Clay Woerner v. Emory Children's Center, Inc.

Court of Appeals of the State of Georgia

ATLANTA,____________________

March 05, 2018 The Court of Appeals hereby passes the following order:

A17A1671. CLAY WOERNER et al. v. EMORY CHILDREN’S CENTER, INC. et al.

Clay and Deborah Woerner seek to appeal the trial court’s dismissal of their complaint for declaratory relief seeking to prevent the production of their son’s medical records in a contribution action between Emory Children’s Center, Inc. and Emory Healthcare, Inc. and the landowners of the property where the Woerners’ son was severely injured, resulting in his death. We, however, lack jurisdiction.

Following the trial court’s ruling, the Woerners filed an application for interlocutory appeal with the Georgia Supreme Court. Finding it did not have jurisdiction, the Supreme Court transferred the application to this Court. The Woerners’ counsel admitted she received notification of the transfer. On November 4, 2016, we subsequently granted the application and emailed an order to file a notice of appeal within 10 days to the Woerners’ counsel’s email address on file in this Court’s eFast system. The Woerners failed to file a notice of appeal within ten days. On December 15, 2016, the Woerners then filed a motion to vacate and reinstate this Court’s order to allow them to file a timely notice of appeal. The Woerners’ counsel explained that she did not get this Court’s order because she had not updated her email information with this Court since it had changed in 2015.1 On January 20, 2017, we conditionally granted the motion and instructed the parties to brief the jurisdictional and procedural issues relating thereto.

OCGA § 5-6-34 (b) imposes an obligation on an applicant to file a timely notice of appeal upon the grant of an application for interlocutory appeal in order to obtain review of the issues presented.2 The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon this Court, and the burden is upon the party taking an appeal to file a timely notice of appeal. Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695, 695 (293 SE2d 352) (1982); see also Court of Appeals Rule 30 (k) (“If the interlocutory application is granted, the appellant must file a notice of appeal in the trial court within 10 days of the date of the order granting the application.”).

As stated under the instructions of this Court’s eFast website, as of January 1, 2015, “all Georgia attorneys must be registered in the COA EFAST system,” and the Woerners’ counsel was so registered. As part of that registration, counsel was informed by these website instructions that it was her “responsibility to keep [her] email [address] up to date in [her] profile on the COA [eFast] system so that [she] will receive [her] mail from the system.” The Woerners’ counsel was also informed by these instructions that under the eFast system all notices from this Court come by email. The Woerners’ counsel conceded in her motion to vacate and reinstate that she was “aware that she has an obligation to update her information with this Court” and the “motion was not intended to excuse counsel’s omission.” There is no obligation on this Court to update information in an attorney’s profile; the obligation rests solely with counsel.

The Woerners’ counsel’s argument based on former Court of Appeals Rule 9 is without merit.3 She appears to claim that under the prior rule, there was no requirement for her to update her profile in this Court because her address did not change “during the pendency” of the application, but rather changed prior to filing the application. Even if that rule was applicable to counsel’s situation, counsel’s argument is contradicted by her own admission. The Woerners’ counsel, as an efiler, admitted that she was aware of her obligation to keep her profile current with the correct email in order to receive notices from this Court. The fact that the case was transferred to this Court rather than originally filed here does not excuse counsel’s failure to update her email address when she admitted she was aware of the transfer. Thus, through no fault of this Court,4 the Woerners failed to meet the absolute requirement of OCGA § 5-6-34 (b) as to the filing of a timely notice of appeal. See Grice v. Reilly, Case No. A17A2042 (decided July 27, 2017) (email notification of the grant of the applicant’s discretionary application was sent to an old e-mail in this Court’s eFast system, resulting in failure to file a notice of appeal with in ten days; the respondent moved to dismiss the appeal on jurisdictional grounds; the applicant requested that this Court vacate and reinstate the order; this Court dismissed the appeal), Harris v. Harris, Case No. A17D0282 (decided March 14, 2017) (the applicant, who failed to file timely notice of appeal after his discretionary application was granted, motioned this Court to vacate and reinstate our order, asserting he did not receive notice due to prison mailroom error, which was denied).

While we understand the importance of the issues the Woerners seek to have considered on appeal and sympathize with counsel’s inadvertent mistake, this Court has “no authority to create equitable exceptions to jurisdictional requirements imposed by statute.” Gable v. State, 290 Ga. 81, 85 (2) (b) (720 SE2d 170) (2011) (punctuation omitted). Under these circumstances, the Woerners’ failure to file a timely notice of appeal within ten days of the November 4, 2016 order granting their application for interlocutory appeal deprives us of jurisdiction over this appeal. Accordingly, this appeal is DISMISSED.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

03/05/2018 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.