Lovone Joyce Drain v. Peter Lee
Lovone Joyce Drain v. Peter Lee
Opinion
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 Lee's motion to enforce an offer of judgment as to an award of attorney fees in an unpublished decision, Drain v. Longleaf Hospice, LLC , --- Ga.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 . As these 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 *615 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 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 Trader Inc
.,
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. This timing 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,
1
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),
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.
See
Barham v. Levy
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.