Georgia Appeals Law Guide / Appellate Law Treatise

Enumeration of Error

An appellant’s brief must include an enumeration of the errors that the appellant believes the lower court made and asserts as grounds for reversal on appeal. Specifically, OCGA § 5-6-40 provides, “The appellant and cross appellant shall file with the clerk of the appellate court, at such time as may be prescribed by its rules, an enumeration of the errors which shall set out separately each error relied upon. The enumeration shall be concise and need not set out or refer to portions of the record on appeal. It shall be served upon the appellee or cross appellee in the manner prescribed in Code Section 5-6-32, need not have approval of the trial court, and when filed shall become a part of the record on appeal.”

“[T]he [Appellate Practice Act] authorizes practically unlimited looseness in an appellant’s enumeration of errors,” Felix v. State, 271 Ga. 534, 538 (523 SE2d 1) (1999) (citation and quotation marks omitted), and “an enumeration of error need be only sufficient to point out the error complained of.” Id. “[T]he subject matter need be indicated only in the most general way.” Id.

Set Out Separately

In Felix, the Supreme Court ruled, in effect, that a failure to separate errors in the enumeration of errors is not grounds for an appeals court to refuse to consider an error. “We conclude that where the enumeration of errors filed in the appellate court identifies the trial court ruling asserted to be error, the error relied upon is sufficiently ‘set out separately.’” Id. at 539.

“Error”

The “errors” that must be set out in the enumeration of errors are the rulings by the trial court alleged to have been erroneous. It is not necessary for the enumeration to contain every legal argument that the appellant intends to pursue on appeal. “Appellants mounted a multi-pronged attack on the propriety of the ruling they asserted was erroneous. The individual facets of appellants’ attack on the legal ruling with which they took issue are arguments in support of a legal position and are not, in and of themselves, errors of law. Because the arguments supporting a position concerning a legal ruling are not themselves legal rulings, they do not have to be enunciated in the enumeration of errors in order to merit appellate consideration.” Felix, 271 Ga. at 539-40.

Interaction with OCGA §§ 5-6-48(f) and 5-6-30

OCGA § 5-6-48(f) provides that lack of clarity in the enumeration of errors is not grounds for the appeals court to dismiss the appeal or refuse to consider an error, if the errors sought to be asserted are apparent from any combination of the notice of appeal, the enumeration of errors, and the record (although notably, the statute does not mention the briefs). See generally Steed v. Deal, 225 Ga. App. 35 (482 SE2d 527) (1997) (Beasley, J., concurring in part and dissenting in part).

Appeals courts, relying on these statutory provisions and the Supreme Court’s decision in Felix, construe enumerations of errors generously to allow broad appellate review. For example, in Biederbeck v. Marbut, 294 Ga. App. 799 (670 SE2d 483) (2008), appellants’ enumeration of error argued that “[t]he Trial Court erred by not striking Appellee’s quantum meruit claim.” Id. at 800. Appellants, however, never moved to strike the quantum meruit claim, and ordinarily, an appeals court would not consider such an error, which had not been preserved for review. Nonetheless, the Court of Appeals addressed this enumeration of error, citing Felix and noting that appellants had moved for a directed verdict and a new trial on the quantum meruit issue. Id.

Indeed, in some cases the appeals courts have even considered alleged errors where the appellant filed no enumeration of errors at all. See, e.g., Blockum v. Fieldale Farms Corp., 271 Ga. App. 591 (610 SE2d 82) (2005) (stating, in case involving pro se appellant who filed no enumeration of errors, “we will address [appellant’s] arguments, insofar as we are able to ascertain them from his initial brief and his reply brief”); Jackson v. State, 314 Ga. App. 272, 272 n.1 (724 SE2d 9) (2012) (addressing errors where criminal defendant represented by counsel had not filed enumeration of errors).

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