MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
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.
Assembly afforded us in the Appellate Jurisdiction Reform Act
of 2016, Ga. L. 2016, p. 883, § 2-1.
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
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 concurrence of a majority,
overrule any previous decision in the same manner as
prescribed for the Supreme Court. As precedent, a decision
by such court with a majority concurring shall take
precedence over a decision by any division or two divisions
plus a seventh Judge. A decision concurred in by all the
Judges shall not be overruled or materially modified except
with the concurrence of all the Judges.
See Ga. L. 2016, p. 883, § 2-1.
§ 15-3-1 (d) now provides, "Decisions as precedent.
The Court of Appeals shall provide by rule for the
establishment of precedent and the manner in which prior
decisions of the court may be overruled."
we revised Court of Appeals Rule 33.3 to provide,
Prior decisions of the Court may be overruled by a single
division of the Court after consultation with the other
nondisqualified judges on the Court, provided the decision
of the division is unanimous. Otherwise, prior decisions of
the Court may be overruled after en banc consideration of
all nondisqualified judges of the Court by a majority of
the participating judges. See OCGA § 15-3-1 (d)
(authorizing the Court of Appeals to provide by rule the
manner in which prior decisions of the Court may be
consultation procedure is in our Internal Operations Manual.
It presently provides for consideration en banc upon the vote
of six judges.
"[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)
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
Savannah v. Batson-Cook Co., 291 Ga. 114 (728 S.E.2d
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. of Transp. 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. 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 n. ...