THIRD DIVISION BARNES, P. J., BOGGS and BRANCH, JJ.
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. http://www.gaappeals.us/rules/
August 15, 2014
In the Court of Appeals of Georgia A14A1479. GOODRICH v. BANK OF AMERICA, N.A.
BARNES, Presiding Judge.
Marilyn E. Goodrich sued Bank of America, N.A., on December 1, 2011 to
enjoin the then-pending foreclosure on her property. The litigation has followed a
long and tortuous path through the courts, and is now before us on Goodrich’s direct
appeal of the dismissal of her previous appeal for failure to pay costs. Goodrich has
filed separate cases in federal court on her wrongful foreclosure claim and in superior
court on her wrongful dispossessory claim. In this case Goodrich sought an injunction
against the foreclosure, but because the foreclosure was completed more than two
years ago, the issue is moot. Accordingly, this appeal is dismissed.
Goodrich has filed several appeals in this case. In April 2012, she filed a direct
appeal of the trial court’s March 15, 2012, order requiring her to pay past-due
mortgage payments into the court registry before the court would entertain her petition for an injunction. Acting upon the bank’s motion, the trial court dismissed
that appeal in October 2012 on the ground that Goodrich should have obtained a
certificate of immediate review and filed an application for interlocutory appeal under
OCGA § 5-6-34 (b) rather than a direct appeal.
Goodrich then filed an application for a discretionary appeal. Because the
dismissal of an appeal by a trial court is directly appealable, Castleberry’s Food Co.
v. Smith, 205 Ga. App. 859, 860 (424 SE2d 33) (1992), this court granted the
application and directed Goodrich to file a notice of appeal with the trial court within
ten days if she had not already done so. Consequently, Goodrich filed a notice of
direct appeal with the trial court on December 5, 2012. In May 2013, the bank moved
the trial court to dismiss Goodrich’s notice of appeal for failure to pay costs. After a
hearing in September 2013, the trial court granted the bank’s motion to dismiss the
appeal on October 9, 2013, finding that Goodrich had failed to pay costs and failed
to rebut the presumption that her delay of more than eight months in paying costs was
unreasonable and inexcusable.
Goodrich then filed a notice of appeal from the trial court’s order dismissing
her appeal, designating a list of pleadings for inclusion in the record. She filed
amended notices of appeal on October 30, 2013, and November 14, 2013. Then, on
2 December 4, 2013, Goodrich filed her fourth amended notice of appeal, this time to
the Georgia Supreme Court instead of the Court of Appeals. She stated in the notice
that the trial court’s orders “changed the jurisdiction from the GA Court of Appeals
to the GA Supreme Court because of the issue of access to the Appellate Courts found
in the GA Constitution Bill of Rights Article I, Section I, Paragraph XII.” She
directed the trial court clerk to omit everything from the record except her notices of
appeal and a transcript of the hearing on March 15, 2012, because she had filed a
Record Appendix with the Supreme Court of Georgia.
In March 2014, the Supreme Court of Georgia transferred Goodrich’s appeal
to this court by order, holding that even if Goodrich’s allegation — that the lower
court was denying her access to the appellate courts — was true, the Supreme Court
had no jurisdiction over the appeal because the issue was not raised or ruled on at the
trial court level. This appeal was thus docketed in this court on April 15, 2014.
Goodrich has enumerated ten errors challenging the propriety of the trial
court’s March 15, 2012, order requiring Goodrich to pay past-due mortgage payments
into the court registry or its order dismissing her October 2012 appeal, the merits of
the bank’s assignment of the note secured by Goodrich’s property, the denial of her
motion to consolidate this case with the dispossessory case, the validity of the court’s
3 electronic signature on an order, and the court’s failure to set a hearing “to determine
the contents of the Record to be forwarded to [the] Appellate Courts.” Before we
consider whether these enumerations have merit, we must first consider the bank’s
motion to dismiss this appeal as moot.
“It is a rather fundamental rule of both equitable jurisprudence and appellate
procedure, that if the thing sought to be enjoined in fact takes place, the grant or
denial of the injunction becomes moot.” Jackson v. Bibb County School Dist., 271
Ga. 18, 19 (515 SE2d 151) (1999); Adams v. Smith, 240 Ga. 436, 437 (241 SE2d 1)
(1978). “A case is moot when its resolution would amount to the determination of an
abstract question not arising upon existing facts or rights. To prevent such an appeal
from becoming moot the appealing party must obtain a supersedeas” to stay the
transaction. (Citations and punctuation omitted.) Brown v. Spann, 271 Ga. 495, 496
(520 SE2d 909) (1999).
In her initial complaint, Goodrich sought to enjoin the foreclosure of her
property, arguing that errors in the assignment of the security deed and note should
prevent the bank from being a party to the foreclosure. She asked for no other relief.
