Camp v

Coweta County, 271 Ga. App. 349, 609 S.E.2d 695 (2005), vacated in part, 280 Ga. App. 852, 635 S.E.2d 234 (2006). Order allowing motion to open default. — Appeal from order allowing a motion to open default when no certificate of review under subsection (b) of this section is filed is premature and must be dismissed. North Ga. Hous., Inc. v. Pressley, 123 Ga. App. 273, 180 S.E.2d 607 (1971). When default judgment is vacated and set aside, jurisdiction remains in trial court and judgment is neither final within meaning of subsection (a), nor directly appealable. Absent a certificate of immediate review, as provided by subsection (b), an appeal is premature and must be dismissed. Notrica v. Southern Bell Tel. & Tel. Co., 147 Ga. App. 737, 250 S.E.2d 196 (1978). Order vacating and setting aside default judgment which has effect of continuing pendency of case in trial court, judgment was not final. First Nat’l Bank v. Hudson, 139 Ga. App. 629, 229 S.E.2d 109 (1976). Appeal from grant of motion to set aside judgment and open default, leaving case pending below is premature and should be dismissed if there is no certificate for immediate review from the trial judge nor petition to the appellate court for allowance of an appeal. Thigpen v. Futura Constr., Inc., 140 Ga. App. 65, 230 S.E.2d 92 (1976). Order vacating and setting aside default judgment and allowing defendant to file defensive pleadings leaves case still pending in court below, and in absence of certificate of immediate review appeal is premature and subject to being dismissed. Lee v. Smith, 119 Ga. App. 808, 168 S.E.2d 880 (1969). Date: 06/14/13 Time: 12:43:35 5-6-34 Judgment granting motion to set aside default judgment entered against garnishee is not a final judgment. Davis v. Davis, 139 Ga. App. 599, 229 S.E.2d 81 (1976). Default opened as of right by filing defenses within 15 days is not final. — Default which is opened as a matter of right by filing of defenses within 15 days of day of default upon payment of costs is not a final judgment and case is still pending in trial court if no certificate for immediate review is signed or entered within ten days of order complained of. Shuford v. Jackson, 139 Ga. App. 469, 228 S.E.2d 605 (1976). 4. Rulings Concerning Counterclaims and Cross Actions Dismissal of counterclaim is not a final order. Lowe v. Payne, 130 Ga. App. 337, 203 S.E.2d 309 (1973). Dismissal of counterclaim is not such judgment as leaves cause no longer pending in trial court. Absent certificate of immediate review, appeal is premature. Register v. Kandlbinder, 132 Ga. App. 435, 208 S.E.2d 565 (1974). Order dismissing an insured’s counterclaim for personal injury protection benefits was neither a final judgment nor otherwise directly appealable, when the dismissal was not intended to constitute a ruling on the merits of the counterclaim, although the ruling was characterized as a dismissal for failure to state a claim. Denney v. Shield Ins. Co., 183 Ga. App. 280, 358 S.E.2d 628, cert. denied, 183 Ga. App. 905, 358 S.E.2d 628 (1987). Dismissal of counterclaim while case remains pending. — As appeal from order dismissing counterclaim is not a final judgment because case remains pending in trial court, such appeal is premature and must be dismissed in absence of requisite immediate review certificate. Kilgore v. Kennesaw Fin. Co., 128 Ga. App. 120, 195 S.E.2d 799 (1973). Ruling sustaining motion to dismiss various counts of counterclaim is not final. Huff v. Rogers, 129 Ga. App. 897, 202 S.E.2d 243 (1973). Order while complaint and counterclaim still pending. — Trial court’s 548 Page: 549 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-34 Date: 06/14/13 Time: 12:43:35 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS order cannot be considered a final judgment while the complaint and counterclaim are still pending. Cotton v. Broad River Realty, Inc., 216 Ga. App. 306, 454 S.E.2d 183 (1995). Judgment rendered while defendant’s counterclaim remains pending. — Judgment is not final if case is still pending in lower court in form of defendant’s counterclaim. Conte Enterprises, Inc. v. Romax Constr. Co., 128 Ga. App. 121, 195 S.E.2d 798 (1973). Pendency of counterclaim plus absence of determination by the trial judge that there is no just reason for delay and express direction for entry of judgment under O.C.G.A. § 9-11-54 prevents order from being final and appealable. This, coupled with failure to follow the applicable procedure for review under O.C.G.A. § 5-6-34, subjects the appeal to dismissal. Cleveland v. Watkins, 159 Ga. App. 885, 285 S.E.2d 546 (1981). When the defendant’s counterclaim is still pending in the trial court, an order of that court dismissing the main complaint against such defendant is not appealable, absent proper certification from the trial judge, accompanied by an application for immediate review. Wrip, Inc. v. Sledger, 162 Ga. App. 727, 292 S.E.2d 871 (1982). Order dismissing claim while counterclaim or cross action remains pending. — When there was no express determination that there was no just reason for delay nor an express direction for entry of judgment under Ga. L. 1966, p. 609, § 54 (see O.C.G.A. § 9-11-54(b)), nor was there a certificate for immediate review under subsection (b) of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34), appeal from anorder dismissing the plaintiff ’s claim was premature when there was a counterclaim pending in the court below. Campbell v. George, 129 Ga. App. 644, 200 S.E.2d 503 (1973). When answer of the defendant contains prayer for affirmative legal relief germane to the plaintiff ’s suit, dismissal of the plaintiff ’s suit on general demurrer (now motion to dismiss) does not carry with it defendant’s cross action (now counterclaim), so cross action is still pending and there is no final judgment within the contemplation of the Appellate Practice 5-6-34 Act. Brown v. Elliott, 115 Ga. App. 89, 153 S.E.2d 665 (1967). When the plaintiff ’s suit is dismissed, but defendant’s cross action (now counterclaim) seeking a money judgment against the plaintiff is still pending, the appeal by the plaintiff must be dismissed. O’Kelley v. Evans, 223 Ga. 512, 156 S.E.2d 450 (1967). When the defendant’s counterclaims against the plaintiff are still pending in the trial court, a judgment dismissing the plaintiff ’s complaint is not such a final judgment as may be directly appealed. Farmers Coop. Ins. Co. v. Hicks, 227 Ga. 755, 182 S.E.2d 895 (1971). Cash distribution order while counterclaims remained pending. — In action to dissolve partnership, because the final dissolution remained pending, the defendant partner’s counterclaim for fees and litigation expenses remained pending, and there was no express determination of finality; therefore, the plaintiff was required to follow the procedures of O.C.G.A. § 5-6-34 in order to appeal the trial court’s order directing certain cash payments and distributions based on the court’s custodial evaluation of the firm’s assets. Eckland v. Hale & Eckland, 231 Ga. App. 278, 498 S.E.2d 358 (1998). Order of court overruling plaintiff ’s oral motion to dismiss defendant’s cross action (now counterclaim) is not a final judgment. Birdwell v. Pippen, 113 Ga. App. 202, 147 S.E.2d 673 (1966). Order striking answer and cross action (now counterclaim) of defendants and refusing to open default. — In action seeking property damages resulting from automobile collision, order striking answer and cross action of the defendants and refusing to open default is not an order which can be directly appealed from under this section without certification of trial judge. Melton v. Grider, 119 Ga. App. 376, 166 S.E.2d 915 (1969). Order striking answer and cross action (now counterclaim) as barred by statute of limitations leaves case pending. — Order of trial judge sustaining the plaintiff ’s oral motion to strike an amended answer and cross action as barred by the statute of limitations, leaves 549 Page: 550 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Rulings Not Appealable Without Certificate (Cont’d) 4. Rulings Concerning Counterclaims and Cross Actions (Cont’d) case pending in court below and is not a final judgment from which an appeal will lie. Hood v. Akins, 114 Ga. App. 733, 152 S.E.2d 704 (1966). Striking of counterclaim after consideration of proposed pretrial orders of plaintiff and defendant, pleadings, evidence and arguments of counsel is tantamount to grant of summary judgment motion and appealable without certificate of immediate review even though interlocutory. Aiken v. Citizens & S. Bank, 249 Ga. 481, 291 S.E.2d 717, cert. denied, 459 U.S. 973, 103 S. Ct. 307, 74 L. Ed. 2d 287 (1982). Summary Judgments 1. Grants Grant of summary judgment is an exception to rule requiring final judgment in order to appeal. