Sunrise Commerce Hotel Group, LLC v. Primax Properties, LLC

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 31, 2022

The Court of Appeals hereby passes the following order:

A23I0062. SUNRISE COMMERCE HOTEL GROUP, LLC v. PRIMAX PROPERTIES, LLC et al.

Sunrise Commerce Hotel Group, LLC (“Sunrise Commerce”) filed a complaint against Primax Properties, LLC, Bojangles’ Restaurants, Inc., and two additional parties for nuisance and trespass, alleging that the defendants were responsible for water drainage problems encountered at Sunrise Commerce’s hotel. Primax Properties denied liability and moved for summary judgment. Sunrise Commerce amended its complaint to add a declaratory judgment claim against Primax Properties and Bojangles’ Restaurants. The trial court entered an order granting Primax Properties’s motion for summary judgment on the nuisance and trespass claims. Sunrise Commerce filed a motion for reconsideration. In its order denying the motion for reconsideration, the court dismissed all claims Sunrise Commerce asserted against Primax Properties in the complaint (as amended). The court issued a certificate of immediate review as to both orders, and Sunrise Commerce filed this application for interlocutory appeal. “The grant of partial summary judgment as to one or more but fewer than all the claims or parties is reviewable by direct appeal if the notice of appeal is filed within 30 days of the rendition of such judgment. OCGA § 9-11-56 (h).” Olympic Dev. Group v. American Druggists’ Ins. Co., 175 Ga. App. 425, 425 (1) (333 SE2d 622) (1985). Thus, the order granting summary judgment to Primax Properties is directly appealable and is not subject to the interlocutory appeal requirements. And, the application was filed within 30 days of the order granting summary judgment, so

it was timely.1 “This Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal.” Spivey v. Hembree, 268 Ga. App. 485, 486 n. 1 (602 SE2d 246) (2004). Accordingly, this application for interlocutory review is hereby GRANTED. Sunrise Commerce shall have ten days from the date of this order to file a notice of appeal in the trial court if it has not already done so. See OCGA § 5-6-34 (b). The clerk of the trial court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/31/2022 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.

1 Because the application was filed within 30 days of the summary judgment order, we need not discuss whether the filing of the motion for reconsideration extended the filing time.