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Redacted Argument on Reconsideration – Power of Georgia Trial Court After Notice of Appeal

by merlin on May 3rd, 2013
  • Sumo

The following is a redacted Argument section from a Brief in Support of Motion for Reconsideration filed today in a case, that sets out the legal argument against the entry of Orders by a trial court after an appeal has been docketed.  Sadly, there are no guarantees in legal practice (nor should there be – a lawyer who guarantees a result needs to be put in jail, because if there is an argument then there are at least two sides to the story).

Argument and Citation to Legal Authority

This case should be reviewed by the Court because it is a direct example of an instance of blatant corruption and one-sided dealing, to the disadvantage of one party following the opportunistic actions of the Court while the remititur was placed in the trial court for assembly of the record for appellate review.  “After the remititur is transmitted to the trial court by the appellate court, “[t]he decision and direction [of the appellate court] shall be respected and carried into full effect in good faith by the court below.””  Long v. Long, 307 Ga.App. 790, 790, 706 S.E.2d 152 (Ga. Ct. App. 2011)(quoting OCGA § 5–6–10).  Just because a remititur is in the trial court following acceptance of a case for appeal does not enable the trial court to disregard mandatory statutory authority, and the steps for securing appellate review of a decision, laid out with precision in Section 5-6-46(a) of the Official Code of Georgia, were complied with fully and were willfully disregarded by the trial court.

 I.                  Rule 34(1) and OCGA § 5-6-46(a) require the reversal of the Orders entered by the Superior Court of XXXXX County on    XXXXX XX, 2013, as reversible error contrary to law.

Rule 34(1) of the Rules of the Supreme Court of Georgia states that “[a]n application for leave to appeal a final judgment in cases subject to appeal under OCGA § 5-6-35 shall be granted when…[r]eversible error appears to exist” (emphasis supplied).  Section 5-6-46(a) of the Georgia Code applies directly to the post-judgment Orders entered by the trial Court and arising from its suspended judgment in this matter.  That section states in pertinent part that “[i]n civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas…”.  The appeal of the post-judgment Orders improperly entered by the trial court is properly before this Court because the matter appealed from is necessarily part and parcel of the appealed action now pending in docket number S13F1009, and each one of the wrongly-decided Orders arise directly from the willful refusal of that Court to recognize supersedeas over its Final Judgment and Decree of Divorce and to insist that its previous temporary order is without effect.  It refused to recognize the suspension of its judgment, and condoned reversing the child custody arrangement of the parties and prospectively, by direct order completely at odds with its own powers, discharging Appellee XXXXX XXXXX from any further liability for debt.  A modification of either alimony or of child custody can never be done unilaterally in this manner, and the problem of unilateral action is present in every aspect of the case.  It continues the same horribly unlawful trend as the Final Judgment and Decree of Divorce and its incorporated, equally one-sided and unilateral, Contract and Agreement began, and the illegality of the Orders entered in this case turn on the telling fact that the latter document was neither a “contract” nor an “agreement”.

This case has been summed up well in a similar situation in which the Court could have taken unilateral action to protect a party, and was asked to by way of a demurrer, but the appellate courts found that they should not.  “If the parties to a transaction do not create binding agreements, the courts are powerless to do it for them”.  Scott v. Lewis, 112 Ga.App. 195, 197, 144 S.E.2d 460 (Ga. Ct. App. 1965)(sale of a house contingent on unfulfilled loan proceeds not part of the contract and properly not enforced by the court).  Just because a party wants a particular end doesn’t mean the Courts can invalidate the binding contract between them unasked for.

 A.   Transcripts are required for the actual evaluation of a granted appeal but not to discern probable cause to entertain the appeal.

