Opinion
A23D0152
12-21-2022
MAXWELL C. MINNIS v. JANICE MINNIS.
The Court of Appeals hereby passes the following order:
In this pending divorce action, the trial court granted Janice Minnis' motion to strike the answer and counterclaim filed by her husband, Maxwell Minnis. In doing so, the court explained that Maxwell Minnis had failed to provide responses to Janice Minnis' discovery requests, and stated that it was reserving ruling on the award of attorney fees under OCGA § 9-11-37 (a) (4) (A). Proceeding pro se, Maxwell Minnis seeks discretionary review of the trial court's order. For the reasons set forth below, we lack jurisdiction.
The order Maxwell Minnis seeks to appeal is not a final judgment and the case remains pending in the superior court. See Melton v. Grider, 119 Ga.App. 376 (166 S.E.2d 915) (1969) ("an order striking the answer and cross action of the defendants and refusing to open the default is not an order which can be directly appealed"); see also Thomas v. Douglas County, 217 Ga.App. 520, 522 (1) (457 S.E.2d 835) (1995) ("Generally, an order is final and appealable when it leaves no issues remaining to be resolved, constitutes the court's final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court."). Here, the court struck Maxwell Minnis' answer and counterclaim as authorized by OCGA § 9-11-37 (b) (2) (C), which also permits a court to impose the sanction of a judgment by default. But the trial court did not enter a default judgment, nor did it make an express determination of finality under OCGA § 9-11-54 (b). The order Maxwell Minnis seeks to appeal did not completely resolve the case.
In order to appeal such an order, Maxwell Minnis was required to comply with the interlocutory appeal procedure under OCGA § 5-6-34 (b) and obtain a certificate of immediate review. See Melton, 119 Ga.App. at 376. When a matter is both discretionary and interlocutory, "[t]he discretionary appeal statute does not excuse a party seeking appellate review of an interlocutory order from complying with the additional requirements of OCGA § 5-6-34 (b)." Bailey v. Bailey, 266 Ga. 832, 833 (471 S.E.2d 213) (1996); see also Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 589 (1) (408 S.E.2d 103) (1991).
Maxwell Minnis' failure to follow the proper appellate procedure deprives us of jurisdiction to consider his application. Accordingly, this application is hereby DISMISSED.