PAUL HASTINGS, LLP v. EGBERT PERRY

• Court: Court of Appeals of Georgia
• Decided: December 6, 2021
• Docket: A21A1729
• Status: Published

Opinion

FIFTH DIVISION BARNES, P. J., MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

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. https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

December 6, 2021

In the Court of Appeals of Georgia A21A1726, A21A1729. PERRY et al. v. PAUL HASTINGS, LLP et al.; and vice versa.

MCFADDEN, Presiding Judge.

Egbert Perry and Integral Development, LLC brought this action against law

firm Paul Hastings, LLP and two of its attorneys, asserting a claim of abusive

litigation in connection with a prior lawsuit. On March 3, 2020, the trial court denied

the defendants’ motion to dismiss the action for failure to state a claim, and this court

declined to grant interlocutory appellate review of that ruling. The following year, on

February 26, 2021, the trial court granted the defendants’ motion for judgment on the

pleadings.

This court granted the plaintiffs two extensions of time to file their notice of

appeal from the order granting judgment on the pleadings — the first extending the time for filing until April 26, 2021, and the second extending the time for filing until

May 26, 2021. On May 25, 2021, the plaintiffs filed a notice of appeal (Case No.

A21A1726). The defendants moved to dismiss that appeal, arguing that the notice of

appeal was untimely. And on June 4, 2021, they filed a notice of cross-appeal from

the order denying their motion to dismiss (Case No. A21A1729).

We lack jurisdiction to consider these appeals. “The proper and timely filing

of the notice of appeal is an absolute requirement to confer jurisdiction upon the

appellate court.” Cody v. State, 277 Ga. 553 (592 SE2d 419) (2004) (citation and

emphasis omitted). Our Appellate Practice Act requires the notice of appeal to “be

filed within 30 days after entry of the appealable decision or judgment complained

of[,]” except in certain circumstances not applicable here. OCGA § 5-6-38 (a).

Although “OCGA § 5-6-39 (a) (1) gives courts the authority to grant an extension of

time to file a notice of appeal[, t]his authority is limited . . . by subsection (c) which

provides that only one extension of time shall be granted for filing a notice of appeal

and the extension shall not exceed the 30 days allowed for the initial filing of the

notice.” Legare v. State, 269 Ga. 468, 468-469 (499 SE2d 640) (1998).

“In this case, the only authorized extension of time would have expired on

[April 26, 2021].” Legare, 269 Ga. at 469. So the plaintiffs’ notice of appeal, filed on

2 May 25, 2021, was untimely; and we are without jurisdiction over the plaintiffs’

appeal. See id. This is the case even though we granted a second, unauthorized

extension. See Rockdale County v. Water Rights Committee, 189 Ga. App. 873, 874

(377 SE2d 730) (1989) (order granting extension to file notice of appeal that was not

authorized by OCGA § 5-6-39 “was an ineffective nullity [and] the parties cannot rely

on [that] order as authority for extending the time for filing their notices of appeal”)

(citation and punctuation omitted). The “right to appeal . . . depends on statutory

authority[,]” Jones v. Peach Trader, 302 Ga. 504, 511 (III) (807 SE2d 840) (2017),

and where the statutory requirements for an appeal are not met, we cannot exercise

jurisdiction. See Legare, 269 Ga. at 469. See generally Seals v. State, 311 Ga. 739,

748 (3) (b) (860 SE2d 419) (2021) (“We do not have the power to ignore the meaning

of words, nor do we have the power to rewrite statutes to better suit the perceived

needs of courts or parties.”).

There is no independent jurisdictional basis for the defendants’ cross-appeal

from the order denying their motion to dismiss. That interlocutory order was not

directly appealable under OCGA § 5-6-34 (a) or any other statutory provision, and

we denied the defendants’ application for interlocutory appellate review.

Consequently, because we lack jurisdiction over the plaintiffs’ appeal, we also lack

3 jurisdiction over the defendants’ cross-appeal. See Clark v. Atlanta Independent

School System, 311 Ga. App. 255, 259 (715 SE2d 668) (2011); Forest City Gun Club

v. Chatham County, 280 Ga. App. 219, 222 (633 SE2d 623) (2006).

Appeals dismissed. Barnes, P. J., and Senior Appellate Judge Herbert E.

Phipps concur.