Brian J. Bree v. Farmers & Merchants Bank

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 14, 2015

The Court of Appeals hereby passes the following order: A15A1036. BREE et al. v. FARMERS & MERCHANTS BANK.

By order dated June 20, 2012, this Court directed the Clerk of Court to remove the appeals in Case Numbers A12A0120, A12A0121, and A12A0122 from the appellate docket, and without prejudice to any party, remand them to the trial court until the stay of proceedings is lifted. The reason for the remand was because one of the parties, GMAC Mortgage, LLC (“GMAC”), had filed a Notice of Bankruptcy on May 23, 2012. On October 14, 2014, Appellants Brian J. Bree and Cynthia D. Bree attempted to file a dismissal without prejudice of GMAC in the trial court and thereafter filed a new notice of appeal. Appellee Farmers & Merchant Bank (“F&M”) has moved to dismiss the appeal on the grounds that GMAC remains a party below and the bankruptcy stay has not been lifted. We agree. It is well settled that “[i]f a plaintiff attempts to voluntarily dismiss less than all the defendants without obtaining leave of court, the dismissal is ineffective.” Kilgore v. Stewart, 307 Ga. App. 374, 375 (705 SE2d 209) (2010). Appellants concede that GMAC remains a party, but now contends that GMAC’s Notice of Bankruptcy did not require a stay of the proceedings because it was not submitted in the form of a request for stay. We find no merit in Appellants’ contentions. Accordingly, we hereby direct that this appeal be DISMISSED without prejudice to any party and that this case be REMANDED to the trial court until the stay of proceedings is lifted. Any party or parties may reinitiate the appeal of this case by timely refiling a new Notice of Appeal within 30 days of the bankruptcy court’s order lifting the stay. See Hoffman v. AC&S, Inc., 248 Ga. App. 608 (1) (548 SE2d

379) (2001); DCA Architects v. American Bldg. Consultants, 203 Ga. App. 598, 599- 600 (1) (417 SE2d 386) (1992). We emphasize that the bankruptcy stay must be lifted by the bankruptcy court in order for this appeal to proceed, even if GMAC is subsequently dismissed by the trial court. As we have previously found, “the rights and obligation of F&M are intertwined with and dependant upon those of GMAC. . . . Thus any decision as to F&M must necessarily involve a decision as to the merits of GMAC’s contentions, which we may not make.” (Case No. A12A0120, order dated June 20, 2012). We further decline to assess frivolous appeal penalties as requested by F&M. However, we would reconsider assessing penalties if another appeal is initiated in violation of this order.

Court of Appeals of the State of Georgia 04/14/2015 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.