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ANDREW L. PARKS, INC. et al. v. SUNTRUST BANK, WEST GEORGIA, N.A. et al.
A00A2366.
BARNES, Judge.
Dismissal. Muscogee Superior Court. Before Judge Johnston.
Andrew L. Parks, Inc. and Andrew Parks (collectively "Parks") appeal the judgment of the trial court granting a motion to clarify judgment that vacated an order dismissing, without prejudice, Parks' complaint against SunTrust Bank, West Georgia, N.A. f/k/a Trust Company Bank of Columbus, N.A. and SunTrust Bank Card Center ("SunTrust"). The judgment also put in effect a later filed order dismissing the complaint against SunTrust with prejudice.
The record shows that Parks sued SunTrust because SunTrust placed the company on a list of merchants whose relationship with SunTrust was terminated for cause. Subsequently, SunTrust answered the complaint denying liability and asserting the defense of failure to state a claim. After discovery, SunTrust moved to dismiss Parks' complaint under OCGA 9-11-12 (b) (6) because it failed to state a claim on which relief could be granted. On May 14, 1999, the trial court signed an order granting this motion and dismissing Parks' complaint with prejudice. This order, however, was not filed promptly.
Then, on May 26, 1999, the trial court signed an order dismissing Parks' complaint without prejudice because he missed a docket call. This order, however, was filed promptly on May 28, 1999. On June 16, 1999, the order signed May 14, 1999, dismissing Parks' complaint with prejudice finally was filed.
After Parks refiled his complaint, SunTrust filed its motion asking the trial court to clarify its judgment by vacating the order filed May 28, so that the order filed June 16 would be effective. The order granting this motion was signed and filed on April 26, 2000. Parks contends this order was a nullity because the motion to clarify was not filed within the same term of court in which the two earlier orders were entered and the order filed first deprived the trial court of jurisdiction to file the second order. We agree and vacate the trial court's order granting the motion to clarify its judgment.
"A judgment, although signed by a judge, is not 'entered' until it is filed with the court clerk. OCGA 9-11-58 (b)." Preece v. Turman Realty Co., 228 Ga. App. 609, 610 (492 SE2d 342) (1997). Thus, the order merely signed on May 14 was without legal effect, and the order signed on May 26 and filed on May 28 was the legally entered order that dismissed the case without prejudice when it was filed. The order signed on May 14 was a nullity because it was not filed when the case was still lawfully pending. Judgments rendered by courts without jurisdiction are void. See Williams v. Fuller, 244 Ga. 846, 848 (2) (262 SE2d 135) (1979).
Further, although a trial judge has "inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate such judgment, even upon his own motion, for the purpose of promoting justice and in the exercise of a sound legal discretion," LeCraw v. Atlanta Arts Alliance, 126 Ga. App. 656, 663 (191 SE2d 572) (1972), this authority does not extend beyond the same term of court, unless a motion to modify or vacate, et cetera, was filed within the same term of court. Piggly Wiggly Southern v. McCook, 216 Ga. App. 335 (454 SE2d 203) (1995); Clark v. Ingram, 150 Ga. App. 127, 128 (1) (257 SE2d 33) (1979). Here, no motion was filed within the same term of court. Therefore, the trial court's authority to vacate its first entered order, if it exists at all, must be found in the Civil Practice Act. See Clark, supra, 150 Ga. App. at 128 (2).
A motion to clarify is not a motion authorized by that Act, but there is no magic in the nomenclature used. Under our rules, pleadings are judged by their function and not the name given by a party. Holloway v. Frey, 130 Ga. App. 224, 227 (3) (202 SE2d 845) (1973). Because the motion failed to assert any statutory ground for relief from a judgment listed in OCGA 9-11-60 (d), some other basis must be found for the motion. See Gabel v. Revels, 203 Ga. App. 131 (416 SE2d 103) (1992).
On appeal, SunTrust characterizes the motion as one under OCGA 9-11-60 (g) to correct a clerical error. We find no basis in the record to support this proposition, and as the relief sought had the effect of changing Parks' substantive rights, the trial court had no authority to grant the motion to clarify. Hopkins v. Garner & Glover Co., 233 Ga. App. 264, 268 (1) (504 SE2d 78) (1998).
Further, the trial court has no authority to enter this order nunc pro tunc, because a nunc pro tunc order cannot be used to supply an action not then taken by the court. Moseley v. Interfinancial Mgmt. Co., 224 Ga. App. 80, 84 (5) (479 SE2d 427) (1996). The purpose of entering an order nunc pro tunc
is to record some previously unrecorded action actually taken or judgment actually rendered. It may not be used to supply an order not yet made by the court. A nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; . . . not to supply omitted action, but to supply omission in the record of action really had but omitted through inadvertence or mistake. The general rule is that nunc pro tunc entries are proper to correct clerical errors but not judicial errors.
(Citations and punctuation omitted.) In the Interest of H. L. W., 244 Ga. App. 498-499 (535 SE2d 834) (2000).
Accordingly, the trial court's judgment vacating its order entered on May 28, 2000, must be vacated, and the case stands dismissed without prejudice.
Hatcher, Stubbs, Lands, Hollis & Rothschild, Gregory S. Ellington, J. Barrington Vaught, for appellees.
Ronald S. Iddins, for appellants.
DECIDED JANUARY 19, 2001 -- DENIED MARCH 30, 2001 -- CERT. APPLIED FOR.
Thursday May 21 01:10 EDT


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