Cherry v. Moreton Rolleston, Jr. Living Trust

616 S.E.2d 157, 273 Ga. App. 876, 2005 Fulton County D. Rep. 1919, 2005 Ga. App. LEXIS 631
CourtCourt of Appeals of Georgia
DecidedJune 22, 2005
DocketA05A1512
StatusPublished
Cited by3 cases

This text of 616 S.E.2d 157 (Cherry v. Moreton Rolleston, Jr. Living Trust) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cherry v. Moreton Rolleston, Jr. Living Trust, 616 S.E.2d 157, 273 Ga. App. 876, 2005 Fulton County D. Rep. 1919, 2005 Ga. App. LEXIS 631 (Ga. Ct. App. 2005).

Opinion

Johnson, Presiding Judge.

John Randolph Cherry, as executor of the estate of Rebecca Wight Cherry Sims, appeals the trial court’s order vacating in part the trial court’s previous orders in an action by Moreton Rolleston, Jr. and Moreton Rolleston, Jr. Living Trust against Jacquelyn Barrett, as Sheriff of Fulton County. We reverse because the trial court’s modification of its previous order was made after the term of the court in which it was entered, was not the correction of a clerical mistake, and was not otherwise challenged in a manner permitted by OCGA § 9-11-60.

[877]*877The record shows that Rolleston and the Rolleston trust sued Barrett seeking a temporary restraining order and temporary and permanent injunction prohibiting Barrett, as the Sheriff of Fulton County, from executing writs of fieri facias on certain property described in the complaint (the “Rolleston property”). The Sims estate, through Cherry, as executor, moved to intervene on the grounds that it had an interest in the Rolleston property through a previous judgment against Rolleston. On May 5, 2003 and May 19, 2003,1 the trial court entered orders denying the Rolleston plaintiffs’ motion for a temporary restraining order and granting the Sims estate’s motions to intervene and for declaratory judgment and injunctive relief. In particular, the trial court ordered the Fulton County Sheriff to proceed with an advertised sale of the Rolleston property on May 6, 2003, notwithstanding that it had been shown at the May 5, 2003 hearing on the Sims estate’s motions that the United States Marshal had also advertised the property for sale on May 6, 2003 to satisfy a judgment against Rolleston by Tunnelite, Inc.2

On January 6, 2005, Robert C. Koski, the President and CEO of Tunnelite, wrote a letter to the trial court in which he contended that the trial court had entered certain findings of fact and law in its May 2003 orders which were both erroneous and adverse to the interests of Tunnelite, a nonparty. In particular, Koski objected to the trial court’s finding that the Rolleston property “has been in custodia legis of the Fulton County Sheriff continuously since [July 1, 2002] and is immune to process from the federal court.” Koski claimed that the Sims estate had relied on these findings in separate litigation contesting Tunnelite’s right to collect funds it had recovered on its writ of execution with respect to the Rolleston property despite this court’s finding in Tunnelite, Inc. v. Estate of Sims3 that Tunnelite’s lien had priority over the lien of the Sims estate. Koski further admitted that Tunnelite, as a nonparty, had no standing to directly request the orders be corrected. He asked that the trial court either withdraw the May 2003 orders as improvidently granted or to amend them sua sponte.

[878]*878On February 28, 2005, the trial court, referring to Koski’s previous correspondence as a request to set aside by Tunnelite, determined that its May 2003 orders had contained factual and legal findings adverse to Tunnelite and had the effect of granting relief against a party over whom the court did not have jurisdiction. The trial court then vacated the May 2003 orders to the extent they found the Rolleston property to have been in custodia legis of the Fulton County sheriff and immune to process by the federal court.

Cherry has appealed the February 28, 2005 order, contending that the trial court erred in vacating its May 2003 orders because the statutory requirements for setting aside a judgment pursuant to OCGA § 9-11-60 were not met.4 We agree.

OCGA § 9-11-60 (a) states: “A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.” OCGA § 9-11-60 provides the exclusive means for attacking a judgment.5 Setting aside the question of whether Koski’s letter to the trial court may be considered an attack in “court” contemplated by OCGA § 9-11-60 (a), the May 2003 orders are not void on their face. “[T]he Supreme Court has expressly limited judgments void on their faces under [OCGA § 9-11-60 (a)] to those judgments which lack either personal or subject matter jurisdiction.”6 The trial court had personal jurisdiction over the parties to the case, and the action was within the class of cases subject to the trial court’s jurisdiction.7 Tunnelite was a nonparty over which the trial court had no jurisdiction, but the factual findings and legal conclusions contained in the May 2003 orders are not conclusive as to Tunnelite.8 As the May 2003 orders [879]*879were not void on their face, the orders were only subject to attack through motion in the court of rendition.9

Although the trial court found good cause to set aside the May 2003 orders under authority of OCGA § 9-11-60 (d), motions to set aside under this subsection must be brought by a party to the action and upon reasonable notice to the other parties.10 Consistent with these requirements, Koski did not purport to make a motion to set aside on behalf of Tunnelite in his correspondence to the trial court, but instead asked the trial court to act on its own initiative. Cherry did not receive notice, as contemplated by OCGA § 9-11-60 (f), that the May 2003 judgments were being challenged in court through a motion to set aside, but only copies of correspondence which had not then been filed of record and in which the writer expressly states that “as a non-party, Tunnelite has no standing to make ... a request [to petition for the correction of the May 2003 orders].” Accordingly, the trial court had no grounds to consider Koski’s correspondence to be a motion to set aside under OCGA § 9-11-60 (d) and to enter its judgment on that basis, but could only act consistent with its inherent power to modify or amend its judgment.

The trial court has the inherent power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify, or vacate the judgment.11 “[T]his authority does not extend beyond the same term of court, unless a motion to modify or vacate, et cetera, was filed within the same term of court.”12 The May 2003 orders were not modified within the term of court in which they were rendered or pursuant to a party’s request made during that term.13

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Bluebook (online)
616 S.E.2d 157, 273 Ga. App. 876, 2005 Fulton County D. Rep. 1919, 2005 Ga. App. LEXIS 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-moreton-rolleston-jr-living-trust-gactapp-2005.