Jack L. Mize v. Todd Cowan, as Tax Commissioner for Douglas County ( 2017 )


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  • 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.
    

Document Info

Docket Number: A17D0277

Filed Date: 2/22/2017

Precedential Status: Precedential

Modified Date: 2/22/2017