Kirby v

Kirby, 165 Ga. App. 163, 300 S.E.2d 192 (1983). 996 Action to set aside, on the ground of duress, that portion of a divorce decree that obligated the former wife to pay child support was required to have been brought within three years of the decree’s entry. Mehdikarimi v. Emaddazfull, 268 Ga. 428, 490 S.E.2d 368 (1997). Statute of limitations. — Suit in equity to enjoin enforcement of a judgment that allegedly has been satisfied by settlement after institution of the litigation, and payment of the agreed amount, is not barred by the three-year statute of limitations set forth in subsection (f ) of O.C.G.A. § 9-11-60, nor is it barred by the four-year statutes applicable to a breach of contract. Wells v. Mullis, 255 Ga. 426, 339 S.E.2d 574 (1986). Putative father’s petition for a blood test was, in substance, an extraordinary motion for a new trial based on newly discovered evidence and was not subject to the limitation period in subsection (f ) of O.C.G.A. § 9-11-60. Department of Human Resources v. Browning, 210 Ga. App. 546, 436 S.E.2d 742 (1993). Incompetent’s fraud claim not expired. — Although the judgment under attack in the case was entered in 1971, and the case was not filed until 1985, given O.C.G.A. § 9-3-90’s grace period for mental incompetents, the statute of limitations on the incompetent’s fraud claim never began to run. McLendon v. Georgia Kaolin Co., 813 F. Supp. 834 (M.D. Ga. 1992). Seller could not circumvent time period. — Because a collateral attack of an Alabama arbitration award was untimely for purposes of 9 U.S.C. § 12, which outlined a three-month statute of limitations to challenge such an award based on fraud, corruption, or partiality of the arbitrator, and a home seller’s motion under O.C.G.A. § 9-11-60(d) did not afford the seller an avenue to circumvent this time period, the trial court erred in denying a home buyer’s petition to domesticate the award. McDonald v. H & S Homes, LLC, 290 Ga. App. 103, 658 S.E.2d 901 (2008). Dismissal pursuant to five-year rule. — Trial court properly dismissed law clients’ malpractice action pursuant to the ‘‘five-year rule’’ as there was no writ- 9-11-60 ten order entered in the trial court for at least five years; that period was not tolled during the pendency of an appeal because the trial court had jurisdiction to proceed with at least part of the case. Paul v. Smith, Gambrell & Russell, 323 Ga. App. 447, 746 S.E.2d 739 (2013). Correction of Clerical Mistakes Application for appeal not required. — Although, basically, the import and result of motions to set aside and to correct judgments are in most instances identical, and logically the legislature probably did not contemplate allowing direct appeals from orders under subsection (g) of O.C.G.A. § 9-11-60 while mandating a discretionary approach for those under subsection (d) of § 9-11-60, the clear language of the statute prevents an interpretation that would render both motions subject to O.C.G.A. § 5-6-35(b) and, therefore, motions under subsection (g) of § 9-11-60 do not require applications to appeal. Crawford v. Kroger Co., 183 Ga. App. 836, 360 S.E.2d 274, cert. denied, 183 Ga. App. 905, 360 S.E.2d 274 (1987). Denial of a motion to set aside brought under subsection (g) of O.C.G.A. § 9-11-60 is directly appealable. Kendall v. Peach State Mach., Inc., 215 Ga. App. 633, 451 S.E.2d 810 (1994). Orders entered upon motions to correct a clerical error pursuant to subsection (g) of O.C.G.A. § 9-11-60 do not require applications to appeal. Leventhal v. Moseley, 264 Ga. 891, 453 S.E.2d 455 (1995); Downs v. C.D.C. Fed. Credit Union, 224 Ga. App. 869, 481 S.E.2d 903 (1997). Court authorized to correct clerical mistakes at any time. — Under subsection (g) of O.C.G.A. § 9-11-60, clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of the court’s own initiative or on motion and such notice as the court orders. Clark v. Ingram, 150 Ga. App. 127, 257 S.E.2d 33 (1979). Clerical errors from any accident, slip, or omission may at any time be corrected by the court. Clark v. Ingram, 150 Ga. App. 127, 257 S.E.2d 33 (1979). Trial court improperly stated that the 997 Correction of Clerical Mistakes (Cont’d) court had no jurisdiction over any matter involving the defendant’s case as certain issues, such as the correction of a clerical mistake in a judgment or court order at any time under O.C.G.A. § 9-11-60(g) remained within a trial court’s jurisdiction; however, the trial court properly ruled on the defendant’s motion to correct the defendant’s sentence on the merits. Wilson v. State, 259 Ga. App. 627, 578 S.E.2d 260 (2003). Trial court properly corrected an omission in a prior summary judgment order, which failed to reserve the matter of the amount of attorney fees awarded to a seller for final determination, even though the term of court in which the summary judgment had been entered had expired; the buyer cited no evidence creating a factual dispute as to the trial court’s own admission that the court’s failure to reserve the matter of the amount of attorney fees for final determination was due to oversight or omission. Sofran Peachtree City, LLC v. Peachtree City Holdings, LLC, 272 Ga. App. 851, 614 S.E.2d 111 (2005). Probate court violated O.C.G.A. § 15-6-21(c)’s notice requirements by setting aside a partial final consent order sua sponte without notice to the parties’ counsel. If the intent of the final order the court later entered was to supplement and not supplant the partial final order, O.C.G.A. § 9-11-60(g) allowed the fact-finder to correct ‘‘at any time’’ the mistaken omission of the partial final order’s provision concerning appointment of an executor from the final order. Harwell v. Harwell, 292 Ga. App. 339, 665 S.E.2d 33 (2008). Provided matters of substance not affected. — Clerical mistakes can be corrected by the court at any time, provided the mistakes are confined to the plain meaning and not inflated to include matters of substance. Clark v. Ingram, 150 Ga. App. 127, 257 S.E.2d 33 (1979). Clerical error or omission should be obvious on face of record. — Ordinarily, a judgment should be modified under subsection (g) of Ga. L. 1974, p. 1138, 9-11-60 § 1 (see now O.C.G.A. § 9-11-60) only if the clerical error or omission is obvious on the face of the record. Cagle v. Dixon, 234 Ga. 698, 217 S.E.2d 598 (1975). Subsection (g) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60) was ordinarily to be used