Mercer Law Review Volume 63 Number 1 Annual Survey of Georgia Law Article 4 12-2011 Appellate Practice and Procedure Roland F.L. Hall David R. Cook Jr. Follow this and additional works at: https://digitalcommons.law.mercer.edu/jour_mlr Part of the Litigation Commons Recommended Citation Hall, Roland F.L. and Cook, David R. Jr. (2011) "Appellate Practice and Procedure," Mercer Law Review: Vol. 63 : No. 1 , Article 4. Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol63/iss1/4 This Survey Article is brought to you for free and open access by the Journals at Mercer Law School Digital Commons. It has been accepted for inclusion in Mercer Law Review by an authorized editor of Mercer Law School Digital Commons. For more information, please contact [email protected]. Appellate Practice and Procedure by Roland F. L. Hall* and David R. Cook Jr." I. INTRODUCTION This Article surveys decisions addressing appellate law and procedure handed down by the Georgia Supreme Court and the Georgia Court of Appeals between June 1, 2010 and May 31, 2011.1 The cases discussed fall into the following categories: (1) appellate jurisdiction; (2) preserv- ing the record; and (3) miscellaneous cases of interest. II. APPELLATE JURISDICTION A. Selecting the Correct Appeal Procedure In Noaha, LLC v. Vista Antiques & PersianRugs, Inc.,2 the Georgia Court of Appeals addressed the proper means of appealing the domesti- cation of a foreign judgment.' The court of appeals considered whether, pursuant to section 5-6-35(aX8) of the Official Code of Georgia Annotated * Partner in the law firm of Autry, Horton & Cole, Atlanta, Georgia. Mercer University (B.A., magna cum laude, 1991); Mercer University, Walter F. George School of Law (J.D., magna cum laude, 1994). Member, Mercer Law Review (1992-1994); Senior Managing Editor (1993-1994). Member, State Bars of Georgia and Florida. ** Partner in the law firm of Autry, Horton & Cole, Atlanta, Georgia. Mercer University (B.B.A., 2001); Georgia College and State University (M.S. in Accounting, 2002); Mercer University, Walter F. George School of Law (J.D., 2005). Member, State Bar of Georgia. 1. For analysis of Georgia appellate practice and procedure law during the prior survey period, see Roland F. L. Hall, Appellate Practice and Procedure,Annual Survey of Georgia Law, 62 MERCER L. REV. 25 (2010). 2. 306 Ga. App. 323, 702 S.E.2d 660 (2010). 3. Id. at 326, 702 S.E.2d at 662. 67 68 MERCER LAW REVIEW [Vol. 63 (O.C.G.A.), 4 an appellant pursuing such an appeal must use the discretionary appeal procedure.s The plaintiff in Noaha obtained a judgment against the defendant from the Court of Common Pleas for Richland County, South Carolina, based on the defendant's breach of their settlement agreement. Under the Uniform Enforcement of Foreign Judgments Law,' the plaintiff moved the State Court of DeKalb County to domesticate the South Carolina judgment.' The trial court domesticated the judgment, and a writ of fieri facias was issued thereon. In the interim, an appeal from the South Carolina judgment was brought, and the Georgia trial court stayed the execution of the domesticated judgment pending such appeal. When the South Carolina court issued a final revised judgment, the Georgia trial court lifted the stay and amended the prior judgment to conform to the revised South Carolina judgment. From the revised judgment, the defendant filed a direct appeal.' The plaintiff moved for the Georgia Court of Appeals to dismiss the appeal on the basis that a direct appeal was improper."o The plaintiff maintained that the proper method to attack a domesticated foreign judgment is by a motion to set aside pursuant to O.C.G.A. § 9-11- 60(d)," and that the defendant's appeal was, in substance, "an appeal of the denial of a motion to set aside." 2 The plaintiff argued that, under O.C.G.A. § 5-6-35(a)(8), the denial of such a motion is appealable only by discretionary appeal. The defendant argued that O.C.G.A. § 5-6- 35(a)(8) did not apply because the defendant had moved to vacate the domestication order and opposed the lift of stay.' The court of appeals concluded that, although the defendant moved to vacate the domestication order, the true substance of the appeal was an attack on the domesticated judgment." Thus, the court of appeals 4. O.C.G.A. § 5-6-35(aX8) (1995 & Supp. 2011). 