Can We Improve Georgia’s Enumeration of Errors Requirement?

Georgia Code Section 5-6-40 requires an appellant to file an enumeration of errors. In recent years, Georgia appeals courts have construed this requirement about as loosely as possible. An appellant can proceed without filing an enumeration at all; last week, for what might be the first time, an appellant won reversal in such a case. Yet courts still punish appellants who raise errors in their briefs that are not in the enumeration. The enumeration requirement could use some rethinking, and it is worth asking whether an enumeration of errors statute is even what we need.

The current loosening seems to be traceable to Felix v. State, where the Georgia Supreme Court held the Court of Appeals erred by not considering a “compound enumeration.” 271 Ga. 534 (1999). Compound enumerations—more than one error set out in a single enumeration—had been considered violations of Section 5-6-40’s requirement that the enumeration “set out separately each error relied upon.” But the Appellate Practice Act is to be “liberally construed,” OCGA § 5-6-30, and Section 5-6-48(f) requires an appeal to be considered, and not dismissed, “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal.” The Court concluded in Felix 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.’” 271 Ga. at 539. In other words, if an error is “set out,” that it is not set out “separately” is not a reason for refusing to consider it.

Since Felix, the appeals courts have generally been forgiving when it comes to arguable violations of Section 5-6-40. In 2005, the Court of Appeals went so far as to consider a pro se party’s appeal when he had not submitted any enumeration of errors. Blockum v. Fieldale Farms Corp., 271 Ga. App. 591 (2005). The Court of Appeals later extended the same liberal treatment to appellants represented by counsel who failed to submit enumerations of error. See Jackson v. State, 314 Ga. App. 272 (2012) (appeal by represented criminal defendant); State v. Madison, 311 Ga. App. 31 (2011) (appeal by State in criminal case).

The appeals in Blocum, Jackson, and Madison were unsuccessful. Last Friday, in what might be a first, the Court of Appeals reversed a trial court’s decision even though the appellant failed to submit an enumeration of errors. State v. Martinez-Palomino, A14A1375 (Oct. 17, 2014). The court concluded that the trial court erred in granting a criminal defendant’s motion for new trial. The court denied the defendant’s motion to dismiss the appeal on the grounds that the State had failed to submit an enumeration, stating, “this Court is required to consider the appeal because we can discern from the State’s brief and the record the errors that the State is asserting on appeal. See OCGA § 5-6-48(f).”

I am not criticizing the Court of Appeals’ decisions in these cases. On the contrary, the court seems to be interpreting Section 5-6-48(f) correctly (with one minor exception, discussed below). The appeals courts have many other tools at their disposal to enforce the requirement of an enumeration of errors.

My concern arises from the interplay between, on one hand, the Blocum line of cases, and on the other, those cases refusing to consider errors raised in the briefs that would “expand” upon those listed in an enumeration of errors. See, e.g., Brown v. State, 310 Ga. App. 835, 835 n.1 (2011) (“An appealing party may not use his brief to expand his enumeration of errors by arguing the incorrectness of a trial court’s ruling not mentioned in the enumeration.”). Although courts occasionally make exceptions to this rule, e.g., Henry v. State, 278 Ga. 617 (2004), parties who file an enumeration of errors are usually limited to arguing the issues raised in such enumeration. The court may not look to the briefs to expand upon the enumerated errors, if an enumeration of errors exists.

Thus, in some cases, an appellant could be better off filing no enumeration at all, rather than filing an enumeration that failed to include a reversible error. That seems like an unjust result. And it creates a perverse incentive not to submit an enumeration of errors. (By no means am I suggesting this as an appellate advocacy strategy. An appellant who deliberately avoids filing an enumeration risks other sanctions, and takes a chance that the court’s attention will not be drawn to an assertion of error that is raised only in the brief.)

Although there is tension between these two lines of cases, it is not clear that they are actually in conflict. In part, that is because Section 5-6-48(f) seems to contemplate a case where the enumeration of errors exists but is unclear; it might not apply where the enumeration is clear on its face. It is also because Section 5-6-48(f) does not mention the briefs as one of the sources the appeals court must look to in determining the issues to be considered. Rather, it lists “the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing.” The Court of Appeals is therefore technically incorrect in cases like Martinez-Palomino when it looks to appellant’s brief to identify the errors asserted. This is my minor criticism I mentioned above. It’s minor because Section 5-6-48(f) does require consideration of “the record,” which in most cases will reflect any error that could have been raised in the brief.

I don’t have in mind a comprehensive revision of the statutory enumeration of errors requirement. I do have suggestions for consideration:

  1. Amend Section 5-6-48(f) to make clear that the appeals court can look to the appellant’s opening brief, in addition to the other sources already mentioned in the statute, to determine the errors at issue. The court can look to these sources to determine the errors at issue regardless of whether the enumeration of errors exists and regardless of whether any enumeration is unclear.
  2. Amend Sections 5-6-40 and/or 5-6-48(f) to make clear that after the opening brief, the appellant cannot expand upon the errors that will be considered, unless the appeals court grants a motion to amend. Errors raised for the first time in oral argument or a supplemental brief filed without leave cannot be considered.
  3. Amend Section 5-6-48(f) to delete reference to “the record.” At least, amend it to make clear that errors that exist in the record but have not been mentioned in the notice of appeal, enumeration of errors, or opening brief do not prevent an appeal from being dismissed.
  4. Consider amending Section 5-6-40 to better reflect the current practice in both the Supreme Court and the Court of Appeals of submitting the enumeration of errors in the brief, rather than as a separate filing.
  5. Finally, consider deleting Section 5-6-40 entirely. Section 5-6-48(f), as it has been interpreted since Felix, leaves Section 5-6-40 largely toothless. The enumeration of errors requirement could be left to the rulemaking authority of the appeals courts.

To be clear, this is far from the most important issue facing Georgia appellate practice. But unlike some more significant reforms, this one would not require new funding or an amendment to the Georgia Constitution.

I don’t have a comments section on this blog, but would appreciate hearing from anyone with thoughts regarding these ideas.