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Jones v. Peach Trader Inc.

Supreme Court of Georgia

October 31, 2017

JONES et al.
v.
PEACH TRADER INC., et al.

          GRANT, JUSTICE.

         This appeal arises from an order modifying an existing interlocutory injunction. After a somewhat convoluted path brought the case to our Court, we now vacate the trial court's order dismissing appellant's initial notice of appeal because Georgia law vests appellate courts with the sole authority to determine if a decision or judgment is appealable. But that is not the end of the matter. Because an order modifying an interlocutory injunction is not subject to direct appeal under OCGA § 5-6-34 (a) (4), we dismiss the appeal.

         I.

         In December 2016, appellee Peach Trader Inc., d/b/a A City Discount and A City Discount, Inc. ("Peach Trader"), filed a complaint against appellants Jeffery Glenn Jones and Sharon Kelley Jones, a married couple, alleging that Mr. Jones used his position as an employee to embezzle or misappropriate over $1 million from Peach Trader and take advantage of business opportunities for personal gain to the detriment of his employer. Along with its complaint, Peach Trader sought a temporary restraining order against the Joneses, and the order was granted in December 2016. The Joneses then filed a motion to dissolve the order. One month later, on January 15, 2017, the trial court held a hearing where both parties presented evidence. The trial court entered an order granting an interlocutory injunction against the Joneses that prohibited them from selling, transferring, altering, encumbering, or otherwise disposing of any assets within their custody, control, or possession. The Joneses did not attempt to appeal the January 15 order.

         Six months later, in July, the Joneses filed a second motion to dissolve the interlocutory injunction. During a hearing on several outstanding issues, Peach Trader's counsel consented to certain accounts being removed from the purview of the interlocutory injunction.[1] In line with the agreement between the parties, on September 9, 2016, the trial court entered an order denying the Joneses' motion to dissolve the interlocutory injunction but granting the motion to modify the injunction by removing the restrictions on at least one of the Joneses' accounts as agreed to by the parties.[2]

         The Joneses initially sought a certificate of immediate review from the September 9 order. The trial court denied their request, concluding that the order did not warrant immediate review. The Joneses then filed a timely notice of direct appeal from the September 9 order. But the trial court dismissed the notice of direct appeal as an unauthorized attempt to appeal an interlocutory order without a certificate of immediate review. The Joneses then filed a notice of appeal from the trial court's dismissal order. The trial court dismissed that notice of appeal as well. The Joneses timely filed an application for discretionary appeal with this Court seeking review of the trial court's September 9 order and the two orders dismissing their notices of appeal.

         This Court construed the application for discretionary appeal as a motion to stay the trial court's December 9 order dismissing the Joneses' notice of appeal (which, again, sought to appeal the trial court's prior dismissal of their direct appeal). We granted the stay and asked the parties to brief two issues: First, whether the trial court erred when it dismissed the notice of appeal stemming from the order dismissing the Joneses' notice of direct appeal; and second, whether the September 9 order was final or interlocutory under OCGA §§ 5-6-34 and 5-6-35. In addition to answering those two questions, the Joneses presented several arguments on the merits of the trial court's refusal to dissolve the interlocutory injunction at issue.

         II.

         We begin with an examination of whether the trial court erred in dismissing the Joneses' notice of appeal based on its own conclusion that the underlying order was not appealable. We conclude that the trial court did err because Georgia law generally reserves to the appellate courts the authority to dismiss appeals. See OCGA § 5-6-48.

         We have indicated before that trial courts ought not dismiss appeals: "An appellate court is the sole authority in determining whether a filed notice of appeal or discretionary application is sufficient to invoke its jurisdiction." Rollins v. Rollins, 300 Ga. 485, 488 (1) (796 S.E.2d 721) (2017) (quotation omitted); see also Islamakhan v. Khan, 299 Ga. 548 (787 S.E.2d 731) (2016); Sotter v. Stephens, 291 Ga. 79 (727 S.E.2d 484) (2012); Lamb v. Salvation Army, 301 Ga.App. 325 (687 S.E.2d 615) (2009); Hughes v. Sikes, 273 Ga. 804 (546 S.E.2d 518) (2001); Azar v. Baird, 232 Ga. 81 (205 S.E.2d 273) (1974). But our cases have also generated some confusion on that question by approving trial court dismissals in some instances and by describing different standards for appealing the dismissal of "properly filed" and "improperly filed" notices of appeal. Compare Sotter v. Stephens, 291 Ga. 79, 81 (727 S.E.2d 484) (2012) (appellants were entitled to appeal from dismissal of properly filed notices of appeal), with Am. Medical Sec. Group, Inc. v. Parker, 284 Ga. 102, 103 (2) (663 S.E.2d 697) (2008) (a trial court's order dismissing an improperly filed direct appeal is considered interlocutory and is not itself subject to direct appeal). We now take this opportunity to reiterate the parameters of a trial court's authority to dismiss a notice of appeal under OCGA § 5-6-48.[3]

