FIFTH DIVISION

DILLARD, C. J.,

RAY and MERCIER, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

April 18, 2018

In the Court of Appeals of Georgia

A18A0224. DRAIN et al. v. LEE.

A18A0225. DRAIN et al. v. LEE.

RAY, Judge.

Lovone Joyce Drain, individually and as personal representative of the estate

of her mother, Eloise Smith, filed two appeals from the trial court’s orders related to

claims she filed against, inter alia, the appellee herein, Dr. Peter Lee. We upheld the

trial court’s order granting Dr. Lee’s motion to enforce an offer of judgment as to an

award of attorney fees in an unpublished decision, Drain v. Longleaf Hospice, LLC,

__ Ga. App. __ (Case No. A17A1452, decided February 27, 2018) (“Drain I”). The

instant appeals, which are consolidated for our review, are related to Drain I. Asthese

cases have a complicated procedural history, we will review only those portions

pertinent to the instant appeals. 
As an initial matter, the trial court granted summary judgment to Dr. Lee on

Drain’s claims against him. Drain did not appeal from that grant of summary

judgment. Following this grant of summary judgment, Dr. Lee moved the to enforce

an offer of judgment he had made to Drain pursuant to OCGA § 9-11-68. The trial

court granted this motion. Drain appealed, and in Drain I, supra at pp. 13-15 (2) (b),

we affirmed the trial court’s grant of Dr. Lee’s motion to enforce and its finding that

Dr. Lee was entitled under OCGA § 9-11-68 (d) (1) to reasonable attorney fees and

expenses of litigation. 

However, after Drain I was docketed in this Court, Drain filed the two appeals

that comprise the instant case, as will be explained below. Following the trial court’s

grant of Dr. Lee’s motion to enforce, Dr. Lee sought a supersedeas bond, and Drain

filed a pauper’s affidavit stating that she was unable to pay that bond. The trial court

determined on May 11, 2017, that Drain was not a pauper and ordered Drain to post

bond. Drain filed a notice of appeal, and Dr. Lee moved to dismiss that notice of

appeal. The trial court granted the motion to dismiss the notice of appeal on June 8,

2017. The trial court reasoned that its order finding that Drain was not a pauper and

ordering supersedeas bond was not subject to review. Drain appeals from the trial

court’s order dismissing the notice of appeal in Case No. A18A0224 (Drain II). In

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Case No. A18A0225 (Drain III), she appeals the trial court’s order finding that she

is not a pauper and ordering her to pay supersedeas bond. 

Our Supreme Court has held that “Georgia law generally reserves to the

appellate courts the authority to dismiss appeals. . . . An appellate court is the sole

authority in determining whether a filed notice of appeal . . . is sufficient to invoke

its jurisdiction.” (Citations and punctuation omitted.) Jones v. Peach TraderInc., 302

Ga. 504, 506 (II) (807 SE2d 840) (2017), citing OCGA § 5-6-48. Thus, the trial court

in Drain II erred in dismissing Drain’s notice of appeal. However, OCGA § 5-6-47

(b) provides that “[t]he judgment of the [trial] court on all issues of fact concerning

the ability of a party to pay costs or give bond shall be final.” (Emphasis supplied).

AccordCumberlandContractors, Inc. v. State Bank and Trust Co., 327 Ga. App. 121,

129 (5) (755 SE2d 511) (2014) (“[T]he trial court’s ruling on the ability of the

[d]efendants to post a bond is not subject to review”) (citation omitted; emphasis

supplied). OCGA § 5-6-48 (b) (2) provides for dismissal of appeals where, as here,

“the decision or judgment is not then appealable[.]” Further, because of our

determination in Drain I that the trial court’s order as to Dr. Lee’s motion to enforce

judgment was correct, the appealsin both Drain II and Drain III are moot. See OCGA

§ 5-6-48 (b) (3) (“No appeal shall be dismissed or its validity affected . . . except: .

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. . . . . [w]here the questions presented have become moot”). Therefore, we vacate the

trial court’s order in Drain II and dismiss that appeal as moot. See Jones, supra at

504. We also dismiss the appeal in Drain III as moot.

We note, however, that the instant cases raise procedural issues which the

legislature may wish to address. Here, both Drain II and Drain III were docketed at

the appellate level in the term of Court following the term in which we decided Drain

I,which substantive decision underlies both subsequent appeals.Thistiming virtually

assured that the posting of the supersedeas bond ordered by the trial court would be

held in abeyance pending the outcome of the appeal in Drain I. The law is clear that,

except in extraordinary circumstances,

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the trial court’s judgment on the ability of a

party to pay costs or give bond is not reviewable. See Cumberland, supra at 129 (5).

Yet, by filing a notice of appeal of an order on a pauper’s affidavit and a notice

appealing the trial court’s dismissal of that appeal, a litigant effectivelymay delay the

finality of the order on and posting of the supersedeas bond until a decision on the

meritsis rendered in the underlying case, which in the instant action was Drain I. The

1 See Barham v. Levy, 228 Ga. App. 594, 596 (4) (492 SE2d 325) (1997)

(remanding case and reversing trial court’s order denying pauper’s affidavit where no

fact issues were presented, pauper’s affidavit was not contested, and no evidence

showed that appellant was not indigent; thus, no evidence supported the trial court’s

ruling).

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appeals in Drain II and III demonstrate that, in some cases, OCGA § 5-6-47 (b) may

effectively be rendered inert by a party who either appeals an unreviewable order or

appealsimproperly. For these reasons, further legislative consideration of this matter

may be warranted.

Judgment vacated and appeal dismissed in Case No. A18A0224. Appeal

dismissed in Case No. A18A0225. Dillard, C. J., concurs. Mercier, J., concurs in

the judgment only.*

*THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF

APPEALS RULE 33.2.

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