Following a Georgia medical malpractice jury trial, the trial court entered judgment on February 9, 2023 against Athens Heart in the amount of $4,363,000 plus court costs and post-judgment interest. Ten days later, Athens Heart filed a motion for new trial, and the plaintiff (Molina) filed an “Emergency Motion for Supersedeas Bond” under OCGA § 9-11-62 (b).
Athens Heart filed a response to Molina’s motion along with defendant Agrawal’s affidavit of indigence pursuant to OCGA § 5-6-47 (a), stating that neither he nor Athens Heart Center could obtain a bond in the amount requested by Molina. After a hearing, the trial court issued an order granting Molina’s motion and finding that good cause existed to require Athens Heart to post bond in the amount of judgment plus ten months of interest while pending the motion for new trial. According to the trial court’s order, on the day before trial, Agrawal’s attorney sent an e-mail to Molina’s attorney communicating Agrawal’s intent to make it “‘extremely difficult, if not impossible, to recover more than $1 million,’” and on the day of the verdict, Agrawal transferred real property out of his name.
While the trial court noted it “may not be required to consider indigence, . . . the best practice is to consider the filing as made.” The court then concluded that under both OCGA §§ 5-6-47 (a) and 9-15-2 (a) (1), a party must be unable to pay or post bond due to his level of poverty or financial hardship, and Athens Heart had not established that they could not pay the bond amount due to indigence, poverty, or financial hardship. Alternatively, the court found that even if “indigence” simply should be interpreted to mean “unable to fund a bond if ordered,” as asserted by Athens Heart, Athens Heart failed to establish it was unable to fund the bond.
Athens Heart filed a direct appeal, contending that the trial court (1) erred in construing “indigence,” as used in OCGA § 5-6-47, to mean “a level of poverty or financial hardship” rather than a party’s inability to post the required bond; (2) erred in failing to determine whether they actually had the ability post the bond; and (3) abused its discretion in fixing the bond amount at $4,687,000.
The Court of Appeals of Georgia stated in its opinion filed on November 17, 2023: “We conclude that the trial court’s order setting a supersedeas bond pending Athens Heart’s motion for new trial is not a final order subject to direct appeal under OCGA § 5-6-34 (a) (1). Rather, a party who is ordered to pay a supersedeas bond pending a motion for new trial can seek to immediately appeal that order through the interlocutory appeal procedures established in OCGA § 5-6-34 (b).”
Because “a party ordered to post a supersedeas bond pending a motion for new trial can seek to appeal the order through an interlocutory appeal … we conclude that such orders do not fall within the “very small class” of trial court orders that are appealable under the collateral order doctrine.”
The Court of Appeals of Georgia concluded: “Because Athens Heart failed to follow the interlocutory appeal process, we lack jurisdiction over the appeal.”
Source Athens Heart Center, P.C. v. Molina, A23A1626.
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