Patrick Edokpolor v. Grady Memorial Hospital Corporation

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

September 27, 2016

In the Court of Appeals of Georgia
A16A1031. EDOKPOLOR et al v. GRADY MEMORIAL
HOSPITAL CORPORATION et al.

MERCIER, Judge.

Patrick Edokpolor and Linda Patrick (collectively, “Edokpolor”) appeal the

grant of summary judgment to Grady Memorial Hospital Corporation, Shirley Singh,

and Jane Doe (collectively, “Grady”) in Edokpolor’s wrongful death suit against them

in the State Court of Fulton County. Grady has moved this Court to dismiss the

appeal, arguing that Edokpolor’s notice of appeal was untimely, and that Edokpolor

failed to file a brief within 20 days of the docketing of this case. The motion to

dismiss is moot with regard to the late filing of Edokpolor’s brief, as this Court

granted an extension of the filing date. However, as a threshold matter, we examine
the issue of whether Edokpolor’s appeal was timely. For the reasons that follow, we

grant Grady’s motion to dismiss.

Edokpolor filed suit against Grady on July 15, 2010. On May 28, 2013, the trial

court granted Edokpolor’s motion for an award of expenses incurred in serving Grady

Memorial Hospital Corporation, pursuant to OCGA § 9-11-4 (d) (4), and stated that

it reserved the issue of the amount of the award of expenses to be determined at a

later hearing on Grady’s motion to dismiss or for summary judgment. On September

12, 2013, the trial court denied Grady’s motion to dismiss or for summary judgment.

On October 17, 2013, Grady filed a renewed motion for summary judgment, which

the trial court granted on October 7, 2014, on the grounds that “the causation

testimony of record is insufficient to create a triable issue of fact.” The order appears

to refer to the defendants collectively as “Defendant” and states that judgment is

entered in favor of “Defendant;” it appears that Singh died before she was served with

the complaint. Edokpolor does not contend that the grant of summary judgment

applied to fewer than all of the defendants.

On November 6, 2014, the trial court denied Edokpolor’s “Emergency Motion

for Reconsideration of Order Granting Summary Judgment, and for Suspension of

Said Order Pending Reconsideration.” The motion is not included in the record

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transmitted to this Court. On January 22, 2015, Edokpolor filed in the trial court a

motion to revise the order granting summary judgment, arguing, among other things,

that the case was still pending because of the unresolved OCGA § 9-11-4 cost award

and the trial court therefore could address the substance of the motion for

reconsideration, and referred to the earlier motion as “(perhaps erroneously) styled

as an emergency motion for reconsideration,” arguing that the case was still pending

because of the unresolved cost issue, and the court had “the power to address the

substance of the motion for reconsideration.” In an order entered September 14, 2015,

the trial court determined the amount of the award of costs under OCGA § 9-11-4. In

the same order, it also determined that its earlier order granting summary judgment

on October 7, 2014 was a final judgment, and denied Edokpolor’s motion to revise

the summary judgment order. Edokpolor filed a notice of appeal on October 14, 2015,

stating that he appeals “from the summary judgment dated 10/7/2014, made a final

order on 9/14/2015.”

On appeal, Edokpolor argues to this Court that the trial court erred in

determining that the October 17, 2014 order granting summary judgment was a final

judgment. In three other enumerations of error, Edokpolor challenges the trial court’s

grant of summary judgment to Grady. Grady asserts that the notice of appeal, filed

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over a year after the order was entered granting summary judgment to Grady, was not

timely; Edokpolor argues that the case remained pending until the September 14,

2015 order was entered, and thus the notice of appeal filed within 30 days of that

order was timely.

“A notice of appeal shall be filed within 30 days after entry of the appealable

decision or judgment complained of.” OCGA § 5-6-38 (a). “The time requirement of

OCGA § 5-6-38 (a) is jurisdictional, and because of [the appellant’s] failure to file

a timely notice of appeal, [the] appeal must be dismissed for lack of jurisdiction.”

