The DINER GROUP OF GEORGIA LLC v. SAGE ATLANTA PROPERTIES LTD ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 13, 2021
The Court of Appeals hereby passes the following order:
A21A0797. SAGE ATLANTA PROPERTIES LTD. v. THE DINER GROUP OF
GEORGIA, LLC et al.
A21A0811. THE DINER GROUP OF GEORGIA, LLC et al. v. SAGE
ATLANTA PROPERTIES LTD.
Sage Atlanta Properties Ltd. sued The Diner Group of Georgia, LLC, Tammi
Duncan, George Hawxhurst, and Christopher Murphy for breach of a lease and
guarantor agreements. In 2017, the trial court entered default judgment against
Duncan.1 The case then proceeded to a bench trial against the remaining defendants.
On October 26, 2020, the trial court entered a verdict, finding The Diner Group liable
for $33,101.03. The order gave Sage Atlanta 30 days in which to elect the judgment
to be entered – default judgment against Duncan or entry of judgment on the verdict.2
In Case No. A21A0797, Sage Atlanta appeals this order. In Case No. A21A0811, The
Diner Group, Hawxhurst, and Murphy have filed a cross-appeal. We, however, lack
jurisdiction.
As a general rule, a right of direct appeal lies from a final judgment. See OCGA
§ 5-6-34 (a) (1). An order is final “within the meaning of OCGA § 5-6-34 (a) (1)
1
The trial court also entered summary judgment in favor of Hawxhurst. Sage
Atlanta appealed the ruling, and this Court reversed. See Sage Atlanta Properties,
Ltd. v. Hawxhurst, 349 Ga. App. 758 (824 SE2d 387) (2019).
2
The default judgment against Duncan totaled $127,578.29. Because the
remedies against Duncan and The Diner Group apparently were inconsistent, Sage
Atlanta was required to elect its remedy. See Chapple v. Hight, 161 Ga. 629, 631 (1)
(131 SE 505) (1926) (“The law compels an election between inconsistent remedies.”).
where it leaves no issues remaining to be resolved, constitutes the court’s final ruling
on the merits of an action, and leaves the parties with no further recourse in the trial
court.” Standridge v. Spillers, 263 Ga. App. 401, 403 (1) (587 SE2d 862) (2003)
(punctuation omitted). Here, although the trial court entered default against Duncan
and determined liability as to the remaining defendants, it has not yet entered final
judgment. Accordingly, the case is non-final, and the appeal must be dismissed. See
Hartley v. Taylor, 198 Ga. App. 641, 641-642 (402 SE2d 372) (1991); see also Lane
v. Taylor, 193 Ga. App. 777, 778 (389 SE2d 26) (1989) (“both a written judgment and
its entry by filing the writing with the clerk are essential prerequisites to an appeal”).
Under these circumstances, we lack jurisdiction to consider the appeal in Case No.
A21A0797. Because this Court must have jurisdiction over a valid appeal in order to
have jurisdiction over a cross-appeal, we must also dismiss the cross-appeal in Case
No. A21A0811. See Jarrard v. Copeland, 205 Ga. App. 20, 21 (421 SE2d 84) (1992).
For the foregoing reasons, the appeals in Case Nos. A21A0797 and A21A0811
are hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/13/2021
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.