Daniel Bruce Greenfield, Jack Freddie Witcher, Bremen, for Appellant.
Nicole Christine Leet, Norcross, Michael J. Rust, for Appellee.
Carlos Ross Pirkle, injured when he slipped and fell in a Quiktrip Store, appeals from the trial court's grant of summary judgment to Quiktrip, contending that the trial court erred in ruling that there was no evidence that Quiktrip had actual or constructive knowledge of the hazard which caused his fall. For the reasons set forth below, we deny Quiktrip's Motion to Dismiss the appeal and affirm the trial court's judgment.
[325 Ga.App. 598] 1. Quiktrip's Motion to Dismiss Appeal.
(a) Here, the record shows that Pirkle filed his notice of appeal from the trial court's grant of summary judgment to Quiktrip on January 8, 2013. Thereafter, Quiktrip moved to dismiss the notice of appeal in the trial court because Pirkle failed to file the $25 filing fee required by
OCGA § 15-6- 77.3(b). The trial court denied Quiktrip's motion, noting that the fee was paid on January 28, 2013. Because the trial court's order was entered on April 15, 2013, after the filing of the notice of appeal, it may not be enumerated as error in this appeal. Bloomfield v. Bloomfield, 282 Ga. 108, 112(5), 646 S.E.2d 207 (2007); Long v. Long, 303 Ga.App. 215, 217 fn. 2, 692 S.E.2d 811 (2010).
(b) Quiktrip then filed a motion to dismiss the appeal in this Court, citing the same rationale. As did the trial court, we find unavailing Quiktrip's reliance on Brown v. Webb, 224 Ga.App. 856, 482 S.E.2d 382 (1997). There, Brown attempted to file a notice of appeal without paying the filing fee. Rather than filing the notice, as the clerk did here, the clerk's office in Brown stamped the notice " received." Brown, supra, 224 Ga.App. at 856, 482 S.E.2d 382. As noted by this Court, " having someone in the clerk's office stamp a pleading as received is not the same as filing the pleading. A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file, and a certificate of the clerk, entered upon the paper at the time it is filed, is the best evidence of such filing." (Citation and punctuation omitted.) Brown, supra, 224 Ga.App. at 857, 482 S.E.2d 382.
While it is true that the state court clerk could have justifiably refused to file the notice of appeal until the proper fees had been paid, Slater v. Spence, 246 Ga.App. 365, 367, 540 S.E.2d 638 (2000), the clerk in this case chose to file the notice of appeal and deal with the fee thereafter. This would seem to be in line with the Supreme Court's admonition that we follow " the route toward less technical and more expeditious handling of cases involving minor procedural errors." (Citation and punctuation omitted.) [325 Ga.App. 599] Hughes v. Sikes, 273 Ga. 804, 805, 546 S.E.2d 518 (2001). Had the Legislature wanted to make the payment of the fee a condition precedent to marking a pleading " filed," it could have enacted a statute for the trial courts similar to OCGA § 5-6-4, which provides that in this Court and the Supreme Court, " [t]he clerk is prohibited from receiving the application for appeal or the brief of appellant unless the costs have been paid or a sufficient affidavit of indigence is filed or contained in the record."
Therefore, we deny Quiktrip's motion to dismiss this appeal.
2. We now consider Pirkle's argument that the trial court erred in granting summary judgment to Quiktrip.
To prevail on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). When reviewing the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).
So viewed, the evidence was that, on the morning of May 5, 2008, Pirkle, his brother, Hugh, and a co-worker stopped at the Austell Quiktrip on their way to a work site to get drinks. The video from Quiktrip's security camera showed Pirkle at 7:06:13 a.m. walking into the store directly across the area where he would later fall at 7:08:28 a.m. Pirkle was looking down at the floor in front of the cash register as he walked by at 7:06:14 a.m. Between 6:59 a.m. to 7:08:25 a.m., the video shows several customers who walk across, check out, and ...