 764, 772-773 (3), 711 S.E.2d 351 (2011) (deciding that another judge should hear contempt matter on remand because original judge could end up being called as a witness).

Judgment vacated and case remanded.

Branch and Bethel, JJ., concur.

1 This is the first opinion implementing our new procedure for overruling our prior opinions. We adopted it under the increased authority over our procedures the General Assembly afforded us in the Appellate Jurisdiction Reform Act of 2016, Ga. L. 2016, p. 883, § 2-1.

Under our former procedure, whenever a participating judge proposed that one of our prior opinions be overruled, every member of this Court was required to vote on—and so assume full responsibility for—the entire opinion. We adopted that procedure in light of former OCGA § 15-3-1 (d) which provided:

How decision overruled . It being among the purposes of this Code section to avoid and reconcile conflicts among the decisions made by less than all of the Judges on the court and to secure more authoritative decisions, it is provided that when two divisions plus a seventh Judge sit as one court the court may, by the

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