Motion for new trial. Fulton Superior Court. Before Judge Dixon, pro hac vice.
Locke Lord, Elizabeth J. Campbell, Alexandra M. Dishun, for appellant.
Smith & Jenkins, Wilson R. Smith, Bryant & Cook, Malcolm F. Bryant, Jr., Paul K. Cook, for appellee.
Dewey Williams filed a personal injury lawsuit against Fred Jones Enterprises, LLC (" FJE" ) and obtained a default judgment [331 Ga.App. 482] against FJE after FJE failed to file any responsive pleadings. FJE filed a motion to set aside the default judgment, which was denied. FJE filed an extraordinary motion for new trial on the issue of damages and, three days later, filed a notice of appeal from the trial court's denial of his motion to set aside. The trial court granted FJE's extraordinary motion for new trial on the issue of damages, but then vacated tat order on the grounds that it " lost jurisdiction" over the matter once the case was appealed to this Court. We granted FJE's application for discretionary appeal in the instant case. Finding that the pendency of FJE's appeal from denial of its motion to set aside the default judgment acted as a supersedeas depriving
the trial court of the jurisdiction to consider FJE's subsequent extraordinary motion for new trial, we affirm in part. However, the portion of the trial court's order finding that " no further action is necessary or authorized by the court" is vacated, and the case is remanded to the trial court for findings not inconsistent with this case.
The facts in this case are undisputed, and the issue before us is whether the trial court erred in finding that it was without jurisdiction to rule upon FJE's extraordinary motion for new trial during the pendency of an appeal and that there is nothing further for it to review in this case. " This question is one of law, which we review de novo." (Citation and punctuation omitted.) Guthrie v. Wickes, 295 Ga.App. 892, 892 (673 S.E.2d 523) (2009).
The instant case involves the following procedural history. On April 29, 2011, Williams filed suit against FJE alleging that he sustained injuries when he fell over a package that FJE's employee negligently placed in a dangerous location. FJE did not file an answer, and Williams filed a motion for default judgment. After a damages hearing at which FJE was not present, the trial court entered a default judgment in favor of Williams in the amount of $1,170,563 on February 1, 2012. On April 23, 2012, FJE filed a motion to set aside the default judgment under OCGA § 9-11-60, arguing that the complaint was legally insufficient, that the judgment was procured by fraud, that the pleadings and evidence presented did not support the award of damages, and that FJE did not receive timely notice of the judgment. On July 10, 2012, the trial court denied the motion to set aside.
On August 6, 2012, FJE filed an extraordinary motion for new trial on the issue of damages, claiming that the damages awarded were unsupported by Williams' pleadings or by evidence presented at the damages hearing. Three days later, on August 9, 2012, FJE filed an application for discretionary appeal seeking review of the July 10, 2012, order denying its motion to set aside the judgment. On September 10, 2012, this Court granted FJE's application after finding [331 Ga.App. 483] that FJE was entitled to a direct appeal. On November 13, 2012, the trial court granted FJE's extraordinary motion for new trial as to damages and placed the case on the trial court's nonjury calendar. On October 31, 2013, this Court affirmed without opinion (324 Ga.App. XXIV, Case No. A13A1140) the trial court's denial of FJE's motion to set aside the default judgment.
On November 1, 2013, Williams filed a motion in the trial court to vacate the November 2012 order granting FJE's extraordinary motion for new trial on damages. On February 25, 2014, the trial court vacated the November 2012 order granting an extraordinary motion for new trial on damages, finding that FJE's notice of appeal had deprived it of jurisdiction to rule on the motion. The order also concludes that " no further action is necessary or authorized by [the trial court]." On March 27, 2014, FJE filed this timely application for discretionary appeal from this order, which was granted by this Court.
1. Appellant contends that the trial court erred in finding that it had " lost jurisdiction" to rule on Appellant's pending extraordinary motion for new trial once Appellant filed its first notice of appeal. We disagree.
" A notice of appeal divests the trial court of jurisdiction to supplement, amend, alter, or modify the judgment while the appeal of that judgment remains pending." (Citations omitted.) McLeod v. Clements, 306 Ga.App. 355, 357 (2) (702 S.E.2d 638) (2010). See also OCGA § 5-6-46 (a). However, " matters which are independent of and distinct from the judgment on appeal remain within the jurisdiction of the trial ...