CANOESIDE PROPERTIES, INC v. Livsey

Decision Date26 November 2003
Docket Number No. S03A0966, No. S03A1155.
Citation277 Ga. 425,589 S.E.2d 116
PartiesCANOESIDE PROPERTIES, INC. v. Leonard E. LIVSEY. Arthur E. Ferdinand v. Leonard E. Livsey.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Slaughter & Virgin, P.C., Frank W. Virgin, Atlanta, for Canoeside Properties. John A.B. Ayoub, Vernitia A. Shannon, Atlanta, Overtis H. Brantley, Robert L. Martin, Rodney T. Floyd, for Ferdinand.

Michael P. Froman, for Livsey.

BENHAM, Justice.

This appeal is from an order denying summary judgment to the defendants in an action seeking to set aside a deed executed pursuant to a judicial tax foreclosure. The events leading to this appeal began when Livsey purchased real property in Fulton County in July 1999, filed the deed for record, and paid the transfer tax. In August 1999, acting in his capacity as Tax Commissioner of Fulton County, Ferdinand filed a petition for judicial in rem tax foreclosure of the property, naming Livsey's grantor as the owner. Canoeside Properties, Inc. (hereinafter, "Canoeside") bought the property at a tax sale in November 1999. Livsey filed a petition in equity to quiet title on September 21, 2000, naming Canoeside and Ferdinand as defendants and tendering into the registry of the court the difference between the amount paid by Canoeside and the amount of the tax liability. Both defendants sought summary judgment, which the trial court denied, ruling that the sale was void under the holding in Clarence L. Martin, P.C. v. Wallace, 248 Ga.App. 284, 546 S.E.2d 55 (2001), because the property was sold in the name of one who was not the owner at the time of the sale. In its December 10, 2002, order denying Ferdinand's motion for summary judgment and Canoeside's motion for reconsideration of the denial of its motion for summary judgment, the trial court granted certificates of immediate review to both defendants. Canoeside's application was timely filed, but Ferdinand's application, directed to the Court of Appeals, was mistakenly filed in a different court. For the purpose of giving Ferdinand another chance to file a timely application, the trial court, with Livsey's consent, vacated the December 10 certificate of immediate review and entered another order on January 6, 2003, granting Ferdinand a certificate of immediate review. Ferdinand's subsequent application filed in the Court of Appeals was dismissed because the January 6 certificate of immediate review was issued more than ten days after the December 10 order denying summary judgment. OCGA § 5-6-34(b). The trial court issued a new order on February 12, 2003, which first vacated the December 10, 2002, denial of summary judgment and the January 6, 2003, grant of a certificate of immediate review, and then denied summary judgment to Ferdinand and granted him a certificate of immediate review. This Court granted applications for review from both defendants, directing both to address the trial court's construction of the judicial in rem foreclosure statute and directing Ferdinand to address whether his application for interlocutory appeal was timely under OCGA § 5-6-34(b).

1. This Court has a duty to raise the question of its jurisdiction in all cases in which there may be any doubt regarding the existence of such jurisdiction. Powell v. City of Snellville, 275 Ga. 207(1), 563 S.E.2d 860 (2002). Accordingly, we will first address the second question posed to appellant Ferdinand.

The jurisdictional question in this case was raised in Glenn v. State, 271 Ga. 604(2), 523 S.E.2d 13 (1999), but because this Court concluded that the Court of Appeals had been without jurisdiction to consider the State's application for interlocutory review, the question of timeliness was not addressed. The Court of Appeals has, however, addressed a very similar situation. In International Indem. Co. v. Robinson, 231 Ga.App. 236, 498 S.E.2d 795 (1998), an application for interlocutory review of the denial of summary judgment was granted, but the appellant failed to file a notice of appeal on time, so the appeal was dismissed. Upon the return of the remittitur, the trial court vacated the order denying summary judgment and entered another order to the same effect and granted the appellant a certificate of immediate review. The Court of Appeals granted the application to consider the effect of the appellant's failure to comply with interlocutory appeal procedures and the correctness of the trial court's action. In deciding to dismiss the appeal, the Court of Appeals first considered the effect of procedural default in an interlocutory appeal and concluded, based on this Court's decision in Mitchell v. Oliver, 254 Ga. 112(1), 327 S.E.2d 216 (1985), that a dismissal of an interlocutory appeal for a procedural fault carries with it res judicata effect which forecloses the issue from further appellate review. Having decided that its earlier dismissal of the appeal was res judicata, the Court of Appeals then concluded that the trial court did not have the authority to vacate and reinstate its judgment in an effort to circumvent the dismissal.

While the second holding in International Indem. Co. v. Robinson, supra, would logically follow if the first holding were correct, a close examination of this Court's decision in Mitchell v. Oliver, supra, reveals that the Court of Appeals misapplied that decision in International Indem. Co. and was wrong in concluding that dismissal of an interlocutory appeal for a procedural fault carries with it res judicata effect which forecloses further appellate review of the issue. In Mitchell, this Court was considering a direct appeal of a partial grant of summary judgment pursuant to OCGA § 9-11-56(h). We held there that "[i]f the losing party suffers dismissal of his § 9-11-56(h) appeal for failure to fulfill procedural requirements, the losing party should, in return for his privilege of direct appeal, suffer the same sanction of res judicata which attaches to a final judgment from which a procedurally defective appeal is taken." Id., 254 Ga. at 114, 327 S.E.2d 216. By contrast, the Court of Appeals in International Indem. Co. was considering a procedural default in an interlocutory appeal pursuant to OCGA § 5-6-34(b), not a direct appeal pursuant to OCGA § 9-11-56(h). That being so, the principle set out in Mitchell did not apply to the very different appeal involved in International Indem. Co., especially in light of this holding in Mitchell: "A defective attempt to seek interlocutory review pursuant to OCGA § 5-6-34(b) does not have the effect of making the judgment appealed from res judicata of the issue." Id. Because it is inconsistent with our decision in Mitchell v. Oliver, supra, we overrule International Indem. Co. v. Robinson, supra.

After reaching the erroneous conclusion in the first division...

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    ...in all cases in which there may be any doubt regarding the existence of such jurisdiction. [Cit.]" Canoeside Properties v. Livsey, 277 Ga. 425, 426(1), 589 S.E.2d 116 (2003). Because the question of our jurisdiction has been raised in the dissent in this case, we must consider A direct appe......
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    ...... are subject to revision at any time before final judgment." (Citation and punctuation omitted.) See Canoeside Properties, Inc. v. Livsey, 277 Ga. 425, 427(1), 589 S.E.2d 116 (2003). And Court of Appeals Rule 30(g) is not intended to limit the authority of a trial court to revise its int......
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    ...he is not foreclosed from thereafter submitting the issue for review on appeal from the final judgment. See Canoeside Properties v. Livsey, 277 Ga. 425, 427(1), 589 S.E.2d 116 (2003); Mitchell v. Oliver, 254 Ga. 112, 114(1), 327 S.E.2d 216 (1985). Therefore, we will proceed to consider the ......
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