Castleberry Square Condominium Association, Inc. v. Tdres 2012 LLC ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 07, 2016
The Court of Appeals hereby passes the following order:
A16D0382. CASTLEBERRY SQUARE CONDOMINIUM ASSOCIATION,
INC. v. TDRES 2012, LLC et al.
After obtaining title to a condominium following a tax sale, TDRES 2012 LLC
filed a quiet title action against several defendants, including Castleberry Square
Condominium Association, Inc. (“the Association”). In response, the Association
claimed entitlement to excess tax sale proceeds for unpaid condominium assessments.
Following submission of the claim to a special master, the trial court disbursed over
$30,000 in excess tax sale proceeds as follows: $4,815.00 to the special master;
$2,207.17 to the Association; and the remaining funds to the former owner of the
condominium unit.
The Association seeks to appeal this ruling and filed an application for
discretionary appeal under OCGA § 5-6-35 (a) (6), which requires an application for
“[a]ppeals in all actions for damages in which the judgment is $10,000 or less[.]”
However, this case commenced as a quiet title action that involved disbursement of
excess tax sale proceeds. Thus, it is not properly characterized as an “action for
damages” necessitating a discretionary application. See, e. g., Brown v. Associates
Fin. Servs. Corp., 255 Ga. 457 (339 SE2d 590) (1986); (no application required
where case commenced as a personal property foreclosure); Motor Warehouse, Inc.
v. Richard, 235 Ga. App. 835 (1) (510 SE2d 600) (1998) (no discretionary application
required from attorney fee award less than $10,000 where case commenced as a
petition to inspect and copy corporate records); Kelly v. Pierce Roofing Co., 220 Ga.
App. 391 (469 SE2d 469) (1996) (no application needed where underlying action
involved materialman’s lien against property).
Even if we were to assume that this case is an action for damages under OCGA
§ 5-6-35 (a) (6), we would look to the aggregate amount of the “damages” – here,
over $30,000 – to determine jurisdiction rather than the amount awarded to the
Association. See Ostrom v. Kapetanakos, 185 Ga. App. 728, 729 (1) (365 SE2d 849)
(1988) (“it is the amount of the underlying final judgment from which an appeal is
taken, not the enumerations of error, which determines the direct or discretionary
appealability of any given case”). In any event, the order is subject to direct appeal.
Under OCGA § 5-6-35 (j), we will grant an otherwise timely discretionary
application if the lower court’s order is subject to direct appeal. Accordingly, this
application is hereby GRANTED. The Association shall have ten days from the date
of this order to file a notice of appeal with the trial court. If, however, the
Association has already filed a notice of appeal from the order at issue, it need not file
a second notice. The clerk of the trial court is DIRECTED to include a copy of this
order in the record transmitted to the Court of Appeals.
Court of Appeals of the State of Georgia
06/07/2016
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.