Tim Sundy v. Friendship Pavilion Acquisition Company, LLC
A18D0215
| Ga. Ct. App. | Jan 2, 2018Background
- This is an application for discretionary review by pro se appellants Tim and David Sundy seeking to appeal a trial court interlocutory order dated October 30, 2017.
- The trial court order denied motions to strike, for entry of default, and for judgment on the pleadings; it also recognized a counterclaim by the Sundys, ordered certain parties added as defendants in counterclaim and to answer, and directed a new case caption listing the Sundys as defendants.
- The Sundys did not obtain a certificate of immediate review from the trial court and did not invoke interlocutory appeal procedures before seeking review in the Court of Appeals.
- The Sundys failed to include copies of the underlying pleadings required by Court of Appeals Rule 31(e).
- The Court of Appeals dismissed the application for lack of jurisdiction and labeled the filing frivolous given the Sundys’ repeated prior failures to follow interlocutory-appeal procedures.
- The court cautioned that future frivolous filings could result in sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the October 30 order was directly appealable to the Court of Appeals | The Sundys asserted (generally) that some interlocutory rulings were appealable under the collateral-order doctrine and referenced unspecified injunctive orders | Respondents asserted the order was interlocutory and not directly appealable; Sundys failed to show it fit the collateral-order exception | The order is non-final; Sundys did not show collateral-order applicability; direct appeal unavailable |
| Whether the Sundys complied with interlocutory-appeal procedures | Sundys proceeded by discretionary application without obtaining a certificate of immediate review from the trial court | Respondents noted absence of required interlocutory-appeal steps | Sundys’ failure to use interlocutory procedures (OCGA § 5-6-34(b)) deprived the Court of jurisdiction; application dismissed |
| Whether the filing was frivolous and subject to possible sanctions | Sundys filed multiple prior applications/appeals in the same matter and argued interlocutory review was warranted | Respondents pointed to prior dismissals for failing to follow procedures and urged sanctions authority | Court found the application frivolous given repeated procedural failures and warned that future frivolous filings may be sanctioned |
| Whether procedural record requirements were met | Sundys did not furnish copies of the pleadings that produced the trial court order | Respondents pointed to Rule 31(e) noncompliance | Court noted Rule 31(e) violation in the record and relied on procedural defects in resolving the application |
Key Cases Cited
- Boyd v. State, 191 Ga. App. 435 (Ga. Ct. App. 1989) (interlocutory appeal procedures required for nonfinal orders)
- Bailey v. Bailey, 266 Ga. 832 (Ga. 1996) (dismissal for failure to follow interlocutory-appeal procedures)
- Rivera v. Washington, 298 Ga. 770 (Ga. 2016) (explaining narrow scope of collateral-order doctrine)