The Mignott Law Group, LLC v. Brian Gardiner ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 01, 2019
The Court of Appeals hereby passes the following order:
A19D0545. MARSHA W. MIGNOTT v. BRIAN GARDINER.
A19D0551. THE MIGNOTT LAW GROUP, LLC. v. BRIAN GARDINER.
In this civil action, Plaintiff Marian Ennis1 raised a defamation claim against
Charles Pearson, in his individual capacity and in his capacity as President of
Rivercrest Homeowners Association, Inc. (“RHA”) and sought damages from both
defendants. Marsha W. Mignott and the Mignott Law Group represented Ennis, and
Brian Gardiner represented RHA. Ennis filed a motion to disqualify Gardiner, which
was denied and resulted in an award of attorney’s fees to Gardiner.2 On July 6, 2019,
and July 9, 2019, respectively, Mignott and The Mignott Law Group filed
applications for discretionary appeal from the trial court’s order dated May 10, 2019,
which denied their motion to set aside the order awarding attorney fees pursuant to
OCGA § 9-15-14 (b) and granted a motion to compel Mignott’s deposition. We lack
jurisdiction for two reasons.
First, an application for discretionary appeal must be filed within 30 days of
entry of the order to be appealed. OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App.
582 (420 SE2d 393) (1992). We lack jurisdiction to consider an untimely application.
See Hill, supra. Here, Mignott filed her application 57 days after the trial court’s
1
Ennis’s first name is listed as “Marilyn” in the trial court order at issue in this
application.
2
On May 16, 2018, we dismissed Ennis’s application for discretionary appeal
from the order awarding fees for failure to follow the interlocutory appeal procedures.
See Case No. A18D0443.
order was entered, and the Mignott Law Group filed its application 60 days after the
entry of the order. Therefore, both applications are untimely.
Second, both Mignott and the Mignott Law Group failed to follow the proper
appellate procedure. Rather than filing an application for discretionary review, they
were required to use the interlocutory appeal procedure to appeal the order at issue
because it an interlocutory order requiring compliance with OCGA § 5-6-34 (b) as
the case remains pending in the trial court. “In a case involving multiple parties or
multiple claims, a decision adjudicating fewer than all the claims or the rights and
liabilities of [fewer] than all the parties is not a final judgment.” Johnson v. Hosp.
Corp. of America, 192 Ga. App. 628, 629 (385 SE2d 731) (1989) (punctuation
omitted). Under such circumstances, there must be either an express determination
that there is no just reason for delay under OCGA § 9-11-54 (b) or compliance with
the interlocutory appeal requirements of OCGA § 5-6-34 (b). See id.
For these reasons, we lack jurisdiction over these applications, which are
hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/01/2019
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.