Jack L. Mize v. Todd Cowan, as Tax Commissioner for Douglas County

Court of Appeals
of the State of Georgia

ATLANTA,____________________
February 20, 2017

The Court of Appeals hereby passes the following order:

A17D0277. JACK L. MIZE v. TODD COWAN.

Todd Cowan, the Douglas County Tax Commissioner, filed this interpleader
action to determine the rightful owner of $4,842.71 in excess funds that he held
following a tax sale of real property. The trial court entered an order awarding
$1,115.00 to the county for its attorney fees and the remaining $3,727.71 to the
successor of a bank that had purchased the property in the tax sale. Former property
owner Jack Mize filed a motion for new trial, which the trial court denied. Mize then
filed this application for discretionary appeal.
Mize contends that a discretionary application was required because OCGA §
5-6-35 “limits the appeal rights of those appealing judgments which total less than
$10,000.00 to a procedure of applying for the right to appeal to the appellate court.”
OCGA § 5-6-35 (a) (6) does provide that a discretionary application is required for
“[a]ppeals in all actions for damages in which the judgment is $10,000.00 or less.”
Although the amount in controversy here was less than $10,000.00, this case is not
an “action for damages” within the meaning of OCGA § 5-6-35 (a) (6); it is a tax
interpleader case. See Brown v. Associates Financial Svcs. Corp., 255 Ga. 457, 457
(339 SE2d 590) (1986) (interpreting OCGA § 5-6-35 (a) (6) to apply “when a party
seeking a money judgment prevails”; statute did not apply to personal property
foreclosure case); see also Motor Warehouse v. Richard, 235 Ga. App. 835, 835-836
(1) (510 SE2d 600) (1998) (no discretionary application required to appeal judgment
arising from petition for inspecting and copying corporate records); Kelly v. Pierce
Roofing Co., 220 Ga. App. 391, 391-392 (469 SE2d 469) (1996) (OCGA § 5-6-35 (a)
(6) did not apply because “action arose as a complaint on a property lien”).
Accordingly, Mize was not required to file a discretionary application under OCGA
§ 5-6-35 (a) (6). Further, it does not appear that any other provision of OCGA § 5-6-
35 applies here.
This Court will grant a timely discretionary application if the lower court’s
order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this
application is hereby GRANTED. Mize shall have ten days from the date of this
order to file a notice of appeal with the trial court, if he has not done so already. The
clerk of the trial court is DIRECTED to include a copy of this order in the record
transmitted to this Court.

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/20/2017
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.