William James v. Frederick Bond

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 11, 2019

The Court of Appeals hereby passes the following order: A20A0393. WILLIAM JAMES et al. v. FREDERICK BOND et al.

Frederick and Dawn Bond sued William and Patricia James for a declaratory judgment and other claims related to rights to an easement. On August 15, 2018, the trial court entered an order granting partial summary judgment to the Jameses with respect to the form and dimensions of the easement. The order also denied certain motions filed by the Jameses. On September 5, 2018, the Bonds filed a notice of appeal. That appeal has been docketed in this Court as Case No. A20A0392. On October 2, 2018, the Jameses filed a notice of cross-appeal. We lack jurisdiction over the cross-appeal. Under OCGA § 5-6-38 (a), a notice of cross-appeal must be filed within fifteen days of service of the notice of appeal, with three additional days afforded for service by mail pursuant to OCGA § 9-11-6 (e). Sewell v. Cancel, 295 Ga. 235, 240 n.4 (759 SE2d 485) (2014). If the notice is filed beyond this deadline, the cross-appeal must be dismissed as untimely. See Burns v. Howard, 239 Ga. App. 315, 317 (520 SE2d 491) (1999); Intl. Indem. Co. v. Smith, 178 Ga. App. 4, 5 (2) (342 SE2d 4) (1986). The Jameses’ notice of cross-appeal, filed 27 days after the Bonds’ notice of appeal, is untimely. The notice of cross-appeal states that it is “based on” the Bonds’ amended notice of appeal, which was filed on September 27, 2018. The Bonds’ amended notice of appeal, however, is identical in all respects to their original notice of appeal, except that it directs the trial court clerk to omit a hearing transcript from the record transmitted on appeal. The notice of cross-appeal “cannot draw life from a mere modification of the notice of appeal reducing the amount of record as originally

noticed in the original appeal.” Mobley v. Coast House, Ltd., 182 Ga. App. 305, 310 (355 SE2d 686) (1987). Thus, the relevant date for calculating the timeliness of the notice of cross-appeal is the date of the original notice of appeal, not the date of the amended notice of appeal. Because the notice of cross-appeal was not timely filed, we lack jurisdiction to hear the cross-appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/11/2019 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.