North Walhalla Properties, LLC v. Kennestone Gates Condominium Association, Inc. ( 2023 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 07, 2023
The Court of Appeals hereby passes the following order:
A24D0164. NORTH WALHALLA PROPERTIES, LLC v. KENNESTONE
GATES CONDOMINIUM ASSOCIATION, INC.
North Walhalla Properties, Inc. sued Kennestone Gates Condominium
Association, Inc. (“Kennestone”) and its director, Robert E. Smith, asserting claims
for breach of fiduciary duty and negligence. Kennestone counterclaimed for past-due
assessments and other charges. The trial court granted summary judgment in favor of
Kennestone and Smith on the claims asserted against them by Walhalla and granted
summary judgment in favor of Kennestone on its counterclaims. On appeal, this Court
affirmed the grant of summary judgment on Kennestone’s counterclaims, but vacated
the grant of summary judgment on the claims asserted by Walhalla, finding that
Walhalla lacked standing to bring such claims. N. Walhalla Properties, LLC v.
Kennestone Gates Condo. Association, 358 Ga. App. 272, 275 (1) (855 SE2d 35)
(2021). We therefore vacated that portion of the trial court’s order and remanded the
case with direction to dismiss Walhalla’s complaint. Id.On remand, the trial court entered an order dismissing the complaint, and it
thereafter held a hearing on Kennestone’s pending motion for attorney fees under
OCGA § 9-11-68. On October 23, 2023, the trial court entered an order of final
judgment which granted Kennestone’s motion for attorneys fees and awarded it
$42,452.95. Walhalla then filed this timely application for discretionary appeal.
Unless a case falls into one of the categories enumerated in OCGA § 5-6-35
(a), a party has a right of direct appeal from a final judgment See OCGA § 5-6-34 (a)
(1). A judgment for attorney fees under OCGA § 9-11-68 that exceeds $10,000 does
not fall within the purview of OCGA § 5-6-35 (a). See, e.g., Eichenblatt v.
Piedmont/Maple, LLC, 358 Ga. App. 234, 235 (854 SE2d 572) (2021) (direct appeal
from an award of attorney fees under OCGA § 9-11-68 exceeding $10,000). Thus,
North Walhalla was not required to file an application to obtain review of the order
at issue.
We will grant a timely application for discretionary appeal if the lower court’s
order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this
application is hereby GRANTED. North Walhalla shall have ten days from the date
of this order to file a notice of appeal. The clerk of the superior court is DIRECTED
to include a copy of this order in the record transmitted to this Court.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/07/2023
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.