Reversed. Now what?
There is no good reason why the parties to an appeal should ever have to guess whether the appellate court’s judgment of reversal requires a new trial or rendition of judgment for the prevailing party. Yet that scenario occurs from time to time in Georgia. The appellate court, whether it be the Court of Appeals or the Supreme Court, will render a judgment of reversal without any instructions as to whether the case should be retried or the lower court should render judgment for the winner. See, e.g., Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286 (2016). As a result, cases sometimes ping pong up and down in the court system as the parties wrangle over the proper outcome in light of the appellate court’s ruling.. See, e.g., Security Life Ins. Co. of Am. v. St. Paul Fire & Marine Ins. Co., 278 Ga. 800 (2004). This article proposes a new rule of appellate procedure to solve this problem.
1. Existing Georgia jurisprudence on the effect of an appellate court’s reversal.
When faced with the Supreme Court’s reversal of one of its opinions, the Court of Appeals must: (i) read the Supreme Court’s opinion within the context of the opinion being reversed; (ii) determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Court; and (iii) enter an appropriate disposition with regard to those portions that is consistent with the issue addressed and considered by the Supreme Court. Meadow Springs, LLC v. IH Riverdale, LLC, 307 Ga. App. 72, 72 (2010).
The Court of Appeals has said that as a general rule, where there is a judgment of reversal but no express direction of the appellate court to the lower court, a new trial must be had. Strickland & Smith, Inc. v. Williamson, 281 Ga. App. 784, 785 (2006). In Strickland, however, the only relief the appellant sought was a new trial. Id. The Court explained that the result would have been different had the appellant moved for directed verdict and/or judgment n.o.v.:
We do not agree with Williamson that this holding gives S & S “a second bite at the apple,” as Williamson chose not to move for a directed verdict. If Williamson had moved for a directed verdict on the basis that S & S had not adequately proven damages, S & S could have sought to reopen its case and present additional proof, if it had any. Because Williamson did not appeal the denial of a directed verdict or j.n.o.v., but rather the denial of a motion for new trial, the only remedy available to him is a new trial, at which S & S will have an opportunity to present additional or different evidence.
Id.; see also Aldworth Co., Inc. v. England, 281 Ga. 197, 201 (2006) (“[F]airness dictates that a party who has failed to move for a directed verdict at trial should not be able to obtain a judgment as a matter of law on appeal based on the contention that the evidence is insufficient to support the verdict.”); Skylark Enters., Inc. v. Marsh & McLennan, Inc., 121 Ga. App. 235, 236 (1970) (“Of course, if the evidence demands a verdict for either party, it is the duty of the appellate courts having jurisdiction, to so declare as a matter of law and end of the litigation.”).
In 2010, the Court of Appeals confirmed that the general rule discussed in Strickland—remand for a new trial—does not apply when the appellant moved for directed verdict or judgment n.o.v. in the trial court:
Here, the landlord chose not to move to dismiss the tenant’s counterclaim at the first bench trial (which would have essentially been the equivalent to moving for a directed verdict in a jury trial) on the specific ground that the tenant failed to prove the amount of damages for its attorney fees counterclaim. Thus, the tenant was not alerted to the need to reopen its case to cure this problem. As in Williamson, we hold that this decision by the landlord meant that following reversal and remand (absent contrary direction from this Court), the trial court was required to allow the tenant to prove those fees at a second trial.
Sugarloaf Mills, Ltd. P’shp of Ga. v. Record Town, Inc., 306 Ga. App. 263, 265-66 (2010).
Four years later, the Court of Appeals reconfirmed this in Blumenshine v. Hall, 329 Ga. App. 449 (2014). There, the Court sustained a challenge to the sufficiency of the evidence to support an attorneys’ fees award and remanded for a new trial. Id. at 454. In doing so, the Court—citing Sugarloaf Mills—explained that the appellant had not moved at the bench trial to dismiss the attorney fee counterclaim on the basis of insufficient evidence, which would have been the equivalent of moving for directed verdict. Id. at 454, n.2.
