Hunter v. Will

• Decision Date: 09 September 2019
• Docket Number: A19A1481
• Citation: Hunter v. Will, 833 S.E.2d 128, 352 Ga. App. 479 (Ga. App. 2019)
• Court: Georgia Court of Appeals
• Parties: HUNTER v. WILL et al.

352 Ga.App. 479

833 S.E.2d 128

HUNTER

v.WILL et al.

A19A1481

Court of Appeals of Georgia.

September 9, 2019

Dwight L. Thomas, for Appellant.

John Douglas Bennett, Atlanta, Richard Read Gignilliat, Ken Jarrard, Cumming, William Joseph Linkous III, Lawrenceville, Kenneth Paul Robin, Alpharetta, for Appellee.

Miller, Presiding Judge.

Tommy Hunter appeals from the trial court's dismissal of his appeal to the Supreme Court of Georgia and the trial court's subsequent order denying his motion to be relieved from the final judgment.Hunter argues that the trial court lacked jurisdiction to dismiss the appeal, that the dismissal was based on extrinsic evidence, that ex parte communications tainted the proceedings, and that he was entitled to a hearing on his motion to be relieved from the final judgment.Our thorough review of the record discloses no reversible error in the trial court's dismissal of Hunter's appeal.Accordingly, we affirm.

"A trial court's decision to grant or deny a motion to dismiss an appeal under OCGA § 5-6-48 (c) is reviewed under an abuse of discretion standard."(Citation omitted.)Park Regency Partners, L.P. v. Gruber , 271 Ga. App. 66, 70 (1), 608 S.E.2d 667(2004).

The procedural history of this case is not only complex and convoluted, but it is also the first of its kind before this Court.An ethics complaint was filed against Commissioner Tommy Hunter as a result of certain comments he made on social media, and the Gwinnett County Board of Ethics("the Ethics Board") issued findings and a recommendation that he be publicly reprimanded.Hunter filed in the trial court a writ of quo warranto, prohibition, mandamus and verified complaint for declaratory judgment and preliminary and permanent injunctive relief against (1) the Ethics Board; (2)David Will, in his individual and official capacity as the chair of the Ethics Board; (3)Charles Rousseau, in his individual and official capacity as a member of the Ethics Board; and (4) the Gwinnett County Board of Commissioners("the Board of Commissioners").¹Among other requests, Hunter sought to invalidate certain Ethics Board ordinances and he sought the removal of some members of the Ethics Board.

In June 2017, the trial court denied Hunter's claims, determining that the Ethics Board and the ordinance creating it are not constitutionally infirm.Hunter filed a timely notice of appeal on July 17, 2017, designating the Supreme Court of Georgia as having jurisdiction over the appeal.In the notice, Hunter stated, "the clerk shall include the transcript for the June 1, 2017 Emergency Hearing for Temporary Restraining Order. ..."²After approximately seven months, however, that transcript had not been filed.On February 16, 2018, the Board of Commissioners filed in the trial court a motion to dismiss Hunter's appeal, arguing, inter alia, that Hunter was responsible for filing, or causing to be filed, the transcript which he had demanded be included in the record.The Board of Commissioners added that Hunter had failed to ensure that a complete hearing record was timely transmitted to the Supreme Court.The remaining appellees joined in the motion.

Hunter responded that "through oversight and inadvertence," his counsel did not contact the clerk.Concurrently, on February 19, 2018, he also filed an amended notice of appeal — again designating the Supreme Court as having jurisdiction — excluding his request for the transcript.The trial court clerk then transmitted the record to the Supreme Court.In the interim, however, the parties filed multiple pleadings concerning the motion to dismiss, and the trial court had not yet ruled on the motion.

On March 12, 2018, an associate attorney with the law firm representing the Board of Commissioners telephoned the trial court's law clerk, claiming that the transmittal of the record to the Supreme Court was "erroneous" due to the pending motion to dismiss Hunter's appeal.That same day, lead counsel for the Board of Commissioners learned of this conversation, informed Hunter's counsel, and then wrote a letter to the trial court.In the letter, which was copied to Hunter's counsel, the Board of Commissioners apologized for the ex parte communication but nevertheless argued that the record had been erroneously transmitted to the Supreme Court due to the pending motion to dismiss Hunter's appeal and requested the trial court to direct that the record be retrieved from the Supreme Court.

