Rolleston v. Cherry

• Decision Date: 07 July 1998
• Docket Number: No. A98A2001.,A98A2001.
• Citation: 233 Ga. App. 295,504 S.E.2d 504
• Parties: ROLLESTON et al. v. CHERRY.
• Court: Georgia Court of Appeals

504 S.E.2d 504

233 Ga. App. 295

ROLLESTON et al. v. CHERRY.

No. A98A2001.

Court of Appeals of Georgia.

July 7, 1998.

Sullivan, Hall, Booth & Smith, Michael A. Pannier, Atlanta, for appellants.

Moreton Rolleston, Jr., pro se.

Shelby A. Outlaw, Decatur, for appellee.

McMURRAY, Presiding Judge.

Plaintiff John Randolph Cherry, executor of the estate of Rebecca Wight Cherry Sims, filed an action against defendants Moreton Rolleston, Jr., Living Trust and Moreton Rolleston, Jr., seeking (in pertinent part) to set aside certain allegedly fraudulent conveyances. On July 7, 1995, the trial court entered an interlocutory injunction enjoining defendants from transferring any real or personal property without notifying and obtaining the trial court's approval. After the Supreme Court of Georgia affirmed this injunction, the trial court denied defendants' motion for summary judgment and refused to certify this order for interlocutory review. Defendants, nonetheless, filed a direct appeal from this interlocutory order, which the trial court dismissed. Defendants then challenged the trial court's dismissal order via a direct appeal to the Supreme Court of Georgia. The Supreme Court of Georgia transferred this appeal in the case sub judice to this Court. Held:

Although a direct appeal may be taken from an order dismissing an appeal of the grant of an interlocutory injunction (Azar v. Baird, 232 Ga. 81, 83, 205 S.E.2d 273), the appeal in the case sub judice is not from such an order. This appeal is from an order dismissing an unauthorized appeal of an interlocutory order denying defendants' motion for summary judgment. Such an interlocutory order is not appealable absent compliance with OCGA § 5-6-34(b)'s interlocutory appeal procedures. See Sharpe's Appliance Store v. Anderson, 161 Ga.App. 112, 289 S.E.2d 312. Because defendants failed to comply with these procedures, this Court is without jurisdiction to consider the case sub judice, and this direct appeal must be dismissed. English v. Tucker Fed. Sav. & Loan Assn., 175 Ga.App. 69, 332 S.E.2d 365.

Plaintiff's request for frivolous appeal damages pursuant to Court of Appeals Rule 15(b) is denied.

Appeal dismissed.

BLACKBURN and ELDRIDGE, JJ., concur and concur specially.

BLACKBURN, Judge, concurring specially.

I fully concur with the majority opinion with respect to the issue of this Court's lack of jurisdiction to consider this appeal. Additionally, I would impose a penalty of...