HAROLD SHELBY SHOUSE JR v. HAROLD SHELBY SHOUSE JR (2025)

Upon consideration of the APPELLANT'S Motion for Reconsideration in the above styled case, it is ordered that the motion is hereby DENIED.

I respectfully dissent from the majority's denial of Appellant's motion to reconsider our order of dismissal.

Our rules say that we have discretion to dismiss appeals for untimely briefing. Court of Appeals Rule 23 (a) (“Appellant's brief shall be filed within 20 days after the appeal is docketed. Failure to file within that time, unless extended upon motion for good cause shown, may result in the dismissal of the appeal, and may subject the offending party and/or counsel to sanctions, including contempt.”). This case, in my view, would present a compelling case to exercise that discretion in the appellant's favor.

Appellant, who is proceeding pro se, filed his brief timely — but filed it in the trial court. Unaware of that filing, we entered an order of dismissal. Promptly thereafter, Appellant moved for reconsideration and then filed his brief in this court. I find it hard to imagine a stronger case for the exercise of such discretion in favor of leniency.

But we do not in fact have discretion to dismiss cases as a penalty for untimely briefing. The General Assembly has explicitly withheld and withdrawn that authority. The Appellate Practice Act permits dismissal of an appeal for only three reasons, and tardy briefing is conspicuously absent from the list.

No appeal shall be dismissed or its validity affected for any cause nor shall consideration of any enumerated error be refused, except: (1) For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder; (2) Where the decision or judgment is not then appealable; or (3) Where the questions presented have become moot.

OCGA § 5-6-48 (b).

Not only does the current version of OCGA § 5-6-48 (b) withhold from us authority to dismiss on the basis of tardy briefing, the statutory history of the Appellate Practice Act establishes that the General Assembly explicitly withdrew that authority. The corresponding provision of that Act as originally enacted and amended in 1965 included a fourth authorized reason for dismissal,“where no enumeration of errors relied upon is filed by appellant with the clerk of the appellate court within the time prescribed by Section 14 hereof.” Ga. Laws 1965, pp. 18, 240, § 13 (b) (4). See Close v. Walker Land Corp., 221 Ga. 329, 330 (2) (145 SE2d 245) (1965) (dismissing appeal pursuant to Appellate Practice Act of 1965 for failure to timely file enumeration of errors). That fourth authorized reason for dismissal was removed in the 1966 clean-up bill. See Ga. Laws 1966, p. 493, § 10.

In his Georgia State Bar Journal article explaining the 1966 changes, attorney E. Freeman Leverett, who was instrumental in drafting the Appellate Practice Act, offered an explanation.

[T]he Supreme Court unfortunately has seized upon [former § 13 (b)] as imposing upon it a mandate to dismiss appeals where enumeration of errors was not filed within the time required by the court's rules. See Windsor v. Southeastern Adjusters Inc., 221 Ga. 329; Close v. Walker Land Corp., [supra]; Davenport et al v. Hall, 221 Ga. 543; Undercofler v. McLennan, 221 Ga. [613].

E. Freeman Leverett, 1966 Amendments to the Appellate Procedure Act of 1965, 2 Ga. State Bar J., 433, 442-443 (1966).

Leverett went on recognize that the Supreme Court had indicated that it would not abide by that change.

In view of the language of the Preamble and Rule 8 of the court's revised rules, see 220 Ga. 909, 910, it cannot safely be said that the court will modify its position in cases where the enumeration is not filed within the time required by its rules, but at least the court must now assume responsibility for any dismissals, and not impute them to the legislature.

Id. at 443.

The preamble and that rule do in fact announce the 1965 Supreme Court's defiance of the Appellate Practice Act. The Preamble begins by quoting the 1945 Constitution of Georgia (Code Ann. § 2-3707; Const. of 1945), which provided, “The Supreme Court shall have the power to hear and determine cases when sitting as a body, under such regulations as may be prescribed by it.” 220 Ga. 909. On the basis of that constitutional language, Rule 8, which is entitled Judgments and dismissals, provided, “Once a case is filed in this court, it will in the exercise of judicial power conferred upon it by the Constitution (Code Ann. §§ 2-3704, 2-3707; Const. of 1945) render any judgment it thinks proper including judgments of dismissal notwithstanding the provisions of the Appellate Practice Act of 1965.” 220 Ga. 909, 910 (II) (emphasis added). (Leverett goes on to argue that the Supreme Court's constitutional analysis was incorrect, that it was conflating “rules of practice and procedure on the one hand, and ‘regulations’ governing the manner in which the court sits in a body.” Leverett, supra at 444).

The Constitution of 1945 has been superseded, now by the Constitution of 1983, which, in the paragraph setting out the Supreme Court's general appellate jurisdiction, provides: “Review of all cases shall be as provided by law.” Ga. Const. 1983, Art. VI, Sec. 6, Par. III. It is safe to say that our current Supreme Court would not follow the example of their 1965 predecessors. See Walmart Stores East v. Leverette, ___ Ga. ___ (3) (Case No. S24G1104, decided June 24, 2025) (“this Court lacks the power to disregard a duly enacted state statute”). I certainly would not.

I would abide by the duly enacted Appellate Practice Act — even though there are reasonable policy arguments for a rule granting us broader dismissal authority than does OCGA § 5-6-48 (b). (As to those concerns, I would maintain that when an appellant moves to withdraw an appeal or abandons it, we can grant the motion or ratify the abandonment.) So I would grant the appellant's motion for reconsideration of the order dismissing his appeal.

Court of Appeals of the State of Georgia Clerk's Office, Atlanta,____________________

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.

MCFADDEN, PRESIDING JUDGE, DISSENTING