First Merit Credit Servs. v. Fairway Aviation, LLC

• Decision Date: 16 June 2021
• Docket Number: A21A0847
• Citation: 860 S.E.2d 126,359 Ga.App. 829
• Court: Georgia Court of Appeals
• Parties: FIRST MERIT CREDIT SERVICES v. FAIRWAY AVIATION, LLC et al.

359 Ga.App. 829

860 S.E.2d 126

FIRST MERIT CREDIT SERVICES

v.FAIRWAY AVIATION, LLC et al.

A21A0847

Court of Appeals of Georgia.

June 16, 2021

Richard McBride Howe, Alpharetta, Jeffrey R. Nickerson, Atlanta, for Appellant.

John R. Grimes, Atlanta, Fairway Aviation, LLC, Matthew C. Gilley, Patrick Gilley, for Appellee.

Barnes, Presiding Judge.

First Merit Credit Services appeals the trial court's order denying its petition for scire facias to revive a dormant foreign judgment on the ground that the petition was time-barred. According to First Merit, the trial court failed to consider an entry on the general execution docket that it alleges restarted the applicable limitations period. First Merit also contends that the limitations period was tolled for 122 days based on the emergency order issued by the Chief Justice of the Georgia Supreme Court in response to the COVID-19 pandemic and the extensions of that order. For the reasons discussed below, we vacate the trial court's order and remand for further proceedings consistent with this opinion.

The relevant facts are undisputed. On December 14, 2009, the United States District Court for the Northern District of Ohio entered judgment in favor of First Merit and against Fairway Aviation, LLC, Matthew C. Gilley, Patrick Clay Gilley, and Paschal Gilley, Jr. (collectively, the "defendants") in the principal amount of $1,276,657.86 (the "Ohio Judgment"). First Merit subsequently filed a petition in the Superior Court of Fayette County to domesticate the Ohio Judgment under the Uniform Enforcement of Foreign Judgments Law ("UEFJL"), OCGA § 9-12-130 et seq., and the trial court granted the petition and domesticated the judgment on August 13, 2010. The trial court directed the clerk of court to issue a writ of fieri facias, which the clerk issued. The writ of fieri facias was recorded on the Fayette County general execution docket on October 18, 2010.

On October 23, 2020, First Merit filed a petition for scire facias to revive the Ohio Judgment in the Superior Court of Fayette County.¹ Five days later, on October 28, 2020, the trial court denied the petition. In its order, the trial court concluded that the petition was time-barred under OCGA §§ 9-12-60 and 9-12-61 because the limitations period for enforcing the Ohio Judgment expired on December 14, 2019, ten years after the foreign judgment was rendered. This appeal by First Merit followed.

1. As an initial matter, the defendants contend that First Merit's appeal should be dismissed as untimely. Although the defendants did not file a separate motion to dismiss the appeal as required by our rules,² "[i]f this Court finds that it has no jurisdiction over an appeal, it has the authority to dismiss the appeal on its own motion." Trey Inman & Assoc. v. Bank of America, N. A. , 306 Ga. App. 451, 455 (1), 702 S.E.2d 711, 715 (2010).

In general, a notice of appeal must be filed within 30 days after entry of the judgment sought to be appealed. OCGA § 5-6-38 (a) ; Adams v. State , 234 Ga. App. 696, 696 (1), 507 S.E.2d 538 (1998). "The timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. It follows that, if no proper and timely notice of appeal has been filed, then we must dismiss the appeal for lack of jurisdiction." (Citations and punctuation omitted.) Harned v. Piedmont Healthcare Foundation , 356 Ga. App. 870, 871-872, 849 S.E.2d 726 (2020).

First Merit filed its notice of appeal on November 24, 2020, within 30 days of entry of the trial court's order denying its scire facias petition. However, the defendants contend that the notice was void and fatally defective because it listed the wrong superior court case number. We disagree.

Pursuant to OCGA § 5-6-37, a notice of appeal should include, among other things, "the title and docket number of the case" and "a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal."³ But the rules of appellate practice "shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein." OCGA § 5-6-30. To that end,

[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed. ....

OCGA § 5-6-48 (f). Moreover, if a notice of appeal contains an incorrect case number, where "the proper record and transcript have been transmitted to us, indicating that the problem was corrected in the lower court," we will not dismiss the appeal. Gordon v. Weldon , 154 Ga. App. 531, 532 (1), 268 S.E.2d 796 (1980). See State v. Jones , 283 Ga. App. 539, 539, n. 1, 642 S.E.2d 183 (2007).

