David Sundy v. Martha C. Christian, Judge ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 21, 2017
The Court of Appeals hereby passes the following order:
A17D0476. DAVID SUNDY v. MARTHA C. CHRISTIAN, JUDGE et al.
David Sundy filed this discretionary application from two underlying civil
actions.1 He seeks leave to appeal an order denying a motion to disqualify a judge in
Case Number 2015CV1366. He also seeks leave to appeal five orders from Case
Number 2017CV31A, including three orders dismissing all defendants.2
Case Number 2015CV1366
“Denials of motions to recuse are interlocutory in nature. An appeal of such an
order requires compliance with the interlocutory appeal provisions of OCGA § 5- 6-34
(b),” including obtaining a certificate of immediate review within ten days of the order
sought to be appealed. See Ellis v. Stanford, 256 Ga. App. 294, 295 (2) (568 SE2d
157) (2002); see also Warringer v. Warringer, 204 Ga. App. 86 (418 SE2d 446)
(1992). And OCGA § 5-6-35, the discretionary appeal statute, does not excuse a party
seeking appellate review of an interlocutory order from complying with the additional
requirements of OCGA § 5-6-34 (b). See Bailey v. Bailey, 266 Ga. 832 (471 SE2d
213) (1996). Accordingly, Sundy’s failure to comply with the interlocutory appeal
1
Sundy filed his application in the Supreme Court, which transferred the matter
to this Court.
2
We question the propriety of filing a single application from two separate lower
court cases. See, e. g., Stephenson v. Futch, 213 Ga. 247, 248 (2) (98 SE2d 374)
(1957) (“[T]here is no authority in law for the review of the two judgments in a single
bill of exceptions[.]”)
procedures and obtain a certificate of immediate review deprives this Court of
jurisdiction.
Case Number 2017CV31A
In this case, Sundy filed a mandamus action against two Hall County superior
court judges and the clerk of court. On April 3, 2017, the assigned judge entered three
separate orders granting the defendants’ motions to dismiss. Sundy wishes to appeal
these orders as well as two others entered in the case.
Under OCGA § 5-6-34 (a) (1), a party may file a direct appeal from “[a]ll final
judgments, that is to say, where the case is no longer pending in the court below, except
as provided in Code Section 5-6-35.” It does not appear that any provision of OCGA
§ 5-6-35, the discretionary appeal statute, applies here. Rather, the trial court’s orders
dismissing Sundy’s petition constituted a final judgment. Under OCGA § 5-6-35 (j),
this Court will grant a timely discretionary application if the lower court’s order is
subject to direct appeal.
For these reasons, this application is hereby DISMISSED IN PART to the extent
Sundy seeks leave to appeal the trial court’s order from Case Number 2015CV1366.
The application is GRANTED IN PART to the extent Sundy seeks leave to appeal
Case Number 2017CV31A. Sundy shall have ten days from the date of this order to file
a notice of appeal in Case Number 2017CV31A with the superior court, if he has not
done so already. The clerk of the superior court is DIRECTED to include a copy of this
order in the record transmitted to this court.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/21/2017
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.