dissenting.
Although I concur in the opinion that attorney fees under OCGA § 9-15-14 were not entertainable because sought too late, I do not concur that the claim under OCGA § 13-6-11 had fallen earlier.
In their complaint, plaintiffs demanded, as separate damages, judgment for “[t]heir reasonable attorney’s fees and expenses of litigation.” The jury may award such if specially pleaded and prayed for, which plaintiffs did, and where one of the three grounds is proved, which plaintiffs have not yet had an opportunity to do.
After discovery, plaintiffs moved for summary judgment to the degree it was entitled to, either total or partial. See OCGA § 9-11-56 (c) and (d). Only partial summary judgment was possible because, as provided by OCGA § 13-6-11, defendant is entitled to a jury trial on the issue of attorney fees and expenses. Brannon Enterprises v. Deaton, 159 Ga. App. 685, 687 (285 SE2d 58) (1981). Recognition of this is borne out by the court’s order on summary judgment, which did not address the issue. The court could have done so, to the extent that it could have ruled that plaintiffs were not entitled to attorney fees and expenses as a matter of law. City of Marietta v. Holland, 252 Ga. 299, 304 (314 SE2d 97) (1984). Cf. Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761 (2) (403 SE2d 65) (1991). But it did not do so. There is no finding that the evidence precluded such an award. Nor did defendants seek summary judgment on the' issue, on this or any other basis.
The issue remained unresolved. This is confirmed by the later order on the motion raising the attorney fees and expenses issue, wherein the court denied it for untimeliness rather than on the basis that it had already been ruled on in the order which was “Final” with respect to the issues then adjudicated. At that time there was no basis *174to appeal the OCGA § 13-6-11 question because there was not yet a ruling on it.
Decided June 24, 1992 Reconsideration denied July 27, 1992. Brant Jackson, Jr., for appellants. Johnson & Montgomery, Harry W. MacDougald, for appellees.The majority reads the “Final Order” as a final judgment “within the meaning of OCGA § 9-11-54 (b),” but that proves the point. Such orders are entered when “one or more but fewer than all of the claims or parties” are adjudicated. As is the case here with respect to claims, that was the case in Cherry v. Hersch, 193 Ga. App. 471 (388 SE2d 64) (1989), cited by the majority, with respect to parties.
I am unaware of any requirement that the pending issue had to be pursued within 30 days, the failure of which action was given as the reason for denial. The order relating to OCGA § 13-6-11 should be reversed and the case remanded for disposition of this one remaining issue.