Steven J. Sabino v. Joseph R. Sabino ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 03, 2016
The Court of Appeals hereby passes the following order:
A16I0185. STEVEN J. SABINO v. JOSEPH R. SABINO.
Joseph R. Sabino filed an action for conversion against Steven J. Sabino.
Joseph Sabino filed a motion for partial summary judgment, which the trial court
granted. Steven Sabino appeals the trial court’s order.
Under OCGA § 9-11-56 (h), the grant of summary judgment on any issue or as
to any party is reviewable by direct appeal. City of Demorest v. Town of Mt. Airy, 282
Ga. 653, 654 n.1 (653 SE2d 43) (2007); Whiddon v. Stargell, 192 Ga. App. 826, 827-
28 (386 SE2d 884) (1989). Ordinarily, we will grant a timely application for
interlocutory appeal if the order complained of is subject to direct appeal and the
applicant has not otherwise filed a timely notice of appeal. Spivey v. Hembree, 268
Ga. App. 485, 486 n.1 (602 SE2d 246) (2004). But the application must be timely.
Pursuant to OCGA § 5-6-34 (b), a party may request interlocutory review only
if the trial court certifies within ten days of entry of the order at issue that immediate
review should be had. If the certificate of immediate review is not entered within that
ten-day period, it is untimely, and the party seeking review must wait until final
judgment to appeal. See OCGA § 5-6-34 (b); Turner v. Harper, 231 Ga. 175, 176
(200 SE2d 748) (1973). Here, the order granting partial summary judgment was
entered on March 14, 2016, but the certificate of immediate review was not entered
until 14 days later on March 28, 2014. Although the trial court signed the certificate
of immediate review on March 23, 2016, the relevant date for determining the
timeliness of the certificate is the date it was entered. See Van Schallern v. Stanco,
130 Ga. App. 687 (204 SE2d 317) (1974) (“[A] certificate for the immediate review
of a nonfinal or interlocutory judgment is ineffective unless entered, i.e., filed with
the clerk, within ten days after entry of the judgment appealed from.”). Because the
trial court did not enter the certificate of immediate review within ten days of entry
of the order at issue, we lack jurisdiction to consider this application, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
05/03/2016
Clerk’s Office, Atlanta,____________________
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.