This appeal stems from a motor vehicle accident that severely injured two pro se plaintiffs’ then seven-year-old child. The plaintiffs appealed the trial court’s orders granting summary judgment and dismissing their complaint against Mercedes Benz USA and Clayton County.
Background
In May 2016, a Clayton County fire truck collided with a 2006 Mercedes Benz C230 sedan driven by the plaintiff. His seven-year-old sister, who weighed approximately 48 pounds, was sitting in the front passenger seat of the car. The girl was wearing a seat belt but was not in a child restraint or booster seat. Upon impact, the front passenger seat airbag didn’t deploy. The girl sustained brain trauma and other serious injuries. Tragically, the little girl died.
In 2018, the plaintiffs filed suit in state court against the defendants, raising negligence and strict product liability claims. In December 2018, the trial court granted summary judgment in favor of Clayton County, after determining that the crash was a result of the plaintiff running a red light.
The complaint alleged that Mercedes Benz was negligent in failing to warn that the front passenger side airbags in its 2006 C230 sedans had a manufacturing defect that could result in the failure of the airbags to deploy during a collision. The defendants then filed a motion seeking summary judgment on the remaining failure to warn claim, which the trial court granted on April 3, 2025, dismissing the case with prejudice. In so ruling, the trial court found:
- The seven-year-old girl was seated in the front passenger seat of the vehicle without a proper child restraint in violation of Georgia law;
- Mercedes Benz provided adequate warnings in the car’s owner’s manual;
- Other literature that a child under 12 years of age should be seated in a child restraint seat in the rear of the car;
The plaintiff driving at the time of the accident admitted in a deposition that she didn’t read the owner’s manual.
At the time of the trial court’s ruling, the plaintiffs were represented by counsel.
After final judgment, the plaintiffs filed a pro se pauper’s affidavit and, on May 1, 2025, a pro se notice of appeal, seeking to challenge, among other rulings, the trial court’s order granting the defendants final summary judgment, the trial court’s order granting Clayton County summary judgment and its refusal to set aside that ruling, and the order dismissing the fire truck driver from the case. The defendants filed a motion to dismiss the plaintiffs’ post-judgment filings, arguing that pro se filings by a represented party are a nullity.
The same day, the plaintiffs’ attorney filed a motion to withdraw. The trial court orally denied the defendants’ motion at a June 2nd hearing, observing that plaintiffs’ attorney’s legal obligation concluded when the court dismissed the case with prejudice. Two days later, the trial court memorialized its oral ruling in an order stating that although not necessary as their representation of the plaintiffs concluded when the case was dismissed with prejudice, withdrawal motions of the plaintiffs’ attorneys was granted.
The plaintiffs filed a pro se amended notice of appeal.
A person does not have the right to represent herself and also be represented by an attorney.
- Wade Padget wrote that, as a threshold matter, the Court was required to first consider its jurisdiction. Relying principally on its decision in Romich v. All Secure, Inc. (2021), the defendants collectively moved to dismiss this appeal, contending that the plaintiffs’ May 1st pro se notice of appeal filed while they were represented by counsel had no legal effect, that their June 5th amended notice of appeal was untimely, and consequently, that the Court lacks jurisdiction over this appeal.
In 2024, the Court opined:
Georgia law is well settled that the right to appeal is not constitutional, but instead depends on statutory authority. The provisions of the law respecting the procedure to be followed in perfecting appeals to this Court are jurisdictional, and unless this Court has jurisdiction of a case, it is without power or authority to render a judgment upon review. The jurisdiction of an appellate court to consider an appeal depends upon whether the appeal is taken in substantial compliance with the rules of appellate procedure prescribing the conditions under which the judgment of the trial court may be considered appealable.
Judge Padget explained that ordinarily, a notice of appeal must be filed within 30 days of entry of the judgment or trial court order sought to be appealed. “In the absence of a timely filed notice of appeal, this Court is without jurisdiction to consider the merits of the case, and the appeal in the case must be dismissed, the judge wrote.
In Romich, after the trial court granted summary judgment to the defendants, counsel for plaintiff filed a notice of withdrawal. The trial court, however, never entered an order permitting the withdrawal. The plaintiff subsequently filed a pro se notice of appeal. Because the record contained no indication that the trial court had relieved Romich’s counsel from representation, we held that Romich’s pro se notice of appeal was a “legal nullity.” In dismissing the appeal for lack of jurisdiction, the Court of Appeals explained that in civil cases,
a layperson does not have the right to represent herself and also be represented by an attorney. As a result, a party cannot attempt to represent herself by filing pro se pleadings, while at the same time she is represented by counsel of record. Indeed, a formal withdrawal of counsel cannot be accomplished until after the trial court issues an order permitting the withdrawal. And until such an order is properly made and entered, no formal withdrawal can occur and counsel remains counsel of record.
Here, contrary to the trial court’s conclusionary position, the attorney’s representation of the plaintiffs didn’t end “when the case was dismissed with prejudice.” Although the record contained internal communications between the plaintiffs and their attorney before May 1st regarding the termination of their representation, the fact remains that a formal withdrawal of counsel didn’t happen until, at the earliest, the June 2nd post-judgment hearing. Nor did the record reflect that the plaintiffs sought or were granted an extension of time in which to file their amended notice of appeal, Judge Padget found. It follows, then, that the plaintiffs’ May 1st pro se notice of appeal while represented by counsel was a legal nullity, and that their June 5th amended notice of appeal — filed 63 days after the trial court’s April 3rd order — was untimely to confer jurisdiction upon the Court of Appeals.
Judge Padget was cognizant that in the interim between Romich and this case, the Georgia Supreme Court rendered the Johnson decision, holding that, in the criminal context, a pro se filing by a counseled defendant isn’t always a legal nullity and that “a court has the discretion to recognize a timely and otherwise procedurally proper pro se filing made by a defendant who is still formally represented by counsel.” This discretion extends to appellate courts, the Court said. Notably, while Johnson either disapproved or overruled some of the decisions cited in Romich to the extent that they held that a pro se filing by a counseled defendant is a per se legal nullity, Romich itself wasn’t disapproved or overruled.
Accordingly, Romich remains binding precedent, and in light this, the Court of Appeals determined that dismissal of this appeal for lack of jurisdiction was appropriate. The defendants’ motion to dismiss was granted, and the appeal was dismissed. Muhammad v. Clayton Cnty, 2026 Ga. App. LEXIS 15, 2026 LX 96940 (Ga. App. January 15, 2026).
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