M.C. Tank Transp. v. Stephens

• Decision Date: 07 April 2022
• Docket Number: A22A1049
• Parties: M.C. TANK TRANSPORT, INC. et al. v. EVENDA RENAE STEPHENS et al.
• Court: Georgia Court of Appeals

M.C. TANK TRANSPORT, INC. et al. v. EVENDA RENAE STEPHENS et al.

No. A22A1049

Court of Appeals of Georgia

April 7, 2022

The Court of Appeals hereby passes the following order:

Anthony and Elysea Stuckey, together with their two children, were killed when a tractor-tanker truck, owned by M. C. Tank Transport, Inc. and operated by M. C. Tank employee Derrick Thomas, rear-ended the Stuckeys' car. The personal representatives and court-appointed administrators of the Stuckeys' estates^[1] then filed the current lawsuit against a number of defendants, including M. C. Tank and Thomas. During discovery, M. C. Tank filed an untimely motion for a protective order with respect to documents previously produced pursuant to a subpoena served on the company's insurance agent. The appellees filed a motion seeking a medical exam (including an overnight sleep test) of Thomas. In a single order, the trial court denied the motion for a protective order and granted the motion seeking a medical exam of Thomas. After the trial court refused their request for a certificate of immediate review, M. C. Tank and Thomas filed the current appeal from the trial court's discovery order. The appellees have moved to dismiss the appeal arguing that this Court lacks jurisdiction. We agree.

As a general rule, a right of direct appeal lies only from a final judgment - that is, where the case is no longer pending below. OCGA 5-6-34 (a) (1). See also State v. White 354 Ga.App. 214, 215 (840 S.E.2d 697) (2020) ("[g]enereally, an order is final and appealable when it leaves no issues remaining to be resolved, constitutes the court's final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court") (citation and punctuation omitted). Here, the trial court's ruling on the discovery motions does not constitute a final order under OCGA 5-6-34 (a), as the case remains pending below. See Johnson & Johnson v. Kaufman, 226 Ga.App. 77 78-82 (485 S.E.2d 525) (1997) (holding that discovery orders are, as a general rule, interlocutory and therefore not directly appealable); General Motors Corp. v Hammock, 255 Ga.App. 131, 131-132 (564 S.E.2d 536) (2002) (same).

Moreover and despite the arguments of M. C. Tank and Thomas to the contrary, the order at issue is not subject to direct appeal as a collateral order. "The collateral order doctrine permits appeals from a small category of decisions that are (i) conclusive, (ii) that resolve important questions separate from the merits, and (iii) that are effectively unreviewable on appeal from the final judgment in the underlying action." Eidson v. Croutch, 337 Ga.App. 542, 544 (788 S.E.2d 129) (2016) () (citation and punctuation omitted). Thus, because discovery rulings are not separate from the merits of the case and are reviewable on appeal from a final judgment they do not, as a general rule, constitute collateral orders. See Drain v. Lee, 350 Ga.App. 327, 327 (825 S.E.2d 927) (2019). To the extent that the ruling requiring Thomas to undergo a medical exam represents one of those "rare case[s] [where an] appeal after final judgment will not cure an erroneous discovery order," we note that "a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling.'" Johnson & Johnson, 226 Ga.App. at 82, quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (II) (101 S.Ct. 669, 66 L.Ed.2d 571) (1981).^[2] Given that the order in...