Sewell v. Cancel
295 Ga. 235
Ga.
2014
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S13G1274. SEWELL et al. v. CANCEL et al.

S13G1274

Supreme Court of Georgia

June 2, 2014

RECONSIDERATION DISMISSED JUNE 2, 2014.

759 SE2d 485

HUNSTEIN, Justice.

Haley was entitled to attorney fees, we also conclude that the parties authorized the court to award her attorney fees in an amount the court found to be appropriate and reasonable under the circumstances.

(Footnotes omitted.) at 205.

Haley, however, is distinguishable from this matter. The parties in this case had no attorney fees clause in a separation agreement on which the trial court could rely. In addition, Wife’s letter brief in support of her motion for fees requested an award pursuant to OCGA § 19-6-2.2 Based on this information, it appears that, although the parties may have agreed to submit letter briefs in lieu of a hearing, there was no agreement to leave the issue of attorney fees to the unfettered discretion of the trial court. Based on this specific set of facts, we must vacate the trial court’s award of $12,580 for failure to make the required findings of fact under OCGA § 19-6-2. See . The trial court may reconsider this issue on remand.

4. Husband’s remaining enumerations, which attack the wide discretion of the trial court, lack merit.

Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur, except Hunstein, J., who concurs in judgment only as to Division 2.

DECIDED MAY 5, 2014 —
RECONSIDERATION DISMISSED JUNE 2, 2014.

Joseph B. McCarthy, pro se.

Hill-Macdonald, Brad E. Macdonald, for appellee.

HUNSTEIN, Justice.

We granted certiorari in this case to consider whether an appellate court has jurisdiction over a properly filed cross-appeal seeking review of an order entered after the filing of the original notice of appeal but prior to the notice of cross-appeal. We conclude that the appellate court does have jurisdiction in this instance and that the Court of Appeals erred in holding otherwise. Accordingly, we reverse and remand for further proceedings.

The issue presented arises from litigation involving the dissolution of an anesthesiology practice. Plaintiffs Angel Cancel, M.D., Pravin Jain, M.D., Grace Duque-Dizon, M.D., and Monajna Sanjeev, M.D. were shareholders in the now-defunct Central Georgia Anesthesia Services, P.C. (“CGAS“), which was at one time the exclusive anesthesiology provider at a Macon hospital owned and operated by The Medical Center of Central Georgia, Inc. According to Plaintiffs’ complaint, beginning in 2001, Plaintiffs Cancel and Jain discovered what they believed were billing irregularities within the practice, which they brought to the attention of their fellow shareholders and officials at The Medical Center over a period of time between 2001 and 2003. In April 2003, The Medical Center announced its intention to restructure its anesthesiology department, after which CGAS shareholders voted to terminate CGAS’ contract with The Medical Center.

The Medical Center subsequently began recruitment of physicians for its restructured department and eventually selected several former CGAS physicians to join it. None of the four Plaintiffs were selected, and their affiliation with The Medical Center ended on August 31, 2003. As of January 1, 2004, The Medical Center had entered into an exclusive anesthesiology services contract with The Nexus Medical Group, LLC, a corporation formed in November 2003 and comprised of the former CGAS physicians, and some non-CGAS physicians, who had been selected by The Medical Center for its restructured anesthesiology department.

Alleging that the restructuring at The Medical Center and formation of Nexus were effectuated as part of a scheme to expel Plaintiffs from their practice in retaliation for bringing to light the billing issues, Plaintiffs thereafter filed suit seeking damages for breach of fiduciary duty, fraud, and other claims. Named as defendants were (1) Alvin Sewell, M.D., Miles H. McDonald, M.D., and Sanjiwan Tarabadkar, M.D., all former CGAS physicians who subsequently practiced at The Medical Center through Nexus (“the CGAS Defendants“); (2) The Medical Center and two of its officers (“the Medical Center Defendants“); and (3) Nexus.