A transcript is appropriate for introduction where an evidentiary matter is in dispute, and its absence is fatal to the appeal.  See generally Martinez v. Martinez, 301 Ga.App. 330, 687 S.E.2d 610 (Ga. Ct. App. 2009).  Further, the transcript of the hearing which led to the entry of the Orders in question is available, has been obtained by Appellant, and will certainly be transmitted to the Court were this appeal granted.  However, a transcript in full is unnecessary for the Court to engage in evaluation of the potential merit of the instant appeal, because the page of the transcript attached to and incorporated in the Application for Appeal in this matter as Exhibit “A1” states plainly at lines 13-17 that any matters that depended on the enforcement of any Order made prior to the appealed Final Judgment and Decree of Divorce in this matter are moot.  In further support for the merit of this argument, Appellant directs the attention of the Court to Pages 8-9 of the transcript of said hearing, attached to and incorporated herein collectively as Exhibit “A22”, which relates in response to the Court’s verbal statement contrary to fact at lines 2 – 6 that the notice of appeal of this case was filed the day after the Court granted the application for appeal numbered S13F1009, and a copy of the notice of appeal was given to the Court and included with the Application for Appeal in this matter as Exhibit “A5”.  Since this dispute concerns the legal power of the Court, not provided for in any rule, law, or statute, and completely at odds with the rights of parties to a contract and with the legal system of this State to disregard their will and instead act unilaterally in favor of one party over and to the disadvantage of the other, this matter is primarily a question of law and not of fact.  This is true for each and every point of Error raised in this appeal, because the Court set that standard as the initial basis by which it chose to hear any and all motions pending before it, as shown by Exhibit “A1” and contradicted by Exhibit “A22” attached hereto.

Further, there is valid, indisputable evidence of the legal impropriety that arose in this case, for which both strong reason to grant appellate review and strong justification for immediate adjustment of dangerously harmful legal actions exist.

 B.   Development of the common law is plainly necessary because no inferior Court may ever disregard supersedeas at will.

The Georgia Code governing supersedeas has been restated above, but it is important to examine the motivations behind this statute for an understanding that was plainly lacking by the trial court below and counsel for XXXXX XXXXX.  A relevant discussion as to why supersedeas is automatic except in cases involving injunctions and extraordinary remedies is found in Howard v. Smith, 226 Ga. 850, 851, 178 S.E.2d 159 (Ga. 1970)(concerning necessity to obtain separate interlocutory relief on appeal from injunctions), which elaborates that “[p]rior to the passage of the Civil Practice Act, no appeal nor any proceeding for obtaining an appeal could have the effect of establishing or denying an injunction independently [sic] of the order of the judge who, on rendering his decision, might, in his discretion, make such order and require such bond as might be necessary to preserve and protect the rights of the parties until the judgment of the Supreme Court could be rendered thereon.”

However, following the passage of the Civil Practice Act and the Appellate Practice Act, it was no longer automatically fatal to a party when it failed to obtain injunctive relief pending appeal, because that relief was spelled out expressly by statute in Section 5-6-46, in non-injunctive cases not involving extraordinary remedies.  It cannot be restated more plainly that the actions of the trial court in this case attached to and incorporated in the Application for Appeal in this matter as Exhibits “A8”, “A12”, “A14”, and “A17”, “A18” and “A20” were illegal, and their entry legally constitutes reversible error and forbidden abuse of discretion.

 II. An Order issued by a Court that does not have jurisdiction to rule is of no force or effect, and may be ignored, but a rogue Court and

        all of its resources are attacking Appellant.

Section 5-6-46(a) of the Official Code of Georgia states that “[i]n civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant”.  A “notice of appeal…divest[s] the trail court of its jurisdiction over the motion for reconsideration before the trial court rendered its decision.”  Threatt v. Forsyth County, 250 Ga.App. 838, 845, 552 S.E.2d 123 (Ga. Ct. App. 2001)(trial court did not have jurisdiction to rule on motion for reconsideration after notice of appeal was filed).  Exhibit “A20”, attached to and incorporated in the Application for Appeal in this matter, purports to have been withdrawn by counsel for Appellant, but is disputed.  The lack of a transcript in this instance would be fatal, except that the Motion underlying the Order, and any consideration of it, were arbitrarily and wrongfully voided by the Court with its formal declaration in Exhibit “A1”.  The Court below quite simply lacked jurisdiction to rule on the motion at the moment it declared it and all motions arising from the Temporary Order, a copy of which was attached to and incorporated in the Application for Appeal in this case as exhibit “A2”, were moot.

Here, the problem has arisen because a lower Court is not recognizing the supersedeas effect of a valid application for appeal and is enforcing the superseded Final Judgment and Decree willfully, resulting in the compounding of harm.  “[J]ustice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed.”   Bush v. Reed, 311 Ga.App. 328, 332, 715 S.E.2d 747 (Ga. App. 2011)(Citation and punctuation omitted, citing to Adams v. Hebert, 279 Ga.App. 158, 159, 630 S.E.2d 652 (2006)). In that case, the failure to file a transcript was fatal to the claim of the party, but the failure to file the transcript was material for a host of reasons and factual matters not present in the instant appeal and demonstrated by the Court’s actions shown in black and white on Exhibit “A1” and Exhibit “A22” hereto.  What is most important about this citation is the urgency that it indicates, because justice is equally important to the litigant who was deprived of fairness in the trial court and cannot obtain his judgment “unless the case is properly reversed” (Id.).

