Settendown Pub. Util., LLC v. Waterscape Util., LLC.

• Decision Date: 03 March 2014
• Docket Number: A13A0831.,Nos. A13A0830,s. A13A0830
• Citation: 751 S.E.2d 463,324 Ga.App. 652
• Court: Georgia Court of Appeals
• Parties: SETTENDOWN PUBLIC UTILITY, LLC, et al. v. WATERSCAPE UTILITY, LLC. Butler v. Waterscape Utility, LLC.

324 Ga.App. 652
751 S.E.2d 463

SETTENDOWN PUBLIC UTILITY, LLC, et al.
v.
WATERSCAPE UTILITY, LLC.
Butler
v.
Waterscape Utility, LLC.

Nos. A13A0830, A13A0831.

Court of Appeals of Georgia.

Nov. 13, 2013.
Certiorari Denied March 3, 2014.

[751 S.E.2d 465]

George E. Butler II, Dahlonega, for Appellants.

Anderson, Tate & Carr, Robert Matthew Reeves, Duluth, for Appellee.

BRANCH, Judge.

Settendown Public Utility, LLC, Ken Curren, Camella Curren, and Waterscape Services, LLC (collectively “Settendown”), and their attorney, George E. Butler II, have filed separate direct appeals from an order of the trial court disqualifying Butler from representing Settendown in a lawsuit filed against it by Waterscape Utility, LLC (“Waterscape”).¹ Waterscape filed a motion to dismiss each of these appeals, arguing that an order disqualifying counsel is an interlocutory order and that Settendown and Butler failed to obtain a certificate of immediate review or follow the application procedures required for an interlocutory appeal.² WE DENIED THE MOTIons to dismiss to allow us to consider settendown's argument that there is a conflict in Georgia law on the issue of whether a disqualification order is directly appealable. Having read and considered the relevant case law, we find no such conflict. As explained in our previous decision in Lassiter Properties v. Davidson Mineral Properties, 230 Ga.App. 216–217, 495 S.E.2d 663 (1998), this issue is controlled by the Georgia Supreme Court's decision in Cherry v. Coast House Ltd., 257 Ga. 403, 404(2), 359 S.E.2d 904 (1987), rather than by Stevens v. Thomas, 257 Ga. 645, 361 S.E.2d 800 (1987). As explained more fully below, Cherry held that an order disqualifying counsel is an interlocutory order. And because neither Butler nor Settendown complied with the requirements for appealing such an order, we are without jurisdiction to consider these appeals. Accordingly, the appeals in both Case Nos. A13A0830 and A13A0831 are dismissed.

As an initial matter, the Georgia Code limits our jurisdiction to consider direct appeals to specific categories of judgments

[751 S.E.2d 466]

set forth in subsections (1) through (12) of OCGA § 5–6–34(a). All other judgments of a trial court are considered interlocutory and are therefore subject to the interlocutory appeal procedure set forth in OCGA § 5–6–34(b).

Our interlocutory appeal statute is not a run-of-the-mill procedural provision.... It is a jurisdictional law by which the General Assembly has limited the authority of Georgia's appellate courts to hear certain cases. “When the order appealed from is an interlocutory order, the appellate court does not acquire jurisdiction unless the procedure of OCGA § 5–6–34(b) for interlocutory appeal is followed.”

(Citation and punctuation omitted; emphasis in original.) American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 644–645, 732 S.E.2d 746 (2012) (Nahmias, J., concurring specially), quoting Cherry, 257 Ga. at 404(2), 359 S.E.2d 904.

Orders granting a motion to disqualify an attorney representing one or more parties are not among the categories of judgments for which a right of direct appeal is granted in OCGA § 5–6–34(a). Thus, both Georgia appellate courts have consistently recognized that disqualification orders are interlocutory and therefore subject to the interlocutory appeal procedure. See Cherry, 257 Ga. at 404(2), 359 S.E.2d 904 (because a disqualification order is interlocutory, a notice of appeal from such an order does not act as a supersedeas unless the interlocutory appeal procedure has been followed); Ewing Holding Corp. v. Egan–Stanley Investments, 154 Ga.App. 493, 495–496(1), 268 S.E.2d 733 (1980) (dismissing a direct appeal from an order disqualifying the appellant's attorney because such an order is interlocutory and appellant failed to follow the required procedure for bringing an interlocutory appeal); Lassiter Properties, 230 Ga.App. at 216–217, 495 S.E.2d 663 (adopting the holding in Ewing ).

Settendown and Butler, however, argue that at least one Georgia Supreme Court case, decided the same term as Cherry, supports the conclusion that an order disqualifying counsel is directly appealable. In Stevens, 257 Ga. 645, 361 S.E.2d 800 (1987), a unanimous Georgia Supreme Court refused to address the appeal of an order disqualifying counsel, which was brought as part of an appeal challenging the award of sanctions and attorney fees against the defendants. One of the sanctions imposed by the trial court was the disqualification of the defendants' attorney who, together with his clients, had violated a court order to refrain from contacting potential class members. The Georgia Supreme Court found that the appeals of the disqualification order brought by the attorney and his clients were not timely because “[t]he disqualification was to take place instanter and was thus immediately appealable. The fact that the amount of attorney fees was not set until a later date does not affect the status of the disqualification as a final, appealable order.” Stevens, 257 Ga. at 647(1), 361 S.E.2d 800.

As we explained in Lassiter Properties, however, we decline to read this statement, which was unsupported by any citation to legal authority or any legal analysis and which failed to acknowledge the court's earlier decision in Cherry, as providing us with a basis for revisiting the question of whether disqualification orders are directly appealable. Rather, we view this issue as being “controlled by Cherry v. Coast House, Ltd., ... which appears to be the latest definitive statement by the Supreme Court [of Georgia] on the issue.” Lassiter Properties, 230 Ga.App. at 218, 495 S.E.2d 663.³

[751 S.E.2d 467]

As we are holding that disqualification orders are interlocutory and because the procedures for appealing such an order were not followed, the only way we could acquire jurisdiction over this appeal would be if disqualification orders were considered collateral orders.

The United States Supreme Court has long recognized the collateral order doctrine as an exception to the final judgment rule,⁴ see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546–547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and the Georgia Supreme Court adopted the collateral order doctrine in 1982. See Scroggins v. Edmondson, 250 Ga. 430, 431–432(1)(c), 297 S.E.2d 469 (1982); Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982). To be directly appealable under the collateral order doctrine, an order must “completely and conclusively decide[ ] the issue on appeal such that nothing in the underlying action can affect it; ... resolve[ ] an issue that is substantially separate from the basic issues in the complaint; and [be] effectively unreviewable on appeal [from a final judgment].” Murphy v. Murphy, 322 Ga.App. 829, 831, 747 S.E.2d 21 (2013) (whole court). See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468–469(I), 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (denial of class certification does not constitute a collateral order because such an order is subject to revision in the district court, involves considerations that are enmeshed in the factual and legal issues of the plaintiff's case, and is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members); Britt v. State, 282 Ga. 746, 748(1), 653 S.E.2d 713 (2007) (order granting a motion to compel documents related to the funding of Georgia's indigent defense system was a collateral order as it was completely unrelated to the defendant's guilt or innocence, the appeal would conclusively resolve the discovery issue, and “the important rights of a number of indigent capital defendants would be compromised if [they] had to await final judgment before seeking review of the discovery order”). We find that disqualification orders do not constitute collateral orders because, despite...