Amidst several years of discovery, various motions for summary judgment were filed and hearings were held. In November 2011, the trial court issued an order granting summary judgment to Defendants on all of Plaintiff Cancel‘s claims. Cancel filed a timely notice of appeal from this order. Prior to the filing of Cancel‘s notice of appeal, the trial court issued a second order, denying Nexus’ motion for summary judgment as to the remaining Plaintiffs. After the filing of the notice of appeal, the trial court issued the last of its summary judgment orders, denying the motions filed by the CGAS Defendants and The Medical Center Defendants as to the remaining Plaintiffs.

Thereafter, Nexus and the CGAS Defendants filed a notice of cross-appeal, challenging the orders denying them summary judgment. A few days later, the Medical Center Defendants filed their own notice of cross-appeal. The Court of Appeals consolidated the appeal and cross-appeals and issued a single opinion in which it affirmed the grant of summary judgment against Cancel; reversed the denial of summary judgment against Nexus; and dismissed the cross-appeals of the CGAS Defendants and the Medical Center Defendants. . Dismissal of the cross-appeals was premised on the Court of Appeals’ conclusion that it had no jurisdiction to consider them because they sought to challenge orders issued after the filing of Cancel‘s notice of appeal. . The Court of Appeals reasoned that

to hold otherwise would permit a cross-appellant (the party often with no right to directly appeal) to challenge rulings entered during the 15 days after the filing of the appellant‘s notice of appeal, whereas it is axiomatic that the appellant (the party with the right to a direct appeal) may not .... We glean no legislative intent for granting favor in that manner to cross-appellants over appellants.

(Emphasis in original.) . Having reviewed the relevant provisions of the Appellate Practice Act, OCGA § 5-6-30 et seq., we disagree with this conclusion and reverse.1

The Appellate Practice Act begins with the command that “this article shall be liberally construed so as to bring about a decision on the merits of every case appealed.” OCGA § 5-6-30. In so prescribing, we have held, the Act disfavors “multiple appeals and piecemeal litigation.” . In authorizing cross-appeals in civil cases, the Act provides that

the appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant; and the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him; and in no case shall the appellee be required to institute an independent appeal on his own right, although the appellee may at his option file an independent appeal.

(Emphasis supplied.) OCGA § 5-6-38 (a).

Construing this provision in conjunction with the command to liberally construe the Act, this Court has held unequivocally that a properly filed cross-appeal will lie even as to an order that would not be directly appealable on its own. See (permitting cross-appeal challenging denial of motion to dismiss even though interlocutory application would be required to appeal that order independently); accord (following Executive Jet, refusing to dismiss cross-appeal challenging denial of motion for summary judgment despite interlocutory nature thereof); see also (applying rationale of Executive Jet in holding that defendant appealing grant of summary judgment to plaintiff on defendant‘s counterclaim could also raise on appeal the denial of defendant‘s motion for summary judgment against plaintiff, even though not independently appealable). This principle holds true even where the cross-appeal involves parties to the litigation other than the parties specifically involved in the main appeal. . See also OCGA § 5-6-37 (providing that “[a]ll parties to the proceedings in the lower court shall be parties on appeal“).

The Court of Appeals has held that, to be cognizable, a cross-appeal must be ” ‘tied to the appeal of an appealable order.’ ” (dismissing cross-appeal regarding one defendant‘s contract cross-claim against co-defendant because it was not “tied to” main appeal involving fraud claims against both defendants). See also (noting that cross-appeal on interlocutory ruling was permissible because it was “tied to the appeal of an appealable order“). Though no opinion invoking this “tied to” standard has ever elaborated on the precise meaning of this language, it seems clear that the court in Fulton v. Pilon construed it as requiring some factual nexus between the issues raised in the main appeal and those raised in the cross-appeal. .

The “tied to” standard appears nowhere in the text of OCGA § 5-6-38 (a). Rather, it traces back to language from our opinion in Southeast Ceramics, in which we framed “[t]he first question” in the case as “whether the denial of a motion for summary judgment can be appealed without application when it is tied to the appeal of an appealable order or judgment.” . In concluding that the non-final denial of summary judgment could be reviewed in the course of the main appeal, the Court made no further mention of a “tied to” standard; rather, the holding of the case is stated simply as:

when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.

