Steven W. Bernstein v. Angelynn Howe ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 22, 2019
The Court of Appeals hereby passes the following order:
A20D0162. STEVEN W. BERNSTEIN v. ANGELYNN HOWE et al.
Steven Bernstein sued Angelynn and Eric Howe, who asserted counterclaims.
The trial court dismissed Bernstein’s claims and conducted a bench trial on the
counterclaims. By order entered October 17, 2019, the trial court found in favor of
the Howes and awarded $152,914.61 in attorney fees and expenses of litigation as
well as damages in excess of one million dollars.1 Bernstein seeks discretionary
review of this order.
Under OCGA § 5-6-34 (a) (1), a party may file a direct appeal from “[a]ll final
judgments, that is to say, where the case is no longer pending in the court below,
except as provided in Code Section 5-6-35.” It does not appear that any provision of
OCGA § 5-6-35, the discretionary appeal statute, applies here.2 Rather, the trial
court’s entry of judgment on the Howes’s counterclaims may be appealed directly.
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. Bernstein shall have ten days from the date of this
1
The order holds that attorney fees are authorized by OCGA § 9-15-14 (a) &
(b) and OCGA § 13-6-11. The order is unclear as to which statute served as the basis
for the award of attorney fees.
2
“Although OCGA § 5-6-35 (a) (10) requires that an appeal of an award of
attorney fees made pursuant to OCGA § 9-15-14 be preceded by the grant of a
discretionary application, a direct appeal is permitted when it is appealed as part of
a judgment that is directly appealable.” Mitcham v. Blalock, 268 Ga. 644, 646-647 (4)
(491 SE2d 782) (1997) (punctuation omitted).
order to file a notice of appeal in the trial court. If Bernstein has already filed a notice
of appeal in the trial court, he need not file a second notice. The clerk of the trial court
is DIRECTED to include a copy of this order in the record transmitted to the Court
of Appeals.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/22/2019
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.