when a clerical error or omission was obvious on the face of the record. Smith v. Smith, 230 Ga. 238, 196 S.E.2d 437 (1973). Except after hearing establishing clerical nature of omission. — There is an exception to the general principle of modifying only obvious clerical errors if there has been a hearing on a motion to correct a judgment and the evidence compels the conclusion that an omission was in fact a clerical error. Cagle v. Dixon, 234 Ga. 698, 217 S.E.2d 598 (1975). Voluntary dismissal is ‘‘order’’ within meaning of subsection (g) of O.C.G.A. § 9-11-60, and is subject to correction as provided therein. Page v. Holiday Inns, Inc., 245 Ga. 12, 262 S.E.2d 783 (1980). Reentry of order of dismissal. — Since a dismissal order was never served upon the plaintiff because the trial court’s staff misaddressed the envelope, the court properly set aside and then reentered the dismissal order and the order was effective as of the date the order was actually reentered. Carnes Bros., Inc. v. Cox, 243 Ga. App. 863, 534 S.E.2d 547 (2000). Dismissal with prejudice could be corrected to dismissal without prejudice. — Trial court erred in denying the plaintiffs’ motion under O.C.G.A. § 9-11-60(g) to withdraw the plaintiffs’ dismissal with prejudice and submit a dismissal without prejudice. The plaintiffs’ counsel and the defendant driver’s counsel submitted affidavits that they had intended the dismissal to be without prejudice and had filed the dismissal with prejudice in error; § 9-11-60(g) allowed the correction of errors arising from oversight or omission, and the plaintiffs’ UM insurer was not prejudiced by this mistake. Mullinax v. State Farm Mut. Auto. Ins. Co., 303 Ga. App. 76, 692 S.E.2d 734 (2010). Judgment by default may be corrected to conform to the pleadings at a subsequent term of the court, even after 998 execution has been issued and the property sold. Williams v. Stancil, 119 Ga. App. 800, 168 S.E.2d 643 (1969). Court, when no adverse rights have intervened, has jurisdiction nunc pro tunc to enter an order of dismissal accurately reflecting what occurred upon trial of the case. Israel v. Joe Redwine Ins. Agency, 120 Ga. App. 14, 169 S.E.2d 347 (1969). Correction of irregularities in judgment. — Not only mere clerical errors, but also irregularities in the judgment, if the irregularities appear on the face of the record, may be corrected after expiration of the term, and irregular judgments may be made perfect. Williams v. Stancil, 119 Ga. App. 800, 168 S.E.2d 643 (1979). Mathematical error on face of judgment. — If a mathematical error in the principal amount of the judgment is complained of, but the error is shown on the face of the judgment, the judgment can be amended at any time so as to speak the truth. Brannon v. Trailer Craft Mfg. Co., 130 Ga. App. 766, 204 S.E.2d 477 (1974). Correction of mutual mistake. — If an omission is made in a judgment by mutual mistake of the parties, the trial judge is authorized to correct the judgment on the motion made for that purpose. Smith v. Smith, 230 Ga. 238, 196 S.E.2d 437 (1973). Trial judge had authority to correct the judgment in a divorce case incorporating an agreement of the parties, which by mutual mistake omitted the words ‘‘per child,’’ because the adverse party was given notice of the motion to correct such judgment, and at the hearing admitted that the agreement that was made the judgment of the court omitted the words ‘‘per child’’ as intended by the parties. Smith v. Smith, 230 Ga. 238, 196 S.E.2d 437 (1973). Correction of judgment to conform to parties’ agreement. — If both parties to a judgment agree that the judgment entered did not speak their agreement, a motion to modify and correct such judgment is permissible. Brown v. Brown, 233 Ga. 581, 212 S.E.2d 378 (1975). Because the mother’s attorney unknowingly signed a general release that was inadvertently prepared by the injured 9-11-60 party’s insurer instead of a limited release to which the mother had agreed, the trial court should have granted the motion to rescind the dismissal under O.C.G.A. § 9-11-60(g); the mother’s attorney immediately took steps to correct the mistake, and the mother’s insurer, the only party that refused to consent to rescission of the dismissal, was not prejudiced, as allowing the correction would have merely placed it in the position it expected to be in before it realized that the mother’s attorney had signed the wrong papers. Sanson v. State Farm Fire & Cas. Co., 276 Ga. App. 555, 623 S.E.2d 743 (2005). Omission of language from judgment. — If words, sentences, or paragraphs are omitted from a judgment and there is no factual dispute between the parties about such error or omission, the judgment may be corrected. Park v. Park, 233 Ga. 36, 209 S.E.2d 584 (1974). Vacation of order entered by misconception or misrepresentation. — Original order of the court that was entered either by misconception or as a result of a misrepresentation was properly vacated. Hunt v. Household Fin. Corp., 138 Ga. App. 693, 227 S.E.2d 467 (1976). Amendment of record by reducing oral order to writing. — Language ‘‘amend its own records’’ in former Code 1933, §§ 24-104 and 81-1202 (see now O.C.G.A. § 15-1-3(6)) included amending the record by reducing to writing an order, which had previously existed only as an oral statement and was therefore not properly a part of the record at all, although it had been recognized as such during the trial of the case. Maloy v. Planter’s Whse. & Lumber Co., 142 Ga. App. 69, 234 S.E.2d 807 (1977). Conformance of child support judgment to verdict. — Because a jury verdict in a divorce action provided for child support at the rate of $100.00 per month until the children reached the age of 21, but the judgment entered on the verdict provided for payment of child support at the rate of $50.00 per month for each minor child, until such child became self-supporting, married, or attained the age of 21, the court was able to order that the judgment be corrected for clerical error to conform to the verdict. Lowe v. 999 Correction of Clerical Mistakes (Cont’d) Lowe, 243 Ga. 398, 254 S.E.2d 323 (1979). Vacation and reentry of judgment for appeal purposes when losing party not timely notified of decision. — Under former Code 1933, §§ 24-2620 and 24-2621 (see now O.C.G.A. § 15-6-21), it was the duty of the judge to file the judge’s decision with the clerk of the court and notify the attorney of the losing party of the judge’s decision; and if no notice was sent by the court or the clerk to the losing party, an action may be brought under subsection (g) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60) to set aside the earlier judgment, and upon a finding that notice was not provided as required by former Code 1933, §§ 24-2620 and 24-2621, the motion to set aside may be granted, the judgment reentered, and the 30-day period within which the losing party must appeal would begin to run from the date of the reentry. Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980); Fremichael v. Doe, 221 Ga. App. 698, 472 S.E.2d 440 (1996). In considering whether the trial court’s denial of a motion to set aside was erroneous because a party did not receive notice of the entry of judgment, the issue is not whether the losing party had knowledge that the judgment was entered, but rather whether the duty imposed on the court by O.C.G.A. § 15-6-21(c) was carried out; it is necessary that the trial court first make a finding regarding whether such duty was met and, if not, the earlier judgment must be set aside before judgment is reentered to commence a new 30-day period for appeal. Kendall v. Peach State Mach., Inc., 215 Ga. App. 633, 451 S.E.2d 810 (1994). In a workers’ compensation case, when the trial court did not send the parties the court’s judgment as required by O.C.G.A. § 15-6-21(c), the court erred in denying the employer’s motion under O.C.G.A. § 9-11-60(g) to vacate and re-enter the judgment so that the employer could file a timely appeal; O.C.G.A. § 34-9-105(b) did not prevent granting of the motion because the trial court had complied with the court’s time limitations, and it was 9-11-60 improper for the trial court to decide the motion based upon the court’s determination that the employer knew or should have known that a judgment had been entered. Wal-Mart Stores, Inc. v. Parker, 283 Ga. App. 708, 642 S.E.2d 387 (2007). Trial court did not abuse the court’s discretion in setting aside a default judgment entered in favor of former police officers under O.C.G.A. § 9-11-60(d) because the default judgment was entered despite the fact that the record disclosed that a pension fund board of trustees timely answered the complaint and, thus, there was no basis upon which to claim a default judgment; the board’s answer was filed 31 days after service, but because that day was a Monday and the 30th day after service fell on a Sunday, under O.C.G.A. § 1-3-1(d)(3), the answer was timely. Stamey v. Policemen’s Pension Fund Bd. of Trs., 289 Ga. 503, 712 S.E.2d 825 (2011). Although a bicyclist failed to comply with the trial court’s order to notify a driver of a default judgment against the driver for $2.9 million, such failure did not permit the trial court to vacate the judgment under O.C.G.A. § 9-11-60(g) because the trial court had no duty to notify the driver of the judgment, pursuant to O.C.G.A. §§ 9-11-5(a) and 15-6-21(c). Winslett v. Guthrie, 326 Ga. App. 747, 755 S.E.2d 287 (2014). Effect of correction on final order. — Trial court’s corrective action in clarifying an omission as to post-trial interest in the court’s earlier partial summary judgment, which had been certified as final, constituted a final order which was directly appealable. Nodvin v. West, 197 Ga. App. 92, 397 S.E.2d 581 (1990). Judgment changing previously entered order on evidentiary grounds not authorized. — Court was without authority to enter a nunc pro tunc judgment changing a previously entered order not involving correction of a clerical mistake arising from oversight or omission, but based on a motion to reconsider and set aside final judgment and decree on the ground that certain provisions were not supported by the evidence. Brown v. Brown, 233 Ga. 581, 212 S.E.2d 378 (1975). 1000 Waiver by acceptance of benefits under judgment. — Wife waived the right to file a motion under subsection (g) of O.C.G.A. § 9-11-60 to correct a divorce judgment by accepting alimony payments and other benefits under the judgment for over two years prior to filing the motion. Fender v. Fender, 249 Ga. 773, 294 S.E.2d 474 (1982). Court omitting signing of order orally granted. — If the plaintiff files an amendment to the complaint and a motion to add parties, a proposed (unsigned) order granting the motion is placed in the file at the same time as the motion, a hearing on the motion is held, and the trial court, in the exercise of the court’s discretion, orally grants the motion, all within the limitations period, but, through oversight, the court omits the actual signing of the order, the trial court does not err in later entering a nunc pro tunc order so as to correct the court’s own oversight and to make the record speak the truth. Savannah Iron & Fence Corp. v. Mitchell, 168 Ga. App. 252, 308 S.E.2d 569 (1983). Foreign divorce decree. — Because an action to domesticate a Pennsylvania divorce decree was barred by the five-year statute of limitations in Georgia and, further, there was no authority for a Georgia court to ‘‘correct’’ a domesticated judgment of another state, denial of a summary judgment in favor of a former wife as to the wife’s claim for domestication and correction of the decree was proper. Eickhoff v. Eickhoff, 263 Ga. 498, 435 S.E.2d 914 (1993). New award of damages not clerical mistake. — Trial court erred in modifying a judgment to add prejudgment interest after the term of court in which the original judgment was entered as the award of prejudgment interest was the addition of a new award of damages and not a mere correction of a clerical mistake. Capital Cargo, Inc. v. Port of Port Royal, 261 Ga. App. 803, 584 S.E.2d 54 (2003). No clerical errors found. — In an objector’s appeal from an order enforcing a settlement agreement with a trust administrator, there was no error in denying the objector relief under O.C.G.A. § 9-11-60(g) because the errors alleged by 9-11-60 the objector could not in any way be said to be clerical or typographical errors. Head v. Wachovia Bank, N.A., 264 Ga. App. 608, 591 S.E.2d 424 (2003). Trial court erred by entering a second final decree of divorce pursuant to O.C.G.A. § 9-11-60(g) after the term of court in which the first final decree had been entered had already expired because there were no clerical mistakes made with respect to the first final decree; the alleged mistake by the clerk, if any, related to the clerk’s failure to