. This holding tracks closely the language of current OCGA § 5-6-34 (d), the predecessor of which we cited in reaching our conclusion in Southeast Ceramics. Considering this “tied to” language in its proper context, we conclude that it was intended simply to connote a jurisdictional link, not a factual one, between the non-directly appealable issues and the directly appealable ones. Thus, we now clarify that a cross-appeal that is filed in a timely and otherwise procedurally proper manner need not be factually related to the issues raised in the main appeal; rather, as the statute states, the cross-appeal may involve “all errors or rulings adversely affecting” the appellee. OCGA § 5-6-38 (a). To the extent Fulton v. Pilon and other cases have required otherwise, those cases are overruled.2

The remaining question is one of timing. Appellees claim that the CGAS Defendants and The Medical Center Defendants are not authorized to challenge in their cross-appeal any orders the trial court issued after the filing of the original notice of appeal. The Court of Appeals agreed with this argument. However, this position finds no basis in the text of OCGA § 5-6-38 (a), and the Court of Appeals has previously acknowledged as much. See (order denying summary judgment was properly raised on cross-appeal, where order was issued after appellants’ notice of appeal was filed but prior to timely notice of cross-appeal). We therefore hold that an appellee may raise in a cross-appeal any adverse rulings issued prior to the filing of a timely notice of cross-appeal.3

In light of the above, we conclude that the Court of Appeals erred in dismissing the cross-appeals of the CGAS Defendants and The Medical Center Defendants.4 Accordingly, we reverse and remand for further proceedings below.

Judgment reversed and case remanded. Thompson, C. J., Hines, P. J., Benham, Melton, Blackwell, JJ., and Judge Amanda Harper Mercier concur. Nahmias, J., disqualified.

DECIDED JUNE 2, 2014.

Holland & Knight, Alfred B. Adams III, Cynthia G. Burnside, Heather A. Calhoun, Leland H. Kynes, Conley Griggs Partin, Ranse M. Partin, King & Spalding, W. Ray Persons, Richard L. Shackelford, for appellants.

George W. McGriff & Associates, George W. McGriff, Eric E. Wyatt, Nicholas G. Dumich, for appellees.

Notes

1
Our standard of review of this purely legal issue is de novo. See .
2
Although the letter brief is not in the record, Wife‘s attorney stated at a hearing that, in her letter brief, Wife requested $20,000 in attorney fees pursuant to OCGA § 19-6-2. See also (appellants could challenge non-final order denying summary judgment as to certain defendants because order was “tied to” directly appealable order granting summary judgment to another defendant); (non-directly appealable orders could be appealed where “tied to the direct appeal“); (dismissing that portion of appeal seeking to challenge non-final ruling on plaintiff‘s contract claim against one defendant because it was not “tied to” the appealable order on his tort claim against other defendants); (noting that denial of motion for summary judgment may be appealed without application where it is “tied to” appeal of appealable order). Though not involving cross-appeals, we question the continued viability of the holdings in these cases in light of our conclusion herein.
3
Because our holding rests on our interpretation of the statutory provision governing cross-appeals, it is not affected by, nor does it necessarily affect, our precedent involving attempts by appellants to effectively amend the original notice of appeal to encompass orders subsequently issued. Compare, e.g., (post-judgment award of attorney fees under OCGA § 9-15-14 may be reviewed as part of main appeal, even if issued after filing of the notice of appeal of the underlying judgment), with, e.g., (order holding appellant in contempt of underlying judgment was not properly raised in main appeal because it was rendered subsequent to the judgment appealed from).
4
There is no dispute that all the cross-appeals were filed within the 15-day period required under OCGA § 5-6-38 (a), in light of the additional three days afforded for service by mail, see OCGA § 9-11-6 (e), and accounting for State holidays, see OCGA § 1-3-1 (d) (3).
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