McCuen Electric Company, LLC v. Hagemeyer North

Court of Appeals of the State of Georgia

ATLANTA,_________________ April 25, 2012

The Court of Appeals hereby passes the following order:

A12A1641. MCCUEN ELECTRIC COMPANY, LLC v. HAGEMEYER NORTH AMERICAN, INC.

Hagemeyer North American, Inc., filed suit against three defendants, including McCuen Electric Company, LLC (“McCuen”). McCuen failed to timely file its answer and was in default. See OCGA § 9-11-55 (a). McCuen moved to open default, and the trial court denied the motion. McCuen then filed this direct appeal. We, however, lack jurisdiction. Although the trial court denied the motion to set aside, the court has not yet entered judgment against McCuen. Because the issue of damages remains pending, the order is not final and McCuen was required to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b). See Neal v. State, 182 Ga. App. 37 (354 SE2d 664) (1987); Attridge v. Maines, 174 Ga. App. 472, 473 (330 SE2d 409) (1985). Furthermore, claims remain pending against McCuen’s co-defendants. “In a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment. In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) or there must be compliance with the interlocutory appeal requirements of OCGA § 5-6- 34 (b). Where neither of these code sections are followed, the appeal is premature and must be dismissed.” (Citations and punctuation omitted.) Johnson v. Hospital Corp. of America, 192 Ga. App. 628, 629 (385 SE2d 731) (1989). Because McCuen failed to follow the interlocutory appeal procedures, we lack jurisdiction to consider this appeal, which is therefore DISMISSED.

Court of Appeals of the State of Georgia 04/25/2012 Clerk’s Office, Atlanta,_________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.