She obtained a temporary protective order, and upon the bank’s motion to dissolve
the protective order or require her to pay the past-due mortgage payments into the
4 court registry, the trial court ordered the latter by April 2, 2012, and held the petition
for an injunction “in abeyance” until the parties returned for a hearing on April 3,
2012 to address the status of the payments. Goodrich did not make payment into the
court registry, instead filing a notice of appeal on April 3, 2012. Goodrich filed a
motion on April 11, 2012, to set aside the foreclosure that took place after 10:00 a.m.
on April 3, 2012, arguing that “Cobb County did not have jurisdiction in this matter
at the time of the auction” because she had filed a notice of appeal at 9:48 a.m. that
morning. She also argued that the bank was not a secured creditor because of the
allegedly improper assignment and that the bank had no equitable claim because it
made a demand for full payment of the loan knowing that the trial court had ordered
her to pay less than that into the court registry.
Goodrich has been attempting to appeal the trial court’s March 15, 2012 order
since April 3, 2012. But the only relief she requested in her initial complaint was to
enjoin the foreclosure. Further, Goodrich stated both in her initial brief to this court
and in her response to the bank’s motion to dismiss that she has a case pending in
federal court for wrongful foreclosure, which she filed on January 23, 2013, “because
of delays caused by Bank of America” in this case. The federal court has abstained
from ruling further and suspended discovery, according to Goodrich, but that case
5 may be re-opened per order of the district court judge once this case has completed
its journey through the state court system.
We agree with the bank that the questions presented in this appeal are moot
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THIRD DIVISION BARNES, P. J., BOGGS and BRANCH, JJ.
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. http://www.gaappeals.us/rules/
August 15, 2014
In the Court of Appeals of Georgia A14A1479. GOODRICH v. BANK OF AMERICA, N.A.
BARNES, Presiding Judge.
Marilyn E. Goodrich sued Bank of America, N.A., on December 1, 2011 to
enjoin the then-pending foreclosure on her property. The litigation has followed a
long and tortuous path through the courts, and is now before us on Goodrich’s direct
appeal of the dismissal of her previous appeal for failure to pay costs. Goodrich has
filed separate cases in federal court on her wrongful foreclosure claim and in superior
court on her wrongful dispossessory claim. In this case Goodrich sought an injunction
against the foreclosure, but because the foreclosure was completed more than two
years ago, the issue is moot. Accordingly, this appeal is dismissed.
Goodrich has filed several appeals in this case. In April 2012, she filed a direct
appeal of the trial court’s March 15, 2012, order requiring her to pay past-due
mortgage payments into the court registry before the court would entertain her petition for an injunction. Acting upon the bank’s motion, the trial court dismissed
that appeal in October 2012 on the ground that Goodrich should have obtained a
certificate of immediate review and filed an application for interlocutory appeal under
OCGA § 5-6-34 (b) rather than a direct appeal.
Goodrich then filed an application for a discretionary appeal. Because the
dismissal of an appeal by a trial court is directly appealable, Castleberry’s Food Co.
v. Smith, 205 Ga. App. 859, 860 (424 SE2d 33) (1992), this court granted the
application and directed Goodrich to file a notice of appeal with the trial court within
ten days if she had not already done so. Consequently, Goodrich filed a notice of
direct appeal with the trial court on December 5, 2012. In May 2013, the bank moved
the trial court to dismiss Goodrich’s notice of appeal for failure to pay costs. After a
hearing in September 2013, the trial court granted the bank’s motion to dismiss the
appeal on October 9, 2013, finding that Goodrich had failed to pay costs and failed
to rebut the presumption that her delay of more than eight months in paying costs was
unreasonable and inexcusable.
Goodrich then filed a notice of appeal from the trial court’s order dismissing
her appeal, designating a list of pleadings for inclusion in the record. She filed
amended notices of appeal on October 30, 2013, and November 14, 2013. Then, on
2 December 4, 2013, Goodrich filed her fourth amended notice of appeal, this time to
the Georgia Supreme Court instead of the Court of Appeals. She stated in the notice
that the trial court’s orders “changed the jurisdiction from the GA Court of Appeals
to the GA Supreme Court because of the issue of access to the Appellate Courts found
in the GA Constitution Bill of Rights Article I, Section I, Paragraph XII.” She
directed the trial court clerk to omit everything from the record except her notices of
appeal and a transcript of the hearing on March 15, 2012, because she had filed a
Record Appendix with the Supreme Court of Georgia.