file the husband’s premature motion for new trial and had nothing to do with any alleged clerical errors in the first order and, accordingly, the trial court could not ‘‘correct’’ any mistake relating to the handling of the husband’s motion for new trial by issuing a ‘‘corrected’’ second order based on a first order that contained no clerical mistakes. Tremble v. Tremble, 288 Ga. 666, 706 S.E.2d 453 (2011). Orders improperly vacated when requirements were not met. — Trial court erred in vacating the court’s orders denying a trust’s temporary restraining order and an executor’s motions for a declaratory judgment and for injunctive relief because, when the orders were not void on the orders’ face, the O.C.G.A. § 9-11-60 requirements were not met, a party did not file a motion to set aside the orders, the executor did not receive notice of the challenge, and the action was not the correction of a clerical error. Cherry v. Moreton Rolleston, Jr. Living Trust, 273 Ga. App. 876, 616 S.E.2d 157 (2005). Amount of income intentionally included in divorce decree was not ‘‘mistake’’. — When a particular amount of income was intentionally inserted into a divorce decree that incorporated a negotiated child support amount, a trial court could not later ‘‘correct’’ the amount, as if it were a clerical mistake, without setting aside the whole judgment. Porter-Martin v. Martin, 280 Ga. 150, 625 S.E.2d 743 (2006). Law of the Case Rule Law of the case rule abolished. — Although an unsuccessful motion for summary judgment by the appellants, a doctor and the doctor’s professional corporation, 1001 Law of the Case Rule (Cont’d) had been based on the statute of repose, O.C.G.A. § 9-3-71(b), and so was their later motion in limine, the fact that the statute of repose issue was decided against them in the ruling on the summary judgment motion did not make the prior ruling the law of the case so as to bar the appellants from raising the same statute of repose issue in their appeal from the denial of their motion in limine as the law of the case rule was statutorily abolished in O.C.G.A. § 9-11-60(h). Eyzaguirre v. Baker, 260 Ga. App. 53, 579 S.E.2d 47 (2003). Trial court was not bound by an order in which the court previously found that the court lacked jurisdiction over a dispute between neighbors as the law of the case doctrine had been abolished pursuant to O.C.G.A. § 9-11-60(h). Knapp v. Cross, 279 Ga. App. 632, 632 S.E.2d 157 (2006). Under O.C.G.A. § 9-11-60(h), the law of the case had been abolished and did not bind the trial court to the court’s interim ruling ordering the wife of a mortgagor to pay rent into the registry of the court pursuant to O.C.G.A. § 44-7-54(a)(1) during a continuance of the lender’s dispossessory action. Harper v. JP Morgan Chase Bank Nat’l Ass’n, 305 Ga. App. 536, 699 S.E.2d 854 (2010). Judgment is the law of the case until set aside or reversed. Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968). Ruling on motion for new trial as law of case until set aside or reversed. — If a motion for new trial is filed and ruled upon by the trial court, it establishes the law of the case until set aside or reversed. Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968). Unless prevented by appeal or enumeration of error. — Losing party may prevent a judgment overruling a motion for new trial from becoming the ‘‘law of the case’’ by appealing directly from such judgment, or by appealing from other appealable judgments and enumerating the error on the overruling of the motion for new trial. Byers v. Lieberman, 126 Ga. App. 582, 191 S.E.2d 470 (1972). Failure to appeal from a judgment overruling a motion for new trial or failure to 9-11-60 enumerate error thereon will not effect a dismissal of the appeal, but merely concludes the party as to the grounds urged in the motion for new trial. Byers v. Lieberman, 126 Ga. App. 582, 191 S.E.2d 470 (1972). Defendants successfully sought an interlocutory appeal from the state court’s order striking the defendants’ arbitration defense, the state-court judgment was affirmed by the Court of Appeals of Georgia, and the Supreme Court of Georgia denied certiorari, so the judgment was now final for all preclusive purposes. Cmty. State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011), cert. denied, U.S. , 133 S. Ct. 101, 184 L. Ed. 2d 22 (2012). Law of the case rule still pertains insofar as appellate courts are concerned, if rulings of the trial judge are unexcepted to. State Farm Mut. Auto. Ins. Co. v. Wendler, 120 Ga. App. 839, 172 S.E.2d 360 (1969). Law of the case rule has formally been abolished except as the rule applies to rulings by one of the appellate courts and those rulings are binding in all subsequent proceedings, including a second trial. Continental Corp. v. DOT, 185 Ga. App. 792, 366 S.E.2d 160, cert. denied, 185 Ga. App. 909, 366 S.E.2d 160 (1988); McLean v. Continental Wingate Co., 222 Ga. App. 805, 476 S.E.2d 83 (1996); In re Spruell, 237 Ga. App. 259, 517 S.E.2d 190 (1999). ‘‘Law of the case rule,’’ as applied in Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968), has been abolished, provided, however, that any ruling by the appellate court in a case shall be binding in all subsequent proceedings in that case in the lower court and in the appellate court. Jebco Ventures, Inc. v. City of Smyrna, 529 Ga. 599, 385 S.E.2d 397 (1989); Security Life Ins. Co. of Am. v. Clark, 273 Ga. 44, 535 S.E.2d 234 (2000). If the decision of an appellate court becomes ‘‘incorrect’’ because the law changes—either because of subsequent case law or because of later-enacted statutes—it may not be binding precedent for other situations; however, between the parties to the original decision it remains the law of the case. Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 456 S.E.2d 97 (1995). 