Pursue Direct Appeal, Not Interlocutory Review, of Partial Summary Judgment Grant

Georgia Code Section 9-11-56(h) states: “An order granting summary judgment on any issue or as to any party shall be subject to review by appeal. An order denying summary judgment shall be subject to review by direct appeal in accordance with subsection (b) of Code Section 5-6-34.” When a court grants summary judgment (in whole or any part), this provision allows the losing party to appeal the grant immediately. See Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 264-65 (491 SE2d 471) (1997) (“[A]s a general rule, OCGA § 9-11-56(h) gives a losing party the right to a direct appeal from an order granting partial summary judgment or summary judgment on any issue or as to any party even though the judgment is not final….”). It is only when a court denies summary judgment that the losing party must apply for interlocutory review pursuant to OCGA § 5-6-34(b) to obtain immediate appellate relief.

Parties against whom summary judgment has been partially granted sometimes follow the OCGA § 5-6-34(b) interlocutory review procedures anyway, perhaps out of an abundance of caution. Ordinarily, there is little harm in doing so. The appeals court will grant the interlocutory review application in any case in which there is a right to direct appeal, and the appeal then proceeds as if it had been filed as of right.

An August 25 decision of the Court of Appeals, American Alternative Insurance Corp. v. James Lawrence Bennett, No. A14I0272, illustrates the potential peril in this approach. The trial court granted Bennett’s motion for partial summary judgment, in an order entered July 9. Under Section 5-6-34(b), the trial court had 10 days from entry of the order to enter the certificate of immediate review. Although the trial court signed the certificate on July 17, it was not entered until July 23, which was too late. The Court of Appeals therefore lacked jurisdiction and dismissed the appeal.

The appeal might have been salvaged if the appellant had filed a notice of appeal. Under Section 5-6-38(a), it had 30 days from entry of the summary judgment order, or until August 8, to do so. Generally, the better practice for a party seeking immediate review of a grant of summary judgment is to file only the notice of appeal and do nothing under the interlocutory review statute. But if something unusual about the case makes using the interlocutory review procedure desirable, the appellant must at least be prepared to file a notice of appeal in the event the trial court denies interlocutory review or something goes awry with the certificate. For a true belt-and-suspenders approach, file both the interlocutory review application and the notice of appeal, but do not ignore the notice of appeal entirely.

There is another potential problem for the appellant in Bennett. If the appellant had not attempted at all to immediately appeal the partial grant of summary judgment, it could have sought review of the grant in a later appeal (for example, after final judgment). However, there are cases holding that an appellant who “put the machinery of appellate review into motion under OCGA § 9-11-56(h), and committed a procedural default,” are foreclosed from later appellate review of the issue and from reopening the issue in the trial court. Houston Cnty. v. Harrell, 287 Ga. 162 (695 SE2d 29, 30) (2010). “[A] party is not entitled to a second appeal from a single order,” and dismissal of an appeal is treated as an affirmance. Id. Accordingly, there is a risk whenever an interlocutory appeal is dismissed, even for purely procedural reasons, that the decision will effectively become final and unreviewable.