Austin Regional Home Care Inc. v. Careminders Home Care Inc.

• Court: Court of Appeals of Georgia
• Decided: February 20, 2018
• Docket: A17A1859
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., BRANCH and BETHEL, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

February 20, 2018

In the Court of Appeals of Georgia A17A1859. AUSTIN REGIONAL HOME CARE, INC. et al. v. CAREMINDERS HOME CARE, INC. et al.

BETHEL, Judge.

Austin Regional Home Care, Inc., William Gorman, and Nancy Gorman

(“Appellants”) appeal directly from the trial court’s order compelling arbitration with

regard to claims brought against Careminders Home Care, Inc. and Careminders, Inc.

(collectively, “Careminders”). Careminders moved to dismiss this appeal, arguing that

this Court lacks jurisdiction because the trial court’s order compelling arbitration did

not constitute a final judgment. Because we agree with Careminders that this Court

lacks jurisdiction, we dismiss this appeal.

Careminders brought suit against the Appellants in July 2016, alleging a

number of causes of action relating to the parties’ business relationship. In February 2017, Careminders moved to exercise arbitration provisions in several agreements

entered into with the Appellants. Over the objection of the Appellants, the trial court

granted Careminders’ motion to compel arbitration. In its order, the trial court also

included a provision which stated

In accordance with OCGA § 9-9-6 (a), this Order shall operate to stay this action in all aspects of this litigation, and the Clerk is hereby ordered to administratively close this file such that it does not appear as a pending matter. If and when any party should desire to return this matter to an open and active status, the party should formally move the Court for an order lifting the stay.

As a general matter “[t]he grant of an application to compel arbitration is not

directly appealable pursuant to OCGA § 5-6-34 (a) (4), but is instead an interlocutory

matter reviewable pursuant to OCGA § 5-6-34 (b).” Goshayeshi v. Mehrabian, 232

Ga. App. 81, 81 (501 SE2d 265) (1998). “A party seeking appellate review from an

interlocutory order must follow the interlocutory application procedure set forth in

OCGA § 5-6-34 (b), which includes obtaining a certificate of immediate review from

the trial court.” Pace Constr. Corp. v. Northpark Assoc., L.P., 215 Ga. App. 438, 439

(450 SE2d 828) (1994) (citation omitted).

2 Appellants sought a certificate of immediate review from the trial court, which

it denied. Appellants then brought this appeal directly from the trial court’s order

compelling arbitration. In its brief, Appellants assert that, despite this Court’s prior

holdings in Goshayeshi and Pace, the trial court’s order compelling arbitration was

a final order from which it could appeal to this Court directly, citing this Court’s

decision in Torres v. Piedmont Builders, Inc., 300 Ga. App. 872, 872-73 (686 SE2d

464) (2009).

We find the facts of Torres to be inapposite to the posture of this case. In

Torres, one of the parties to an arbitration agreement sought to exercise its right to

arbitrate the dispute. 300 Ga. App. at 872 (1). When the trial court ordered the parties

to arbitration, it simultaneously dismissed the underlying action. Id. Thus, this Court

determined that, although based on an order compelling arbitration, the appeal arose

“from a final order dismissing the original action in its entirety” such that the case

was “no longer pending in superior court.” Id. Because the case had been dismissed

below, this Court determined that the appeal in Torres was brought from a final

judgment that was directly appealable pursuant to OCGA § 5-6-34 (a) (1). Id. at 873

(1).

3 In contrast, in this case, the language of the trial court’s order compelling

arbitration plainly contemplates that the case will remain open, though dormant. By

noting that the order compelling arbitration stayed further action on the case and that

such stay could be lifted by the trial court, the trial court did not “dismiss[] the

original action in its entirety” as occurred in Torres. Rather, it suspended further

action on the case until such time as either of the parties sought to reopen the matter

before the trial court by requesting that the stay be lifted. See Bloomfield v. Liggett

& Myers, Inc., 129 Ga. App. 141, 141 (198 SE2d 906) (1973) (“A stay in proceedings

is merely a suspension of proceedings . . .”). As a result, the trial court’s order

compelling arbitration does not constitute a final judgment that is directly appealable

to this Court.

In order to appeal the trial court’s order, the Appellants were thus compelled

to follow the procedure for seeking interlocutory review set forth in OCGA § 5-6-34

(b), which provides that

[w]here the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal . . . certifies . . . that the order, decision, or judgment is of such importance to the case that immediate review should be had, the . . . Court of Appeals may thereupon, in [its] respective discretion[], permit an appeal to be taken from the order,

4 decision, or judgment if application is made thereto within ten days after such certificate is granted.

The trial court refused to grant the certificate of review sought by Appellants

in this case. Thus, Appellants were barred from applying to this Court for

interlocutory review, as the granting of such certificate by the trial court is a clear

prerequisite to this Court’s consideration of an application for review pursuant to

OCGA § 5-6-34 (b). Pace, 215 Ga. App. at 439.

As Appellants could not seek interlocutory review of this matter pursuant to

OCGA § 5-6-34 (b) and because they have failed to demonstrate that the trial court’s

order is a final judgment directly appealable to this Court pursuant to OCGA § 5-6-34

(a), we are compelled to dismiss this appeal without consideration of the merits of

Appellants’ enumerations of error.

Appeal dismissed. McFadden, P. J., and Branch, J., concur.