1002 Court of Appeals holding was the law of the case as between the parties to an action even though the rationale of the holding was thereafter overruled by the Supreme Court in an unrelated case. Dicks v. Zurich Am. Ins. Co., 231 Ga. App. 448, 499 S.E.2d 169 (1998). Questions decided by appellate court binding as law of case. — If judgment is reversed by the appellate court, all questions as to pleadings and effect of evidence adjudicated by the appellate court are binding as the law of the case on a second trial, unless additional pleadings and evidence prevail to change such adjudications. Monroe Motor Express v. Jackson, 76 Ga. App. 280, 45 S.E.2d 445 (1947) (decided under former Code 1933). Because a contempt order was previously affirmed on appeal by the Georgia Court of Appeals, a claim made thereafter that the order was void was rejected as the affirmed order became the law of the case. Rice v. Lost Mt. Homeowners Ass’n, 288 Ga. App. 714, 655 S.E.2d 214 (2007), cert. denied, 2008 Ga. LEXIS 376 (Ga. 2008). Although the law of the case rule was abolished, the appellate court’s finding in an earlier proceeding involving the termination of the mother’s parental rights in the mother’s three minor children that the children were deprived, the deprivation was caused by lack of parental care and control, and the deprivation was likely to continue was binding on the juvenile court in subsequent proceedings since an exception applied to the abolishment of the law of the case rule that allowed a ruling by the appellate court to be binding on all subsequent proceedings in the lower court. In the Interest of D.F., 261 Ga. App. 148, 582 S.E.2d 16 (2003). Because an appellate court previously ruled that an insurer was entitled to partial summary judgment on the issue of recoverable damages relating to the assignees’ claims against it for failure to settle an underlying case, the amount of recoverable damages on a remanded trial was limited to the policy limits pursuant to the prior decision, and the matter could not be relitigated pursuant to O.C.G.A. § 9-11-60(h). Empire Fire & Marine Ins. 9-11-60 Co. v. Driskell, 264 Ga. App. 646, 592 S.E.2d 80 (2003). Widower could not relitigate claims for compensatory and punitive damages based on the claim that the father-in-law had broken a verbal promise to give the widower a portion of life insurance proceeds to help defray the deceased wife’s burial costs as the matter had been previously resolved by summary judgment in favor of the father-in-law, which decision was affirmed on appeal; such a decision was binding, pursuant to O.C.G.A. § 9-11-60(h), in the subsequent trial with respect to whether a promise had been made and broken as to the disposition of the life insurance proceeds, and the widower was barred from raising the issues relating to those damages by the doctrines of collateral estoppel and res judicata, under O.C.G.A. § 9-12-40. Hardwick v. Williams, 272 Ga. App. 680, 613 S.E.2d 215 (2005). Under principles of both law of the case and judicial estoppel, a defendant could not complain when, after a modified sentence was overturned, the trial court reimposed the sentence originally imposed on the defendant. Williams v. State, 277 Ga. App. 841, 627 S.E.2d 808 (2006). Affidavit of the plaintiff limited liability company’s sole member did not demand summary judgment for the plaintiffs because the evidentiary posture of the case had not changed by the addition of the affidavit given the similarity of the arguments and evidence presented in the current and previous appeals before the appellate court; the affidavit was parol evidence, which a court could not consider unless an ambiguity existed in the contract, and there was no ambiguity in the parties’ agreement. IH Riverdale, LLC v. McChesney Capital Partners, LLC, 292 Ga. App. 841, 666 S.E.2d 8 (2008). In an action regarding an alleged defect in a home’s septic system, the home buyers’ agent was properly granted summary judgment as to a fraud claim based on the law of the case doctrine under O.C.G.A. § 9-11-60(h) because on a prior interlocutory appeal, the court reversed the trial court’s denial of summary judgment to the listing agent, finding justifiable reliance had not been shown as to the fraud claim 1003 Law of the Case Rule (Cont’d) as no question existed that the buyers were informed through their agent that the septic tank had been pumped twice within a four-month period. Davis v. Silvers, 295 Ga. App. 103, 670 S.E.2d 805 (2008). Because the Supreme Court of Georgia had already held on certiorari that a defendant’s claims challenging the constitutionality of consecutive sentences were properly the subject of a motion to vacate a void sentence, that order constituted the law of the case, and the trial court was not authorized to make any ruling to the contrary, including the court’s ruling that the defendant’s constitutional challenges were waived. Rooney v. State, 287 Ga. 1, 690 S.E.2d 804, cert. denied, U.S. , 131 S. Ct. 117, 178 L. Ed. 2d 72 (2010). Trial court erred in granting summary judgment in favor of a former clerk and a deputy clerk in an inmate’s action alleging that they breached their duty to notify the department of corrections of the inmate’s amended sentence as required by O.C.G.A. § 42-5-50(a) because the court of appeals previously ruled in the case that the clerks were not entitled to official immunity in their individual capacities for failing to perform the ministerial act of communicating the inmate’s sentence to the DOC, and nothing in the record following remand changed that ruling; § 42-5-50(a) is imperative, and its performance is neither discretionary nor dependent upon a direction from the parties at interest. McGee v. Hicks, 303 Ga. App. 130, 693 S.E.2d 130 (2010), aff ’d, 289 Ga. 573, 713 S.E.2d 841 (2011). Trial court erred in denying the defendant’s challenge to the jury traverse on the ground that the court lacked jurisdiction since the defendant was essentially seeking a writ of mandamus because in the court’s order transferring the defendant’s appeal to the court of appeals, the supreme court held that the matter did not involve a mandamus action brought against a public officer, and instead involved only the denial of a motion in a criminal case, and that transfer order established the rule of the case. MacBeth v. State, 304 Ga. App. 466, 696 S.E.2d 435 (2010). 