Although First Merit's notice of appeal specified the wrong superior court case number, the notice included the correct title of the case, accurately recited that the trial court's October 28, 2020 order denying the scire facias petition was the order from which appeal was being sought, and otherwise complied with OCGA § 5-6-37. The proper record also was transmitted to this Court. Furthermore, it is obvious from the notice of appeal, enumeration of error, and underlying record that First Merit sought to appeal the October 28 order. Accordingly, inclusion of the erroneous superior court case number in the notice of appeal clearly was not a fatal defect and did not necessitate dismissal. See OCGA §§ 5-6-30 ; 5-6-48 (f); Jones , 283 Ga. App. at 539, n. 1, 642 S.E.2d 183 (inclusion of wrong case number did not render the appeal subject to dismissal); Gordon , 154 Ga. App. at 532 (1), 268 S.E.2d 796 (same).

In any event, First Merit later amended its notice of appeal to correct the erroneous superior court case number. "If an error appears in the notice of appeal, the court shall allow the notice of appeal to be amended at any time prior to judgment to perfect the appeal so that the appellate court can and will pass upon the appeal and not dismiss it." OCGA § 5-6-48 (d). Hence, First Merit's appeal was not subject to dismissal for the additional reason that its notice of appeal was properly amended to cure the defect. See In re Burton , 271 Ga. 491, 492-493 (1), 521 S.E.2d 568 (1999) (denying motion to dismiss appeal, where original notice of appeal failed to specify definitely the order that was the appealable judgment, but amended notice of appeal corrected the error); Adams v. State , 234 Ga. App. 696, 696 (1), 507 S.E.2d 538 (1998) (rejecting argument that appeal should be dismissed as untimely, where original notice of appeal was timely filed but designated the wrong appellate court, and appellant amended the notice of appeal to correct the inaccuracy).

For these reasons, the defendants’ argument that the appeal should be dismissed is without merit.

2. First Merit contends that the trial court erred in denying its petition for scire facias on the ground that enforcement of the Ohio Judgment was time-barred under OCGA §§ 9-12-60 and 9-12-61.

Title 9, Chapter 12, Article 3 of the Georgia Code addresses the dormancy and revival of judgments. More specifically, OCGA § 9-12-60 (a) provides that a judgment becomes dormant and unenforceable:

(1) When seven years shall elapse after the rendition of the judgment before execution is issued thereon and is entered on the general execution docket of the county in which the judgment was rendered;

(2) Unless entry is made on the execution by an officer authorized to levy and return the same and the entry and the date thereof are entered by the clerk on the general execution docket within seven years after issuance of the execution and its record; or

(3) Unless a bona fide public effort on the part of the plaintiff in execution to enforce the execution in the courts is made and due written notice of such effort specifying the time of the institution of the action or proceedings, the nature thereof, the names of the parties thereto, and the name of the court in which it is pending is filed by the plaintiff in execution or his attorney at law with the clerk and is entered by the clerk on the general execution docket, all at such times and periods that seven years will not elapse between such entries of such notices or between such an entry and a proper entry made as prescribed in paragraph (2) of this subsection.

Entry on the general execution docket in accordance with paragraph (1), (2), or (3) of OCGA § 9-12-60 (a) "shall institute a new seven-year period within which the judgment shall not become dormant." OCGA § 9-12-60 (b).⁴ See Corzo Trucking Corp. v. West , 296 Ga. App. 399, 401 (1), 674 S.E.2d 414 (2009) (pointing out that "a judgment becomes dormant seven years from the date of the last entry upon the execution docket"). Once a judgment becomes dormant, OCGA § 9-12-61 provides that the judgment "may be renewed or revived by an action or by scire facias, at the option of the holder of the judgment, within three years from the time it becomes dormant."⁵ OCGA §§ 9-12-60 and 9-12-61 therefore "operate in tandem as a ten-year statute of limitation for the enforcement of Georgia judgments," such that "although a judgment becomes dormant seven years from the date of the last entry upon the execution docket, it does not expire until ten years after that date." (Citations and punctuation omitted.) Automotive Credit Corp. v. White , 344 Ga. App. 321, 323, 810 S.E.2d 166 (2018). See Corzo Trucking Corp. v. West , 281 Ga. App. 361, 362-363, 636 S.E.2d 39 (2006).

The fact that this case involves an Ohio judgment, which was later filed in the superior court, does not change our analysis.

Under the UEFJL, "[a]...