Marvin B. Smith, III v. M. Delores Murphy ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 13, 2017
The Court of Appeals hereby passes the following order:
A18D0149. MARVIN B. SMITH, III et al. v. M. DELORES MURPHY
Marvin D. Smith, III and Sharon H. Smith petitioned in the Superior Court for
a protective order against M. Delores Murphy. Murphy then filed a counterclaim for
nuisance. The trial court dismissed the Smiths’ complaint with prejudice. Following
a subsequent motion hearing, the court awarded attorney fees to Murphy under both
OCGA § 9-11-37 (d) (1) and OCGA § 9-15-14 (b). The Smiths filed this application
for discretionary appeal, in which they claim the court lacked jurisdiction to enter the
award, the award was unjust, and the award violated an automatic bankruptcy stay.
When a trial court awards attorney fees under OCGA § 9-11-37 (d) (1), and the case
is no longer pending in the trial court, the order is a directly appealable final
judgment. See Hart v. Redmond Regional Med. Center, 300 Ga. App. 641, 642. n. 6
(686 SE2d 130) (2009). And, this Court will grant an otherwise timely application for
discretionary appeal if the lower court’s order is subject to direct appeal. See OCGA
§ 5-6-35 (j).
However, the filings do not demonstrate that the order appealed from is a final
judgment because there is no indication that Murphy’s counterclaim was adjudicated.
See Yates v. CACV of Colorado, LLC, 295 Ga. App. 69 (670 SE2d 884) (2008)
(unless summary judgment is granted on a claim or the matter is certified pursuant to
OCGA § 9-11-54 (b), a direct appeal is premature and must be dismissed where a
ruling on a counterclaim has not been obtained); Standridge v. Spillers, 263 Ga. App.
401, 403 (1) (587 SE2d 862) (2003) (“a final judgment . . . leaves no issues remaining
to be resolved, constitutes the court’s final ruling on the merits of the action, and
leaves the parties with no further recourse in the trial court.”).
Without evidence that Murphy’s counterclaim has been ruled upon, thus rendering the
court’s order a final judgment, the Smiths were required to follow the interlocutory
appeal procedures provided in OCGA § 5-6-34 (b). See Miller v. Miller, 282 Ga. 164,
165 (646 SE2d 469) (2007). Given their failure to do so, this application is hereby
DISMISSED.
Court of Appeals of the State of Georgia
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.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/13/2017
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.