Steven W. Bernstein v. Angelynn Howe

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 22, 2019

The Court of Appeals hereby passes the following order: A20D0162. STEVEN W. BERNSTEIN v. ANGELYNN HOWE et al.

Steven Bernstein sued Angelynn and Eric Howe, who asserted counterclaims. The trial court dismissed Bernstein’s claims and conducted a bench trial on the counterclaims. By order entered October 17, 2019, the trial court found in favor of the Howes and awarded $152,914.61 in attorney fees and expenses of litigation as well as damages in excess of one million dollars.1 Bernstein seeks discretionary review of this order. 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.2 Rather, the trial court’s entry of judgment on the Howes’s counterclaims may be appealed directly. We will grant a timely application for discretionary appeal if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED. Bernstein shall have ten days from the date of this

1 The order holds that attorney fees are authorized by OCGA § 9-15-14 (a) & (b) and OCGA § 13-6-11. The order is unclear as to which statute served as the basis for the award of attorney fees. 2 “Although OCGA § 5-6-35 (a) (10) requires that an appeal of an award of attorney fees made pursuant to OCGA § 9-15-14 be preceded by the grant of a discretionary application, a direct appeal is permitted when it is appealed as part of a judgment that is directly appealable.” Mitcham v. Blalock, 268 Ga. 644, 646-647 (4) (491 SE2d 782) (1997) (punctuation omitted).

order to file a notice of appeal in the trial court. If Bernstein has already filed a notice of appeal in the trial court, he need not file a second notice. 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,____________________ 11/22/2019 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.