Fred Jones Enters., LLC v. Williams

• Decision Date: 24 March 2015
• Docket Number: No. A14A1877.,A14A1877.
• Citation: 331 Ga.App. 481,771 S.E.2d 163
• Parties: FRED JONES ENTERPRISES, LLC v. WILLIAMS.
• Court: Georgia Court of Appeals

331 Ga.App. 481

771 S.E.2d 163

FRED JONES ENTERPRISES, LLC

v.WILLIAMS.

No. A14A1877.

Court of Appeals of Georgia.

March 24, 2015.

Alexandra Marie Dishun, Elizabeth Joy Campbell, Atlanta, for Appellant.

Wilson R. Smith, Savannah, Paul Kelly Cook, Malcolm F. Bryant Jr., Vidalia, for Williams.

Opinion

RAY, Judge.

Dewey Williams filed a personal injury lawsuit against Fred Jones Enterprises, LLC (“FJE”) and obtained a default judgment against FJE after FJE failed to file any responsive pleadings. FJE filed a motion to set aside the default judgment, which was denied. FJE filed an extraordinary motion for new trial on the issue of damages and, three days later, filed a notice of appeal from the trial court's denial of his motion to set aside. The trial court granted FJE's extraordinary motion for new trial on the issue of damages, but then vacated that order on the grounds that it “lost jurisdiction” over the matter once the case was appealed to this Court. We granted FJE's application for discretionary appeal in the instant case. Finding that the pendency of FJE's appeal from denial of its motion to set aside the default judgment acted as a supersedeas depriving the trial court of the jurisdiction to consider FJE's subsequent extraordinary motion for new trial, we affirm in part. However, the portion of the trial court's order finding that “no further action is necessary or authorized by the court” is reversed, and the case is remanded to the trial court for findings not inconsistent with this case.

The facts in this case are undisputed, and the issue before us is whether the trial court erred in finding that it was without jurisdiction to rule upon FJE's extraordinary motion for new trial during the pendency of an appeal and that there is nothing further for it to review in this case. “This question is one of law, which we review de novo.” (Citation and punctuation omitted.) Guthrie v. Wickes, 295 Ga.App. 892, 892, 673 S.E.2d 523 (2009).

The instant case involves the following procedural history. On April 29, 2011, Williams filed suit against FJE alleging that he sustained injuries when he fell over a package that FJE's employee negligently placed in a dangerous location. FJE did not file an answer, and Williams filed a motion for default judgment. After a damages hearing at which FJE was not present, the trial court entered a default judgment in favor of Williams in the amount of $1,170,563 on February 1, 2012. On April 23, 2012, FJE filed a motion to set aside the default judgment under OCGA § 9–11–60, arguing that the complaint was legally insufficient, that the judgment was procured by fraud, that the pleadings and evidence presented did not support the award of damages, and that FJE did not receive timely notice of the judgment. On July 10, 2012, the trial court denied the motion to set aside.

On August 6, 2012, FJE filed an extraordinary motion for new trial on the issue of damages, claiming that the damages awarded were unsupported by Williams' pleadings or by evidence presented at the damages hearing. Three days later, on August 9, 2012, FJE filed an application for discretionary appeal seeking review of the July 10, 2012, order denying its motion to set aside the judgment. On September 10, 2012, this Court granted FJE's application after finding that FJE was entitled to a direct appeal. On November 13, 2012, the trial court granted FJE's extraordinary motion for new trial as to damages and placed the case on the trial court's non-jury calendar. On October 31, 2013, in an unpublished opinion, this Court affirmed the trial court's denial of FJE's motion to set aside the default judgment.

On November 1, 2013, Williams filed a motion in the trial court to vacate the November 2012 order granting FJE's extraordinary motion for new trial on damages. On February 25, 2014, the trial court vacated the November 2012 order granting an extraordinary motion for new trial on damages, finding that FJE's notice of appeal had deprived it of jurisdiction to rule on the motion. The order also concludes that “no further action is necessary or authorized by [the trial court].” On March 27, 2014, FJE filed this timely application for discretionary appeal from this order, which was granted by this Court.

1. Appellants contend that the trial court erred in finding that it had “lost jurisdiction” to rule on Appellants' pending extraordinary motion for new trial once Appellants filed its first notice of appeal. We disagree.

“A notice of appeal divests the trial court of jurisdiction to supplement, amend, alter, or modify the judgment while the appeal of that judgment remains pending.” (Citations omitted.) McLeod v. Clements, 306 Ga.App. 355, 357(2), 702 S.E.2d 638 (2010). See also OCGA § 5–6–46(a). However, “matters which are independent of and distinct from the judgment on appeal remain within the jurisdiction of the trial court. The notice of appeal does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal.” (Citation and punctuation omitted.) Davis v. Harpagon Co., LLC, 281 Ga. 250, 253(8), 637 S.E.2d 1 (2006). See also Avren v. Garten, 289 Ga. 186, 190(6), 710 S.E.2d 130 (2011) (“The supersedeas that stems from the filing of an application or notice of appeal is limited in that it supercedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal”) (citations and punctuation omitted.); In the Interest of A.R.B., 209 Ga.App. 324, 324(1), 433 S.E.2d 411 (1993) (trial court divested of jurisdiction to act on pending reconsideration motion after application filed).

In the present case, FJE's motion to set aside the default judgment argued that the grounds allowing for a motion to set aside a default judgment under OCGA § 9–11–60(d) applied.¹ However, FJE's motion to set aside the default judgment also argued that the pleadings and evidence presented to the trial court at the default judgment hearing did not support the amount of damages awarded. FJE raised all of these arguments in the brief it presented to this Court on appeal from the denial of its motion to set aside the default judgment. See Tenant v. State, 229 Ga.App. 20, 21, n. 1, 492 S.E.2d 909 (1997) (this Court may take judicial notice of parties' briefs filed in a prior appeal before this Court). FJE's extraordinary motion for new trial also argued that the default judgment awarded to Williams was not supported by the pleadings and that the evidence presented at the damages hearing did not properly represent Williams' lost past income, lost future income, future pain and suffering, and reasonable and necessary medical expenses.

Although FJE's motion to set aside the default judgment challenged its liability, and its extraordinary motion for new trial as to damages challenged the trial court's award of damages, we cannot say that the two motions raise issues that are “independent of and distinct from” each other, Davis, supra, because they both addressed the propriety of the same default judgment award. In fact, prior to filing its first notice of appeal, FJE filed an “emergency motion to stay trial” pending the resolution of the appeal. In that motion, FJE acknowledged that “the new trial on damages is not ‘independent and distinct’ from the pending appeal, but is directly related to and has the potential to impact the very judgment that is being appealed.” Compare Avren, supra at 190–191(6), 710 S.E.2d 130 (supersedeas of application for discretionary review and notice of appeal regarding order and judgment dismissing ex-wife's petitions for, inter alia, modification of child support, custody and visitation and granting ex-husband's contempt petition, did not deprive trial court of jurisdiction to enter award of attorney fees in favor of ex-husband regarding contempt petition).

Accordingly, because the issues raised in FJE's extraordinary motion for new trial were not “independent of and distinct from the questions involved in the appeal,” Bivins v. McDonald, 50 Ga.App. 299, 302(4), 177 S.E. 829 (1934), we find that FJE's filing of a notice of appeal acted as a supersedeas, depriving the trial court of jurisdiction to entertain a subsequent extraordinary motion...