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969). Dismissal of caveat to probate of will. — When, on appeal by caveators from summary judgment in favor of the proponents of a will, the decision was affirmed and, after remittitur, the superior court entered an order admitting the will to probate, final disposition of the action for the purposes of the time to request attorney fees under O.C.G.A. § 9-15-14 occurred when that order was entered, not when the summary judgment motion was granted. McConnell v. Moore, 232 Ga. App. 700, 503 S.E.2d 593 (1998). Dismissal for late filing. — Motion to dismiss an appeal on grounds that the appealing party failed to timely appeal an order granting summary judgment pursuant to O.C.G.A. § 5-6-38(a) was granted; moreover, the appeal was not taken from the final judgment entered in the case. Patterson v. Bristol Timber Co., 286 Ga. App. 423, 649 S.E.2d 795 (2007). One may appeal grant of summary judgment on any issue or as to any party. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969). Date: 06/14/13 Time: 12:43:35 5-6-34 Grant of codefendant’s motion. — Only if codefendants are sued as joint tortfeasors does the grant of summary judgment as to one potentially affect the other’s rights of contribution. Therefore, it is only in this situation that the codefendant would be deemed a losing party and have standing to appeal the grant of summary judgment to another codefendant. C.W. Matthews Contracting Co. v. Studard, 201 Ga. App. 741, 412 S.E.2d 539 (1991). Party may appeal grant of summary judgment after rendition of final judgment in case, and summary judgment is not res judicata as to any other claims which remained pending. Ramseur v. American Mgt. Ass’n, 155 Ga. App. 340, 270 S.E.2d 880 (1980). Motion to dismiss an appeal from an order granting partial summary judgment to some of the claims was not untimely filed, as the appealing party had the option to wait until a final judgment was entered in order to file an appeal, and they exercised that option; hence, the opposing party’s motion to dismiss the appeal as untimely filed was denied. Perrett v. Sumner, 286 Ga. App. 379, 649 S.E.2d 545 (2007). Effect of granting appellee’s motion on appellant’s motion for same. — Grant of appellee’s motion for summary judgment disposed of entire case in court below, and had effect of making appellant’s denial of summary judgment a final judgment, directly appealable. Stallings v. Chance, 239 Ga. 567, 238 S.E.2d 327 (1977). In action when cross motions for summary judgments are made, grant of one party’s motion disposes of entire case in trial court, and no issue is left pending for decision. This has effect of making opposing party’s denial of summary judgment a final judgment and directly appealable under subsection (a). Baker v. NEI Corp., 144 Ga. App. 165, 241 S.E.2d 4 (1977). Grant of motion for summary judgment in the Civil Court of Bibb County can be appealed directly to the Court of Appeals. Middle Ga. Bank v. Continental Real Estate & Assocs., 168 Ga. App. 611, 309 S.E.2d 893 (1983). 550 Page: 551 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-34 Date: 06/14/13 Time: 12:43:35 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS 2. Denials Overruling of motion for summary judgment may be reviewed only upon direct appeal from that judgment. Hood v. General Shoe Corp., 119 Ga. App. 649, 168 S.E.2d 326 (1969). Appealability of denial of summary judgment. — Party against whom summary judgment is granted may appeal either after grant of summary judgment or after rendition of final judgment. Surgent v. Surgent, 153 Ga. App. 100, 264 S.E.2d 568 (1980). Direct appeal is not available from the denial of a motion for summary judgment. Rolleston v. Cherry, 237 Ga. App. 733, 521 S.E.2d 1, cert. denied, 528 U.S. 1046, 120 S. Ct. 580, 145 L. Ed. 2d 482 (1999). Denial of summary judgment not rendered moot by entry of judgment. — In an action against an insurer to recover damages under a policy issued to a county board of education on behalf of a child injured by a backfiring school bus, the insurer’s appeal from the denial of the insurer’s motion for summary judgment was not rendered moot by the subsequent entry of a verdict and a judgment in favor of the child in a trial limited to damages; the denial of the motion could be reviewed as part of the insurer’s direct appeal from the final judgment because the trial court’s determination in denying the motion that the policy’s medical payments provision did not satisfy O.C.G.A. § 20-2-1090 and that the policy’s liability provision provided the requisite coverage was not considered at trial. Coregis Ins. Co. v. Nelson, 282 Ga. App. 488, 639 S.E.2d 365 (2006). Compliance with requirements of section. — Denial of motion for summary judgment not reviewable by direct appeal except as provided in section. Carroll v. Campbell, 226 Ga. 700, 177 S.E.2d 83 (1970); Belt v. Allstate Ins. Co., 140 Ga. App. 740, 231 S.E.2d 831 (1976); Johnston-Willis Hosp. v. Cain, 142 Ga. App. 305, 236 S.E.2d 374 (1977); Garrett v. Heisler, 149 Ga. App. 240, 253 S.E.2d 863 (1979). There is no provision for review of denial of summary judgment except by direct appeal with certificate of trial judge 5-6-34 and application for review to appropriate appellate court as provided by this section. Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840, 229 S.E.2d 753 (1976); American Mut. Fire Ins. Co. v. Llewellyn, 142 Ga. App. 824, 237 S.E.2d 227 (1977). Denial of motion for summary judgment is not reviewable by appellate courts in absence of timely certificate of immediate review or granting of interlocutory appeal by appellate court unless there is a final judgment in the case and the cause is no longer pending in the lower court. Barlow v. Yenkosky, 146 Ga. App. 872, 247 S.E.2d 519 (1978); Weldon v. Southeastern Fid. Ins. Co., 157 Ga. App. 698, 278 S.E.2d 500 (1981); Sharpe’s Appliance Store, Inc. v. Anderson, 161 Ga. App. 112, 289 S.E.2d 312 (1982). Ordinarily, a denial of a motion for partial summary judgment would be appealable only if an application for interlocutory review were granted after the trial court certified the matter for immediate review. E.H. Crump Co. v. Miller, 200 Ga. App. 598, 409 S.E.2d 235, cert. denied, 200 Ga. App. 896, 409 S.E.2d 235 (1991). When order denying the appellants’ motion for summary judgment is certified by the trial court, but no application is made in accordance with subsection (b), an appeal must be dismissed. Century Bldrs., Inc. v. Carter, 243 Ga. 14, 252 S.E.2d 507 (1979). Denial of a motion for summary judgment must be appealed in accordance with the interlocutory appeal provisions of subsection (b) of O.C.G.A. § 5-6-34. Pace Constr. Corp. v. Northpark Assocs., 215 Ga. App. 438, 450 S.E.2d 828 (1994). Because the Court of Appeals of Georgia granted an application for interlocutory appeal to the Department of Transportation in a slip and fall case, a city’s cross-appeal was properly before the court. Ga. DOT v. Strickland, 279 Ga. App. 753, 632 S.E.2d 416 (2006). Although the repair company did not obtain a certificate of immediate review from the trial court’s order denying a renewed motion for summary judgment under O.C.G.A. § 9-11-56, the appellate court had jurisdiction to address an order denying the renewed motion for summary judgment under O.C.G.A. § 5-6-34(d); the 551 Page: 552 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Summary Judgments (Cont’d) 2. Denials (Cont’d) appellate court had jurisdiction to address the trial court’s order denying the company’s motion for reconsideration under § 5-6-34(b), since the company had obtained a timely certificate of immediate review from the trial court’s order denying the court’s motion for reconsideration. Gulfstream Aero. Servs. Corp. v. United States Aviation Underwriters, Inc., 280 Ga. App. 747, 635 S.E.2d 38 (2006). Order dismissing an unauthorized appeal of an interlocutory order denying the defendant’s motion for summary judgment was not appealable absent compliance with interlocutory appeal procedures. Rolleston v. Cherry, 233 Ga. App. 295, 504 S.E.2d 504 (1998). As the losing party on cross-motions for summary judgment, defendant was entitled to proceed under subsection (b) of O.C.G.A. § 5-6-34 to seek an interlocutory appeal from the denial of its motion or, in the alternative, to file a direct appeal from the grant of plaintiff ’s motion pursuant to O.C.G.A. § 9-11-56(h); when the defendant elected to invoke the interlocutory appeal procedure, the mere availability of the alternative of the direct appeal procedure would not be a factor in determining whether to grant an interlocutory appeal. Southeastern Sec. Ins. Co. v. Empire Banking Co., 268 Ga. 450, 490 S.E.2d 372 (1997). Subsection (b) does not provide exclusive means of appealing denial. — When summary judgment is denied, it may be appealed after certification by trial judge and granting of application by appropriate appellate court; but this is not the exclusive means of appealing denial of motion for summary judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). Appealing denial of summary judgment when there is final judgment. — Law now permits review of denial of summary judgment without necessity of making application for interlocutory appeal when there is a final judgment — such as the grant of a motion for summary judgment. Mahler v. Paquin, 143 Ga. App. 773, 240 S.E.2d 185 (1977). Date: 06/14/13 Time: 12:43:35 5-6-34 Denial of a motion for summary judgment can be appealed without application when it is tied to appeal of an appealable order or judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). Denial of summary judgment may be tied to appeal from grant of summary judgment by opposite party. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). When direct appeal is taken from grant of summary judgment, appellee may cross-appeal the denial of the appellee’s motion for summary judgment. Hall v. Richardson Homes, Inc., 168 Ga. App. 593, 309 S.E.2d 825 (1983). Premature appeal. — When the defendant obtained a certificate for immediate review from the trial judge within ten days of the denial of the defendant’s motion for summary judgment in accordance with O.C.G.A. § 5-6-34, but failed to apply to and obtain an order from the Court of Appeals granting an appeal, the defendant’s appeal is premature. Hargraves v. Turner, 160 Ga. App. 807, 287 S.E.2d 664 (1982). Denial of the state’s motion for summary judgment or dismissal based on sovereign immunity was not a final judgment subject to direct appeal under the collateral order doctrine. State v. Gober, 229 Ga. App. 700, 494 S.E.2d 724 (1998). Judgments on Motions for New Trial 1. Grants Not appealable without certificate of review. — When judgment appealed from is one granting motion for new trial, and there is no certificate of trial judge as required by section, appeal must be dismissed. Stewart v. Church, 119 Ga. App. 58, 166 S.E.2d 436 (1969). Judgment granting new trial is not a final judgment, and because it is not a final judgment, an interlocutory appeal cannot be prosecuted unless the trial judge grants a certificate for immediate review. Henderson v. Henderson, 231 Ga. 208, 200 S.E.2d 867 (1973). When no certificate of immediate review was obtained from the trial court nor application made to the Court of Appeals 552 Page: 553 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-34 Date: 06/14/13 Time: 12:43:35 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS for interlocutory review, an appeal from grant of the extraordinary motion for new trial on special grounds was premature. Moore v. Williams, 163 Ga. App. 595, 295 S.E.2d 866 (1982). Grant of a motion for new trial is not a final order from which a direct appeal may be taken, and if the appellant did not comply with the interlocutory appeal provisions of subsection (b), the appeal must be dismissed for lack of jurisdiction. Murray v. Rozier, 186 Ga. App. 184, 367 S.E.2d 886 (1988). Grant of a motion for new trial is not a final judgment within the meaning of paragraph (a)(1) of O.C.G.A. § 5-6-34; therefore, an application for interlocutory review is required to be filed in order to give the Court of Appeals jurisdiction to entertain an appeal. Rockdale Awning & Iron Co. v. Kerbow, 210 Ga. App. 119, 435 S.E.2d 619 (1993). Denial of interlocutory appeal does not prevent eventual review. — Denial of interlocutory appeal by statute does not prevent a litigant from eventually seeking review in an appellate court of a judgment granting a new trial; this is so because upon conclusion of the case in the trial court and entry of final judgment, an appeal can then be taken from the final judgment, and in such appeal legality of judgment granting new trial can be attached. Henderson v. Henderson, 231 Ga. 208, 200 S.E.2d 867 (1973). State could not appeal order granting new trial. — State’s appeal of an order granting the defendant’s motion for new trial was dismissed because the state could not appeal the order granting the new trial under the Appellate Practice Act, O.C.G.A. § 5-6-34(d); no appeal was taken here under subsections (a), (b), or (c) of § 5-6-34. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012). 2. Denials Judgment overruling motion for new trial is an appealable judgment. Thornton v. State Hwy. Dep’t, 113 Ga. App. 351, 148 S.E.2d 66 (1966). Judgment overruling motion for new trial based on appealable judgment is appealable. — Using liberal construction as required by O.C.G.A. 5-6-34 § 5-6-30, it would be incongruous to declare unappealable a judgment overruling motion for new trial which is based upon an admittedly appealable judgment. Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev’d on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966). Judgment overruling motion for new trial is a final judgment since no subsequent judgment disposing of case is necessary. Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev’d on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966). Denied motion final although rendered before judgment entered on verdict. — Order denying motion for new trial from general verdict is final and appealable, even though no judgment has been entered on verdict. This is so even though under federal practice an order granting or overruling motion for new trial is not a final judgment from which an appeal may be taken. Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev’d on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966). Order denying motion appealable although opposing party’s motion for same remains pending. — Fact that one party’s motion for new trial is still pending below does not deprive other party of right to independently press the party’s motion to a proper conclusion and test the conclusion by appeal. Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev’d on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966). Effect of suggested forms in § 5-6-51. — Forms contained in Ga. L. 1965, p. 18, § 20 (see O.C.G.A. § 5-6-51) are merely suggested forms which are apparently intended for use in appeals from orders or judgments other than rulings on motions for new trial and do not, of themselves, make such rulings unappealable. The suggested forms of appeal are not exclusive. Their purpose is to have appeal show on its face the tolling of time for appeal when appeal is from original judgment. Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev’d on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966). 553 Page: 554 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Injunctions and Restraining Orders Interlocutory order. — Subsection (b) of O.C.G.A. § 5-6-34 changed the method by which an interlocutory order was appealed, providing not only for a certificate by the trial court but for application to and approval by the proper appellate court. State v. Blosfield, 165 Ga. App. 111, 299 S.E.2d 588 (1983). Because a trial court denied a property owner’s request for interlocutory injunctive relief against a county tax commissioner, that order was directly appealable pursuant to O.C.G.A. § 5-6-34(a)(4); accordingly, the commissioner’s motion to dismiss the appeal was denied. E-Lane Pine Hills, LLC v. Ferdinand, 277 Ga. App. 566, 627 S.E.2d 44 (2005). On an appeal filed pursuant to O.C.G.A. § 5-6-34(a)(4) from an order enjoining a city from imposing a tax against a utility pursuant to an ordinance, the appeals court found that the interlocutory injunction was erroneously ordered, given that the ordinance had not yet posed any imminent danger to that utility’s financial interest, but, only a demand for the tax had been issued. City of Willacoochee v. Satilla Rural Elec. Mbrshp. Corp., 283 Ga. 137, 657 S.E.2d 232 (2008). Nature of order. — Nature of the order containing the underlying contested issues of law will govern the appellate path in the Court of Appeals under subsection (b) of O.C.G.A. § 5-6-34. Saxton v. Coastal Dialysis & Medical Clinic, Inc., 220 Ga. App. 805, 470 S.E.2d 252 (1996), aff ’d, 267 Ga. 177, 476 S.E.2d 587 (1996). Temporary injunction is appealable in absence of a certificate of immediate review. Springtime, Inc. v. Douglas County, 228 Ga. 753, 187 S.E.2d 874 (1972). Grant of a temporary injunction is appealable. Pizza Hut of Am., Inc. v. Kesler, 254 Ga. 360, 329 S.E.2d 133 (1985). Jurisdiction over direct appeal of case involving injunctive relief not otherwise an ‘‘equity’’ case. — When a case involved the grant or denial of an injunction as an ancillary matter, the Supreme Court’s transfer of an interlocutory appeal application to the Court of Appeals was a binding determination that the case Date: 06/14/13 Time: 12:43:35 5-6-34 was not an ‘‘equity’’ case in the Supreme Court’s general jurisdiction and the Court of Appeals had jurisdiction over direct appeal of the case; overruling Auto Cash. Inc. v. Hunt, 216 Ga. App. 239, 454 S.E.2d 162 (1995). Saxton v. Coastal Dialysis & Medical Clinic, Inc., 267 Ga. 177, 476 S.E.2d 587 (1996). Jurisdiction for appeal was proper. — Georgia Supreme Court found that O.C.G.A. § 5-6-34(a)(4) provided that appeals could be taken from all judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions. As such, the trial court’s injunctive order fell into the category of direct appeals allowed pursuant to § 5-6-34(a)(4) and the case was properly before the court. State v. Singh, 291 Ga. 525, 731 S.E.2d 649 (2012). Denial of motion to dismiss, accompanied by grant of permanent injunction. — If judgment does no more than deny the motion to dismiss complaint, it, of course, is not an appealable judgment in absence of certificate of review, but when the judgment does not stop there but goes on to award permanent injunction to plaintiffs, granting to the plaintiffs all relief which plaintiffs seek in the plaintiffs’ complaint, judgment is final and subject to direct appeal. City of Jesup v. Bennett, 226 Ga. 606, 176 S.E.2d 81 (1970). Basis for appealability of permanent injunctions. — Although a permanent injunction is directly appealable, it is not so because it is a final order for appealability purposes, but because of a special statutory provision. Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981). Continuance of restraining order is appealable as an exception to doctrine of finality of judgments. Spell v. Blalock, 243 Ga. 459, 254 S.E.2d 842 (1979). Judgment regarding dissolution of temporary restraining order must be on merits. — Issue of dissolution of temporary restraining order must have been heard and determined on its merits before judgment dissolving or refusing to dissolve it is subject to interlocutory appeal. Clements v. Kushinka, 233 Ga. 273, 210 S.E.2d 804 (1974). 554 Page: 555 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-34 Date: 06/14/13 Time: 12:43:35 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS Automatic dissolution of temporary restraining order is not an appealable judgment. Clements v. Kushinka, 233 Ga. 273, 210 S.E.2d 804 (1974). Denial of ex parte temporary restraining order is not a final judgment or one appealable under this section. Williams v. Ware, 240 Ga. 601, 242 S.E.2d 108 (1978). Trial court order indefinitely extending a temporary restraining order against a party is the equivalent of a judgment granting an interlocutory injunction and is directly appealable. Matrix Fin. Servs. v. Dean, 288 Ga. App. 666, 655 S.E.2d 290 (2007). Effect of pending jury trial on damages. — Denial of injunctive relief is immediately appealable under O.C.G.A. § 5-6-34, even though there is a jury trial pending on the question of damages. Earth Mgt., Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455 (1981). Absent manifest abuse, trial court’s discretion not interfered with. — Discretion of the trial court in granting or denying interlocutory injunctive relief will not be interfered with in the absence of a showing of manifest abuse. Mark Smith Constr. Co. v. Fulton County, 248 Ga. 694, 285 S.E.2d 692 (1982). Reversal required where court abused court’s discretion by not balancing equities. — Because an order granting the interlocutory injunction did not reflect that the trial court balanced the relative equities of the parties, which the party seeking the relief would have had to demonstrate entitlement to, the order had to be reversed, as the trial court abused the court’s discretion. Bernocchi v. Forcucci, 279 Ga. 460, 614 S.E.2d 775 (2005). Restraining order in divorce case. — Since the ‘‘underlying subject matter’’ of the case was divorce, case involving order temporarily restraining husband from selling, transferring, or encumbering certain property was to be brought to the Supreme Court by application pursuant to O.C.G.A. § 5-6-35 rather than by direct appeal. Rolleston v. Rolleston, 249 Ga. 208, 289 S.E.2d 518 (1982). Divorce decree also involving child custody. — Right to a direct appeal in 5-6-34 child custody cases in O.C.G.A. § 5-6-34(a)(11) did not apply to a divorce decree in which child custody was an issue, even though the only relief sought on appeal pertained to the custody decision; the underlying subject matter was still the