Court of Appeals of the State of Georgia, Atlanta, August 28, 2024
The Court of Appeals hereby passes the following order:
A24D0404. LEMARCUS ALLISON et al. v. CALCON MUTUAL MORTGAGE LLC.
On July 16, 2024, this Court dismissed Lemarcus Allison’s discretionary application as untimely because it was filed 63 days after the superior court’s order dismissing his petition for review in this dispossessory case. In our order, we explained that Allison’s “Motion for New Trial or Judgment Notwithstanding the Verdict” — which was filed after the superior court dismissed his petition for review — did not extend the time for filing an application because no trial was had, and such a motion has no validity where it is not a proper vehicle for review of a trial court’s action. See Luster v. Bank of America, N.A., 331 Ga. App. 510, 511 (769 SE2d 394) (2015) (motion for new trial was improper vehicle for review of trial court’s dismissal of action where there had been no trial); Avion Systems v. Bellomo, 338 Ga. App. 141, 144-145 (2) (789 SE2d 374) (2016) (motion for judgment notwithstanding the verdict is improper in the absence of a verdict). Allison, through attorney Clifford Hardwick, IV, filed a motion for reconsideration of our dismissal order.
CalCon Mutual Mortgage, LLC moved for sanctions, arguing that the application was frivolous. In a separate order, the Court directed Allison and attorney Hardwick to show cause why we should not find the application frivolous and issue sanctions. Although Allison and Hardwick filed affidavits in response to the show cause order, neither addressed the propriety of the application in their sworn statements. Rather, in an unverified “Response to Show Cause Order” and the motion for reconsideration of our dismissal, they argued that a motion for new trialwas proper because “[i]n the case at bar[,] the trial court dismissed [Allison’s] Petition for Review after a bench trial.” CalCon filed a supplemental motion for sanctions, arguing that the motion for reconsideration contained false information.
Allison and Hardwick’s assertion that the petition for review was dismissed after a bench trial is a blatant misrepresentation of what occurred below. The portions of the record provided to the Court, by Allison and Hardwick, clearly show that the petition for review was dismissed without a trial. Indeed, the lack of a trial was the superior court’s entire basis for denying the motion for new trial. Nevertheless, in their motion for reconsideration, Allison and Hardwick allege for the first time that the court dismissed the petition for review after a bench trial.1
Because Allison has not established that the Court erred by dismissing his application, his motion for reconsideration is hereby DENIED. In addition, we find the application and the motion for reconsideration of our dismissal to be frivolous. Accordingly, CalCon’s motions for sanctions are GRANTED.
The trial court’s order informed Allison and Hardwick that a motion for new trial cannot be directed at a judgment of dismissal and that an improper motion for new trial does not extend the time for seeking appellate review. Further, we have warned them before that filing future frivolous matters in this Court would result in the imposition of sanctions. See Case No. A22A1233 (decided Apr. 26, 2024). Additionally, we have explicitly advised attorney Hardwick at least once before that the filing of a motion for new trial or judgment notwithstanding the verdict does not make an application timely where it is not the proper vehicle for review of a trial court’s action. See Taylor v. Blackstone Residential Operating Partnership, Case No. A22D0424 (decided June 24, 2022). In defiance of these warnings, Allison and Hardwick proceeded with this untimely application and subsequently relied on blatantly false assertions to support their request for reconsideration after the application was dismissed.
Under these circumstances, there is no reasonable basis on which Allison and Hardwick could have anticipated reversal of the trial court’s judgment, and we can only conclude that this application and the motion for reconsideration were filed for the sole purpose of delaying enforcement of the writ of possession. See Trevino v. Flanders, 231 Ga. App. 782, 783 (2) (501 SE2d 13) (1998) (a frivolous appeal penalty is authorized where the appellant could have no reasonable basis for anticipating reversal of the trial court’s judgment); see also Vaughn v. Roberts, 282 Ga. App. 840, 841 (640 SE2d 293) (2006) (“Delay can be assumed where an appeal lacks merit. If an appellant knew or should have known that an appeal was ill-founded, sanctions should issue.”) (citation and punctuation omitted).
Accordingly, we impose frivolous filing penalties under Court of Appeals Rule 7 (e) (2) in the maximum amount of $2,500 against LeMarcus Allison and a $2,500 against attorney Clifford Hardwick, IV, for the filing of this frivolous application and motion for reconsideration. The trial court is directed to enter a $5,000 judgment in favor of CalCon Mutual Mortgage, LLC in the form of a $2,500 penalty against LeMarcus Allison and $2,500 penalty against Clifford Hardwick, IV. See Mitchell v. Wyatt, 192 Ga. App. 127, 129 (2) (384 SE2d 227) (1989); see also Pitts Properties, Inc. v. Auburn Bank, 274 Ga. App. 538, 538 (618 SE2d 171) (2005) (imposing maximum sanctions against appellants and their appellate counsel where appellants brought appeal despite trial court’s warning that the action was frivolous). The imposition of this penalty constitutes a money judgment that may be collected in the trial court as are other money judgments. See Court of Appeals Rule 7 (e) (3).
1 In his application, Allison’s only attack on the motion for new trial order is that it was denied without a hearing.