Philip H. Weener v. Branch Banking and Trust Company ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 08, 2017
The Court of Appeals hereby passes the following order:
A17D0398. PHILIP H. WEENER v. BRANCH BANKING AND TRUST
COMPANY.
In this garnishment action, Plaintiff/Appellee Branch Banking and Trust
Company (“the Bank”) sought to collect a debt owed by Philip H. Weener by
garnishing assets of his company, Philip H. Weener, P. C. (“Weener’s company”).
Weener’s company filed four answers to the garnishment petition, and the Bank filed
traverses of the first, third, and fourth answers. Weener filed a claim pursuant to
OCGA § 18-4-15 seeking a ruling as to the existence of a lien superior to the Bank’s
judgment lien. After a hearing in which the trial court considered only Weener’s
claim regarding the superior lien and not the traverses, the court denied Weener’s
claim. The order also expressly stated that the hearing on the Bank’s traverses would
occur at a later date. Weener filed this application for discretionary appeal, seeking
review of the trial court’s order. We lack jurisdiction.
The order that Weener seeks to appeal is not a final order. It is clear from the
trial court’s order that the Bank’s traverses remain pending below. In cases involving
multiple parties or multiple claims, a decision adjudicating fewer than all the claims
or the rights and liabilities of less than all the parties is not a final judgment. See
Shoenthal v. Shoenthal, 333 Ga. App. 729, 729 (776 SE2d 663) (2015) (punctuation
omitted). “In such circumstances, there must be an express determination under
OCGA § 9-11-54 (b) or there must be compliance with the interlocutory appeal
requirements of OCGA § 5-6-34 (b). Where neither of these code sections [is]
followed, the appeal is premature and must be dismissed.” Id. The order in this case
did not direct the entry of judgment pursuant to OCGA § 9-11-54 (b). Thus, Weener
was required to comply with interlocutory application procedures by obtaining a
timely certificate of immediate review before filing an application. Although appeals
in garnishment cases are typically by discretionary application, see OCGA § 5-6-35
(a) (4), “the discretionary-application statute, OCGA § 5-6-35, does not allow a party
to ignore the interlocutory-application subsection, OCGA § 5-6-34 (b), when
attempting to obtain appellate review” of an interlocutory order. See Scruggs v. Ga.
Dept. of Human Resources, 261 Ga. 587, 588 (1) (408 SE2d 103) (1991). Because
Weener did not comply with interlocutory application procedures, this application is
hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/08/2017
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.