Under a lina of cases handed down by our Supreme Court, we are constrained to agree. See Massey v. Massey, 294 Ga. 163, 165 (1), 751 S.E.2d 330 (2013); Houston County v. Harrell, 287 Ga. 162, 163, 695 S.E.2d 29 (2010); Mitchell v. Oliver, 254 Ga. 112, 113 (1), 327 S.E.2d 216 (1985). 2. Summary judgment order
See supra note 2 & accompanying text. 254 Ga. 112, 327 S.E.2d 216 (1985).Id. at 114 (1), 327 S.E.2d 216 ; accordHouston Cty. v. Harrell , 287 Ga. 162, 163, 695 S.E.2d 29 (2010).
In support of such a construction, Plaintiffs point to the legislative intent of the Georgia legislature in enacting § 44-14-3—to provide broad redress to grantors against "grantees who unreasonably withhold satisfaction or cancellation." (Id. at 2) (quoting Mitchell v. Oliver, 254 Ga. 112, 115-16 (1985)). According to Plaintiffs, to read the statute to exclude the original grantor would lead to an absurd result contrary to this intent.
Roth v. Gulf Atlantic Media, 244 Ga.App. 677, 679, 536 S.E.2d 577 (2000). Moreover, if a party attempts to appeal pursuant to OCGA § 9–11–56(h) and suffers a procedural default resulting in the dismissal of the appeal, then res judicata also attaches; however, our appellate courts have stated that a different rule applies if a procedural default resulting in dismissal occurs in an appeal which has been initiated by the filing of an application for interlocutory review, or if a party voluntarily withdraws an appeal. Compare Houston County v. Harrell, 287 Ga. 162, 163, 695 S.E.2d 29 (2010) and Mitchell v. Oliver, 254 Ga. 112, 114(1), 327 S.E.2d 216 (1985) with Canoeside Properties v. Livsey, 277 Ga. 425, 427(1), 589 S.E.2d 116 (2003) and Hardwick, Cook & Co. v. 3379 Peachtree, Ltd., 184 Ga.App. 822, 823(1), 363 S.E.2d 31 (1987). In this case, Aiken Dermatology timely filed its notice of appeal after we granted its application for interlocutory appeal, but then failed to pay costs.
Comparison of the enumerations of error in both appeals shows that enumerations of error 2 through 4 in Eckerd II seek to relitigate the identical issues that Eckerd attempted to litigate in Eckerd I in enumerations of error 1 through 3. Under our appellate practices, however, this cannot be done. In Mitchell v. Oliver, 254 Ga. 112 ( 327 SE2d 216) (1985), our Supreme Court held: If the losing party suffers dismissal of his § 9-11-56 (h) appeal for failure to fulfill procedural requirements, the losing party should, in return for his privilege of direct appeal, suffer the same sanction of res judicata which attaches to a final judgment from which a procedurally defective appeal is taken.
The Court of Appeals granted the application to consider the effect of the appellant's failure to comply with interlocutory appeal procedures and the correctness of the trial court's action. In deciding to dismiss the appeal, the Court of Appeals first considered the effect of procedural default in an interlocutory appeal and concluded, based on this Court's decision in Mitchell v. Oliver, 254 Ga. 112 (1) ( 327 S.E.2d 216) (1985), that a dismissal of an interlocutory appeal for a procedural fault carries with it res judicata effect which forecloses the issue from further appellate review. Having decided that its earlier dismissal of the appeal was res judicata, the Court of Appeals then concluded that the trial court did not have the authority to vacate and reinstate its judgment in an effort to circumvent the dismissal.
However, a “defective attempt to seek interlocutory review pursuant to OCGA § 5–6–34(b) does not have the effect of making the judgment appealed from res judicata of the issue. [Cit.]” Mitchell v. Oliver, 254 Ga. 112, 114(1), 327 S.E.2d 216 (1985). See also Canoeside Properties v. Livsey, 277 Ga. 425, 427(1), 589 S.E.2d 116 (2003).
On August 18, 2008, Harrell filed her second notice of appeal, this from the order of July 30, 2008, and on consideration of this appeal, the Court of Appeals reversed the trial court's grant of partial summary judgment; further facts may be found in the opinion of the Court of Appeals. Harrell, supra. This Court stated in Mitchell v. Oliver, 254 Ga. 112, 114 (1) ( 327 SE2d 216) (1985), that [i]f the losing party suffers dismissal of his § 9-11-56 (h) appeal for failure to fulfill procedural requirements, the losing party should, in return for his privilege of direct appeal, suffer the same sanction of res judicata which attaches to a final judgment from which a procedurally defective appeal is taken.
However, where, as here, the losing party is allowed to obtain review of an interlocutory ruling as a matter of right, but does not put the machinery of immediate appellate review into motion, he is not foreclosed from thereafter submitting the issue for review on appeal from the final judgment. See Canoeside Properties v. Livsey, 277 Ga. 425, 427 (1) ( 589 SE2d 116) (2003); Mitchell v. Oliver, 254 Ga. 112, 114 (1) ( 327 SE2d 216) (1985). Therefore, we will proceed to consider the merits of this enumeration.
Accordingly, Husband's claim is barred under the doctrine of res judicata and his cross-appeal hereby is dismissed. See Mitchell v. Oliver, 254 Ga. 112 (1) ( 327 SE2d 216) (1985). Judgment reversed in Case Number S06A1524. All the Justices concur, except Melton, J., who concurs specially, and Sears, C. J., and Thompson, J., who dissent.