In sum, the general rule concerning remands for a new trial does not apply when the appellant moved for directed verdict or judgment n.o.v. in the trial court. This is consistent with the Court of Appeals’ earlier pronouncement that when a trial court errs in denying a defendant’s motion for directed verdict or motion for j.n.o.v., “the correct procedure for the appellate court is to reverse and direct that judgment be entered for the moving party, if such action should undoubtedly follow.” Stafford Enters., Inc. v. Am. Cyanamid Co., 164 Ga. App. 646, 650 (1982); see also Shockey v. Baker, 212 Ga. 106, 108 (1955); Ford Motor Credit Co. v. Parsons, 155 Ga. App. 46, 47 (1980) (“The purpose of a motion for judgment notwithstanding the verdict is to provide for a final disposition of the case by the appellate court where the evidence is insufficient to justify the verdict rendered on any theory, or where a judgment for the losing party in the trial court is demanded by the law.”) (internal quotation marks omitted).
Despite the cases clarifying that a new trial is not appropriate when a party moved for directed verdict or judgment n.o.v., there remain situations where an appellate court’s judgment of reversal without further instructions leaves room for disagreement about the proper disposition. See, e.g., Kirkland v. So. Discount Co., 187 Ga. App. 453 (1988) (in first appeal, Court of Appeals simply “reversed”; in second appeal, Court of Appeals had to resolve dispute between parties as to proper disposition of the case in light of the reversal); MOM Corp. v. Chattahoochee Bank, 203 Ga. App. 847 (1992) (resolving disagreement between parties as to effect of Supreme Court’s reversal). As explained next, there is a simple cure for this problem.
2. Georgia should adopt a new rule of appellate procedure in the interest of judicial economy.
When cases ping pong back and forth between higher and lower courts in a battle over the proper disposition of the case in light of an appellate ruling, it causes a needless waste of judicial and private resources. To avoid that problem, Georgia should adopt a rule like Texas Rule of Appellate Procedure 43.3, which provides: “When reversing a trial court’s judgment, the court must render the judgment that the trial court should have rendered, except when (a) a remand is necessary for further proceedings. . . .” Tex. R. App. P. 43.3; see also Hon. Charles A. Spain & Kevin H. Dubose, “In Light of This Court’s Opinion . . . .” Drafting Unambiguous Appellate Judgments, 26. App. Advoc. 9 (Fall 2013). Under current Georgia law, an appellate court may, but is not required to render the judgment the trial court should have rendered. See. O.C.G.A. § 5-6-8 (“It shall be within the power of the appellate court rendering the decision in a case to make such order and to give such direction as to the final disposition of the case by the lower court as may be consistent with the law and justice of the case.”).
In Texas, when an appellate court renders its judgment, it either explicitly remands the case for a new trial or renders the appropriate judgment for the appellant or, when necessary, does both. For example, here is how the Texas Court of Appeals disposed of one case:
Having sustained AMX’s first and third issues and overruled its second, fourth, fifth, and sixth issues, we reverse those portions of the trial court’s judgment awarding AMX tolled interest under the Prompt Payment to Contractors Act and denying AMX its attorney’s fees; render judgment that AMX recover from MRC $46,354.62 in interest under the Prompt Payment to Contractors Act; and remand the issue of AMX’s reasonable and necessary attorney’s fees to the trial court for a new trial. In response to AMX's motion for rehearing, we also remand for further proceedings the disposition of the funds in the trial court’s registry; we deny all other relief AMX requested in its motion for rehearing.
AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 525 (Tex. Ct. App. 2009). When an appellate court renders a judgment like this, there is no guesswork to be done about appropriate disposition of the case.
Georgians deserve the same clarity from judgments rendered by their appellate courts. See Marc O. Knisely & Emily Frost, Render Unto Judge Calvert: Correct Appellate Court Judgments, 20 App. Advoc. 174, 179 (Spring 2008) (“Clarity and precision are necessary for each case’s parties, who should not have to litigate further over the disposition of the case intended by the appellate court, and for the trial court, which must observe and enforce the appellate court judgment.”). Too often, a simple “reversed,” without delineating the effect of that ruling, invites a protracted battle in the lower court—a battle that could be easily avoided by requiring appellate courts to explicitly render the judgment the trial court should have rendered.