Underwood v. Lanier Home Center, 239 Ga. App. 282 (521 SE2d 207) (1999); Brown

v. Webb, 224 Ga. App. 856, 857 (482 SE2d 382) (1997); OCGA § 5-6-48 (b).

An order “constitutes a final judgment within the meaning of OCGA § 5-6-34

(a) (1) where it leaves no 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.” Forrister v. Manis Lumber Co., 232 Ga. App. 370, 371 (1) (501 SE2d

606) (1998) (citation omitted). A motion for reconsideration does not extend the time

for filing a notice of appeal. Underwood, supra; see American Flat Glass

Distributors, Inc. v. Michael, 260 Ga. 312 (392 SE2d 855) (1990); OCGA § 5-6-38.

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However, “summary judgment orders which do not dispose of the entire case

are considered interlocutory and remain within the breast of the court until final

judgment is entered. They are subject to revision at any time before final judgment

unless the court issues an order ‘upon express direction’ under OCGA § 9-11-54 (b).”

Bourff v. Green Tree Servicing, LLC, 321 Ga. App. 320, 322-323 (3) (741 SE2d 175)

(2013) (physical precedent only); Hodges Plumbing & Electric Co. v. ITT Grinnell

Co., 179 Ga. App. 521, 522 (1) (347 SE2d 257) (1986). In determining whether we

have jurisdiction over this case, therefore, we are presented with the issue of whether

the entry of summary judgment on October 7, 2014 constituted a final order in this

case within the meaning of OCGA § 5-6-34 (a) (1), requiring an appeal to be filed

within 30 days, while Edokpolor’s motion for costs and fees pursuant to OCGA § 9-

11-4 remained pending (as to the amount).

The issue of the finality of a judgment has been considered in connection with

pending cost and fee awards pursuant to other statutes. Edokpolor points us to the

decision of the Supreme Court of Georgia in Sotter v. Stephens, 291 Ga. 79 (727

SE2d 484) (2012). In Sotter, a case pertaining to the administration of an estate, the

Supreme Court of Georgia examined the timeliness of an appeal by certain parties

from certain orders entered in the case, and found that “if judgment reserves the issue

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of attorney fees under OCGA § 13-6-11, then one cannot claim that ‘the case is no

longer pending in the court below’ as required by OCGA § 5-6-34 (a) (1).” Sotter,

supra at 83-84. However, the analysis in Sotter is counter to Edokpolor’s position,

because the Supreme Court noted therein that, “while an attorney fees award pursuant

to OCGA § 9-15-14 may be considered ancillary and post-judgment, an award of

attorney fees under OCGA § 13-6-11 . . . is considered part of the underlying case.”

Id. Pointing out that the attorney fees awarded to the plaintiff were specially pleaded

for in her complaint, the Court also explained that awards of attorney fees pursuant

to OCGA § 13-6-11 “apply to conduct ‘arising’ from the transaction underlying the

cause of action in litigation,” whereas “OCGA § 9-15-14 . . . has been interpreted to

govern conduct occurring during the litigation.” Sotter, supra at 83. Additionally, the

Supreme Court noted that the appealed-from orders in question in Sotter were not

final, because issues remained to be resolved as to some parties with regard to the

underlying claims. Sotter, supra at 82.

The award of costs pursuant to OCGA § 9-11-4 (d) (4) arises from a party’s

conduct during litigation, specifically, non-compliance with a request to waive

personal service, rather than from the transaction underlying the cause of action in the

case. Therefore, here, where the trial court had entered its summary judgment order

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concluding the case as to all parties and issues, the fact that the ancillary issue of the

cost award under OCGA § 9-11-4 (d) remained pending did not prevent the judgment

from being final for purposes of OCGA § 5-6-34 (a) (1) and OCGA § 5-6-38 (a).

The October 17, 2014 judgment order was a final judgment. Inasmuch as this

appeal was brought outside of the 30-day time frame from the trial court’s entry of

judgment and thus was untimely, we grant Grady’s motion to dismiss.

Appeal dismissed. Ellington, P. J., and Branch, J., concur.