divorce action. Therefore, a parent was required to follow the discretionary appeal procedure of O.C.G.A. § 5-6-35, and the parent’s direct appeal was dismissed. Todd v. Todd, 287 Ga. 250, 696 S.E.2d 323 (2010). Order denying motion for stay to conduct arbitration is not appealable except under interlocutory appeal provisions of O.C.G.A. § 5-6-34. Tasco Indus., Inc. v. Fibers & Fabrics, 162 Ga. App. 593, 292 S.E.2d 439 (1982). There is no direct appeal from order denying motion to stay proceedings pending arbitration. Phillips Constr. Co. v. Cowart Iron Works, Inc., 162 Ga. App. 861, 293 S.E.2d 355 (1982), aff ’d, 250 Ga. 488, 299 S.E.2d 538 (1983). Stay pending arbitration. — Because of the unnecessary delay and expenses to parties of an incorrect determination of whether judicial proceedings should be stayed pending arbitration, trial courts, except in clearest cases, should certify orders granting or denying such stays for immediate appeal. Phillips Constr. Co. v. Cowart Iron Works, Inc., 250 Ga. 488, 299 S.E.2d 538 (1983). Grant or denial of a stay under the Soldiers’ and Sailors’ Civil Relief Act is a final judgment on the collateral matter of the stay and is directly appealable. Vlasz v. Schweikhardt, 178 Ga. App. 512, 343 S.E.2d 749 (1986). Trial court lacked authority to issue injunction. — Trial court lacked authority to grant a property owner’s request for an injunction because the owner had no further recourse in the trial court and could not properly petition for injunctive relief two years after entry of a judgment awarding the owner damages in a trespass action; because the trespass action did not involve any other judgments or rulings deemed directly appealable under O.C.G.A. § 5-6-34(a), the exercise of jurisdiction by the Court of Appeals necessarily required a determination that the damages judgment was a final judgment 555 Page: 556 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Injunctions and Restraining Orders (Cont’d) within the meaning of that statute, that no issues remained to be resolved, and that the parties had no further recourse in the trial court, and those findings were binding in all subsequent proceedings in the trial court and in the appellate courts. Paine v. Nations, 301 Ga. App. 97, 686 S.E.2d 876 (2009). Judgments of Contempt Order adjudging one in contempt is a final judgment. — Order adjudging one in contempt means trial court has passed upon merits of cases and the order, in effect, is a final disposition of the contempt matter by that court, whether it involves an interlocutory order or a final judgment. Ramsey v. Ramsey, 231 Ga. 334, 201 S.E.2d 429 (1973). When individual is adjudged in contempt, trial court is done with the matter and to require an application for discharge, as a condition precedent to appeal, is usually a futile and empty gesture. Ramsey v. Ramsey, 231 Ga. 334, 201 S.E.2d 429 (1973). Order finding one in contempt of court is a subject for direct appeal. In re Booker, 186 Ga. App. 614, 367 S.E.2d 850 (1988). Direct appeals may be taken from contempt orders even if the contemnor is given the opportunity to purge the contempt before punishment is imposed. Hamilton Capital Group, Inc. v. Equifax Credit Info. Servs., 266 Ga. App. 1, 596 S.E.2d 656 (2004). Judgment rendered under court’s own motion which authorizes holding persons named in contempt. — Judgment rendered sua sponte by superior court which mandates actions and which, if valid, would authorize court to hold persons named in such judgment in contempt of court is an appealable judgment. Darden v. Ravan, 232 Ga. 756, 208 S.E.2d 846 (1974). Dismissal of one of two counts of cause of action does not permit case to be carried to appellate court while other count is left pending. Georgia Cas. Co. v. McRitchie, 42 Ga. App. 488, 156 S.E. 458 (1931). Date: 06/14/13 Time: 12:43:35 5-6-34 Dismissal of crossbill on general demurrer (now motion to dismiss) is not a final disposition of cause under provisions of section. Sanders v. Sanders, 212 Ga. 244, 91 S.E.2d 604 (1956). Supreme Court of Georgia declined to address error attached to a contempt finding in a wholly separate matter; moreover, the presented pointed to no evidence in the record that tied that case to the instant prosecution. Hill v. State, 281 Ga. 795, 642 S.E.2d 64 (2007). Judgment in contempt case is appealable without applying for discharge. — Use of conjunctive word ‘‘and’’ between categories of bail trover and contempt cases in paragraph (a)(2) suggests that it was the intent of the legislature to separate these two types of cases in statute so as to authorize an appeal in a contempt case without first requiring an application for discharge. Ramsey v. Ramsey, 231 Ga. 334, 201 S.E.2d 429 (1973). Order finding appellant in contempt but not imposing punishment is not final. — When the trial court issues an order finding the appellant in contempt of court but does not impose punishment, no final judgment has been entered and the case is still pending in the court below and the appellate court cannot review the lower court’s decision. In re Crudup, 149 Ga. App. 214, 253 S.E.2d 802 (1979). Order to produce documents or face contempt not final order. — When the trial court orders the defendant to permit subpoenaed documents to be copied and orders that upon any failure of the defendant to comply with the terms of the order, the defendant shall be cited to appear before the court to show cause why the defendant should not be held guilty of contempt, the contempt proceeding is pending in the court below and the trial court’s order is not final and therefore can be appealed only by compliance with the interlocutory appeal provision in subsection (b) of O.C.G.A. § 5-6-34. Payne v. Presley, 169 Ga. App. 36, 311 S.E.2d 849 (1983). Dismissal of citation for contempt is not an appealable judgment. Fulford v. Fulford, 225 Ga. 510, 170 S.E.2d 27 (1969). 556 Page: 557 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-34 Date: 06/14/13 Time: 12:43:35 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS Dismissal of father’s motion for contempt in visitation hearing was directly appealable. — Under O.C.G.A. § 5-6-34(a)(11), a father had the right to a direct appeal from the trial court’s dismissal of a motion for contempt against the mother for interference with the father’s visitation with the children. Dennis v. Dennis, 302 Ga. App. 791, 692 S.E.2d 47 (2010). No jurisdiction to consider contempt order. — Supreme court had no jurisdiction to consider a trial court’s order holding a common law husband in contempt because the enumeration that addressed the contempt order was not predicated upon a proper and timely appeal from that order or from any other appealable order that encompassed that subsequent ruling since the contempt order was not prior to or contemporaneous with that final judgment such that it can be enumerated in the case pursuant to O.C.G.A. § 5-6-34(d) but was a subsequent ruling that the husband was not entitled to enumerate; a separate appeal was not proper in the absence of compliance with the discretionary appeal procedures set forth in O.C.G.A. § 5-6-35(a)(2), no application seeking discretionary review of the contempt order had ever been filed, and the record did not contain any transcript of the contempt hearing. Norman v. Ault, 287 Ga. 324, 695 S.E.2d 633 (2010). Review of Collateral Judgments, Rulings, or Orders When collateral order directly appealable. — Collateral order is directly appealable if the order: (1) completely and conclusively resolves the issue appealed; (2) concerns an issue which is ‘‘substantially separate’’ from the basic issues presented in the complaint; and (3) would result in the loss of an important right and is ‘‘effectively unreviewable on appeal.’’ Department of Transp. v. Hardaway Co., 216 Ga. App. 262, 454 S.E.2d 167 (1995). Because plaintiffs’ claim under the Declaratory Judgment Act was independent of their claim under the Administrative Procedure Act (APA) and was directly appealable, plaintiffs could include their 5-6-34 APA claim in their appeal under O.C.G.A. § 5-6-34(d) and were not required to file an application for appeal under O.C.G.A. § 5-6-35(a)(1). Zitrin v. Ga. Composite State Bd. of Med. Examiners, 288 Ga. App. 295, 653 S.E.2d 758 (2007), cert. denied, 2008 Ga. LEXIS 285 (Ga. 2008). Other orders reviewable on direct appeal from denial of appeal from state to superior court. — On a debtor’s appeal from a state court’s denial of the debtor’s appeal to the superior court, the Court of Appeals had jurisdiction of all the state court’s rulings pursuant to O.C.G.A. § 5-6-34(d), which allowed review of other orders rendered in the case that may affect the proceedings and that were raised on appeal. Roberts v. Windsor Credit Servs., 301 Ga. App. 393, 687 S.E.2d 647 (2009). Having filed a notice of appeal from the grant of summary judgment, the plaintiff could also appeal an order denying a motion to strike. Pierce v. Wendy’s Int’l, Inc., 233 Ga. App. 227, 504 S.E.2d 14 (1998). Reporter’s privilege. — Non-parties engaged in news gathering may file a direct appeal of an order denying those parties the statutory reporter’s privilege under the collateral order exception to the final judgment rule. In re Paul, 270 Ga. 680, 513 S.E.2d 219 (1999). Review only of orders which are raised on appeal of appealable order is afforded by subsection (d). Vowell v. Carmichael, 235 Ga. 410, 219 S.E.2d 735 (1975). When no enumeration of error is made to an order appealable under subsection (a) or (b), the court will not review an order which would have been reviewed under subsection (d). Gano v. Gano, 243 Ga. 564, 255 S.E.2d 59 (1979). Matters not properly presented. — Nothing in subsection (c) requires the court to pass upon a matter not properly presented for decision. Freeman v. City of Valdosta, 119 Ga. App. 345, 167 S.E.2d 170 (1969). Order requiring county to pay defendant’s expenses. — County may file a direct appeal from an order requiring a county to pay a defendant’s expenses in a murder case under the collateral order 557 Page: 558 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Review of Collateral Judgments, Rulings, or Orders (Cont’d) exception to the final judgment rule in O.C.G.A. § 5-6-34. Fulton County v. State, 282 Ga. 570, 651 S.E.2d 679 (2007). Orders not appealable — An order placing a freeze on a stroke victim’s bank accounts did not fall under the collateral order exception to the final judgment rule, since it was not one of those types of orders to which the exception has been applied, and because it did not completely and conclusively resolve the issue appealed, did not concern an issue substantially separate from the basic issues presented in the complaint, and would not result in the loss of an important right. Parker v. Kennon, 235 Ga. App. 272, 509 S.E.2d 152 (1998). Appealability of prior orders. — Although a condominium unit owner appealed from a trial court denial of a motion to extend time to file a notice of appeal, and the owner failed to file a notice of appeal from the trial court judgment on the jury verdict and from a prior order of contempt, the appellate court was able to address errors raised on appeal therefrom, to the extent discernable, under O.C.G.A. § 5-6-34(d). Schroder v. Murphy, 282 Ga. App. 701, 639 S.E.2d 485 (2006), cert. denied, 2007 Ga. LEXIS 220 (Ga. 2007). Subsection (c) is inapplicable to nonappealable orders entered by trial court subsequent to appeal. Vowell v. Carmichael, 235 Ga. 410, 219 S.E.2d 735 (1975). In a suit between a church and a minister, the trial court’s order striking a portion of the minister’s complaint was not a final adjudication of all claims, thereby entitling the minister to appeal. It was only a determination that the minister had waived the right to a jury trial under O.C.G.A. § 23-3-66 by not filing a jury demand before a hearing was held by a special master, and not that any of the claims themselves had been waived or otherwise disposed of. Rhymes v. E. Atlanta Church of God, Inc., 284 Ga. 145, 663 S.E.2d 670 (2008). State’s ability to appeal defendant’s choice to proceed without jury. — Al- Date: 06/14/13 Time: 12:43:35 5-6-34 though a petition for a writ of prohibition was a separate civil proceeding which allowed for a final and appealable ruling regarding it, the determination of whether the state had a right to appeal a ruling was determined by the underlying subject matter, not the relief sought, and since the state was not statutorily authorized to appeal the denial of its objection to the defendant’s waiver of a jury trial in a criminal case, and the denial of its petition for writ of prohibition seeking to compel a jury trial, the state supreme court had to dismiss the state’s appeal of the denial of its writ of prohibition since the state supreme court did not have jurisdiction to reverse the ruling after the writ had been denied and statutory law did not permit the state to appeal that ruling. Howard v. Lane, 276 Ga. 688, 581 S.E.2d 1 (2003). Discovery orders. — Discovery orders are not directly appealable as an exception to the final judgment rule for appeal of collateral orders. Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 485 S.E.2d 525 (1997), overruling Department of Trans. v. Hardaway, 216 Ga. App. 262, 454 S.E.2d 167 (1995). When attorneys for a defendant in a capital case served a subpoena regarding the funding of indigent services on the Executive Director of the Georgia Public Defender Standards Council, the Council’s appeal from the denial of Council’s motion to quash was directly appealable under the collateral order doctrine. It involved matters that were unrelated to the basic issues to be decided in the criminal case; an appeal would conclusively resolve the discovery issue; and the important rights of a number of indigent capital defendants would be compromised if the Council had to await final judgment before seeking review. Britt v. State, 282 Ga. 746, 653 S.E.2d 713 (2007). Discovery sanction not directly appealable. — In a civil suit, an appellate court properly dismissed an appeal of an order finding the appellants in contempt for violating a discovery order and that dismissed the answer and entered a default judgment as to liability as the order was not directly appealable as a contempt judgment under O.C.G.A. § 5-6-34(a)(2) 558 Page: 559 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-34 Date: 06/14/13 Time: 12:43:35 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS since the order did not impose a civil or criminal contempt sanction but rather imposed a discovery sanction under O.C.G.A. § 9-11-37(b)(2)(C). Am. Med. Sec. Group, Inc. v. Parker, 284 Ga. 102, 663 S.E.2d 697 (2008). Denial of motion to dismiss based on sovereign immunity. — Patient sued the Board of Regents of the University System of Georgia alleging the board failed to notify the patient that transfusions given at a college hospital might have exposed the patient to HIV. Although the trial court’s order denying the board’s motion to dismiss was not a final judgment and was not directly appealable by statute, as the order was based on a conclusive determination that the board was not immune from suit on the basis of sovereign immunity, the order was appealable under the collateral order doctrine. Bd. of Regents v. Canas, 295 Ga. App. 505, 672 S.E.2d 471 (2009). In a wrongful death case, an appellate court had jurisdiction to consider an appeal of a