Shana Burwell v. Gwinnett County School District D/B/A Gwinnett County Public Schools ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 31, 2018
The Court of Appeals hereby passes the following order:
A19D0223. SHANA BURWELL et al. v. GWINNETT COUNTY SCHOOL
DISTRICT d/b/a GWINNETT COUNTY PUBLIC SCHOOLS et al.
Shana Burwell and Matthew Burwell, Sr., (the “Plaintiffs”), pro se, filed an
action for damages and for injunctive relief against the Gwinnett County School
District, J. Alvin Wilbanks, individually and in his official capacity as superintendent
of the Gwinnett County Board of Education, and Thomas Trippany, individually and
in his official capacity as principal of Shiloh Elementary School (the “Defendants”).
The trial court dismissed the Plaintiffs’ complaint without prejudice after the
Plaintiffs failed to appear at a calendar call and the Defendants made a motion to
dismiss for lack of proper service. The Plaintiffs subsequently filed a “notice of
appeal” in this Court, which we construed as an application for discretionary appeal.
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 dismissal without prejudice of the Plaintiffs’ complaint constituted a final
judgment.
We will grant a timely application for discretionary appeal if the lower court’s
order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this
application is hereby GRANTED, and the Plaintiffs shall have ten days from the date
of this order to file a notice of appeal in the trial court. If the Plaintiffs have already
filed a timely notice of appeal in the trial court, they need not file a second notice.1
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
Clerk’s Office, Atlanta,____________________
12/31/2018
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.
1
The Plaintiffs appear to have already filed a notice of appeal in the trial court.
The clerk of the trial court requested an amended notice of appeal with additional
information. The Plaintiffs subsequently filed a “notice of appeal” in this Court,
which is the subject of this application. If the Plaintiffs intended to file an amended
notice of appeal, then they should do so in the trial court.