AMERICAN PLUMBING PROFESSIONALS, INC. v. SERVESTAR, LLC

• Court: Court of Appeals of Georgia
• Decided: March 13, 2023
• Docket: A23A0451
• Status: Published

Opinion

THIRD DIVISION RICKMAN, C. J., MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

March 13, 2023

In the Court of Appeals of Georgia A23A0451. AMERICAN PLUMBING PROFESSIONALS, INC. v. SERVESTAR, LLC et al.

PHIPPS, Senior Appellate Judge.

For a second time, plaintiff American Plumbing Professionals, Inc. (“APP”)

appeals from the trial court’s order granting summary judgment to defendants Aaron

Miller and ServeStar, LLC (collectively, “ServeStar”), in this case involving the

validity of a non-compete covenant in an employment agreement. In the first appeal,

we reversed the trial court’s ruling that the covenant was void because it was

geographically vague in scope, and we remanded for the court to consider whether

the covenant was unenforceable for other reasons. American Plumbing Professionals

v. ServeStar, 363 Ga. App. 392 (870 SE2d 518) (2022) (“American Plumbing I”). The

trial court then entered a second summary judgment order, finding the covenant to be void on different grounds, and APP appeals again. For the reasons explained below,

we must vacate the second summary judgment order.

We issued our opinion in American Plumbing I on March 4, 2022. See 363 Ga.

App. 392. ServeStar filed a motion for reconsideration, which we denied on March

23, 2022. ServeStar then filed a notice of intention to apply to the Supreme Court of

Georgia for a writ of certiorari, so we did not issue a remittitur. See Court of Appeals

Rule 39 (a) (“Remittiturs will be transmitted to the clerk of the trial court as soon as

practicable after the expiration of 10 days from the date of the judgment, unless

otherwise ordered or unless a motion for reconsideration or notice of intention to

apply to the Supreme Court of Georgia for writ of certiorari has been filed.”). See also

Tavakolian v. Agio Corp., 309 Ga. App. 652, 653 (1) (711 SE2d 33) (2011).

Nevertheless, the trial court entered a second summary judgment order — the order

at issue here — on August 15, 2022. APP then filed the instant appeal, which was

docketed on October 12, 2022. On February 7, 2023, the Supreme Court denied

ServeStar’s certiorari petition in American Plumbing I. The Supreme Court issued its

remittitur to this Court on February 23, 2023, and we issued our remittitur to the trial

court the same day.

2 An appellate court retains jurisdiction over a case until it has “issued the

remittitur and [the remittitur] has been received and filed in the clerk’s office of the

court below[.]” Chambers v. State, 262 Ga. 200, 201-202 (2) (415 SE2d 643) (1992).

“Until the trial court receives and files the remittitur, it does not have jurisdiction to

act.” Morris v. Morris, 226 Ga. App. 799, 799 (487 SE2d 528) (1997). See also

Tavakolian, 309 Ga. App. at 653 (1). Further, we cannot “ignore the nullity of a trial

court’s decision. The order cannot be affirmed at this juncture even if the record

supports the court’s decision.” Morris, 226 Ga. App. at 800 (citation omitted).

Accordingly, the trial court’s order of August 15, 2022 — issued before that court

received the remittitur in American Plumbing I — is a nullity and must be vacated.

See, e.g., Kool Smiles/NCDR v. Gonzalez, 342 Ga. App. 503, 504 (1) (803 SE2d 795)

(2017) (trial court order that is a nullity must be vacated).

Judgment vacated. Rickman, C. J., and McFadden, P. J., concur.