PAUL HASTINGS, LLP v. EGBERT PERRY
A21A1729
| Ga. Ct. App. | Dec 6, 2021Background
- Plaintiffs Egbert Perry and Integral Development, LLC sued Paul Hastings, LLP and two attorneys for abusive litigation related to a prior lawsuit.
- On March 3, 2020 the trial court denied the defendants’ motion to dismiss; the court of appeals denied interlocutory review of that denial.
- On February 26, 2021 the trial court granted the defendants’ motion for judgment on the pleadings.
- The trial court granted two extensions to file a notice of appeal: one (authorized) extending the deadline to April 26, 2021, and a second (unauthorized) extending it to May 26, 2021.
- Plaintiffs filed their notice of appeal on May 25, 2021; defendants moved to dismiss as untimely and filed a cross-appeal on June 4, 2021 from the earlier denial of their motion to dismiss.
- The Court of Appeals held the plaintiffs’ notice was untimely under OCGA § 5-6-38/39 and therefore it lacked jurisdiction over both the plaintiffs’ appeal and the defendants’ cross-appeal; both appeals were dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of plaintiffs' notice of appeal | The second extension authorized filing by May 26, 2021, so the May 25 notice was timely | Only one statutory extension is permitted; the second extension was unauthorized, so the notice was untimely | Notice filed May 25 was untimely because only one extension was statutorily authorized; court lacks jurisdiction; appeal dismissed |
| Jurisdiction for defendants' cross-appeal | (implicit) cross-appeal appropriate after plaintiffs filed notice | Cross-appeal depends on existence of a timely principal appeal and the order sought to be appealed was interlocutory and not directly appealable | No independent basis for cross-appeal jurisdiction; because plaintiffs’ appeal was untimely, cross-appeal dismissed |
Key Cases Cited
- Cody v. State, 277 Ga. 553 (Ga. 2004) (timely filing of notice of appeal is jurisdictional requirement)
- Legare v. State, 269 Ga. 468 (Ga. 1998) (OCGA § 5-6-39 permits only one extension for filing a notice of appeal)
- Rockdale County v. Water Rights Committee, 189 Ga. App. 873 (Ga. Ct. App. 1989) (an unauthorized extension order is a nullity)
- Jones v. Peach Trader, 302 Ga. 504 (Ga. 2017) (the right to appeal depends on statutory authority)
- Seals v. State, 311 Ga. 739 (Ga. 2021) (courts may not rewrite statutes to create jurisdiction)
- Clark v. Atlanta Independent School System, 311 Ga. App. 255 (Ga. Ct. App. 2011) (cross-appeal jurisdiction depends on availability of a principal appeal)
- Forest City Gun Club v. Chatham County, 280 Ga. App. 219 (Ga. Ct. App. 2006) (lack of jurisdiction over principal appeal forecloses related cross-appeal)