Harmon v. Progressive Premier Ins. Co. of Ill.

• Docket Number: A23A1245
• Decision Date: 13 February 2024
• Citation: 897 S.E.2d 653
• Parties: HARMON v. PROGRESSIVE PREMIER INSURANCE COMPANY OF ILLINOIS.
• Court: Georgia Court of Appeals

897 S.E.2d 653

HARMON

v.PROGRESSIVE PREMIER INSURANCE COMPANY OF ILLINOIS.

A23A1245

Court of Appeals of Georgia.

January 26, 2024

Reconsideration Denied February 13, 2024

Frederick Vonne Massey, Winder, for Appellant.

Trenton William Edwards, for Appellee.

McFadden, Presiding Judge.

In this appeal, Jennifer Harmon asserts two claims of error: that the trial court erred in granting summary judgment to Progressive Premier Insurance Company of Illinois and that the trial court erred in denying Harmon’s motion to vacate that summary judgment ruling.Harmon asserted the identical claims of error in an earlier, procedurally flawed appeal, which we dismissed for lack of jurisdiction.Harmon v. Progressive Premier Ins. Co. of Ill.,364 Ga. App. 809, 874 S.E.2d 163(2022)(Harmon I).

Our earlier dismissal has two effects upon the present case.Although we did not address the merits of her appeal, our dismissal forecloses further appellate review of the summary judgment ruling, and consequently it renders moot this appeal from the ruling on the motion to vacate.So we grant Progressive’s motion to dismiss this appeal.

1.Procedural history

We set out the procedural history of this case in Harmon I,364 Ga. App. at 809-810, 874 S.E.2d 163.In summary, it is an action for damages allegedly sustained in a car wreck.Harmon brought it against the car’s driver and, under OCGA § 33-7-11 (d), also served it on Progressive.Progressive in turn filed a cross-claim against the driver.The trial court granted summary judgment on Harmon’s claim to Progressive, holding that her failure to provide timely notice of the accident barred recovery as a matter of law.Harmon moved to vacate the summary judgment ruling, and the trial court denied that motion.

Harmon then filed a notice of direct appeal in Harmon I and Progressive moved to dismiss that appeal.We granted that motion and dismissed the appeal, holding that we lacked jurisdiction for two reasons.First the appeal from the summary judgment ruling was untimely.Second the appeal from the ruling on the motion to vacate should have been pursued through the interlocutory appeal procedures because Harmon’s claim against the allegedly negligent driver remained pending below.Harmon I,364 Ga. App. at 810-811, 874 S.E.2d 163.

After the case returned to the trial court, Harmon filed a motion asking the trial court to enter a final judgment under OCGA § 9-11-54 (b).Instead, the trial court entered an order dismissing the case with prejudice, finding that his "earlier entry of summary judgment [was] on the sole matter remaining in this case[and that] there remain[ed] no issue for determination."(The record on appeal indicates that the parties had settled the claims against the driver.)

Harmon then filed a timely notice of appeal from the dismissal order.That order was a final was a final judgment, normally subject to direct appeal.SeeOCGA § 5-6-34 (a)(1).As she did in HarmonI, Harmon enumerates as error the trial court’s grant of summary judgment to Progressive and the trial court’s denial of her motion to vacate that summary judgment ruling.

Progressive has moved to dismiss this appeal, arguing that because of Harmon’s previous failed effort to invoke our appellate jurisdiction, this appeal is due to be dismissed.Under a lina of cases handed down by our Supreme Court, we are constrained to agree.SeeMassey v. Massey, 294 Ga. 163, 165 (1), 751 S.E.2d 330(2013);Houston County v. Harrell,287 Ga. 162, 163, 695 S.E.2d 29(2010);Mitchell v. Oliver,254 Ga. 112, 113 (1), 327 S.E.2d 216(1985).

2.Summary judgment order

[1] Harmon had the right to immediate appellate review from the trial court’s grant of partial summary judgment against her, even though that summary judgement order did not dispose of the whole case.OCGA § 9-11-56 (h).Alternatively she could have waited and appealed of right after the trial court issued a final judgment.OCGA § 5-6-34 (d).

See alsoMitchell,254 Ga. at 118 (1), 327 S.E.2d 216;Roth v. Gulf Atlantic Media of Ga.,244 Ga. App. 677, 679 (1), 536 S.E.2d 577(2000).In other words, "[s]he was not required to request a certificate of immediate review from the trial court under OCGA § 5-6-34 (b)."Massey,294 Ga. at 164 (2), 751 S.E.2d 330.

Harmon elected to invoke her right to an immediate appeal from the summary judgment ruling under OCGA § 9-11-56 (h).But that appeal had to be dismissed, because she did not file her notice of appeal within 30 days of the summary judgment ruling.Harmon I,364 Ga. App. at 810, 874 S.E.2d 163.

