Norfolk Southern Railway Co. v. Lorenzo Crenshaw

Court of Appeals of the State of Georgia

May 10, 2012 ATLANTA,_________________

The Court of Appeals hereby passes the following order:

A12A1479. NORFOLK SOUTHERN RAILWAY COMPANY v. LORENZO CRENSHAW.

Norfolk Southern Railway Company filed this appeal from the order denying its motion for summary judgment in Lorenzo Crenshaw’s action for negligence under the Federal Employer’s Liability Act. In its notice of appeal, Norfolk Southern Railway Company asserts that the order here not only denied its motion for summary judgment but also, in effect, granted partial summary judgment to Crenshaw. OCGA § 9-11-56 (h) generally allows a losing party the right to a direct appeal from an order granting partial summary judgment. Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 220 (633 SE2d 623) (2006). “[A]lthough the trial court made it perfectly clear that it denied Norfolk Southern Railway Company’s motion for summary judgment, it cannot be said with any degree of certainty that the trial court granted partial summary judgment to [Crenshaw]. First, the words ‘grant summary judgment in favor of [Crenshaw],’ or words of similar import, do not appear anywhere in the trial court’s order.” City of Sandy Springs v. Kaplan, 286 Ga. 160, 161 (1) (686 SE2d 115) (2009). Additionally, although the trial court made findings of fact, its findings are immediately followed by the statement that questions of material fact remain. See id. Indeed, the court expressly found that genuine issues of fact remain on Crenshaw’s claims. Because the trial court did not clearly grant partial summ ary judgm ent to Crenshaw, we conclude that Norfolk Southern Railway Company could not file a direct appeal pursuant to OCGA § 9-11-56 (h). In order to appeal the denial of its motion for summary judgment, it was required to follow the interlocutory appeal

procedures of OCGA § 5-6-34 (b). Norfolk Southern Railway Company’s failure to do so deprives us of jurisdiction over this appeal, which is therefore DISMISSED.

Court of Appeals of the State of Georgia 05/10/2012 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.