Marvin B. Smith, III v. M. Delores Murphy

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 29, 2017
The Court of Appeals hereby passes the following order:
A18D0051. MARVIN B. SMITH, III et al. v. M. DELORES MURPHY.
Marvin B. Smith, III and Sharon H. Smith petitioned for a twelve-month
protective order against their neighbor and the secretary of their homeowners’
association, M. Delores Murphy.1 Murphy filed an answer and counterclaim seeking,
inter alia, the imposition of attorney fees under OCGA § 13-6-11. On July 17, 2017,
following a hearing, the trial court found that the Smiths had willfully failed to
respond to discovery and their actions and arguments had been frivolous and
vexatious. The trial court dismissed the case with prejudice, entered judgment in
favor of Murphy, and reserved the issue of attorney fees. The Smiths then filed this
timely application for discretionary appeal. We, however, lack jurisdiction.
Pretermitting whether the Smiths sought a temporary restraining order or other
injunctive relief,2 the trial court neither granted nor denied such relief. Rather, the
trial court dismissed the case as a sanction for the Smiths’ failure to comply with
discovery. However, in doing so, the trial court reserved ruling on attorney fees,
which leaves the case pending below. See CitiFinancial Services, Inc. v. Holland, 310
Ga. App. 480, 481 (713 SE2d 678) (2011). Because the order appealed from is not a
1
This is the Smiths’ second appearance before this Court relating to their
dispute with the homeowners’ association. See Case No. A17D0338 (denied March
29, 2017).
2
Under OCGA § 5-6-34 (a) (4) a party is entitled to a direct appeal from “[a]ll
judgments or orders granting or refusing applications . . . for interlocutory or final
injunctions[.]” But under OCGA § 5-6-35 (a) (9), a party must file an application for
discretionary review from an order granting or denying a temporary restraining order.
final order, the Smiths were required to follow the interlocutory appeal procedures
set forth in OCGA § 5-6-34 (b). See Miller v. Miller, 282 Ga. 164 (646 SE2d 469)
(2007); Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588-589 (1) (408
SE2d 103) (1991); see generally Redfearn v. Huntcliff Homes Assn., Inc., 271 Ga.
745, 747 (2) (524 SE2d 464) (1999) (noting that jurisdiction “depends upon the issue
raised on appeal, not upon how the case is styled nor upon the kinds of relief which
may be sought by the complaint”) (punctuation omitted). Their failure to do so
deprives us of jurisdiction over this application, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/29/2017
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.