MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
related appeals arise from a trial court order denying a
motion to vacate an order substituting a new plaintiff and
granting summary judgment to the new plaintiff, and another
order requiring the defendant to post a supersedeas bond as a
condition for the stay of enforcement of the summary judgment
order. The trial court made an error of law and failed to
exercise its discretion in substituting a new plaintiff, so
that order must be vacated. We therefore reverse the denial
of the motion to vacate that substitution order and remand
the case with direction that the trial court apply the
correct law and exercise its discretion in determining
whether to substitute a new plaintiff. Because the denial of
the motion to vacate that preliminary order substituting a
new plaintiff is reversed, the subsequent orders granting
summary judgment in favor of the substituted plaintiff and
requiring the defendant to post a supersedeas bond must be
Facts and procedural posture.
31, 2011, Ameriquest Mortgage Company filed a complaint
against Rickie Rogers seeking reformation of a security deed.
The complaint alleged that in 2005, Rogers had executed a
promissory note and a security deed in favor of Ameriquest as
to certain real property; that Rogers had defaulted under the
note; that by mutual mistake of the parties a power of sale
provision was omitted from the security deed; and that the
security deed needed to be reformed to include the omitted
power of sale provision in order to allow Ameriquest to
conduct a non-judicial foreclosure sale of the property.
Rogers answered the complaint, asserting, amongst other
things, that there had been no mutual mistake and that the
action should be dismissed because Ameriquest had no standing
and was not the proper party to bring the action. On April
16, 2012, Ameriquest filed a motion for summary judgment. On
May 9, 2012, Rogers responded to the motion, requesting in
the introductory paragraph and in the prayer for relief that
a hearing be held on the motion.
three years later, on August 20, 2015, Ameriquest filed an
amended complaint for reformation and a motion to substitute
Deutsche Bank National Trust Company as the plaintiff. In the
motion to substitute, Ameriquest stated that it had no
interest in the security deed because it had assigned its
interest to Deutsche Bank on January 20, 2009, more than two
years before it filed its complaint, and thus Deutsche Bank
retained "all beneficiary interest in the [d]eed as well
as the [corresponding] promissory note[.]" On August 31,
2015, before Rogers had responded to the motion, the trial
court granted the motion to substitute, ordering that
Deutsche Bank be substituted as the plaintiff in place of
Ameriquest pursuant to OCGA § 9-11-25. On September 24,
2015, Rogers filed his answer to the amended complaint and
his response to the motion to substitute. On May 23, 2016,
Deutsche Bank filed an amended motion for summary judgment.
10, 2016, the court held a hearing to address the issues of
whether it had improperly granted the motion to substitute
before the expiration of time for a response and whether
Rogers' response to the motion was untimely. During the
hearing, the trial judge learned that the original motion for
summary judgment had been pending since 2012 and that an
amended motion for summary had also been filed. At the
conclusion of the hearing, the judge asked the attorneys for
both sides if they wanted a hearing on the summary judgment
motions. Counsel for Deutsche Bank said that he did not want
a hearing, while counsel for Rogers stated that they did want
a hearing and had "requested that throughout the
process." Four days later, on June 14, 2016, Rogers
filed a motion to vacate the August 2015 order substituting
Deutsche Bank as the plaintiff.
six months after that, on December 28, 2016, the trial court
filed an order summarily denying Rogers' motion to vacate
and granting Deutsche Bank's motion for summary judgment.
Rogers filed a notice of appeal from that order.
Approximately three weeks later, on motion by Deutsche Bank,
the trial court ordered Rogers to post a supersedeas
"bond with good security as a condition for the stay of
enforcement of [the] order granting summary judgment against
him on December , 2016." Rogers filed a separate
appeal from that order. See Northside Bank v.
Mountainbrook of Bartow County Homeowners Assn., 338
Ga.App. 126, 133 (4) (a) (789 S.E.2d 378) (2016) (trial court
may rule on motion for supersedeas bond even if filed after
the notice of appeal has been filed); Rapps v.
Cooke, 234 Ga.App. 131 (505 S.E.2d 566) (1998)
(involving separate appeal from order requiring supersedeas
bond). In Case No. A17A1256, Rogers challenges the denial of
his motion to vacate and the grant of summary judgment to
Deutsche Bank; and in Case No. A17A1402, he challenges the
order requiring him to post a supersedeas bond.
Motion to vacate order substituting plaintiff.
Time lines of motion to vacate.
outset, we note that Deutsche Bank argues that the trial
court had no power to vacate its August 2015 order
substituting Deutsche Bank as the plaintiff because
Rogers' motion to vacate was filed beyond the term of
court in which the substitution order was rendered. But,
Deutsche Bank is relying on law pertaining to final
judgments, not interlocutory orders such as the substitution
order in this case, so that reliance is misplaced.
"While final judgments may not be modified after the
term in which they were rendered, an interlocutory ruling
does not pass from the control of the court at the end of the
term if the cause remains pending. Such rulings are subject
to revision at any time before final judgment unless the
court issues an order upon express direction under OCGA
§ 9-11-54 (b)." Lott v. Arrington &
Hollowell, 258 Ga.App. 51, 56 (3) (572 S.E.2d 664)
(2002) (citations and punctuation omitted). Accord Moon
v. State, 287 Ga. 304 (696 S.E.2d 55) (2010) (in civil
cases, an interlocutory ruling does not pass from the control
of the court at end of the term while the case is still
pending). The substitution order here was not issued upon
express direction; therefore, contrary to Deutsche Bank's
claim, the trial court was authorized to vacate the order at
any time before final judgment.
Merits of motion to vacate.
August 2015 order granting Ameriquest's motion to
substitute Deutsche Bank as the plaintiff, the trial court
based its ruling exclusively on OCGA § 9-11-25. Indeed,
as averred by Ameriquest in its motion to substitute, that
code section allows for such a substitution upon the transfer
of an interest: "In case of any transfer of interest,
the action may be continued by or against the original party
unless the court, upon motion, directs the person to whom the
interest is transferred to be substituted in the
action[.]" OCGA § 9-11-25 (c). But, that code
section, "providing for a substitution of the transferee
of interest in the action, applies only where the transfer is
made . . . during the course of the
litigation." Employers' Liability Assurance
Corp. v. Keelin, 132 Ga.App. 459, 462-463 (2) (208
S.E.2d 328) (1974) (emphasis in original). "OCGA §
9-11-25 (c) contemplates a transfer of interest, during