Robert L. White executed and delivered a deed of gift on December 18, 1947, naming his wife, Florence, “as trustee of Robert Emory White, Maria Sheron White and Myron James White, the children of the said donor and of the said trustee.” Another son, Marvin Terry White, was born after the deed was delivered. On January 5, 1999, Florence died intestate. Cynthia E. Call was appointed successor administrator of the estate, and she filed a suit (hereinafter referred to as Call v. White) requesting that she be appointed as successor trustee, that she be given authority to sell the real property of the trust free of all claims, thаt Robert E., Maria, and Myron White be enjoined from filing any additional claims on the property, and that attorney fees be assessed against Maria White for being stubbornly litigious. On June 15, 2006, Appellee Judge Lawton E. Stephens issued a temporary order appointing Ms. Call as successor trustee and authоrizing the sale of the real property.
Subsequently, Ms. Call sold the property and then moved for judgment on her remaining claims. After a non-jury evidentiary hearing, Judge Stephens issued an order on May 22, 2008 holding, among other things, that the trust had been fully performed as to Robert E., Maria, and Myron White and directing that all of the proceeds from the sale of the real property be paid over to Marvin Terry White, stating that, even though he was not named in the deed, the trustee was directed in the deed to divide the proceeds of any sale of real estate “equally among herself and the surviving children of donor....” The order also held that Maria White had been stubbornly litigious and ordered her to pay attorney fees to Ms. Call with the amount to be reduced to judgment at a later date. Myron White did not file an appeal from this order, and Robert E. White filed an untimely notice of appeal, which was dismissed by this Court on April 20, 2009. After presentment by Ms. Call of her trust accounting and attorney fee time records, Robert E. White objected to the accounting and moved for sanctions against Ms. Call. On July 20, 2010, Judge Stephens issued an order ruling that Robert E. White had no standing to object or that his objections were moot. Rоbert E. White appealed from that order but subsequently withdrew his appeal.
On June 7, 2011, Judge Stephens issued an order awarding attorney fees against Maria White in the amount of $4,900.11. On June 24 and 30, 2011, Myron White and Robert E. White filed separate notices of appeal from the June 7, 2011 order. Both notices stated the intent pursuant to OCGA § 5-6-34 (d) to seek appellate review of all prior orders, including but not limited to the May 22, 2008 order. Upon motion by Ms. Call, Judge Stephens, on September 14, 2011, dismissed both notices of appeal and issued a bill of peace and perpetual injunction to prevent any further filings without prior written permission. On September 20, 2011, Myron and Robert E. White requested permission to appeal from the order dismissing their appeals. This request was denied.
On September 26, 2011, Appellants Myron White, Robert E. White, and Gary Gerrard, who was Robert E. White’s attorney in Call v. White, filed a petition for writ of mandamus to cоmpel Judge Stephens to allow them to appeal from the September 14, 2011 order dismissing their appeals. The action was heard by another judge of the superior court who entered an order October 20, 2011 refusing to grant the writ of mandamus. Myron White and Robert E. White with Gary Gerrard filed separаte notices of appeal from this order.
The present case involves multiple claims and multiple parties, and therefore, according to OCGA § 9-11-54 (b),
the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties 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 or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties. . . .
The May 22, 2008 order left two issues unresolved. First, in that order, Judge Stephens expressly recognized that а final accounting of the trust was still pending, and he also provided a ten-day time period after such accounting for any party in the case to file an objection. The fact that a final accounting of the estate was pending was sufficient alone to render that order interlocutory. See
Bandy v. Elmo,
Moreover, Judge Stephens, in the May 22, 2008 order, made an express determination pursuant to OCGA § 9-11-54 (b) that there was no just reason for delay and entered final judgment as to the ruling that Maria White’s liens and claims are null and void. As Appellants emphasize, if the May 22, 2008 order was to be final in its entirety, then Judge Stephens would have had no reason to mаke this express determination of finality for that one ruling. In addition, he did not make such an express determination with respect to any of the other holdings in that order. Therefore, it appears that Judge Stephens considered the May 22, 2008 order interlocutory when it was issued. With regard to the July 20, 2010 order, Judge Stephens emphasizes that the order was entitled “Final Order and Judgment.” However, this fact is not dispositive, as “the mere designation of a judgment as ‘final’ is not controlling. [Cit.]”
Hadid v. Beals,
Judge Stephens submits multiple contentions as to why the May 22, 2008 and July 20, 2010 orders should be considered final judgments. He first contends that since the issue of attorney fees only involved Maria White and that she is not a party to this appeal, the fаct that the attorney fees issue was reserved should not affect when Appellants must file an appeal. However, OCGA§ 9-11-54 (b) explicitly states that an order is not a final judgment if any rights or liabilities for
any
party remain. Judge Stephens also claims that since the actual issue of whether attorney fees would be assessed was resolved in the May 22, 2008 order with only the amount of attorney fees reserved for a later date, then the order should be considered a final judgment as the primary question regarding attorney fees was no longer pending. That circumstance is analogous to those cases in which the liability of a party has been determined but the amount of damages to be assessed remains pending. A judgment that reserves the calculation of the amount of damages is considered interlocutory in nature and does not become final until the amount is determined. See
Jones v. Singleton,
apply to conduct “aris(ing) from the transaction underlying the cause of action in litigation. (Cits.)” [Cit.] Conversely, OCGA § 9-15-14 (a), (b), . . . has been interpreted to govern conduct occurring during the litigation. [Cit.]
Stone v. King,
It is clear from the discussiоn above that the orders entered on May 22, 2008 and July 20, 2010 were not final judgments within the meaning of OCGA § 5-6-34 (a) (1), and thus Appellants were not required to appeal from the rulings within 30 days after entry in order to preserve their right to pursue appellate review. Therefore, the next issue is whether the June 7, 2011 order is onе which is directly appealable under OCGA § 5-6-34 (a) (1). This order, which was issued after the accounting of the trust, settled the remaining issue with regard to the amount of attorney fees owed by Maria White. As no claims remain and “the case is no longer pending in the court below,” the June 7, 2011 order is a final judgment as contemplated by OCGA § 5-6-34 (a) (1), and thus a direct appeal is appropriate. Moreover, “when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.”
Southeast Ceramics v. Klem,
Consequently, Appellants have shown that they have a clear legal right to file a direct appeal from the order dismissing their properly filed direct appeals from the June 7, 2011 order and that granting mandamus relief would not be nugatory because the notices of appeal from the June 7,2011 orderwere proper and valid. However, in order for mandamus relief to be granted, Appellants must also show that they have no alternative adequate remedy at law.
Hall v. Nelson,
Judgment reversed and case remanded with direction.