Norma Givens v. Southern Mutual Insurance Company

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 10, 2018

The Court of Appeals hereby passes the following order:

A18A1484. NORMA GIVENS v. SOUTHERN MUTUAL INSURANCE COMPANY.

Norma Givens, a defendant in the declaratory judgment action below, has filed a direct appeal from the trial court’s judgment against her. The trial court entered summary judgment for the plaintiff on November 29, 2017. After the entry of that order, no claims or counterclaims remained pending in this case. Nevertheless, on December 20, 2017, the trial court entered a “Final Judgment” and lifted the stay the court had imposed on another case between the same parties.1 Givens filed her notice of appeal on January 16, 2018. The plaintiff-appellee has filed a motion to dismiss, arguing that Givens’s notice of appeal is untimely because it was filed more than 30 days after the November 29, 2017, order. We agree. Under OCGA § 5-6-34 (a) (1), an appeal generally may be taken from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below.” To be timely, however, a notice of appeal must be filed within 30 days after the entry of the trial court’s order. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon this Court. Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). Even where “an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment [for purposes of appeal] where it leaves no

1 The appellate record does not include a copy of the trial court’s order staying the other case, apparently because Givens requested, in her notice of appeal, that the stay order be excluded from the record on appeal.

issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court.” Caswell v. Caswell, 157 Ga. App. 710, 710 (278 SE2d 452) (1981). Here, the November 29, 2017, order granting summary judgment was not labeled as a “final judgment,” but it fully resolved the only issue that was pending before the trial court in this case. Therefore, it constituted the final judgment in this action, and Givens was required to file a notice of appeal within 30 days to obtain appellate review. Her failure to do so deprives us of jurisdiction to review the case. Accordingly, the appellee’s motion to dismiss is hereby GRANTED and this appeal is DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/10/2018 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.