James Southerland v. Tendercare Clinic, Inc.

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 22, 2019

The Court of Appeals hereby passes the following order: A19E0032. SOUTHERLAND v. TENDERCARE CLINIC, INC., et al.

In this action, James Southerland sued Tendercare Clinic, Inc., Lisa Brown, and Dave Ringer, M.D. in the State Court of Greene County. On December 21, 2018, the lower court granted Brown’s and Ringer’s unopposed motion for judgment on the pleadings. Asserting that he never received notice of the motion for judgment on the pleadings, Southerland filed a motion to set aside the judgment pursuant to OCGA § 9-11-60. That motion remains pending in the trial court, with a hearing scheduled for January 28, 2019. To preserve his right of appeal from the December 21 order, Southerland has filed an emergency motion seeking an extension of time in which to file his application for an appeal. Although Southerland’s motion asserts he would be filing an application for a discretionary appeal, we note that the December 21 order is not a final judgment within the meaning of OCGA § 5-6-34 (a) (1). Specifically, while the order grants judgment in favor of two of the three defendants, it nevertheless leaves the case pending in the court below. See Waye v. Continental Special Risks, Inc., 289 Ga. App. 82, 84 (656 SE2d 150) (2007) (order dismissing one of two defendants was not a final, appealable order); Coley Fertilizer Co. v. Gold Kist, Inc., 174 Ga. App. 471, 471 (330 SE2d 597) (1985) (same). Accordingly, the order would be subject to an application for an interlocutory, rather than a discretionary, appeal. See OCGA § 5-6- 34 (b). To be entitled to file an application for an interlocutory appeal, however, a party must obtain a certificate of immediate review from the trial court within 10 days of the entry of the order it seeks to appeal. Id. Given that Southerland neither sought nor obtained such a certificate of immediate review within 10 days of the December

21 order, he has lost his right to pursue an interlocutory appeal of that order. Accordingly, Southerland’s motion for extension of time in which to file an application for an appeal from the December 21, 2018 order of dismissal is hereby DENIED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/22/2019 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.