Fasse v. Sexton

Court of Appeals of Georgia

Fasse v. Sexton

387 S.E.2d 17, 193 Ga. App. 9, 1989 Ga. App. LEXIS 1262

CourtCourt of Appeals of Georgia

DecidedSeptember 25, 1989

DocketA89A1041

StatusPublished

Cited by3 cases

This text of 387 S.E.2d 17 (Fasse v. Sexton) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fasse v. Sexton, 387 S.E.2d 17, 193 Ga. App. 9, 1989 Ga. App. LEXIS 1262 (Ga. Ct. App. 1989).

Pincite

Opinion

Carley, Chief Judge.

Appellee-defendant answered appellant-plaintiff’s complaint and asserted a counterclaim. Acting pursuant to OCGA §§ 9-11-37 (b) (2) (C) and 9-11-37 (d) (1), the trial court subsequently dismissed appellant’s complaint as a sanction for her repeated failure to attend scheduled depositions. Appellant has filed a direct appeal from the order dismissing her complaint.

Appellees’ counterclaim remains pending. “ ‘An appeal from an order dismissing the plaintiff’s claim is premature when there is a counterclaim pending in the court below.’ [Cits.] . . . [T]he pendency of the counterclaim plus the absence of a determination by the trial judge that there was no just reason for delay and express direction for entry of judgment under CPA § 54 (b) [OCGA § 9-11-54 (b)] ([cits.]) prevented the order from being final and [directly] appealable. This, coupled with the appellant’s failure to follow the applicable procedure for review under [OCGA § 5-6-34 (b)] ([Cits.]), subjects the instant appeal to dismissal [as premature].” Cleveland v. Watkins, 159 Ga. App. 885 (285 SE2d 546) (1981).

Appeal dismissed.

McMurray, P. J., and Beasley, J., concur.

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Carley, Chief Judge.

Appellee-defendant answered appellant-plaintiff’s complaint and asserted a counterclaim. Acting pursuant to OCGA §§ 9-11-37 (b) (2) (C) and 9-11-37 (d) (1), the trial court subsequently dismissed appellant’s complaint as a sanction for her repeated failure to attend scheduled depositions. Appellant has filed a direct appeal from the order dismissing her complaint.

Appellees’ counterclaim remains pending. “ ‘An appeal from an order dismissing the plaintiff’s claim is premature when there is a counterclaim pending in the court below.’ [Cits.] . . . [T]he pendency of the counterclaim plus the absence of a determination by the trial judge that there was no just reason for delay and express direction for entry of judgment under CPA § 54 (b) [OCGA § 9-11-54 (b)] ([cits.]) prevented the order from being final and [directly] appealable. This, coupled with the appellant’s failure to follow the applicable procedure for review under [OCGA § 5-6-34 (b)] ([Cits.]), subjects the instant appeal to dismissal [as premature].” Cleveland v. Watkins, 159 Ga. App. 885 (285 SE2d 546) (1981).

Appeal dismissed.

McMurray, P. J., and Beasley, J., concur.

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Bluebook (online)

387 S.E.2d 17, 193 Ga. App. 9, 1989 Ga. App. LEXIS 1262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fasse-v-sexton-gactapp-1989.

Opinion

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