“This automatic supersedeas [here, referring to the supersedeas granted by Section 5-6-46] deprives the trial court of jurisdiction to modify or alter the judgment in the case pending the appeal.”  Shropshire v. Alostar Bank of Commerce, 314 Ga.App. 310, 312, 724 S.E.2d 33 (Ga. Ct. App. 2012)(vacating every Order of the Court inconsistent with that rule in a dispute concerning promissory notes and contract law principles of estoppels).  This is the most recent statement by the appellate courts of this State with regard to the statutory effect of the notice of appeal filed in the underlying case in this dispute, a copy of which was attached to and incorporated in the Application for Appeal in this matter as Exhibit “A5”, was issued immediately after the Court had ruled that it would entertain an appeal of the matter on two distinct points.  A copy of the Order of this Court was attached to and incorporated in the Application for Appeal in this matter as Exhibit “A4”.

This is not a revelation or a new point of law, as the confusion of the Court shown by its apparent supposition and speculation in Exhibit “A1” to the Application for Appeal demonstrates, when it “finds and concludes” matters at Lines 2 through 8 that a certain course of conduct existed, shown directly to be the worst falsehood by both Exhibit “A22” hereto and by Exhibit “A5” to the Application for Appeal, since the explicit direction of the appellate court has been necessary for the guidance of lesser courts following the return of the remititur in this State since at least the 1966 case of Hagan v. Roberts & Co. Associates.  “Before the trial court could take any further action in the cases, it was, of course, essential that it be officially informed of the judgment which the Court of Appeals had rendered.”  150 S.E.2d 663, 665, 222 Ga. 469 (Ga. 1966).  It is established that a Court has power to affect the judgment and to hear motions concerning a case while the remititur still resides in the trial court, and that – as noted by the trial judge himself in agreement with the statement of counsel for XXXXX XXXXX – the absence of the remititur deprives the Court of authority to enter judgment on motions in the case.  See generally Wood v. Delta Ins. Co., 101 Ga.App. 720, 114 S.E.2d 883 (Ga. Ct. App. 1960).  As stated initially in this Brief in Support of Motion for Reconsideration, this case revolves around blatant corruption and one-sided dealing, because the remititur is not a grant of unlimited power and carte blanche to disregard the established provisions of Georgia law, and the trial court is necessarily bound by the direction of the appellate courts according to the procedure described in Hagan, infra.

The disregard and bias of the trial court against XXXXX XXXXX and in favor of XXXXX XXXXX in the appealed matter in the case at bar is shown by factual matters, as well.  Attached hereto and incorporated herein as Exhibit “A23” is the Certificate of Service of Appellee for her Brief of Appellee in case number S13F1009, which plainly certifies that a copy of that document was served on Appellant by hand-delivery.  However, counsel for Appellant employs no support staff and spent the entire day recited on that document in his office, readily accessible to counsel for Appellee, and has yet to be given a copy of this document by any means at all.  Counsel for Appellee has disregarded the basic rules of service set out in Section 5-6-32 once before, stating on page 6 of Appellee’s Response to Appellant’s Amended Enumeration of Error (which Certificate of Service never identifies the title of the document supposedly served) in the application for appeal that led to the docketing of Case Number S13F1009 with this Court, docket number S13D0229, that service of that document was made “by using the CM/EFC system, which will automatically send e-mail notification to such filing” to the undersigned.  A copy of this document is attached hereto and incorporated herein as Exhibit “A24”.  This action demonstrates the truth of Applicant’s contention that this case centers around corruption, since it goes without saying that this is not a valid method of service under Section 5-6-32, or any other Section of the Official Code of Georgia, and Appellee has also disregarded this standard not once but twice.  These actions merit sanctions, and this appeal is plainly clothed in validity.  An old proverb states that “[w]here there is smoke, there is fire”.  The smoke is apparent, and this Court is respectfully requested to extinguish the fire that created it.

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