9-11-60 Trial court did not err in ruling that under the law of the case rule, O.C.G.A. § 9-11-60(h), the defendant’s custodial statement could not be used for retrial because the court of appeals had explicitly determined that the custodial statement at issue had been procured in violation of defendant’s Sixth Amendment right to counsel, and such determination stood as the law of the case between the parties; because the suppression ruling concerning the defendant’s custodial statement had already received interim appellate review, the trial court correctly determined that the issue was governed by the law of the case rule. State v. Stone, 304 Ga. App. 695, 697 S.E.2d 852 (2010). Appellate court dismissed the defendant’s appeal of a trial court’s denial of an extraordinary motion for correction of sentence in which the defendant argued that the sentence imposed was void because the appeal was barred by the law of the case doctrine since the appeal involved the exact same subject matter of the defendant’s previous appeals. Paradise v. State, 321 Ga. App. 371, 740 S.E.2d 238 (2013). Parent could not raise various enumerations of error in the parent’s appeal of a custody modification decision because the same issues had been raised in the prior appeals. Gilchrist v. Gilchrist, 323 Ga. App. 555, 747 S.E.2d 75 (2013). State’s challenge to the adequacy of nonhearsay evidence to support a trial court’s finding that the defendant asserted the right to a speedy trial in due course lacked merit as the appellate court’s prior holding that there was significant evidence of the defendant’s attempt to obtain a speedy trial remained the law of the case. State v. Takyi, 322 Ga. App. 832, 747 S.E.2d 24 (2013). In a class action litigation by a facsimile recipient against the sender, the affirmance of the certification of the class, which excluded certain recipients with whom the sender had shown an established business relationship, became the law of the case to which the courts were thereafter bound in further litigation in the matter. Am. Home Servs. v. A Fast Sign Co., 322 Ga. App. 791, 747 S.E.2d 205 (2013). 1004 Appellate decisions on attorney fees binding. — As a prior action arising from a real estate contract dispute resolved the issue of attorney fees against an attorney and the attorney’s clients pursuant to O.C.G.A. § 9-15-14, that became the law of the case pursuant to O.C.G.A. § 9-11-60(h), such that a second action seeking attorney fees against the attorney was precluded. Fortson v. Hardwick, 297 Ga. App. 603, 677 S.E.2d 784 (2009), cert. denied, No. S09C1447, 2009 Ga. LEXIS 407 (Ga. 2009). In the appellees’ suit to recover attorney fees from appellants, the appellate court’s opinion had specified the hours appellees spent on an appeal which the appellants had claimed were fraudulent. As the appellees deleted those challenged hours from the billing they presented to the trial court on remand, there were no issues to be tried; pursuant to O.C.G.A. § 9-11-60(h), the appellate court’s prior decision was binding on the trial court as the law of the case. Furthermore, the trial court did not err in striking the appellants’ amended answer raising, for the first time, a statute of limitations defense as the prior appellate court ruling was determinative of all claims. Falanga v. Kirschner & Venker, P.C., 298 Ga. App. 672, 680 S.E.2d 419 (2009). Clerk’s duty to notify under O.C.G.A. § 42-5-50. — Court of Appeals erred in determining that the law of the case required a finding that a clerk’s duty to notify the department of corrections of sentencing orders under O.C.G.A. § 42-5-50 was discretionary rather than ministerial because the Court of Appeals’ prior decision did not resolve whether the clerk’s acts were discretionary or ministerial but merely recognized that the plaintiff was asserting that the duties were ministerial. Hicks v. McGee, 289 Ga. 573, 713 S.E.2d 841 (2011). Applicability. — ‘‘Law of the case’’ rule applies when the same parties and issues are involved and the evidentiary posture of the case remains the same. Bruce v. Garges, 259 Ga. 268, 379 S.E.2d 783 (1989); Dacosta v. Allstate Ins. Co., 199 Ga. App. 292, 404 S.E.2d 627, cert. denied, 199 Ga. App. 905, 404 S.E.2d 627 (1991). Law of the case is the controlling legal 9-11-60 rule established by a previous decision between the same parties in the same case. However, the principle only establishes the law of the case in its then existing evidentiary posture. Lee v. DOT, 198 Ga. App. 716, 402 S.E.2d 551 (1991). Ruling that in a first trial the court did not err in refusing to direct a verdict or in refusing to grant judgment notwithstanding a mistrial became the law of the case was binding in all subsequent proceedings. Grindle v. Chastain, 229 Ga. App. 386, 493 S.E.2d 714 (1997). Because the trial court denied the defendant’s claim for return of property and the supreme court subsequently affirmed that denial, the latter ruling was binding and, because the defendant could show no change in the evidentiary posture of the case, the defendant was prohibited from relitigating the claim for return of the property. Day v. State, 242 Ga. App. 899, 531 S.E.2d 781 (2000). Because the trial court had initially granted partial summary judgment to a landlord upholding the landlord’s position that the tenant was not entitled to a credit for reconditioning expenses, but it reserved ruling on whether a writ of possession should be granted, and when the tenant appealed that judgment pursuant to O.C.G.A. § 9-11-56(h) but the court dismissed that appeal for failure to comply with O.C.G.A. § 44-7-56, the landlord’s subsequent appeal from the final order granting a writ of possession to the landlord was dismissed to the extent that the landlord sought to relitigate the identical issues that the tenant attempted to litigate in the first appeal under O.C.G.A. § 9-11-56(h), and the prior appellate ruling was binding on the court under the law of the case rule, O.C.G.A. § 9-11-60 (h). Eckerd Corp. v. Alterman Real Estate, Ltd., 266 Ga. App. 860, 598 S.E.2d 510 (2004). Testimony, in the defendant’s second murder trial, given by two witnesses who had been jurors in the defendant’s first murder trial, that the jurors heard the defendant make an admission of guilt while exiting the courtroom during the first trial, did not violate the law of the case rule, despite the fact that a footnote in a prior appellate opinion mentioned 1005 Law of the Case Rule (Cont’d) that the record indicated that the jury had exited the courtroom before the defendant made the statement; the footnote was not a ‘‘ruling’’ so as to have been binding in subsequent proceedings. Slakman v. State, 280 Ga. 837, 632 S.E.2d 378 (2006), cert. denied, 549 U.S. 1218, 127 S. Ct. 1273, 167 L. Ed. 2d 95 (2007). Because the law of the case doctrine did not apply to issues not previously ruled upon below, enumerated as error on appeal, or discussed in a prior appellate decision, the trial court erred in denying summary judgment to a boat’s charterer, and partial summary judgment to both