5. Noaha, 306 Ga. App. at 325, 702 S.E.2d at 662. 6. Id. at 323-24, 702 S.E.2d at 661. 7. O.C.G.A. §§ 9-12-130 to -138 (2006). 8. Noaha, 306 Ga. App. at 323, 702 S.E.2d at 661. 9. Id. at 324-25, 702 S.E.2d at 661-62. 10. Id. at 325, 702 S.E.2d at 662. 11. O.C.G.A. § 9-11-60(d) (2006). 12. Noaha, 306 Ga. App. at 325, 702 S.E.2d at 662. 13. Id. at 325-26, 702 S.E.2d at 662-63. 14. Id. at 326, 702 S.E.2d at 663 (quoting Rebich v. Miles, 264 Ga. 467, 468-69, 448 S.E.2d 192, 194 (1994)) ("[TIhe underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal."). 20111 APPELLATE PRACTICE & PROCEDURE 69 dismissed the appeal based on its conclusion that the defendant should have filed for a discretionary appeal rather than filing a direct appeal.15 In Avren v. Garten,16 the Georgia Supreme Court considered the scope of supersedeas arising from a notice of appeal and application for discretionary appeal." In this postdivorce litigation between a former wife and husband, the trial court found the former wife "in contempt of previous court orders," denied her other requests for relief, and "ordered [her] to pay the outstanding balance due the guardian ad litem appointed to represent the parties' minor son."" While the trial court considered the former husband's request for attorney fees, the former wife filed a notice of appeal and an application for discretionary review. Five days later, the trial court granted the former husband's request for attorney fees. The trial court then denied the former wife's motion for reconsideration. The supreme court granted her application for discretionary review of such denial.19 The supreme court inquired whether the trial court's denial of the former wife's motion to set aside the award of attorney fees was directly appealable or was subject to a discretionary appeal.2 o The court 2 considered two statutory bases: (1) O.C.G.A. § 5-6-34(a)(11), 1 which authorizes a direct appeal from "[aill judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders,"22 and (2) O.C.G.A. § 5-6- 35(a)(8), which requires an application for discretionary review to appeal the denial of a motion to set aside.23 Resolving the apparent inconsistency, the supreme court held that the former wife was required to file an application for discretionary review.24 The court relied upon Rebich v. Miles,25 which held that, where the appeal invokes both O.C.G.A. §§ 5-6-34(a)26 and 5-6-35(a)," 15. Id. 16. 289 Ga. 186, 710 S.E.2d 130 (2011). 17. Id. at 189, 710 S.E.2d at 136. 18. Id. at 186, 710 S.E.2d at 133. 19. Id. at 189, 710 S.E.2d at 136. 20. Id. at 192, 710 S.E.2d at 137. 21. O.C.G.A. § 5-6-34(a)(11) (Supp. 2011). 22. Id. 23. Avren, 289 Ga. at 192, 710 S.E.2d at 137; see also O.C.G.A. § 5-6-35(a)(8). 24. Avren, 289 Ga. at 192, 710 S.E.2d at 137. 25. 264 Ga. 467, 468, 448 S.E.2d 192, 194 (1994). 26. O.C.G.A. § 5-6-34(a) (1995 & Supp. 2011). 27. O.C.G.A. § 5-6-35(a) (1995 & Supp. 2011). 70 MERCER LAW REVIEW [Vol. 63 an application for appeal is required." Therefore, the inconsistency was resolved in favor of filing an application for appeal.29 In Alston & Bird LLP v. Mellon Ventures II, L.P , the court of appeals considered whether an appellant could directly appeal a trial court's review of a special master's findings. In this legal malpractice action arising from a soured investment deal, "[t]he trial court ... appointed a special master to make reports and recommendations on discovery disputes" and, subsequently, "issues of law and fact."32 The trial court adopted the special master's recommendations, which effectively invalidated many of the law firm's affirmative defenses, and the law firm appealed. In addition, the trial court granted the plaintiffs' motion for partial summary judgment and denied the law firm's motion for partial summary judgment.3 3 The court of appeals first considered its jurisdiction over the appeal by questioning whether the law firm should have filed an application for discretionary appeal pursuant to O.C.G.A. § 5-6-35(a)(1), which applies to appeals from trial court judgments in review of auditors' decisions.34 Alternatively, O.C.G.A. § 9-11-56(h)35 authorizes a direct appeal upon the grant of summary judgment. The court of appeals held that the law firm could bring a direct 3 appeal.