denial of the Georgia Department of Transportation’s motion to dismiss under O.C.G.A. § 9-11-12(b)(1) based on the collateral order exception to the final judgment rule. Ga. DOT v. Crooms, 316 Ga. App. 536, 729 S.E.2d 660 (2012). Denial of motion to recuse. — Court of appeals had jurisdiction under the collateral order doctrine to consider the defendant’s appeal of an order denying a motion to recuse because the trial court’s order concerned a matter wholly unrelated to the basic issues to be decided in the criminal case; whether the trial judge could properly preside over the case would be unresolved if review had to await final judgment, and the order resolved the matter completely and nothing remains in the underlying case to affect it. Braddy v. State, 316 Ga. App. 292, 729 S.E.2d 461 (2012). Moot Issues Without supersedeas, complaint that action ordered is erroneous becomes moot. — Without supersedeas, action ordered by trial court must be done as ordered and once the ordered action is taken, complaint about its being erroneously ordered becomes moot. Padgett v. 5-6-34 Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974). To prevent appeal of order requiring action which may affect rights of litigants from becoming moot, it is necessary for appealing party to obtain a supersedeas. If a supersedeas is not obtained, then ordered action takes place as ordered, and the appeal becomes moot. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974). If trial court refuses to grant supersedeas, party may request supersedeas from an appellate court. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974). Procedural defects cured. — When an attorney did not claim that there were procedural defects in the entry of an appealed order, which contained findings of fact and conclusions of law relating to a previous order compelling the release of a client’s file, any procedural defects with regard to the previous order were cured and the attorney’s claims relating to the procedural defects in the previous order were rendered moot for purposes of O.C.G.A. § 5-6-34(d). Mary A. Stearns, P.C. v. Williams-Murphy, 263 Ga. App. 239, 587 S.E.2d 247 (2003). Denial of summary judgment after verdict and judgment is a moot issue. Trade City G.M.C., Inc. v. May, 154 Ga. App. 371, 268 S.E.2d 421 (1980). After verdict and judgment have been entered, Court of Appeals cannot review judgment denying motion for summary judgment because that issue became moot when court heard evidence at trial. Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga. App. 154, 264 S.E.2d 662 (1980). Failure to seek interlocutory appeal. — When plaintiff could have taken an interlocutory appeal of the trial court’s denial of the plaintiff ’s motion to dismiss and plea in abatement but instead of appealing let the suit go to judgment, even assuming the proceedings would properly have been abated, the question of abatement became moot when the proceedings moved to a judgment. MNM 5, Inc. v. Anderson/6438 N.E. Partners, Ltd., 215 Ga. App. 407, 451 S.E.2d 788 (1994). Appeal deemed moot and dismissed. — Patients’ appeal of a judgment 559 Page: 560 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Moot Issues (Cont’d) entered against the patients in a medical malpractice action on the ground that it was error to grant a motion to transfer filed by a hospital and corporation pursuant to the forum non conveniens statute, O.C.G.A. § 9-10-31.1, was dismissed as moot because the patients admitted in the patients’ appellate brief that the patients’ case had already been adjudicated, and patients asserted no trial error nor any other error in the Cobb County Superior Court; therefore, any determination by the Court of Appeals regarding whether the Fulton County Superior Court was authorized under the forum non conveniens statute to transfer the patients’ case to Cobb County Superior Court for adjudication would be an abstract exercise unrelated to any existing facts or rights. Lamb v. Javed, No. A09A2234, 2010 Ga. App. LEXIS 44 ( Jan. 19, 2010). Mother’s appeal from juvenile court’s finding of deprivation was rendered moot by subsequent unappealed deprivation and custody judgments in the juvenile court; in the period of time between the issuance of the order appealed from and the docketing of the mother’s appeal, the juvenile court conducted a disposition hearing and later issued an order reaffirming the court’s finding of the child’s deprivation and grant of temporary custody to the Department of Health Services’ Division of Children and Family Services, an order which the mother did not appeal. In the Interest of T. H., 319 Ga. App. 216, 735 S.E.2d 287 (2012). Application 1. In General Failure to comply with subsection (b). — Denial of a motion to recuse was not a final order and failure to comply with the provisions of subsection (b) of O.C.G.A. § 5-6-34 mandated the dismissal of the appeal of that motion. Warringer v. Warringer, 204 Ga. App. 86, 418 S.E.2d 446 (1992). Judgment appealed from must be in writing. — Before appeal may be made, judgment appealed from must be in Date: 06/14/13 Time: 12:43:35 5-6-34 writing. Merrill v. State, 128 Ga. App. 403, 196 S.E.2d 876 (1973). Party that sought and was granted an interlocutory appeal from the denial of the party’s motion for summary judgment, but failed to timely file the party’s notice of appeal in compliance with subsection (b) of O.C.G.A. § 5-6-34, committed a procedural default fatal to the party’s appeal and was foreclosed from resubmitting the matter for appellate review. International Indem. Co. v. Robinson, 231 Ga. App. 236, 498 S.E.2d 795 (1998). When the defendant permitted the vacation of a court order in conjunction with transfer of the entire case for jury trial, the judgment appealed from was not final within the meaning of paragraph (a)(1) of O.C.G.A. § 5-6-34 and the defendant’s appeal was dismissed for failure to comply with subsection (b) of § 5-6-34. Dobbs v. Atkinson, 238 Ga. App. 151, 517 S.E.2d 597 (1999). Given that paragraphs 12 and 13 of the superior court’s ‘‘final judgment and decree of divorce’’ provided 90 days for action by the parties, the propriety of which action would be open to review by the trial court, and made a spouse’s application for discretionary appeal therefrom interlocutory in nature, when the spouse failed to follow the interlocutory appeal procedures set out in O.C.G.A. § 5-6-34(b), the application was dismissed. Miller v. Miller, 282 Ga. 164, 646 S.E.2d 469 (2007). Since a church’s suit against a minister involved multiple claims, and the trial court’s decision adjudicated fewer than all of the claims, in order to appeal, the minister had to either: (1) obtain entry of judgment under O.C.G.A. § 9-11-54(b) based on a finding of no just reason for delay; or (2) obtain a certificate allowing immediate appeal under O.C.G.A. § 5-6-34(b). Because neither § 5-6-34(b) nor § 9-11-54(b) was followed, the minister’s appeal was premature. Rhymes v. E. Atlanta Church of God, Inc., 284 Ga. 145, 663 S.E.2d 670 (2008). Plaintiff ’s motion to dismiss the defendants’ appeal was denied because the defendants were not required to file an application for discretionary appeal pursuant to O.C.G.A. § 5-6-34(b); the underlying subject of the appeal was not one 560 Page: 561 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-34 Date: 06/14/13 Time: 12:43:35 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS of those listed in O.C.G.A. § 5-6-35 requiring an application, and the trial court’s order was final because there was nothing pending in the trial court. Std. Bldg. Co. v. Schofield Interior Contrs., Inc., 315 Ga. App. 516, 726 S.E.2d 760 (2012). Certification of class action. — Attorneys, who were divided