the charterer and the boat’s owner, in an action arising out of injuries sustained by a longshoreman while on board a cargo ship as the law of the case rule did not preclude consideration of the charterer’s status and the issue of whether both were liable under the International Safety Management Code as such were not previously addressed by the trial court. Eastern Car Liner, Ltd. v. Kyles, 280 Ga. App. 362, 634 S.E.2d 129 (2006). In a dispute between adjoining landowners over title to approximately six acres of land, the Supreme Court of Georgia’s prior finding that the deeds relied upon by the appellant neighbors to convey the property to a third party were insufficient as a matter of law, was binding as the law of the case under O.C.G.A. § 9-11-60(h), and no amount of new evidence could change the court’s holding that the deeds bore an insufficient description of the property to be conveyed as such was a question of law unaffected by circumstances extrinsic to the deeds themselves. Pirkle v. Turner, 281 Ga. 846, 642 S.E.2d 849 (2007). Because the trial court, in a prior injunction proceeding, rejected a landowner’s claim to a prescriptive right to maintain a garage encroachment by virtue of having received permission to build the garage and having erected the garage three years prior to the lawsuit, the claim was barred in a later proceeding as the law of the case; moreover, the landowner was prohibited from changing the evidentiary posture of the case merely by 9-11-60 changing testimony as to when the garage was built after summary judgment was already granted on the issue. Daiss v. Bennett, 286 Ga. App. 108, 648 S.E.2d 462 (2007). Law of the case rule of O.C.G.A. § 9-11-60(h) did not prevent a court from deciding the issue of a county’s entitlement to sovereign immunity because in an earlier appellate decision the court had not considered the issue of sovereign immunity. DeKalb State Court Prob. Dep’t v. Currid, 287 Ga. App. 649, 653 S.E.2d 90 (2007), aff ’d, Currid v. DeKalb State Court Prob. Dep’t, 285 Ga. 184, 674 S.E.2d 894 (2009). Former employer did not expand the evidentiary record in the trial court by submitting an affidavit in support of a second motion to set aside a default judgment after the appellate court entered an order denying the employer’s application for discretionary appeal from the denial of a first motion but instead submitted the affidavit one month prior to the appellate court’s denial; thus, the law of the case rule under O.C.G.A. § 9-11-60(h) applied and the trial court improperly granted the second motion. Guthrie v. Wickes, 295 Ga. App. 892, 673 S.E.2d 523 (2009). Because the appellate court, in a wrongful death action against a county, did not directly address whether the Community Service Act, O.C.G.A. § 42-8-70 et seq., waived sovereign immunity but instead focused on the issue of gross negligence on a prior appeal, the law of the case rule of O.C.G.A. § 9-11-60(h) could not be expanded to encompass an implied ruling on an implied finding of a waiver of sovereign immunity. Currid v. DeKalb State Court Prob. Dep’t, 285 Ga. 184, 674 S.E.2d 894 (2009). Denial of practice groups’ motion to dismiss the parents’ medical malpractice action based on the parents’ failure to comply with the expert affidavit requirement of former O.C.G.A. § 9-11-9.1 was error because a prior appellate decision concluded that, at the time the litigation was brought, the question of whether a plaintiff was subject to the expert affidavit requirement depended not on the identity of the defendant, but on the cause of action, and explicitly held that, without 1006 an expert affidavit, the parents could have sustained only an ordinary negligence claim; the trial court’s ruling, which held that because the practice groups were not licensed professionals or licensed health care facilities, no expert affidavit was needed, violated the law of the case. The parents could not have successfully argued on the appeal that the parents’ malpractice claims were exempt from the expert affidavit requirement. Atlanta Women’s Health Group, P.C. v. Clemons, 299 Ga. App. 102, 681 S.E.2d 754 (2009). Standing orders with regard to subsequent proceedings. — Subsection (h) of O.C.G.A. § 9-11-60 has abolished the law of the case, but does not accommodate the view that a standing order can be ignored with regard to subsequent proceedings. If the order has been ratified by an appellate court, it must be treated with due deference. However, if the order is merely interlocutory in character, it remains within the breast of the trial court even after the expiration of the term. Barber v. Collins, 201 Ga. App. 104, 410 S.E.2d 444 (1991). Statement constituting obiter dictum not binding. — Statement of an appellate court on a motion for rehearing that was not a binding holding of the court and was obiter dictum as it was not necessary to the decision, was not binding on the lower courts as the law of the case. Browning v. Europa Hair, Inc., 145 Ga. App. 361, 243 S.E.2d 742 (1978). Affirmance without opinion. — Although the Supreme Court of Georgia’s affirmance without opinion of a trial court decision had no precedential value, it still established the law of the case. Moreton Rolleston, Jr., Living Trust v. Kennedy, 277 Ga. 541, 591 S.E.2d 834, cert. denied, 541 U.S. 1042, 124 S. Ct. 2168, 158 L. Ed. 2d 732 (2004). Finality of reversal by appellate court. — If a trial court, after hearing a motion to set aside a prior order in a pending case, vacates the judgment complained of and on appeal the trial court’s decision is reversed without direction, the judgment of the appellate court is final; upon the filing of the remittitur in the trial court, the issue is res judicata, and the lower court has no authority to allow 9-11-60 the movant to amend the movant’s motion, nor hear further evidence or consider any other matter that would otherwise affect the finality of the judgment of the appellate court. Shepherd v. Shepherd, 243 Ga. 253, 253 S.E.2d 696 (1979). Finality of affirmance of summary judgment. — Because the trial court had previously granted summary judgment on a conversion claim, and that summary judgment was affirmed on appeal, the decision on appeal was binding and the plaintiff could not replead the claim. Faircloth v. A.L. Williams & Assocs., 219 Ga. App. 560, 465 S.E.2d 722 (1995). Not sole remedy in conversion action. — In a conversion action brought by a vehicle owner against the owner of a towing company, there was no merit to the towing company owner’s argument that O.C.G.A. § 9-11-60(d) was the exclusive vehicle by which the vehicle owner, who was not a party to the foreclosure proceedings involving the vehicle, was entitled to seek relief. Thus, the trial court did not lack jurisdiction to consider the conversion action. Horner v. Robinson, 299 Ga. App. 327, 682 S.E.2d 578 (2009). Law of the case established by Court of Appeals. — Superior court should follow the law of the case as established by the Court of Appeals in conducting the jury trial. Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 308 S.E.2d 378 (1983). Absent a change in the evidentiary posture, the rulings of the Court of Appeals are binding on the trial court in all subsequent proceedings in the case and may not be disregarded. Eastgate Assocs. v. Piggly Wiggly S., Inc., 200 Ga. App. 872, 410 S.E.2d 129, cert. denied, 200 Ga. App. 896, 410 S.E.2d 129 (1991). If the Court of Appeals holds that the appellant’s allegations are either without merit or not applicable to the circumstances in the case, this becomes the law of the case. Blake v. Continental S.E. Lines, 168 Ga. App. 718, 309 S.E.2d 829 (1983). Direction of the Court of Appeals upon remand of a forfeiture proceeding requiring the trial court to determine whether the forfeiture violated the constitutional prohibition against excessive fines was 1007 Law of the Case Rule (Cont’d) mandatory and the trial court had no discretion to refuse to comply with the direction. Rabern v. State, 231 Ga. App. 84, 497 S.E.2d 631 (1998). Relitigation of sanctions following remand. — Because the issue of a nonnoticing defendant’s entitlement to sanctions for the plaintiffs’ failure to appear for depositions was at least incidentally involved in the case and served as the basis for ordering a remand, rather than outright reversal, statements by the Court of Appeals on that issue were not dicta, but the law of the case. South Ga. Medical Ctr. v. Washington, 269 Ga. 366, 497 S.E.2d 793 (1998). Trial court properly ruled that an attempt to relitigate sanctionability of the conduct was beyond the scope of the remand directive and thus barred by the law of the case rule. Harkleroad v. Stringer, 231 Ga. App. 464, 499 S.E.2d 379 (1998). Transfer to Court of Appeals conclusive as to existence of constitutional questions. — Transfer by the Supreme Court to the Court of Appeals of a case that questions the constitutionality of a statute is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious. Egerton v. Jolly, 133 Ga. App. 805, 212 S.E.2d 462 (1975). Holding on validity of ordinance. — If the validity of a city ordinance is challenged and on review by the Supreme Court of a judgment on demurrer the court holds that the ordinance is valid, the law of the case is thus fixed, and amended pleadings thereafter cannot again raise that question. Medlock v. Allison, 224 Ga. 648, 164 S.E.2d 112 (1968). Holding that no verdict demanded by evidence. — Because the Court of Appeals, in considering a motion for new trial after the first trial of a case, held that the evidence did not demand a verdict for either party, such ruling was the law of the case. Goodyear Tire & Rubber Co. v. Johnson, 120 Ga. App. 395, 170 S.E.2d 869 (1969). Prior erroneous reason for dismissal cannot be treated as binding under O.C.G.A. § 9-11-60 pursuant to the 9-11-60 law of the case rule. Davis v. South Carolina Ins. Co., 143 Ga. App. 782, 240 S.E.2d 191 (1977). Effect of expansion of evidentiary record. — Defendant’s submission of affidavits after a denial of summary judgment was affirmed served to expand the evidentiary record; thus, consideration as to whether the new evidence demanded summary judgment for the defendant was required. Brown v. Piggly Wiggly S., Inc., 228 Ga. App. 629, 493 S.E.2d 196 (1997). Change in evidentiary posture of case. — Father could collaterally attack the validity of an order that modified custody as a defense to the wife’s contempt motion since the evidentiary posture of the case has changed in view of subsequent rulings by the Alabama courts demonstrating that Alabama had retained jurisdiction over the custody of the child at issue. Henderson v. Justice, 237 Ga. App. 284, 514 S.E.2d 713 (1999). Inapplicability to issues not earlier decided. — Law of the case rule is in no way dispositive of or even applicable to an issue that was not addressed in the earlier decision. Modern Roofing & Metal Works, Inc. v. Owen, 174 Ga. App. 875, 332 S.E.2d 14 (1985); Parks v. State Farm Gen. Ins. Co., 238 Ga. App. 814, 520 S.E.2d 494 (1999). Res judicata. — Because the state relied upon a former judgment which fully adjudicated the issue made by the appellants and that judgment had neither been reversed nor modified by any exception that the appellants had taken to it, such unreversed and unmodified judgment was res judicata as between the same two parties and thus was the law of the case. Camp v. State, 181 Ga. App. 714, 353 S.E.2d 832 (1987). Trial court erred in granting a limited liability company summary judgment in the company’s ejectment action against a property owner on the ground of res judicata under O.C.G.A. § 9-12-40 because there remained a question of fact regarding whether the owner was a party to the prior action; the owner asserted and presented affidavit evidence supporting the claim that the trial court in the quiet title action lacked personal jurisdiction over the owner, thus creating a genuine 1008 issue of material fact regarding whether the owner was a party to the earlier litigation. James v. Intown Ventures, LLC, 290 Ga. 813, 725 S.E.2d 213 (2012). If a grant of partial summary judgment is not made final under O.C.G.A. § 9-11-54(b), the party against whom summary judgment was granted has the option to either appeal or not appeal at that time, and if the party chooses to appeal, then the appellate decision on the summary judgment ruling is binding un- 9-11-60 der subsection (h) of O.C.G.A. § 9-11-60. Roth v. Gulf Atl. Media of Ga., Inc., 244 Ga. App. 677, 536 S.E.2d 577 (2000). Appellant’s allegations without merit or inapplicable. — If the Court of Appeals holds that the appellant’s allegations are either without merit or not applicable to the circumstances in the case, this becomes the law of the case. Blake v. Continental S.E. Lines, 168 Ga. App. 718, 309 S.E.2d 829 (1983).