Hunt v. Callahan
Citation | 838 S.E.2d 133,353 Ga.App. 488 |
Decision Date | 23 January 2020 |
Docket Number | A19A2153 |
Parties | HUNT et al. v. CALLAHAN. |
Court | United States Court of Appeals (Georgia) |
Warner Russell Hodges, for Appellant.
Robert Harold Stansfield, Covington, for Appellee.
Chan Hunt, Kim Hale, and Amie Heisick Burrill ("the heirs") appeal a discovery sanction that dismissed their declaratory judgment action and awarded defendant Dorothy Hunt Callahan $3,000 in attorney fees. The heirs have not demonstrated that the trial court abused his discretion. So we affirm.
Hunt, Hale, and Burrill are heirs of Carolyn Clements. They filed this complaint in the Superior Court of Newton County against Callahan, the decedent’s sister, asserting that the money in certain bank accounts in the joint names of Clements and Callahan belongs to the estate, not Callahan. Callahan answered the complaint and eventually filed a motion to compel discovery and for sanctions under OCGA § 9-11-37. The trial court granted the motion, dismissing the heirs’ complaint and reserving the issue of attorney fees.
The heirs appealed the trial court’s order, but we dismissed their appeal because they had failed to pursue their appeal through the interlocutory appeal procedures.
After the remittitur was filed in the trial court, the court conducted a hearing on the issue of attorney fees and entered an order awarding Callahan $3,000. The heirs filed a notice of appeal from the order, resulting in the instant appeal.
Brock v. Hardman , 303 Ga. 729, 729 (1), 814 S.E.2d 736 (2018) (citation and punctuation omitted).
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). However, appeals in "actions for damages in which the judgment is $10,000 or less" must be initiated by filing an application for discretionary review. OCGA § 5-6-35 (a) (6), (b) ; Jennings v. Moss , 235 Ga. App. 357, 509 S.E.2d 655 (1998). We have "previously concluded that an award of OCGA § 9-11-37 attorney fees as a discovery sanction is a ‘judgment’ for purposes of OCGA § 5-6-35 (a) (6)." Pathfinder Payment Solutions v. Global Payments Direct , 344 Ga. App. 490, 491, 810 S.E.2d 653 (2018). And the amount of the judgment entered in this case is $3,000, below the threshold for a direct appeal established by OCGA § 5-6-35 (a) (6).
But the heirs appeal not only the order awarding OCGA § 9-11-37 attorney fees but also the order dismissing their action. Although that order was interlocutory at the time it was entered, it became a final order upon the subsequent entry of the order granting attorney fees "because as of that point nothing remained pending in the court below[, and] the time for filing [a] notice of appeal [from that order] began to run on that date." Caswell v. Caswell , 157 Ga. App. 710, 278 S.E.2d 452 (1981) (punctuation omitted).
"[W]here an order would require a discretionary application to be appealed, such an application is unnecessary when the order is appealed with another order that may be appealed by a notice of appeal." Grogan v. City of Dawsonville , 305 Ga. 79, 84, 823 S.E.2d 763 (2019). Accordingly, the heirs were not required to apply for a discretionary appeal and we have jurisdiction over the direct appeal.
State v. Rosenbaum , 305 Ga. 442, 449 (2), 826 S.E.2d 18 (2019) (citation and punctuation omitted).
In his order, the trial court found the following:
The trial court conducted the hearing and, based on the unrefuted allegations of Callahan’s motion, the attachments to the motion, and the argument of counsel, made the following findings regarding discovery:
In sum, the heirs’ counsel failed to provide written responses to the request for production of documents within 33 days of the date of service; failed to respond to either good-faith discovery letter; and failed to comply with his May 31, 2018 oral assurance that he would respond to...
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...absence of a transcript that there was sufficient competent evidence to support the trial court's findings."); Hunt v. Callahan , 353 Ga. App. 488, 492 (5), 838 S.E.2d 133 (2020) (same).26 State v. Abbott , 309 Ga. 715, 719 (2), 848 S.E.2d 105 (2020) (punctuation omitted).27 In the Interest......
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Shuler v. Akpan
... ... sufficient competent evidence to support the trial ... court's findings."); Hunt v. Callahan , 353 ... Ga.App. 488, 492 (5) (838 S.E.2d 133) (2020) (same) ... [ 26 ] State v. Abbott , 309 Ga ... 715, 719 ... ...
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...in which there may be a doubt about the existence of such jurisdiction." (Citation and punctuation omitted.) Hunt v. Callahan , 353 Ga. App. 488, 488 (2), 838 S.E.2d 133 (2020). We conclude that we do not have jurisdiction. Although a right of direct appeal lies from a final judgment, see O......
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