Linda Stroud v. J.B. Nutter and Company ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 12, 2021
The Court of Appeals hereby passes the following order:
A21D0264. LINDA STROUD et al. v. J. B. NUTTER AND COMPANY.
Plaintiff Linda Stroud filed this timely application for discretionary review,
seeking to appeal the trial court’s order dismissing her notice of appeal from the
court’s prior order granting summary judgment in favor of the defendant in this civil
action.1 The trial court’s ruling dismissing Stroud’s notice of appeal, however, is not
subject to the discretionary appeal procedures. See generally OCGA § 5-6-35 (a); see
also Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 860 (424 SE2d 33) (1992)
(a trial court order dismissing a notice of appeal generally is directly appealable);
accord American Med. Security Group, Inc. v. Parker, 284 Ga. 102, 103 (2) (663
SE2d 697) (2008) (“[A] trial court’s order dismissing a properly filed direct appeal
is itself subject to a direct appeal.”). Rather, because “the case is no longer pending
in the court below,” the trial court’s order is a final judgment that is directly
appealable under OCGA § 5-6-34 (a) (1).
Under OCGA § 5-6-35 (j), this Court will grant a timely application for
discretionary review if the lower court’s order is subject to direct appeal. See City of
Rincon v. Couch, 272 Ga. App. 411, 412 (612 SE2d 596) (2005). Accordingly, this
application is hereby GRANTED. Stroud shall have ten days from the date of this
order to file a notice of appeal in the trial court. See OCGA § 5-6-35 (g). If Stroud
already has filed a notice of appeal in the trial court, then she need not file a second
1
According to the trial court, it entered the “final appealable” order granting
summary judgment to the defendant on July 5, 2019, and Stroud timely filed her
notice of appeal on Monday, August 5, 2019.
notice. The clerk of the trial court is DIRECTED to include a copy of this order in the
record transmitted to the Court of Appeals.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/12/2021
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.