         Georgia law provides that, as a matter of statute, no appeal shall be dismissed except where the notice of appeal is not filed in a timely manner, where the decision or judgment is not appealable, or where the question presented has become moot. OCGA § 5-6-48 (b) Here, the question is whether the trial court was permitted to dismiss the Joneses' notice of appeal based on its own conclusion that the underlying decision or judgment was not appealable, but the analysis below applies equally to questions of timeliness or mootness Members of this Court, in the past, have expressed concerns that trial courts have exceeded their statutory authority in this arena See, eg, Am Med Sec Grp, Inc, 284 Ga at 108 (Benham, J, concur ring) (questioning the trial court's authority to dismiss a notice of appeal "on the ground that the order being appealed is not subject to direct appeal" and concluding that the three grounds for dismissal in OCGA § 5-6-48 (b) all pertain to dismissal by the appellate court). We now reiterate that Georgia law does not contemplate such a dismissal by the trial court under OCGA § 5-6-48 (b).

         In reaching this conclusion, we look first to the statute's text, which we read both for its plain meaning and in the context in which it appears. Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 S.E.2d 337) (2013). At first blush, the text of OCGA § 5-6-48 (b) does not state which courts may determine whether an order is appealable, timely, or moot. Yet other parts of the statute distinguish between trial court and appellate courts. In this way, subsection (b) is ambiguous. See, e.g., Tibbles v. Teachers Ret. Sys. of Georgia, 297 Ga. 557, 558 (1) (775 S.E.2d 527) (2015) ("When such a genuine ambiguity appears [in a statute], it usually is for the courts to resolve the ambiguity by ascertaining the most natural and reasonable understanding of the text.").

         Our reading reveals that the trial court's procedural and substantive authority over a notice of appeal is decidedly limited. For example, subsection (a) provides that the failure of any party to perfect service of a notice of appeal will not result in dismissal; instead, the "trial and appellate courts shall at any stage of the proceeding require that parties be served" to permit a "just and expeditious determination of the appeal." OCGA § 5-6-48 (a). Moreover, a portion of subsection (c) is directed specifically to trial courts and provides that "a trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party." OCGA § 5-6-48 (c).[4] The trial court's authority under the statute is directed to tasks that ensure an appeal can proceed to the appellate court for decision. The statute's directives to appellate courts also counsel in favor of a reading that assures that dismissal authority lies with the appellate courts. First, as a general matter, supersedeas is presumed to attach in civil cases as soon as a notice of appeal is filed. Rollins, 300 Ga. at 486 (1); see also OCGA § 5-6-46. This deprives the trial court of the authority to act on the judgment on appeal. Id. Even if an appeal is jurisdictionally defective from the outset, a notice of appeal generally acts as supersedeas until the appeal is dismissed. Id. Additionally, subsection (d) refers to "the court" when providing that the appellate courts can require record corrections and other actions from "the trial court." OCGA § 5-6-48 (d). Subsection (d) also permits amendment of a notice of appeal "so that the appellate court can and will pass upon the appeal and not dismiss it." OCGA § 5-6-48 (d). Subsection (d) further shows that, when the statute is considered as a whole, the dismissal authority in subsection (b) is granted to the appellate courts, whereas the authority granted to trial courts is to take the necessary steps to permit an appeal to proceed. Trial courts are authorized to dismiss an appeal only when there "has been an unreasonable delay in the filing of the transcript" or where "there has been an unreasonable delay in the transmission of the record to the appellate court" caused by the failure of a party to pay costs or file an indigency affidavit. OCGA § 5-6-48 (c). Other dismissals are reserved to the appellate courts.

