JOHN DA GROSA SMITH v. RYAN MILLSAP ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 21, 2022
The Court of Appeals hereby passes the following order:
A22A1505; A22A1506. JOHN DA GROSA SMITH et al v. RYAN MILLSAP et
al.
This case originated as a dispute between former business partners, M. James
Schulz and Ryan Millsap. In 2019, attorney John Da Grosa Smith became counsel of
record for all of the defendants, including Millsap. In March 2021, Smith and his law
firm, Smith LLC, (collectively, “Smith”) withdrew as counsel, and Smith filed an
attorney’s lien pursuant to OCGA § 15-19-14 for services rendered to the defendants.
The trial court thereafter granted the defendants’ emergency motion for removal of
the attorney’s lien and cancelled the lien. Smith appealed. See Case No. A22A0429.
On December 28, 2021, while Smith’s appeal was pending, the trial court entered an
order (1) finding that the pending appeal in Case No. A22A0429 did not deprive it
of jurisdiction in the underlying lawsuit; (2) denying the defendants’ motion to vacate
the parties’ October 2021 arbitration award; (3) adopting the arbitration award as the
judgment in the case; and (4) directing the trial court clerk to maintain the funds in
the court’s registry pending the disposition of this Court’s appeal in Case No.
A22A0429.
Thereafter, Smith filed a notice of appeal from the trial court’s December 28
order, which has been docketed as Case No. A22A1505. Smith also filed letter briefs
in the trial court, seeking to supplement the transcript of the hearing that led to the
December 28 order. On April 14, 2022, the trial court entered an order finding no
basis to supplement the transcript and setting the matter for a further hearing. Smith
filed a separate notice of appeal from the trial court’s April 14, 2022 order, and that
appeal has been docketed as Case No. A22A1506. Since these appeals were docketed,
we have decided Case No. A22A0429, determining that the trial court’s order
cancelling Smith’s attorney’s lien was not subject to direct appeal as a collateral order
and dismissing that appeal. See Smith v. Millsap, __ Ga. App. __ (Case No.
A22A0429) (June 7, 2022). The trial court, however, has not yet addressed how the
funds in its registry will be disbursed; in its order of April 14, the trial court set a
hearing on that matter for July 2022.
Under these circumstances, the appeals in both A22A1505 and A22A1506
must be dismissed as interlocutory. The record makes clear that this case remains
pending below, as the trial court still needs to address the disbursal of funds held in
the court registry. See generally OCGA § 5-6-34 (a) (1) (permitting appeals from
“[a]ll final judgments, that is to say, where the case is no longer pending in the court
below”); compare Grantham v. Nelson, 160 Ga. App. 68, 68 (286 SE2d 59) (1981)
(holding that writ of possession did not constitute final judgment when “[t]he rent
which has been paid into the registry of the court has not been disbursed” and all
claims had not been decided), with Godfrey v. Kirk, 161 Ga. App. 474, 476 (2) (b)
(288 SE2d 301) (1982) (holding that order distributing garnished funds was a final
order). Consequently, Smith was required to use the interlocutory appeal procedures
– including obtaining a certificate of immediate review from the trial court – to obtain
appellate review at this juncture. See OCGA § 5-6-34 (b); Boyd v. State, 191 Ga. App.
435, 435 (383 SE2d 906) (1989). His failure to do so deprives us of jurisdiction over
these appeals which are hereby DISMISSED.
We note that both Schulz and Millsap have filed varying motions to dismiss the
appeals in Case Nos. A22A1505 and A22A1506, arguing, inter alia, that nonparty
Smith lacks standing to appeal the trial court’s orders. See generally Thaxton v.
Norfolk Southern Corp., 287 Ga. App. 347, 349 (1) (652 SE2d 161) (2007) (“only a
party to the case can appeal from a judgment, or one who has sought to become a
party as by way of intervention and has been denied the right to do so”) (punctuation
omitted). Because we have determined that the appeals must be dismissed as
interlocutory, we do not reach the question of whether Smith has standing to pursue
them, and these motions to dismiss are hereby MARKED MOOT.1
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/21/2022
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
In his motions to dismiss, Schulz requests that this Court impose sanctions
against Smith for filing these appeals. This request is not properly before the Court.
See Court of Appeals Rule 41 (b).