BRIAN BURKE v. DELMAS GLENN JONES ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 05, 2021
The Court of Appeals hereby passes the following order:
A21A0751. BRIAN BURKE v. DELMAS GLENN JONES et al.
This case concerns a dispute over a tract of land and attached structures located
in Whitfield County, Georgia. Brian Burke sued Delmas Glenn Jones, individually
and in Jones’s role as administrator of the estate of David Ridley, for transfer of this
property to Burke as specific performance, or alternatively, for damages based on
claims of unjust enrichment and fraud. Jones counterclaimed for conversion, a
dispossessory action, slander of title, punitive damages, breach of contract, and
attorney’s fees. In May 2018, the trial court issued an order requiring Burke to pay
rent into the registry of the court. Jones subsequently filed a motion for summary
judgment on Burke’s claims. The trial court granted the motion in May 2019, and
Burke appealed. This Court reversed the decision in an unpublished opinion, and the
case was remitted to the trial court and remains pending below. Burke v. Jones, Case
No. A20A0234 (July 1, 2020).
Upon remittitur, Jones filed a “Motion to Withdraw Funds from the Court,
Issue Writ of Possession Pursuant to OCGA § 44-7-54 (b) or in the alternative for
Temporary Restraining Order and Interlocutory Injunction” based on Burke’s failure
to pay the required rent into the court’s registry. On November 10, 2020, the trial
court entered an 8-page order issuing a writ of possession to Jones based on Burke’s
failure to pay rent into the court registry as ordered, but denying the motion to
withdraw funds and deeming the request for interlocutory injunction moot. Burke
then filed this direct appeal from the trial court’s order. Jones has filed a motion to
dismiss this direct appeal, arguing that Burke was required to follow the interlocutory
appeal procedure because the action remains pending below. In response, Burke
asserts that the trial court’s order is directly appealable because (1) the order is
tantamount to the grant of an interlocutory injunction, (2) the order grants or refuses
to grant an extraordinary remedy, and (3) the order is a collateral order. Burke’s
assertions lack merit, and we lack jurisdiction to consider this direct appeal.
As a general rule, a right of direct appeal lies from a final judgment; that is,
where the case is no longer pending below. See OCGA § 5-6-34 (a) (1). Here, the
action remains pending in the trial court, and the order that Burke wishes to appeal
is not a final judgment. See Landor Condo. Consultants v. Bankers First Fed. S. &
L. Assn., 198 Ga. App. 274, 275-276 (401 SE2d 305) (1991); Rivera v. Housing Auth.
of Fulton County, 163 Ga. App. 648, 648 (295 SE2d 336) (1982). Moreover, “[t]he
record reveals no determination by the trial court that there is no just reason for delay
and no express direction for the entry of judgment. We are thus constrained to hold
that no appealable final judgment exists.” Landor Condo. Consulting, 198 Ga. App.
at 275-276. Accordingly, Burke was required to follow the interlocutory application
procedures set forth in OCGA § 5-6-34 (b), which include obtaining a certificate of
immediate review from the trial court, in order to appeal the non-final order. See Pace
Constr. Corp. v. Northpark Assoc., 215 Ga. App. 438, 439 (450 SE2d 828) (1994).
Burke’s claims that the order is directly appealable under OCGA §§ 5-6-34 (a)
(4) or (7) because it is tantamount to the grant of an interlocutory injunction or an
order granting or refusing to grant extraordinary relief lack merit. The order at issue
neither granted an interlocutory injunction nor adjudicated a claim for extraordinary
relief. The order merely issued a writ of possession under OCGA § 44-7-54 (b) based
on Burke’s failure to pay court-ordered rent into the court registry.
Burke’s claim that the order is directly appealable under the collateral order
doctrine likewise fails. “The collateral order doctrine permits appeals from a small
category of decisions that are (i) conclusive, (ii) that resolve important questions
separate from the merits, and (iii) that are effectively unreviewable on appeal from
the final judgment in the underlying action.” Expedia, Inc. v. City of Columbus, 305
Ga. App. 450, 452 (1) (699 SE2d 600) (2010) (punctuation omitted). The doctrine
applies to only
a very small class of interlocutory rulings [that] are effectively final in
that they finally determine claims of right separable from, and collateral
to, rights asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated.
Rivera v. Washington, 298 Ga. 770, 774 (784 SE2d 775) (2016) (punctuation
omitted). Among other requirements, the collateral order doctrine applies only to
cases “where denial of immediate review would render impossible any review
whatsoever.” Murphy v. Murphy, 322 Ga. App. 829, 831 (747 SE2d 21) (2013)
(punctuation and emphasis omitted). The superior court order at issue here does not
meet this requirement because, even assuming Burke does ultimately establish that
he was entitled to remain in possession of the property pending litigation, he has not
established that the violation of that right will be effectively unreviewable on appeal
from the final judgment, for example, by an award of damages.
Because Burke is not entitled to a direct appeal, his failure to comply with the
interlocutory appeal procedures deprives us of jurisdiction over this appeal.
While [Burke] understandably wish[es] to have certain questions
decided sooner rather than later, in the absence of either a final judgment
or authorization for interlocutory review, the appeal is premature, and
this court, lacking jurisdiction, must dismiss the appeal.
Landor Condo. Consultants, 198 Ga. App. at 276. Accordingly, Jones’s motion to
dismiss is hereby GRANTED, and this direct appeal is hereby DISMISSED. Burke’s
motion to supplement the record with the amended notice of appeal is hereby
DENIED as any amended notice of appeal would not help us determine jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/05/2021
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.