by the trial court into two classes, were not required to seek an interlocutory appeal from that ruling, and the attorneys were permitted by O.C.G.A. § 5-6-34(d) to raise the trial court’s rulings on certification on appeal from a final judgment; thus, the City of Atlanta’s argument in the tax refund case that it had relied upon the denial of certification as to one of two classes of attorneys with regard to a tax refund failed. Barnes v. City of Atlanta, 281 Ga. 256, 637 S.E.2d 4 (2006). When an application is transferred from one appellate court to the other, the 30-day time period is to be computed from the date of the filing in the court to which the application has been transferred. Marr v. Georgia Dep’t of Educ., 264 Ga. 841, 452 S.E.2d 112 (1995). Final judgment cannot be amended at subsequent term. Redmond v. Walters, 228 Ga. 417, 186 S.E.2d 93 (1971). Nunc pro tunc certificate of immediate review is without efficacy to support appeal. Whitlock v. State, 124 Ga. App. 599, 185 S.E.2d 90 (1971). Nunc pro tunc entry cannot be used to correct failure to comply with mandatory requirements of Appellate Practice Act. Blackstone v. State, 131 Ga. App. 666, 206 S.E.2d 553 (1974). No revival of right to appeal. — Nunc pro tunc entry of certificate for immediate review cannot revive right of appeal which has expired. Whitlock v. State, 124 Ga. App. 599, 185 S.E.2d 90 (1971). Filing of notice of appeal acts as supersedeas even in interlocutory appeal. Lawrence v. Whittle, 146 Ga. App. 686, 247 S.E.2d 212 (1978). After the correct procedure is followed, the notice of appeal acts as a supersedeas in the case. Carter v. Data Gen. Corp., 162 Ga. App. 244, 291 S.E.2d 99 (1982). Appellee in interlocutory appeal cannot voluntarily dismiss claim in- 5-6-34 volved after notice of appeal is filed. Sacks v. McCrory, 156 Ga. App. 174, 274 S.E.2d 158 (1980). Untimely filed notice of appeal is not grounds for dismissal when the appellant was entirely without fault in regard to the delay, but rather the delay was caused by the clerk’s error. Western Elec. Co. v. Capes, 164 Ga. App. 353, 296 S.E.2d 381 (1982), cert. vacated, 250 Ga. 890, 302 S.E.2d 108 (1983). Disposition of a motion for an out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal; Georgia’s courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied the right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of the appellant’s appeal rights. Copeland v. State, 264 Ga. App. 905, 592 S.E.2d 540 (2003). Notice of appeal prevents plaintiff from dismissing case while any issue is on appeal. — Filing of notice of interlocutory appeal acts as supersedeas so as to prevent the plaintiff from dismissing the case while any issue was on appeal under Ga. L. 1966, p. 609, § 41 (see O.C.G.A. § 9-11-41(a)). To hold otherwise would subject the appellant to additional costs and possible harassment by appellee who dismisses pending suit when faced with reversal on interlocutory appeal; appellee could then refile his lawsuit, and require the appellant to again bring appeal; just as subsection (a) of Ga. L. 1966, p. 609, § 41 prevented such actions when an appeal was taken from the final judgment, so too the statute applied in instances of appeal from interlocutory rulings. Steele v. Steele, 243 Ga. 522, 255 S.E.2d 43 (1979). Two methods for appealing orders as to less than all claims of parties. — There were two principal methods by which appeal might be brought from orders in multi-claim party cases as to less than all claims or parties involved. One was that complaining party may obtain certificate of immediate review from trial judge under subsection (b) of former Code 561 Page: 562 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Application (Cont’d) 1. In General (Cont’d) 1933, § 6-701 (see O.C.G.A. § 5-6-34). The second method was where the trial judge entered an order upon express determination that there were no just reasons of delay and upon express direction for entry of judgment under provision of Ga. L. 1966, p. 609, § 54 (see O.C.G.A. § 9-11-54(b)). When second method was used, the appellate court must still determine whether the judgment rendered met the requirements of finality contained in former Code 1933, § 6-701. J.C. Penney Co. v. Malouf Co., 125 Ga. App. 832, 189 S.E.2d 453 (1972), rev’d on other grounds, 230 Ga. 140, 196 S.E.2d 145 (1973). When order appealed from adjudicated less than all claims and did not provide for the entry of a final judgment as provided in Ga. L. 1966, p. 609, § 54 (see O.C.G.A. § 9-11-54(b)), nor was there a certificate as provided by subsection (b) of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34), there was no appealable judgment. Givens v. Gray, 124 Ga. App. 152, 183 S.E.2d 29 (1971). Judgment need not be attacked by one of the methods provided in Ga. L. 1967, p. 226, §§ 26, 27, 30 (see O.C.G.A. § 9-11-60), as any final judgment may be timely appealed. Hiscock v. Hiscock, 227 Ga. 329, 180 S.E.2d 730 (1971). Orders entered subsequent to the filing of a notice of appeal are appealable only pursuant to a subsequently filed notice of appeal. An enumeration of error which addresses the subsequent grant of summary judgment on the issue of damages is not predicated upon a timely filed notice of appeal from that order or from any other appealable order which encompasses that subsequent ruling. Costanzo v. Jones, 200 Ga. App. 806, 409 S.E.2d 686, cert. denied, 200 Ga. App. 895, 409 S.E.2d 686 (1991). Motion for rehearing pending when notice of appeal is filed. — Motion for rehearing, undisposed of at time notice of appeal is filed does not cause appeal to be premature, inasmuch as pendency of such motion does not toll time for filing appeal. George v. Lee, 118 Ga. App. 302, 163 S.E.2d 262 (1968). Date: 06/14/13 Time: 12:43:35 5-6-34 Prior nonappealable order may be used as enumeration of error whenever appeal is brought to Court of Appeals from final judgment. Kilgore v. Kennesaw Fin. Co., 128 Ga. App. 120, 195 S.E.2d 799 (1973). When judgment can be appealed under certificate of appealability, plaintiffs have right to elect to await entry of final judgment disposing of case entirely before entering appeal, and in so doing they are authorized to enumerate error on prior judgment. Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 204 S.E.2d 789 (1974). Pursuant to subsection (d) of O.C.G.A. § 5-6-34, the defendant would be entitled to enumerate as error any other prior or contemporaneous rulings in the case. Defendant would not, however, be entitled to enumerate as error any and all other subsequent rulings in the case. Costanzo v. Jones, 200 Ga. App. 806, 409 S.E.2d 686, cert. denied, 200 Ga. App. 895, 409 S.E.2d 686 (1991). On appeal from denial of temporary alimony, error may be assigned on temporary custody order included in same order, without reference to appealability of custody order standing alone. Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575 (1970). Grant of motion to dismiss. — Appeal involving the grant of a motion to dismiss for failure to follow a procedural requirement of the Georgia Business Corporation Code was not convertible to a summary proceeding; as such, the general appellate process was applicable. McGregor v. Stachel, 200 Ga. App. 324, 408 S.E.2d 118 (1991). Decisions of administrative agencies. — When taxpayer did not file an application for discretionary appeal from a decision of the superior court reviewing a decision of the Department of Revenue, but chose to appeal directly to Supreme Court pursuant to subsection (a) of O.C.G.A. § 5-6-34, such appeal was dismissed for failure to comply with procedure for appeal from decisions of administrative agencies required by O.C.G.A. § 5-6-35. Plantation Pipe Line Co.