Complete Wiring Solutions, LLC v. Astra Group, Inc.

781 S.E.2d 597, 335 Ga. App. 723, 2016 Ga. App. LEXIS 22
CourtCourt of Appeals of Georgia
DecidedJanuary 26, 2016
DocketA15A2270
StatusPublished
Cited by6 cases

This text of 781 S.E.2d 597 (Complete Wiring Solutions, LLC v. Astra Group, Inc.) 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
Complete Wiring Solutions, LLC v. Astra Group, Inc., 781 S.E.2d 597, 335 Ga. App. 723, 2016 Ga. App. LEXIS 22 (Ga. Ct. App. 2016).

Opinion

ANDREWS, Presiding Judge.

Complete Wiring Solutions, LLC (CWS), and Bill Worley Plumbing, Inc. (BWP), second tier subcontractors on a construction project on public property, filed a complaint pursuant to OCGA §§ 36-91-90 [724]*724to 36-91-95 seeking to recover against a payment bond for amounts due for labor and materials provided on the project.1 After a bench trial, CWS and BWP appeal from the judgment entered by the trial court in favor of the defendants/appellees. Because the appeal to this Court contains no enumeration of errors filed pursuant to OCGA § 5-6-40, the appeal is dismissed.

OCGA § 5-6-40 of the Appellate Practice Act (APA) provides:

The appellant and cross appellant shall file with the clerk of the appellate court, at such time as may be prescribed by its rules, an enumeration of the errors which shall set out separately each error relied upon. The enumeration shall be concise and need not set out or refer to portions of the record on appeal. It shall be served upon the appellee or cross appellee in the manner prescribed in Code Section 5-6-32, need not have approval of the trial court, and when filed shall become a part of the record on appeal. The appellate court, by rule, may permit the enumeration to be made a part of the brief.

As to the enumeration of errors required by OCGA § 5-6-40, Rule 22 (a) of the Georgia Court of Appeals provides that an enumeration of errors separate from the appellant’s brief is not required, and that the enumeration of errors shall be filed as “Part 2 of the appellant’s brief.” See also Court of Appeals Rule 23 (a) (providing that the appellant’s brief “shall contain as Part 2 an enumeration of errors . . .”). In the present appeal, no enumeration of errors was filed separately or as part 2 of the appellants’ brief. Rather, the appellants’ brief contains: (1) a section captioned “Standard of Review” which states the standard of appellate review and includes a general statement that the judgment is not supported by the evidence and is based on erroneous findings of fact; and (2) a section captioned “Statement of Facts” which mixes together asserted facts, claims of error, supporting arguments, and citations to authority. Nothing in the appellants’ brief is sufficient to constitute an “enumeration of errors” required to be filed pursuant to OCGA § 5-6-40.

In Felix v. State, 271 Ga. 534, 537-539 (523 SE2d 1) (1999), the Supreme Court construed the requirement in OCGA § 5-6-40 that an appellant file “an enumeration of the errors which shall set out [725]*725separately each error relied upon.” Felix explained that,

where the enumeration of errors filed in the appellate court identifies the trial court ruling asserted to be error, the error relied upon is sufficiently “set out separately” to require the appellate court to shoulder its constitutional responsibility to be a court of review (1983 Ga. Const., Art. VI, Sec. V, Par. Ill; Art. VI, Sec. VI, Par. II), and its statutory duty “to bring about a decision on the merits of every case appealed. . . OCGA § 5-6-30.

Felix, 271 Ga. at 539. In explaining “what constitutes an ‘error’ which must be set forth in the enumeration of errors” required by OCGA § 5-6-40, Felix notes that an appellate court functions to correct errors of law made by the trial court, and concludes:

An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § -5-6-40. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. Lee v. State, 265 Ga. 112 (8) (454 SE2d 761) (1995); Irvin v. Askew, 241 Ga. 565 (2) (246 SE2d 682) (1978).

Felix, 271 Ga. at 539.

Thus, Felix makes clear that, when an enumeration of error has been filed pursuant to OCGA § 5-6-40, the APA requires a liberal construction of the enumeration, and “that an enumeration of error need be only sufficient to point out the error complained of.” Felix, 271 Ga. at 538 (citations and punctuation omitted). Liberal construction of an enumeration of error filed pursuant to OCGA § 5-6-40 is consistent with the requirement in OCGA § 5-6-30 that the APA be “liberally construed so as to bring about a decision on the merits of every case appealed,” and with the duty imposed on appellate courts under OCGA § 5-6-48 (f) “to discern what errors an appellant is attempting to articulate.” Felix, 271 Ga. at 538. Accordingly, where an enumeration of errors is filed pursuant to OCGA § 5-6-40 which sets forth and “identifies the trial court ruling asserted to be error,” the APA provides:

“[If] the enumeration of errors fails to enumerate clearly the errors sought to be reviewed[,]” the appellate court is nonetheless required to consider the appeal “where it is apparent [726]*726from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing,... what errors are sought to be asserted upon appeal....” OCGA § 5-6-48 (f).

Felix, 271 Ga. at 538. Although Felix recognizes that the APA is liberally construed to promote decisions on the merits of asserted error, the decision also confirms that, before appellate review under the APA is permissible, an appellant must file an enumeration of error pursuant to OCGA § 5-6-40 that sets forth and identifies a specific trial court ruling alleged to be erroneous.

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Cite This Page — Counsel Stack

Bluebook (online)
781 S.E.2d 597, 335 Ga. App. 723, 2016 Ga. App. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/complete-wiring-solutions-llc-v-astra-group-inc-gactapp-2016.