[2, 3] Our Supreme Court has held "that a losing party on summary judgment who puts the machinery of immediate appellate review under OCGA § 9-11-56 (h) into motion, yet commits a procedural default fatal to his appeal, is foreclosed from thereafter resubmitting the matter for review on appeal of the final judgment."Mitchell,254 Ga. at 114 (1), 327 S.E.2d 216;Houston County,287 Ga. at 163, 695 S.E.2d 29(quotingMitchell).AccordMassey,294 Ga. at 165 (2), 751 S.E.2d 330(recognizing the extension of that rule to immediate appeals from non-final judgments authorized under OCGA § 5-6-34 (a)(2)).Of course, we are bound to abide by the decisions of our Supreme Court.¹

3.Ruling on motion to vacate

[4, 5] The rule handed down in Mitchell, supra, does not apply directly to the order denying the motion to vacate the summary judgment ruling.As we noted in HarmonI, the order denying that motion was subject to the interlocutory appeal procedure set out at OCGA § 5-6-34 (b).Harmon I,364 Ga. App. at 810-811, 874 S.E.2d 163.So Harmon did not have a right to an immediate appeal from that order.And so the rule handed down in Mitchell does not apply to it.SeeSotter v. Stephens,291 Ga. 79, 84, 727 S.E.2d 484(2012).

[6] But although the Mitchell rule does not apply directly to the appeal from the order denying the motion to set aside, it does render that appeal moot, In light of our holding in Division 2, reversing that order would have no practical effect.

[7] So we must dismiss Harmon’s appellate challenge to that order as moot.A ease is moot, among other reasons, "when it seeks to determine an issue which, if resolved, cannot have any practical effect on the underlying controversy …."Barrow v. Raffensperger308 Ga. 660, 667 (2)(b), 842 S.E.2d 884(2020)(citation and punctuation omitted).Even if we were to find, as Harmon alleges, that the trial court erred in denying her motion to vacate the summary judgment ruling, this resolution could not now have any practical effect on the case.Harmon's "first direct appeal [of the summary judgment ruling] was dismissed, and with the usual consequence that the ruling[ ] of the lower court, by operation of law, stood as if affirmed.The effect of that dismissal was binding upon the trial court."Houston County,287 Ga. at 164, 695 S.E.2d 29(citations and punctuation omitted).

So the trial court would be "without authority to modify that [summary] judgment [ruling,] which was res judicata between the parties."Born v. Born, 364 Ga. App. 511, 517 (1), 874 S.E.2d 846(2022).For this reason, Harmon’s appellate challenge to the order denying her motion to vacate the summary judgment ruling is moot, and we must dismiss it.SeeBarrow, 308 Ga. at 666 (2)(b), 842 S.E.2d 884("A claim that is moot must be dismissed, not adjudicated.").

Appeal, dismissed

Brown and Markle, JJ., concur.

1We respectfully suggest, however, that our Supreme Court should reexamine that rule, It is a judge-made rule.Our Supreme Court handed It down in 1985.

Unlike an OCGA § 5–6–34 (b) Interlocutory application, which is discretionary with both the trial and appellate courts, OCGA § 9–11–56 (h) allows the losing party to secure an Interlocutory ruling as a matter of right.If 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.Therefore,wehold that a losing party on summary judgment who puts the machinery of immediate appellate review under OCGA § 9–11–56 (h) into motion, yet commits a procedural default fatal to his appeal, is foreclosed from thereafter resubmitting the matter for review on appeal of the final judgment.

Mitchell,254 Ga, at 114 (1), 327 S.E.2d 216(emphasis added).

As a matter of logic, Mitchell cannot withstand analysis.A final judgment from which a defective appeal is taken becomes final, and consequently res judicata, not because of the defective appeal, but because of the expiration of a statutory jurisdictional deadline.

As a matter of policy, Mitchell is inconsistent with the express Intent and the express direction of the Appellate Practice Act.

It is the intention of [the Appellate Practice Act] to provide a procedure for taking cases to the Supreme Court and the Court of Appeals, as authorized in Article VI, Sections V and VI of the Constitution of this state; to that end, this article 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, except as may he specifically referred to in this article.

OCGA § 5-6-30(emphasis added), More specifically.

No appeal shall be dismissed or its validity affected for any cause nor shall consideration of any enumerated error be refused, except:

(1) For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder;

(2) Where the decision or judgment is not then appealable; or

(3) Where the questions presented have become moot,

OCGA § 5-6-48 (b)(emphasis added).

In 2010 our Supreme Court offered an additional rational for the rule handed down in Mitchell,"[T]he appellate issue is more fundamental; a party...