Tony L. Ware v. Fidelity Acceptance Corporation

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 12, 2019
The Court of Appeals hereby passes the following order:
A19A2118. TONY L. WARE v. FIDELITY ACCEPTANCE CORPORATION.
After Tony L. Ware obtained a default judgment against the defendants in this
case, they filed motions to set aside the judgment, which remain pending below. On
February 8, 2019, the superior court judge assigned to this case voluntarily recused
herself, and the case was reassigned. Ware filed a direct appeal from the recusal order.
We lack jurisdiction.
The order that Ware seeks to appeal is interlocutory. See OCGA § 5-6-34 (a) (1)
(providing for a direct appeal from “all final judgments, that is to say, where the case
is no longer pending in the court below”); Murphy v. Murphy, 295 Ga. 376, 379 n.3
(761 SE2d 53) (2014) (noting that a party wishing to appeal a recusal ruling “has the
option to seek an interlocutory appeal or to appeal immediately after an adverse final
judgment”); Evans v. Williams, 341 Ga. App. 226, 228-229 (2) (799 SE2d 362) (2017)
(When a judge recuses, a party “may file an application for interlocutory review of the
order granting the motion to recuse, or the parties may choose to relitigate the case
under the direction of the newly-appointed judge from the point when the motion to
recuse was filed.”). Because this action remains pending below, Ware was required to
use the interlocutory appeal procedure – including obtaining a certificate of immediate
review from the trial court and filing an application for interlocutory review – to
appeal. See OCGA § 5-6-34 (b); Boyd v. State, 191 Ga. App. 435 (383 SE2d 906)
(1989). Ware’s failure to do so deprives us of jurisdiction over this appeal, which is
hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/12/2019
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Wi tness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.