Opinion
A24A0656
08-05-2024
MATEO F. MUNOZ et al. v. FULTON COUNTY PATRICK LABAT et al.
The Court of Appeals hereby passes the following order:
In 2009, Mateo F. Munoz and Maria Castaneda (collectively, "Munoz") acquired title to property in Fulton County. In 2018, after Munoz failed to pay property taxes, the Fulton County Sheriff held a tax sale, and the property was sold to Deed Co., LLC. In 2020, Munoz filed an equitable complaint to set aside the tax sale against the Fulton County Sheriff; the Fulton County Tax Commissioner; Meriwether Ventures, LLC; and Deed Co. The Fulton County Sheriff, the Fulton County Tax Commissioner, and Deed Co. filed separate motions to dismiss Munoz's complaint, and on May 10, 2021, the trial court granted the defendants' motions to dismiss. The Fulton County Sheriff thereafter filed a motion for attorney fees under OCGA § 9-15-14. On September 27, 2023, following a hearing, the trial court granted the motion for fees and ordered Munoz and Munoz's counsel, William H. Arroyo &Associates, to pay attorney fees pursuant to OCGA § 9-15-14 (a). On October 11, 2023, Munoz filed in the trial court a voluntary dismissal of his claims against Meriwether Ventures pursuant to OCGA § 9-11-41 (a) (1). And on October 25, 2023, Munoz and Arroyo filed a notice of appeal, seeking to appeal from the May 10, 2021 order, as well as the September 27, 2023 award of attorney fees. We lack jurisdiction.
Meriwether Ventures had previously dismissed its own claims against Munoz.
A notice of appeal must be filed within 30 days of entry "of the appealable decision or judgment[.]" OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. Perlman v. Perlman, 318 Ga.App. 731, 739 (4) (734 S.E.2d 560) (2012). The notice of appeal, filed more than two years after the trial court's May 2021 order, is untimely as to that order.
Although the notice of appeal was filed within 30 days of Munoz's voluntary dismissal of his remaining claims against Meriwether Ventures, a party may not "voluntarily dismiss the remaining defendants in his lawsuit for the sole reason of obtaining" appellate review of a prior ruling. O'Dell v. Mahoney, 324 Ga.App. 360, 362 (1) (750 S.E.2d 689) (2013); Waye v. Continental Special Risks, Inc., 289 Ga.App. 82, 84 (656 S.E.2d 150) (2007) (explaining that a party cannot use his "own voluntary dismissal as the vehicle for appellate review of rulings entered by the trial court more than 30 days from the filing of the notice of appeal") (citation and punctuation omitted); accord Studdard v. Satcher, Chick, Kapfer, Inc., 217 Ga.App. 1, 3 (456 S.E.2d 71) (1995).
Nor did the voluntary dismissal transform the May 2021 order to a "final order" of the trial court, as suggested in the notice of appeal. See OCGA § 5-6-34 (a) (1) (providing for direct appeal from"final judgments, that is to say, where the case is no longer pending in the court below"). In determining whether an order is final, we must look to the time when it was originally entered. See, e.g., O'Dell, 324 Ga.App. at 361 (1); Waye, 289 Ga.App. at 84. At the time the May 2021 order was entered, it did not constitute a final judgement, as Munoz's claims against Meriwether Ventures remained pending. See Johnson v. Hosp. Corp. of America, 192 Ga.App. 628, 629 (385 S.E.2d 731) (1989) ("In a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment.") (punctuation omitted). Thus, neither the May 2021 dismissal order nor the October 2023 voluntary dismissal is a final order of the trial court from which Munoz and Arroyo can appeal directly.
The notice of appeal was also timely to the award of attorney fees, but that does not provide an independent basis for our jurisdiction. An appeal from a trial court order awarding OCGA § 9-15-14 attorney fees must be initiated by filing an application for discretionary review. OCGA § 5-6-35 (a) (10); Capricorn Systems v. Godavarthy, 253 Ga.App. 840, 841-842 (560 S.E.2d 730) (2002). "Compliance with the discretionary appeals procedure is jurisdictional." Smoak v. Dept. of Human Resources, 221 Ga.App. 257, 257 (471 S.E.2d 60) (1996).
For these reasons, we lack jurisdiction over this appeal, which is hereby DISMISSED.