In March 2014, the Supreme Court of Georgia transferred Goodrich’s appeal
to this court by order, holding that even if Goodrich’s allegation — that the lower
court was denying her access to the appellate courts — was true, the Supreme Court
had no jurisdiction over the appeal because the issue was not raised or ruled on at the
trial court level. This appeal was thus docketed in this court on April 15, 2014.
Goodrich has enumerated ten errors challenging the propriety of the trial
court’s March 15, 2012, order requiring Goodrich to pay past-due mortgage payments
into the court registry or its order dismissing her October 2012 appeal, the merits of
the bank’s assignment of the note secured by Goodrich’s property, the denial of her
motion to consolidate this case with the dispossessory case, the validity of the court’s
3 electronic signature on an order, and the court’s failure to set a hearing “to determine
the contents of the Record to be forwarded to [the] Appellate Courts.” Before we
consider whether these enumerations have merit, we must first consider the bank’s
motion to dismiss this appeal as moot.
“It is a rather fundamental rule of both equitable jurisprudence and appellate
procedure, that if the thing sought to be enjoined in fact takes place, the grant or
denial of the injunction becomes moot.” Jackson v. Bibb County School Dist., 271
Ga. 18, 19 (515 SE2d 151) (1999); Adams v. Smith, 240 Ga. 436, 437 (241 SE2d 1)
(1978). “A case is moot when its resolution would amount to the determination of an
abstract question not arising upon existing facts or rights. To prevent such an appeal
from becoming moot the appealing party must obtain a supersedeas” to stay the
transaction. (Citations and punctuation omitted.) Brown v. Spann, 271 Ga. 495, 496
(520 SE2d 909) (1999).
In her initial complaint, Goodrich sought to enjoin the foreclosure of her
property, arguing that errors in the assignment of the security deed and note should
prevent the bank from being a party to the foreclosure. She asked for no other relief.
She obtained a temporary protective order, and upon the bank’s motion to dissolve
the protective order or require her to pay the past-due mortgage payments into the
4 court registry, the trial court ordered the latter by April 2, 2012, and held the petition
for an injunction “in abeyance” until the parties returned for a hearing on April 3,
2012 to address the status of the payments. Goodrich did not make payment into the
court registry, instead filing a notice of appeal on April 3, 2012. Goodrich filed a
motion on April 11, 2012, to set aside the foreclosure that took place after 10:00 a.m.
on April 3, 2012, arguing that “Cobb County did not have jurisdiction in this matter
at the time of the auction” because she had filed a notice of appeal at 9:48 a.m. that
morning. She also argued that the bank was not a secured creditor because of the
allegedly improper assignment and that the bank had no equitable claim because it
made a demand for full payment of the loan knowing that the trial court had ordered
her to pay less than that into the court registry.
Goodrich has been attempting to appeal the trial court’s March 15, 2012 order
since April 3, 2012. But the only relief she requested in her initial complaint was to
enjoin the foreclosure. Further, Goodrich stated both in her initial brief to this court
and in her response to the bank’s motion to dismiss that she has a case pending in
federal court for wrongful foreclosure, which she filed on January 23, 2013, “because
of delays caused by Bank of America” in this case. The federal court has abstained
from ruling further and suspended discovery, according to Goodrich, but that case
5 may be re-opened per order of the district court judge once this case has completed
its journey through the state court system.
We agree with the bank that the questions presented in this appeal are moot
because the foreclosure Goodrich sought to enjoin has already taken place. While
Goodrich argues in her response to the motion to dismiss that other issues remain, a
review of her initial petition confirms that, while Goodrich raised arguments about
the validity of the bank’s loan assignment, the only relief she sought was an
injunction. This issue is therefore moot, and this appeal is therefore dismissed. See
Faulkner v. Ga. Power Co., 241 Ga. 618, 621 (247 SE2d 80) (1978) (appeal moot
because “no injunction pending appeal was sought and the act sought to be restrained
was completed during the pendency of the appeal”); Cotton v. First Nat. Bank, 235
Ga. 511, 512 (220 SE2d 132) (1975) (“[T]he injunctive relief sought by plaintiffs, and
which was denied by both courts, was to stop the foreclosure. The foreclosure sale
has taken place. Thus, the very event sought to be restrained from happening has in
fact occurred.”); Brown v. Auchmuty, 232 Ga. 879 (209 SE2d 209) (1974) (appeal
dismissed because construction of house appellant sought to enjoin had been
completed).
6 Appellant’s motion to dismiss the appeal as moot is hereby GRANTED.1
Appeal dismissed. Boggs, and Branch, JJ., concur.
1 Goodrich’s “motion for determination of jurisdiction” regarding her claim that she was denied access to the appellate court when the trial court twice dismissed her notices of appeal, “motion to correct docketing clerical error” regarding the identity of counsel for the bank, and motion to supplement the record are hereby DENIED.