TATYANA ELLIS v. DAVID EDWARD OLES ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 07, 2021
The Court of Appeals hereby passes the following order:
A21A1089. TATYANA ELLIS v. DAVID EDWARD OLES et al.
Tatyana Ellis filed suit against David Edward Oles and his law practice
alleging she had been over-billed for legal services. The parties filed cross-motions
for summary judgment, which remain pending below. Ellis, who is proceeding pro se,
has filed multiple additional motions, and she seeks to appeal certain rulings. The
relevant motions, orders, and notices of appeal – in chronological order – are as
follows:1
- Ellis’s April 3, 2020 motion for leave to supplement her motion for
summary judgment.
- Ellis’s April 15, 2020 “Omnibus Motion” in which she seeks to
exclude evidence on Oles’s motion for summary judgment, find Oles in
contempt, and disqualify Oles’s attorney.
- Oles’s May 18, 2020 response to Ellis’s Omnibus Motion and Motion
to Declare Plaintiff a Vexatious Litigant in which Oles sought to have
Ellis barred from filing pleadings without prior leave of the court.
- Ellis’s June 15, 2020 Sur-Reply and Cross Motion seeking to strike
1
The record contains additional motions and orders; the orders outlined are
those attached to Ellis’s December 14, 2020 notice of appeal.
Oles’s motion to declare her a vexatious litigant under Georgia’s anti-
SLAPP (“Strategic Lawsuit Against Public Participation”) statute.
- Ellis’s June 24, 2020 motion to recuse the trial judge.
- The trial court’s July 21, 2020 order denying Ellis’s motion to recuse.
- Ellis’s July 24, 2020 second motion to recuse the trial judge, which the
trial court construed as a motion for reconsideration.
- The trial court’s July 30, 2020 order granting reconsideration, but
denying the motion to recuse.
- The trial court’s November 9, 2020 order in which it denies Oles’s
motion to declare Ellis a vexatious litigant and denies Ellis’s motion to
strike, finding that Ellis’s motion did not trigger OCGA § 9-11-11.1,
Georgia’s anti-SLAPP statute.
- The trial court’s December 3, 2020 order denying Ellis’s April 3, 2020,
motion to supplement her motion for summary judgment.
- Ellis’s December 9, 2020 notice of appeal from the trial court’s
November 9, 2020 order, which also seeks to appeal the July orders
denying her motions to recuse.
- Ellis’s December 14, 2020 notice of appeal from the trial court’s
December 3, 2020, order denying her request for leave to supplement
her motions for summary judgment.
As a general rule, a direct appeal requires that the judgment or order appealed
be final, which means the case is no longer pending in the court below. See Fein v.
Chenault, 330 Ga. App. 222, 227 (767 SE2d 766) (2014). When a direct appeal is
filed from a non-final order, we ordinarily lack jurisdiction to consider the appeal. See
id. Here, the cross-motions for summary judgment remain pending below, which
renders the case non-final.
The law, however, permits a direct appeal from certain non-final orders.
Specifically, a direct appeal may be had from “[a]n order granting or denying a
motion to dismiss or a motion to strike” under OCGA § 9-11-11.1 (b), Georgia’s anti-
SLAPP statute. OCGA § 9-11-11.1 (e); see OCGA § 5-6-34 (a) (13). Ellis contends
that the trial court’s order denying her motion to strike constituted a directly
appealable order under these statutes.
Although Ellis denominated her motion as an anti-SLAPP motion to strike, we
are not bound by her characterization of the motion; courts construe motions
“according to their substance and function and not merely by nomenclature.” Forest
City Gun Club v. Chatham County, 280 Ga. App. 219, 220 (633 SE2d 623) (2006).
When a litigant inundates a trial court with filings, that court has discretion to place
limits on such filings. See Higdon v. Higdon, 321 Ga. App. 260, 267 (4) (739 SE2d
498) (2013). Oles was thus authorized to file a motion seeking to have limits placed
on Ellis’s ability to file. And Ellis’s objection is properly construed as a response to
that motion rather than an anti-SLAPP motion to strike.2 It follows that Ellis has no
right to direct appeal under OCGA § 5-6-34 (a) (13).
Because the case remains pending below, Ellis was required to comply with the
interlocutory appeal procedures in order to appeal. See OCGA § 5-6-34 (b) (“Where
the trial judge in rendering an order . . . not otherwise subject to direct appeal, . . .
2
The purpose of anti-SLAPP legislation is to encourage participation by
citizens in matters of public interest by curtailing lawsuits brought for the purpose of
chilling the exercise of constitutional rights of petition and freedom of speech. See
Geer v. Phoebe Putney Health Sys., Inc., 310 Ga. 279, 283-284 (2) (849 SE2d 660)
(2020) (discussion of purpose and application of anti-SLAPP statute). Here, we fail
to see how Ellis’s lawsuit – a billing dispute with her former attorney – could fall
within the ambit of the anti-SLAPP statute.
certifies within ten days of entry thereof that the order . . . is of such importance to the
case that immediate review should be had, the Supreme Court or the Court of Appeals
may . . . permit an appeal to be taken from the order . . . if application is made thereto
within ten days after such certificate is granted.”); Forest City Gun Club, 280 Ga.
App. at 221-222 (appeal of pre-trial ruling required compliance with interlocutory
appeal procedures). Ellis’s failure to comply with the interlocutory appeal procedures
deprives us of jurisdiction over this appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/07/2021
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.