SILVER COMET TERMINAL PARTNERS, LLC v. PAULDING COUNTY AIRPORT AUTHORITY

• Court: Court of Appeals of Georgia
• Decided: March 3, 2023
• Docket: A22A1355
• Status: Published

Opinion

THIRD DIVISION MILLER, P. J., DOYLE, 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

March 3, 2023

In the Court of Appeals of Georgia A22A1355. SILVER COMET TERMINAL PARTNERS, LLC v. PAULDING COUNTY AIRPORT AUTHORITY et al.

DOYLE, Presiding Judge.

Silver Comet Terminal Partners, LLC (“Silver Comet”), appeals from an order

of the Superior Court of Paulding County, which dismissed Silver Comet’s amended

cross-claim, denied Silver Comet’s motion to substitute parties, and denied as moot

Silver Comet’s motion for summary judgment on its amended cross-claim against

Paulding County Airport Authority (the “Authority”). We dismiss this appeal as

premature, for the reasons that follow.

In 2015, Appellee Paulding County (the “County”) filed the underlying action

against the Authority, seeking a declaration that the Authority could not move

forward with an application for a commercial airport operating certificate from the Federal Aviation Administration (“FAA”) without the County’s consent. Silver

Comet intervened and filed a counterclaim against the County for declaratory relief

and seeking damages pursuant to 42 USC § 1983. The County amended its complaint

to add claims against Silver Comet, including a claim for breach of contract.1

Silver Comet filed an amended cross-claim against the Authority, seeking

indemnification. The Authority moved to dismiss the amended cross-claim on the

ground that it was barred either by res judicata or the prior-action-pending doctrine.

Silver Comet moved for summary judgment on its amended cross-claim.

After hearing oral argument, the superior court granted the Authority’s motion

to dismiss the cross-claim, denied Silver Comet’s motion to substitute or join the

County as a defendant on the cross-claim, and denied as moot Silver Comet’s motion

for summary judgment on the cross-claim. Silver Comet appeals from this order.

The Authority has moved to dismiss the appeal on the ground that it is

premature. We agree.

In a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less

1 We previously affirmed the superior court’s dismissal of Silver Comet’s counterclaims against the County. See Avery v. Paulding County Airport Auth., 343 Ga. App. 832, 848-852 (4) (808 SE2d 15) (2017).

2 than all the parties is not a final judgment. In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) or there must be compliance with the interlocutory appeal requirements of OCGA § 5-6-34 (b). Where neither of these code sections are followed, the appeal is premature and must be dismissed.2

Here, the County’s claims remain pending below, and the trial court did not

direct the entry of final judgment in accordance with OCGA § 9-11-54 (b). However,

Silver Comet argues that the order appealed from was substantively a grant of

summary judgment. Specifically, Silver Comet contends that it presented factual

matters (admissions by the Authority’s CEO) that were separate from the filings in

federal court on which the Authority relied.

In finding that the prior-action-pending doctrine3 barred Silver Comet’s cross-

claim, the superior court found that “Silver Comet did not seek affirmative relief

against the Authority in this case until the Cross Claim was filed . . . approximately

eight months after Silver Comet filed [a federal complaint against the Authority] and

2 (Citations and punctuation omitted.) Johnson v. Hosp. Corp. of America, 192 Ga. App. 628, 629 (385 SE2d 731) (1989). 3 See generally OCGA §§ 9-2-5; 9-2-44; DOCO Credit Union v. Chambers, 330 Ga. App. 633, 636 (1) (768 SE2d 808) (2015).

3 sought recovery of the bond payments from the Authority there.”4 In its detailed

order, the trial court laid out the “[f]actual background based on the pleadings[.]”

Further, in taking judicial notice of several filings in the federal action, the trial court

specifically noted that it could do so at the motion-to-dismiss stage without

converting the motion into a motion for summary judgment because the documents

were publicly available.

On an appeal of a trial court’s order that dismisses a cause of action for failure to state a claim upon which relief can be granted, the reviewing court must determine whether either party has presented matters outside the pleading to the trial court, and if so whether the trial court excluded or considered such matters. Therefore, if matters outside the pleadings were presented to the trial court, which then considered these matters as it resolved the case, then a reviewing court is required to treat the resulting trial court’s order as a ruling on a motion for summary judgment.5

4 See generally Avery, 343 Ga. App. at 832-838 (detailing the underlying controversy); see also RTA Strategy, LLC v. Silver Comet Terminal Partners, LLC, 347 Ga. App. 266, 266-269 (817 SE2d 720) (2018) (providing further background). 5 (Citations and punctuation omitted; emphasis supplied.) Johnson v. RLI Ins. Co., 288 Ga. 309, 310 (704 SE2d 173) (2010).

4 Because the trial court’s order did not address matters outside the pleadings,6 and

specifically the admissions by the Authority’s CEO submitted by Silver Comet, the

order granting the Authority’s motion to dismiss the cross-claim was appealable only

through the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b). Silver

Comet’s failure to follow the interlocutory appeal procedure deprives us of

jurisdiction over this direct appeal.

Accordingly, the Authority’s motion to dismiss is hereby granted, and this

appeal is dismissed for lack of jurisdiction.

Appeal dismissed. Miller, P, J., and Senior Appellate Judge Herbert E. Phipps

concur.

6 Silver Comet does not argue that the trial court’s consideration of the federal filings converted the motion into one for summary judgment. See Najarian Capital, LLC v. Clark, 357 Ga. App. 685, 691 (2) (849 SE2d 262) (2020) (“Whether requested by a party or not, a trial court may take judicial notice of a fact which is not subject to reasonable dispute, in that it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”) (citation and punctuation omitted).