Opinion
A89A1041.
DECIDED SEPTEMBER 25, 1989.
Complaint dismissal. Fulton State Court. Before Judge Lambros.
Susan Fasse, pro se. Davis, Kirsch Wolfe, Timothy W. Wolfe, for appellees.
Appellee-defendant answered appellant-plaintiff's complaint and asserted a counterclaim. Acting pursuant to OCGA §§ 9-11-37 (b) (2) (C) and 9-11-37 (d) (1), the trial court subsequently dismissed appellant's complaint as a sanction for her repeated failure to attend scheduled depositions. Appellant has filed a direct appeal from the order dismissing her complaint.
Appellees' counterclaim remains pending. "`An appeal from an order dismissing the plaintiff's claim is premature when there is a counterclaim pending in the court below.' [Cits.] ... [T]he pendency of the counterclaim plus the absence of a determination by the trial judge that there was no just reason for delay and express direction for entry of judgment under CPA § 54 (b) [OCGA § 9-11-54 (b)] ([cits.]) prevented the order from being final and [directly] appealable. This, coupled with the appellant's failure to follow the applicable procedure for review under [OCGA § 5-6-34 (b)] ([Cits.]), subjects the instant appeal to dismissal [as premature]." Cleveland v. Watkins, 159 Ga. App. 885 ( 285 S.E.2d 546) (1981).
Appeal dismissed. McMurray, P. J., and Beasley, J., concur.