         This statutory directive is in line with the significant weight of our cases. The Appellate Practice Act was adopted in 1965, and, at that time, the Act provided four reasons to dismiss an appeal.[5] Less than ten years after the Appellate Practice Act was adopted, we first recognized that "the dismissal of an appeal is not mandatory except for the three specific instances, " and that "[a]ll three relate to dismissals by the appellate courts." Young v. Climatrol Se. Distrib. Corp., 237 Ga. 53, 54 (226 S.E.2d 737) (1976). Although we have reiterated this view, we have done so inconsistently. Compare Bd. of Comm'rs of Atkinson Cty. v. Guthrie, 273 Ga. 1, 2 (1) (537 S.E.2d 329) (2000) ("OCGA § 5-6-48(b) lists three grounds for an appellate court to dismiss an appeal.") (emphasis added), with Riley v. State, 280 Ga. 267, 268 (626 S.E.2d 116) (2006) (trial court did not err in granting the State's motion to dismiss notice of appeal as untimely under the statutory authority in OCGA 5-6-48 (b) (1)), Grant v. Gaines, 265 Ga. 159, 159 (454 S.E.2d 481) (1995) (trial judge was authorized to dismiss unauthorized notice of appeal), and Jones v. Singleton, 253 Ga. 41, 41 (1) (316 S.E.2d 154) (1984) (affirming the trial court's dismissal of two notices of appeal where the underlying order was interlocutory and the case was not certified for immediate review under OCGA § 5-6-34 (b)).

         In Jones v. Singleton, we stated without any analysis that the trial court had properly dismissed appellant's first two notices of appeal since, at the time they were filed, there was no final judgment. Jones, 253 Ga. at 41 (1). Trial courts have viewed Jones and its progeny as permitting them to dismiss notices of appeals for the reasons set forth in OCGA § 5-6-48 (b). And our Court of Appeals has likewise applied Jones to permit a trial court to dismiss an appeal for the reasons set forth in OCGA § 5-6-48 (b). See, e.g., Mashburn Family Trusts v. City of Cumming, 340 Ga.App. 616, 617 (797 S.E.2d 925) (2017) (affirming superior court dismissal of notice of appeal as moot under OCGA § 5-6-48 (b)); Northen v. Frolick & Assocs., 235 Ga.App. 804, 805 (510 S.E.2d 122) (1998) (affirming trial court's dismissal of a notice of appeal); Dep't of Human Res. v. Chambers, 211 Ga.App. 763, 765 (1) (441 S.E.2d 77) (1994) (affirming trial court's dismissal of an appeal for mootness); Attwell v. Lane Co., 182 Ga.App. 813, 813 (357 S.E.2d 142) (1987) (same); Crumbley v. Wyant, 183 Ga.App. 802, 803 (360 S.E.2d 276) (1987) (reversing a trial court order dismissing a notice of appeal as untimely). But these cases, like Jones, contain no analysis suggesting that our statute actually commits the authority to dismiss an appeal to the trial court in these circumstances. Because we again hold that the "appellate court is the sole authority in determining whether a filed notice of appeal or discretionary application is sufficient to invoke its jurisdiction, " we disapprove of these cases[6] and others to the extent that they suggest otherwise. Islamkhan, 299 Ga. at 552, n.7 (citing Hughes v. Sikes, 273 Ga. 804, 805 (546 S.E.2d 518) (2001)); see also Rollins v. Rollins, 300 Ga. 485, 488 (796 S.E.2d 721) (2017) (same).

         We pause to note that trial courts need not be stymied by the repetitive filing of notices of appeal challenging interlocutory decisions solely for the purpose of creating disruption and delay.[7] As we have recognized, if an appellate court determines that an appeal was not authorized because the decision at issue was interlocutory rather than final, and, therefore, subject to the requirements in OCGA § 5-6-34 (b), then supersedeas never attached because the case was not truly on appeal; accordingly, the trial court's intervening decisions will stand. See Cohran v. Carlin, 249 Ga. 510, 511-512 (291 S.E.2d 538) (1982) (trial judge loses jurisdiction over order on appeal but does not lose jurisdiction over matters independent and distinct from that order). Because "an attempt to appeal an interlocutory order without following the procedures statutorily mandated is ineffective in conferring ...


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