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Wal-Mart Stores, Inc. Et Al V. Parker And Timely Appeals

July 04, 2007 BY Dean Dellinger

            In Wal-Mart Stores, Inc. et al v. Parker, A06A2277 (2007), the Court of Appeals ruled that it was error for the superior court to deny the Employer and Insurer’s motion to have a judgment vacated and reentered so they could seek appeal in the Court of Appeals.

            Here, the Claimant was awarded income benefits by the administrative law judge.  The Employer and Insurer appealed to the full board which adopted in part and vacated in part the ALJ’s decision.  The Claimant appealed the portion of the award vacated by the full board to the superior court and the case was docketed for August 5, 2005.  After the oral argument on September 6, 2005, the superior court reversed the board’s award and reinstated the award of the ALJ on September 26, 2005. 

            Unfortunately, neither the employer and insurer nor the claimant received the order reversing the board’s award.  Eventually the Claimant’s attorney contacted the superior court at which time it was discovered that a judgment had been entered.  By this time the time to apply for discretionary appeal had expired.  Wal-Mart then filed a motion pursuant to O.C.G.A. §§ 9-11-60(g) and 15-6-21(c) and Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980) seeking to have the superior court judgment vacated and re-entered so they could pursue an appeal in the Court of Appeals. 

            The Employer and Insurer’s motion was primarily based on O.C.G.A. § 9-11-60(g) which states, “Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”  O.C.G.A. § 15-6-21 (c) provides that, pursuant to O.C.G.A. § 9-11-5(a), “it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and notify the attorney or attorneys of the losing party of his or her decision.”  [italics added].  Wal-Mart also cited the Cambron case, which furthered the courts duty and noted that O.C.G.A. § 15-6-21 (c) is not “merely directory” and “where no notice is sent by the trial court or by the clerk to the losing party” “an action may be brought” “to set aside the earlier judgment” “upon a finding that notice was not provided as required.”  The case also noted that once the motion to set aside is granted, the judgment will be re-entered and the thirty day period within which the losing party may appeal begins to run from the date of re-entry.  

            The superior court denied the Wal-Mart’s motion.  The court acknowledged that Wal-Mart did not receive notice pursuant to O.C.G.A. § 15-6-21(c).  However, it still denied their motion citing Taylor Timber Co. v. Baker, 226 Ga. App. 211, 485 S.E.2d 819 (1997).  The superior court determined that under Taylor, if it vacated the order they would lose jurisdiction by operation of law and any subsequently entered order would be a nullity.  The court also stated Wal-Mart knew that the court was required to enter an order with twenty days of hearing and they ignored that rule.  Essentially, the court stated it was the duty of the Employer and Insurer to determine if the court had entered a judgment.  Finally, the superior court reasoned it would be punishing the Claimant if they set aside the order and would be rewarding Wal-Mart for their alleged lack of diligence.

            Wal-Mart then appealed the denial of their motion to the Court of Appeals.  The Court of Appeals determined it was error to deny Wal-Mart’s motion and the superior court improperly relied upon Taylor andO.C.G.A. § 34-9-105(b).  Furthermore, the diligence argument is contrary to Georgia law.  The Court of Appeals looked at O.C.G.A.§ 34-9-105(b) which establishes how a case must be heard within 60 days and a judgment entered within 20 days following that hearing and if not, the order of the board is deemed affirmed by operation of law.  In this case, the matter was heard within 60 days and an order was issued within 20 days, therefore, the Court of Appeals found this matter fell outside the circumstances contemplated in this section.  

The Court of Appeals found Taylor did not apply as well as it contemplated a situation in which the court does not enter a judgment within the timeframe of O.C.G.A. § 34-9-105(b).  Here, the court entered the order in a timely manner.  Therefore, Taylor was also inapplicable. 

Finally, the Court looked at the diligence argument of the superior court.  The Court of Appeals noted the issue is not whether the losing party had knowledge of the judgment, or even worked to obtain that knowledge, but whether the court carried out its duties as imposed by O.C.G.A. § 15-6-21(c).  Here, the superior court failed to carry out that duty.  Also, the Court of Appeals noted that as the court met the time requirements of O.C.G.A. 34-9-105(b), the attempt to speedily resolve workers’ compensation cases would still have been met even if the court vacated and re-entered its judgment. 

Therefore, the Court of Appeals ordered the superior court to grant Wal-Mart’s motion to vacated the order and re-enter the judgment of September 26, 2005.  The thirty day period in which to appeal would then begin to run from the date of re-entry.

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