Astoria of Middle Ga, LLC v. Astoria Anesthesia Associates, LLC

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 08, 2018

The Court of Appeals hereby passes the following order:

A18D0426. ASTORIA OF MIDDLE GA, LLC et al. v. ASTORIA ANESTHESIA ASSOCIATES, LLC.

The plaintiff Astoria Anesthesia Associates, LLC filed this civil action against the defendants Astoria of Middle GA, LLC, Bryant Consulting, Inc., and Maximus Anesthesia Services, LLC. After the jury rendered a verdict in favor of the defendants, the trial court entered judgment in their favor. The court, however, denied the defendants’ request for attorney fees and litigation expenses under OCGA § 9-11-68. The defendants then filed this application for discretionary appeal. Under OCGA § 5-6-34 (a) (1), a party may file a direct appeal from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35[.]” It does not appear that any provision of OCGA § 5-6-35, the discretionary appeal statute, applies here. The defendants suggest that a discretionary application was required under OCGA § 5-6-35 (a) (6), which requires an application in actions for damages “in which the judgment is $10,000.00 or less[.]” No application is needed, however, for the appeal of a “zero” award. Smith v. Curtis, 226 Ga. App. 470, 470 n. 1 (486 SE2d 699) (1997). The defendants also suggest that an application was required under OCGA § 5-6-35 (a) (10), but that provision only applies to the denial of a request for attorney fees under OCGA § 9-15-14, not to the denial of a request for fees under OCGA § 9-11-68. This Court will grant an otherwise timely discretionary application pursuant to OCGA § 5-6-35 (j) if the order is subject to direct appeal and the applicant has not timely filed a notice of appeal. As it does not appear that the defendants have filed a notice of appeal, this application is hereby GRANTED. The defendants shall have

ten days from the date of this order to file a notice of appeal with the trial court. The trial court is directed to include a copy of this order in the record transmitted to this Court.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/08/2018 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.