State v. Gober

Court of Appeals of Georgia

State v. Gober

494 S.E.2d 724, 229 Ga. App. 700, 98 Fulton County D. Rep. 69, 1997 Ga. App. LEXIS 1551

CourtCourt of Appeals of Georgia

DecidedDecember 5, 1997

DocketA97A1145

StatusPublished

Cited by6 cases

This text of 494 S.E.2d 724 (State v. Gober) 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

State v. Gober, 494 S.E.2d 724, 229 Ga. App. 700, 98 Fulton County D. Rep. 69, 1997 Ga. App. LEXIS 1551 (Ga. Ct. App. 1997).

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Opinions

Smith, Judge.

The State appeals the denial of its motion for summary judgment or dismissal. Marie Childers was employed by the Juvenile Court of the Blue Ridge Judicial Circuit and as a public service work coordinator in Cherokee and Forsyth counties until 1993, when she was terminated. She sought mandamus relief and damages against those counties, against Gober, the judge of the circuit’s juvenile court, and against others. Gober filed a third-party indemnification action against the State based on the theory that any actions taken by him were in the course of his employment as a state judicial officer. The State filed a motion to dismiss based on sovereign immunity, among other things. The trial court denied the State’s motion, and the State directly appealed.

The decision appealed from is not a final judgment subject to direct appeal as provided for by OCGA § 5-6-34 (a). Nor is the decision subject to the “collateral order” doctrine, which permits direct review of an order even though an action remains pending below. See Scroggins v. Edmondson, 250 Ga. 430, 431 (1) (c) (297 SE2d 469) (1982). The circumstances under which such an appeal may be taken are limited. Appeal is not allowed “from any decision which is tentative, informal or incomplete.” Cohen v. Beneficial Indus. Loan Corp., 337 U. S. 541, 546 (69 SC 1221, 93 LE 1528) (1949). The doctrine requires that nothing be left “open, unfinished or inconclusive.” (Citation and punctuation omitted.) Scroggins, supra at 432 (1) (c). The order appealed from must concern an issue that is “substantially separate from the basic issues presented in the complaint,” and the appellant must show that “an important right might be lost if review had to await final judgment.” Id.

The face of the trial court’s order denying summary judgment shows that it falls short of these requirements. It recites that appellant “has a high likelihood of being found to be an officer of the State [701]*701of Georgia. . . . Whether or not there was any responsibility of the State of Georgia to indemnify Judge Gober is a question to be determined upon presentation of further facts and consideration of further law.” (Emphasis supplied.) The decision clearly does not purport to make any final conclusion or finding with regard to appellant’s status or the State’s obligation to indemnify him. Instead, the trial court simply delayed ruling on the issues presented to it. The order appealed from consequently left the questions at issue open, unfinished, and inconclusive. The State’s appeal is therefore dismissed.

Appeal dismissed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Ruffin and Eldridge, JJ., concur. Beasley, J., dissents.

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Smith, Judge.

The State appeals the denial of its motion for summary judgment or dismissal. Marie Childers was employed by the Juvenile Court of the Blue Ridge Judicial Circuit and as a public service work coordinator in Cherokee and Forsyth counties until 1993, when she was terminated. She sought mandamus relief and damages against those counties, against Gober, the judge of the circuit’s juvenile court, and against others. Gober filed a third-party indemnification action against the State based on the theory that any actions taken by him were in the course of his employment as a state judicial officer. The State filed a motion to dismiss based on sovereign immunity, among other things. The trial court denied the State’s motion, and the State directly appealed.

The decision appealed from is not a final judgment subject to direct appeal as provided for by OCGA § 5-6-34 (a). Nor is the decision subject to the “collateral order” doctrine, which permits direct review of an order even though an action remains pending below. See Scroggins v. Edmondson, 250 Ga. 430, 431 (1) (c) (297 SE2d 469) (1982). The circumstances under which such an appeal may be taken are limited. Appeal is not allowed “from any decision which is tentative, informal or incomplete.” Cohen v. Beneficial Indus. Loan Corp., 337 U. S. 541, 546 (69 SC 1221, 93 LE 1528) (1949). The doctrine requires that nothing be left “open, unfinished or inconclusive.” (Citation and punctuation omitted.) Scroggins, supra at 432 (1) (c). The order appealed from must concern an issue that is “substantially separate from the basic issues presented in the complaint,” and the appellant must show that “an important right might be lost if review had to await final judgment.” Id.

The face of the trial court’s order denying summary judgment shows that it falls short of these requirements. It recites that appellant “has a high likelihood of being found to be an officer of the State [701]*701of Georgia. . . . Whether or not there was any responsibility of the State of Georgia to indemnify Judge Gober is a question to be determined upon presentation of further facts and consideration of further law.” (Emphasis supplied.) The decision clearly does not purport to make any final conclusion or finding with regard to appellant’s status or the State’s obligation to indemnify him. Instead, the trial court simply delayed ruling on the issues presented to it. The order appealed from consequently left the questions at issue open, unfinished, and inconclusive. The State’s appeal is therefore dismissed.

Appeal dismissed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Ruffin and Eldridge, JJ., concur. Beasley, J., dissents.

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Bluebook (online)

494 S.E.2d 724, 229 Ga. App. 700, 98 Fulton County D. Rep. 69, 1997 Ga. App. LEXIS 1551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gober-gactapp-1997.

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