DRAIN et al.
LEE. DRAIN et al.
DILLARD, C. J., RAY and MERCIER, JJ.
Joyce Drain, individually and as personal representative of
the estate of her mother, Eloise Smith, filed two appeals
from the trial court's orders related to claims she filed
against, inter alia, the appellee herein, Dr. Peter Lee. We
upheld the trial court's order granting Dr. Lee's
motion to enforce an offer of judgment as to an award of
attorney fees in an unpublished decision, Drain v.
Longleaf Hospice, LLC, ___Ga.App. ___(Case No. A17A1452,
decided February 27, 2018) ("Drain I").
The instant appeals, which are consolidated for our review,
are related to Drain I. As these cases have a
complicated procedural history, we will review only those
portions pertinent to the instant appeals.
initial matter, the trial court granted summary judgment to
Dr. Lee on Drain's claims against him. Drain did not
appeal from that grant of summary judgment. Following this
grant of summary judgment, Dr. Lee moved the to enforce an
offer of judgment he had made to Drain pursuant to OCGA
§ 9-11-68. The trial court granted this motion. Drain
appealed, and in Drain I, supra at pp. 13-15 (2)
(b), we affirmed the trial court's grant of Dr. Lee's
motion to enforce and its finding that Dr. Lee was entitled
under OCGA § 9-11-68 (d) (1) to reasonable attorney fees
and expenses of litigation.
after Drain I was docketed in this Court, Drain
filed the two appeals that comprise the instant case, as will
be explained below. Following the trial court's grant of
Dr. Lee's motion to enforce, Dr. Lee sought a supersedeas
bond, and Drain filed a pauper's affidavit stating that
she was unable to pay that bond. The trial court determined
on May 11, 2017, that Drain was not a pauper and ordered
Drain to post bond. Drain filed a notice of appeal, and Dr.
Lee moved to dismiss that notice of appeal. The trial court
granted the motion to dismiss the notice of appeal on June 8,
2017. The trial court reasoned that its order finding that
Drain was not a pauper and ordering supersedeas bond was not
subject to review. Drain appeals from the trial court's
order dismissing the notice of appeal in Case No. A18A0224
(Drain II). In Case No. A18A0225 (Drain
III), she appeals the trial court's order finding
that she is not a pauper and ordering her to pay supersedeas
Supreme Court has held that "Georgia law generally
reserves to the appellate courts the authority to dismiss
appeals. . . . An appellate court is the sole authority in
determining whether a filed notice of appeal . . . is
sufficient to invoke its jurisdiction." (Citations and
punctuation omitted.) Jones v. Peach Trader Inc.,
302 Ga. 504, 506 (II) (807 S.E.2d 840) (2017), citing OCGA
§ 5-6-48. Thus, the trial court in Drain II
erred in dismissing Drain's notice of appeal. However,
OCGA § 5-6-47 (b) provides that "[t]he judgment of
the [trial] court on all issues of fact concerning the
ability of a party to pay costs or give bond shall be
final." (Emphasis supplied). Accord Cumberland
Contractors, Inc. v. State Bank and Trust Co., 327
Ga.App. 121, 129 (5) (755 S.E.2d 511) (2014) ("[T]he
trial court's ruling on the ability of the [d]efendants
to post a bond is not subject to review")
(citation omitted; emphasis supplied). OCGA § 5-6-48 (b)
(2) provides for dismissal of appeals where, as here,
"the decision or judgment is not then
appealable[.]" Further, because of our determination in
Drain I that the trial court's order as to Dr.
Lee's motion to enforce judgment was correct, the appeals
in both Drain II and Drain III are moot.
See OCGA § 5-6-48 (b) (3) ("No appeal shall be
dismissed or its validity affected . . . except: ......
[w]here the questions presented have become moot").
Therefore, we vacate the trial court's order in Drain
II and dismiss that appeal as moot. See Jones,
supra at 504. We also dismiss the appeal in Drain
III as moot.
note, however, that the instant cases raise procedural issues
which the legislature may wish to address. Here, both
Drain II and Drain III were docketed at the
appellate level in the term of Court following the term in
which we decided Drain I, which substantive decision
underlies both subsequent appeals. This timing virtually
assured that the posting of the supersedeas bond ordered by
the trial court would be held in abeyance pending the outcome
of the appeal in Drain I. The law is clear that,
except in extraordinary circumstances,  the trial
court's judgment on the ability of a party to pay costs
or give bond is not reviewable. See Cumberland,
supra at 129 (5). Yet, by filing a notice of appeal of an
order on a pauper's affidavit and a notice appealing the
trial court's dismissal of that appeal, a litigant
effectively may delay the finality of the order on and
posting of the supersedeas bond until a decision on the
merits is rendered in the underlying case, which in the
instant action was Drain I. The appeals in Drain
II and III demonstrate that, in some cases,
OCGA § 5-6-47 (b) may effectively be rendered inert by a
party who either appeals an unreviewable order or appeals
improperly. For these reasons, further legislative
consideration of this matter may be warranted.
vacated and appeal dismissed in Case No. A18A0224 Appeal
dismissed in Case No A18A0225 Dillard, C J, concurs Mercier,
J, concurs in the judgment only.[*]
OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF APPEALS RULE
 See Barham v. Levy, 228
Ga.App. 594, 596 (4) (492 S.E.2d 325) (1997) (remanding case
and reversing trial court's order denying pauper's
affidavit where no fact issues were presented, pauper's
affidavit was not contested, and no evidence showed that
appellant was not ...