Beatty v. Palmer

• Decision Date: 10 August 2022
• Docket Number: A22A1687
• Parties: PETRA BEATTY v. TRACE T. PALMER
• Court: Georgia Court of Appeals

PETRA BEATTY v. TRACE T. PALMER

No. A22A1687

Court of Appeals of Georgia

August 10, 2022

Petra Beatty filed a complaint for medical negligence against Trace T. Palmer, a licensed chiropractor. Palmer filed a motion to dismiss the complaint for failing to comply with OCGA § 9-11-9.1. The trial court granted the motion on May 18, 2020. On April 9, 2022, Beatty filed a motion for out-of-time appeal, asserting that neither party was made aware of the dismissal order. The trial court granted that motion, and Beatty filed a notice of appeal. Palmer has filed motion to dismiss to the appeal. We agree that the appeal should be dismissed.

In civil cases, an order granting an out-of-time appeal is ineffective to confer jurisdiction on the appellate court.^[1] Woodall v. Woodall, 248 Ga. 172, 173 (281 S.E.2d 619) (1981). Because the trial court's order granting the out-of-time appeal was not effective, we are without jurisdiction to consider this appeal. Palmer's motion to dismiss is GRANTED, and this appeal is hereby DISMISSED.

To the extent that the trial court may have frustrated Beatty's ability to seek appellate review by failing to notify her of its order in a timely manner, her remedy is to petition the trial court to vacate and re-enter the order under OCGA § 9-11-60 (g). See Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 S.E.2d 426) (1980), disapproved in part by Wright v. Young, 297 Ga. 683, 684 n.3 (777 S.E.2d 475) (2015). If the order is vacated and re-entered, Beatty would be required to file a notice of appeal within 30 days from the date of re-entry. Id.

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^[1] An out-of-time appeal was a judicially-created remedy that was limited to criminal cases. See, e. g., Cody v. State, 277 Ga. 553 (592 S.E.2d 419) (2004). Recently, in Cook v. State, 313 Ga. 471, 506 (5) (870 S.E.2d 758) (2022), the Supreme Court of Georgia, however, eliminated the judicially created out-of-time-appeal procedure for criminal cases, holding that a trial court is "without jurisdiction to decide [a] motion for out-of-time appeal" on the merits because "there was and is no legal authority for motions for out-of-time appeal in trial courts."

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