Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 29, 2017
The Court of Appeals hereby passes the following order:
A17A1182. WILLIAM G. HATCHER, JR. v. PAMELA HATCHER STUART.
William G. Hatcher, Jr. and Pamela Hatcher Stuart are brother and sister.
Hatcher is the executor of their father’s estate. Stuart filed a petition for accounting
against Hatcher in both the Probate Court of Richmond County and the Superior
Court of Columbia County. The parties agree that the two actions are identical, except
that Stuart also sought an accounting of a trust in the Superior Court action. On
January 30, 2017, the superior court issued an order dismissing the claim seeking an
accounting of the trust and transferring the case to probate court:
The court concludes that it should dismiss this action regarding an
accounting of the Trust, and transfer [Stuart’s] action for an accounting
of [Hatcher’s] actions as executor to the Probate Court of Richmond
County. Uniform Transfer Rule T-4; Uniform Superior Court Rule 19.l
(A). The Probate Court can then decide how to handle two essentially
identical lawsuits and decide [Hatcher’s] motion for a protective order.
The superior court also entered an order granting OCGA § 9-11-37 (d) attorney fees
based on Hatcher’s failure to respond to discovery and produce documents requested
by Stuart. Hatcher filed this direct appeal of both orders, and Stuart has moved to
dismiss the appeal. We lack jurisdiction.
It is well settled that a transfer order is not a final judgment because the case
is still pending in the court below, albeit a different court from the one ordering the
transfer. See, e.g., Griffith v. Georgia Board of Dentistry, 175 Ga. App. 533 (333
SE2d 647) (1985). “This general rule that transfer orders are not ‘final appealable
orders’ may also adhere when an order transfers a case to a different type of trial court
below.” See In the Interest of W. L., 335 Ga. App. 561, 562 (782 SE2d 464) (2016).
Here, the dismissal/transfer order is not final because the transfer is “the continuation
of the same proceeding” against Hatcher. Id. In addition, the portion of the order
dismissing the claim for an accounting of the trust also is not directly appealable
because
[i]n 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. In such circumstances, there
must be an express determination under OCGA § 9-11-54 (b) or there
must be compliance with the interlocutory appeal requirements of
OCGA § 5-6-34 (b).
Johnson v. Hosp. Corp. of America, 192 Ga. App. 628, 629 (385 SE2d 731) (1989)
(citation and punctuation omitted). Hatcher, therefore, was required to comply with
the interlocutory appeal procedures of OCGA § 5-6-34 (b), which include obtaining
a certificate of immediate review from the trial court, and his failure to do so deprives
us of jurisdiction to hear this appeal.
Hatcher argues that even if the dismissal/transfer order is not directly
appealable, the order granting OCGA § 9-11-37 (d) attorney fees is directly
appealable as a final judgment. However, sanctions imposed based on a failure to
comply with discovery generally are “not final in the sense of being dispositive of the
case, as contemplated by O.C.G.A. § 5-6-34 (a) (1).” Cornelius v. Finley, 204 Ga.
App. 299, 300 (418 SE2d 815) (1992); see also Eidson v. Croutch, 337 Ga. App. 542,
544 (788 SE2d 129) (2016) (because the transfer order was a continuation of the same
proceeding and not final, the attorney fees order was not immediately appealable).
Here, the order awarding sanctions is interlocutory since it does not dispose of the
case, and an appeal of such an order requires compliance with the interlocutory
appeal provisions of OCGA § 5-6-34 (b).
Because the orders sought to be appealed are not final judgments in the case
and Hatcher did not follow the application procedure required to seek an interlocutory
appeal, Stuart’s motion to dismiss the appeal is hereby GRANTED. The
above-captioned direct appeal is unauthorized and is ordered DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/29/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.