Roberts v. Pearce

• Decision Date: 13 April 1998
• Docket Number: No. A98A0454.,A98A0454.
• Citation: 232 Ga. App. 417,501 S.E.2d 555
• Parties: ROBERTS v. PEARCE.
• Court: Georgia Court of Appeals

501 S.E.2d 555

232 Ga. App. 417

ROBERTS v. PEARCE.

No. A98A0454.

Court of Appeals of Georgia.

April 13, 1998.

Reconsideration Denied May 4, 1998.

Mark T. Sallee, Atlanta, for appellant.

Cashin, Morton, & Mullins, James M. Sherman, Atlanta, for appellee.

ANDREWS, Chief Judge.

T.C. Roberts brought this direct appeal from a final order awarding Thomas M. Pearce, Jr. attorney fees under OCGA § 9-15-14. Appeals from orders awarding attorney fees under this Code section require compliance with the discretionary appeal procedure of OCGA § 5-6-35(a)(10) unless the award is appealed as part of an otherwise directly appealable judgment. Stancil v. Gwinnett County, 259 Ga. 507 384 S.E.2d 666 (1989); Haggard v. Bd. of Regents of the University System, 257 Ga. 524, 360 S.E.2d 566 (1987).

Here, when Roberts filed his notice of appeal in this case on September 4, 1997, he had pending a direct appeal from an order granting Pearce's motion for summary judgment. However, Roberts failed to file his brief and enumerations of error on time and that appeal was dismissed under Court of Appeals Rule 26(a).

Therefore, on October 17, 1997, when this case was docketed, Roberts no longer had a direct appeal pending in this Court. The issue now is whether the appeal from the award of attorney fees is still properly before us after the directly appealable judgment was dismissed. We find no case law directly on point. However, in similar situations, we have dismissed the appeal. For instance, in Hutchison v. Nat. Svcs. Industries, 191 Ga.App. 885, 383 S.E.2d 212 (1989), we held that after the main appeal was dismissed, there was no independent jurisdictional basis for the cross-appeal and, therefore, it must also be dismissed. Id. at 886, 383 S.E.2d 212. Likewise, in Guy v. Roberson, 214 Ga.App. 391, 448 S.E.2d 60 (1994), we held that a cross-appeal may survive the dismissal of the main appeal only where the cross-appeal can stand on its own merit. Id. at 392-393, 448 S.E.2d 60. Also, in Serco Co. v. Choice Bumper, 199 Ga.App. 846, 406 S.E.2d 276 (1991), when the main appeal was withdrawn, we held that the cross-appeal from the denial of a motion for summary judgment must be dismissed as there was no application under OCGA § 5-6-34(a) for interlocutory review. Id. at 847, 406 S.E.2d 276. Finally, in Jones Roofing, etc., Co. v. Roberts, 179 Ga.App. 169, 345 S.E.2d 683 (1986), we held that this Court has no jurisdiction "to entertain a cross-appeal which must derive its life from the main appeal." Id. at 170, 345 S.E.2d 683. Because the cross-appellant had not filed an application for discretionary review, the cross-appeal was dismissed because it could not stand in its own right. Id.

Applying this case law to the instant case, we find that because an award of attorney fees under OCGA § 9-15-14 is subject to the discretionary appeal...