Oswald Family Investments, Lllp v. Department of Transportation

• Court: Court of Appeals of Georgia
• Decided: July 21, 2017
• Docket: A17I0273
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 21, 2017

The Court of Appeals hereby passes the following order:

A17I0273. OSWALD FAMILY INVESTMENTS, LLLP et al. v. DEPARTMENT OF TRANSPORTATION.

On June 14, 2017, the trial court granted partial summary judgment in favor of the Department of Transportation (“DOT”) in this condemnation case. On July 3, 2017, Owsald Family Investments, LLLP and Osan Petroleum Company (“Condemnees”) filed this application seeking interlocutory review of the partial summary judgment order. The certificate of immediate review attached to Condemnees’ application, however, is defective.1 Accordingly, we will construe this filing as an application for discretionary appeal, in which no certificate of immediate review is required, rather than an application for interlocutory appeal, in which a proper certificate of immediate review is necessary. See Riley v. Ga. Department of Revenue, 295 Ga. App. 656, 657 (673 SE2d 49) (2009) (“The legislature has instructed that the Appellate Practice Act shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case.”). A grant of partial summary judgment may be appealed directly. See OCGA § 9-11-56 (h); see also Whiddon v. Stargell, 192 Ga. App. 826, 828 (386 SE2d 884) (1989). Under OCGA § 5-6-35 (j), we will grant a timely discretionary application if the lower court’s order is subject to direct appeal. Accordingly, this application is

1 The certificate does not refer to the partial summary judgment order that the Condemnees seek to appeal. Instead, it certifies that a March 31, 2016 order denying Condemnees’ motion to dismiss is of such importance that immediate review should be had. hereby GRANTED. Condemnees shall have 10 days from the date of this order to file a notice of appeal in the superior court, if they have not already done so. The superior court clerk is instructed to include a copy of this order in the appellate record.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/21/2017 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.