Aрpellee East Atlanta Church of God, Inc. filed a “complaint for damages and injunctive relief and petition to quiet title” against Appellants Clifford Rhymes and Philliр Gant. The claim of quiet title against all the world is based upon OCGA § 23-3-60 et seq. However, the complaint, as amended, also specifies several other clаims, including the following:
Count II... : Rhymes has converted personal property and U.S. currency belonging to [Appellee] and has failed to account for same аnd [Appellee] is entitled to an accounting of all such property and funds in the possession of Rev. Rhymes at any time heretofore. Count III. . . : [Appellants] have confiscated and sold a 2000 Buick LeSabre owned by [Appellee] and have refused to account for the funds from the sale on said vehicle to [Apрellee]. . . . [Appellee] is . . . entitled to a temporary and permanent injunction ordering both [Appellants] to account for the funds from the sale of thаt 2000 Buick LeSabre. Count TV : [Appellee] shows the court that it will suffer immediate and irreparable damage and loss unless this court issues a temporary and permanent injunction commanding . . . Rhymes to vacate the premises of [Appellee and] ... to account for all property and funds of [Appellee] heretоfore in the possession of .. . Rhymes. Count V ... : Both [Appellants] have been stubbornly litigious in the transactions out of which this civil action arose, and have caused [Appellee] unnecessary trouble and expense. [Appellee] is thereby entitled to recover its expenses of litigation including reasonable attоrney’s fees from both [Appellants] and their attorney.
The petition to quiet title was submitted to a special master pursuant to OCGA § 23-3-63. The special master cоnducted an evidentiary hearing and filed a report of his findings. Appellants filed exceptions to the special master’s order and report, as well as сertain other pleadings in which they sought a jury trial. The trial court adopted the special master’s report and held that title to the real property at issue is vested in Appellee. In a separate order, the trial court
OCGA § 5-6-34 (a) (1) provides, in relevant part, that a direct appeal may be taken from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below. ...” This сase is still pending below, because only the quiet title claim has been addressed.
When more than one claim for relief is presented in an action,. . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims .. . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims . . . shall not terminate the action as to any of the claims . . ., and the order or other fоrm of decision is subject to revision at any time before the entry of judgment adjudicating all the claims ....
OCGA § 9-11-54 (b).
As this is a case “ ‘involving multiple .. . claims, a decision adjudicating fеwer than all the claims ... is not a final judgment. (Cit.) In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) (cit.) or there must be compliance with the requiremеnts of OCGA § 5-6-34 (b) (cit.). Where neither of these code sections (is) followed. . ., the appeal is premature and must be dismissed.’ ” [Cit.] Neither of these procedures was fоllowed in this case....
Whiddon v. Stargell,
The trial court neither expressly determined that there is no just reason for delay nor expressly directed the entry of final judgment. The order аdopting the special master’s report was denominated “Final Judgment and Order.” Under the express language of OCGA § 9-11-54 (b), however, “the mere designation of a judgment аs ‘final’ is not controlling. [Cit.]”
Hadid v. Beals,
Appellants argue that the special master had “complete jurisdiction within the scope of thе pleadings” under OCGA § 23-3-66 and that Appellee conceded below that the special master decides all the issues in the case unless there is a demand fоr a jury trial. However, the special master has jurisdiction only
to ascertain and determine the validity, nature, or extent of petitioner’s title and all other interests in the land, or any part thereof, which may be adverse to the title claimed by the petitioner, or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge .... (Emphasis supplied.)
OCGA § 23-3-66. Thus, the special master is authorized to address all those issues which are related to the petition to quiet title, and does not have jurisdiction to address
Appellants also argue that Appellee abandoned all of its claims other than quiet title. Contrary to Appellants’ argument, Appellee clearly did not abandon those claims by failing to raise them during the special master’s hearing, because, as discussed above, that hearing was limited to the quiet title claim. Nor did Appellee abandon the remaining claims in any other manner. Moreover, even if some action of Appellee showed an intent to abandon those claims, they are nevertheless still pending since the trial court has not yet made any decision regarding the abandonment or waiver of any claim. There was no such decision reflected in its order on the motion to strike, and the trial court has not dismissed any claims or granted summary judgment thereon. If Appellants believed that the claims other than quiet title had been waived or abandoned, they could have invoked a ruling on that issue by the trial court. One course of action available to Appellants would have been to file a motion pursuant to OCGA § 9-11-41 (b) to dismiss the remaining claims for failure to prosecute so that the trial court could exercise its discretion in that respect. See Hardy Gregory, Jr., Ga. Civil Practice § 6-6 (B) (2d ed. 1997). However, in the absence of an appropriate decision by the trial court regarding аbandonment or waiver, the claims other than quiet title must be considered to remain pending.
Because the trial court’s order does not include the exprеss determinations required by OCGA § 9-11-54 (b) and [Appellants] failed to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b), we do not have jurisdiction and accordingly dismiss this appeal. [Cit.]
Financial Investment Group v. Cornelison,
The request of Appellants pursuant to Supreme Court Rule 6 for the imposition of a penalty for frivolous appeal is hereby denied.
Appeal dismissed.