The trial court issued an order on March 14, 2018, scheduling a hearing on the motion to dismiss and directing the trial court clerk to transmit the order to the Supreme Court of Georgia to prevent the appeal from being docketed prior to a ruling on the motion to dismiss.Hunter filed a "verified motion to vacate[the March 14, 2018order] and/or motion to recuse," and the trial court entered an order of voluntary recusal.The case was reassigned to another judge who scheduled a hearing on the motion to dismiss.After oral argument, in April 2018, the trial court ruled that because the record had already been transmitted, it no longer had jurisdiction to consider the motion to dismiss.Simultaneously, the trial court requested that the Supreme Court remand the record to enable a ruling on the motion to dismiss.

Months later, in August 2018, the trial court issued a final judgment in which it explained that it had received an email from the Gwinnett County chief deputy clerk about correspondence that office had with the Supreme Court's clerk's office.The email from the Supreme Court's clerk's office explained that the appeal had not yet been docketed and also stated:

We had already reviewed it in our system, so it does not read rejected.It is, however, deleted from our system, per the Trial Court[’]s request. ...If a case has not received a docket number and we are asked to reject or delete it, per the trial court, it is the same as never having been submitted.

The Supreme Court's clerk's office further stated that if the appeal were to be pursued, the record would have to be resubmitted.Having reviewed the email correspondence, the trial court determined that the transmittal of the record was deleted from the Supreme Court system and that it could therefore rule on the motion to dismiss.The trial court dismissed Hunter's appeal pursuant to OCGA § 5-6-48 (c), reasoning that the delay in filing the June transcript was "unreasonable, inexcusable and was caused by [Hunter]."

Hunter then filed a motion for relief from judgment and to set aside the court's final judgment dismissing his appeal, and he also requested that the trial court vacate the March 2018 order that sought to prevent the docketing of the appeal.The trial court denied Hunter's motion, and this appeal followed.³

1.First, Hunter claims that the trial court erred in dismissing his appeal because, in the absence of an order from the Supreme Court, the trial court never regained the authority to rule on the motion to dismiss.Because of the unique circumstances of this case, however, we are compelled to disagree.

Preliminarily, when the record was transmitted to the Supreme Court of Georgia, the trial court lost the authority to decide the motion to dismiss Hunter's appeal.Supreme Court Rule 74 provides that an

[a]ppellee shall be deemed to have waived any failure of the appellant to comply with the provisions of the Appellate Practice Act relating to the filing of the transcript of the evidence and proceedings or transmittal of the record to this Court unless objection thereto was made and ruled upon in the trial court prior to transmittal, and such order is appealed as provided by law.

This Court has an almost identical rule regarding waiver.See Court of AppealsRule 20.More recently, in a whole court decision, we reaffirmed the longstanding precedent that a trial court loses the ability to rule on a motion to dismiss once the record has been transmitted to the appellate court.Noorani v. Sugarloaf Mills Ltd. Partnership , 308 Ga. App. 168, 169-170, 706 S.E.2d 750(2011).See alsoStrese v. Strese , 237 Ga. 334 (1), 227 S.E.2d 749(1976)(applying the former version of Supreme Court Rule 74).And decades ago, we clarified that this principle of waiver applies whether the record is transmitted "erroneously or not."Turner v. Taylor , 179 Ga. App. 574, 575 (1)(a), 346 S.E.2d 920(1986).There is no dispute that the record was transmitted.Thus, the trial court initially lacked authority to rule on the appellees’ motion to dismiss.

Normally, trial courts regain the authority to rule on a motion to dismiss an appeal through either a remand of an appeal or an explicit order from the appellate court.See, e.g., Rois-Mendez v. Stamps , 312 Ga. App. 136, 138 n.1, 717 S.E.2d 718(2011)(explaining that we remanded the first appeal to the trial court, allowing the court to exercise its authority to dismiss the appeal);Winzer v. EHCA Dunwoody, LLC , 277 Ga. App. 710, 711, 627 S.E.2d 426(2006)("[T]his court returned the record to the trial court, informing the lower court ... that we could not accept the appeal. ...");Miller v. Ingles Market, Inc. , 214 Ga. App. 817, 817-818, 449 S.E.2d 166(1994)(remandingthe case for a ruling on the motion to dismiss);Price v. Ortiz , 152 Ga. App. 651, 652, 263 S.E.2d 527(1979)(explaining that we previously "returned the case to the trial court" via an order).

Given the distinctive factual context of this case, however, we conclude that despite the absence of a formal order from the Supreme Court, the trial court was authorized to rule on the motion to dismiss Hunter's appeal at the time of its ruling in August 2018.As Hunter recognizes, the record shows that the trial court appears to have been awaiting an order from the Supreme Court.In fact, when the trial court made the record remand request in April 2018, it also stayed the supplementation of the record "pending the direction of the Georgia Supreme Court regarding the requested...