Ethel Phelps, as of the Estate of Josiah Phelps v. Clara Evans ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 08, 2019
The Court of Appeals hereby passes the following order:
A19A2251. ETHEL PHELPS, AS EXECUTRIX OF THE ESTATE OF JOSIAH
PHELPS v. CLARA EVANS et al.
The trial court entered an order resolving a dispute over real property between
two groups of family members. The dispute began when one group of the family
members filed a complaint seeking to cancel allegedly fraudulent deeds and to
partition the property, and requesting an accounting and division of funds generated
from management of the property. The parties filed cross-motions for summary
judgment, and the superior court granted the defendants’ motion and denied the
plaintiffs’ motion, ruling that, with the exception of the partition claim, plaintiffs’
claims were barred by res judicata or by the statute of limitation. On appeal, this
Court reversed the trial court’s ruling in part. See Evans v. Dunkley, 316 Ga. App.
204 (728 SE2d 832) (2012). In doing so, we directed the trial court to consider
whether fraud prevented the plaintiffs from timely filing within the applicable seven-
year limitation period. Upon the return of the case to the trial court, the court
concluded that fraud did in fact prevent the plaintiffs from filing the action timely.
The court also made findings with regard to which family members had an ownership
interest in certain tracts of the property and ordered a sale of the property for an
equitable partitioning. The order provides that the court will appoint a special master
to conduct the sale and that the parties have 30 days to suggest to the court who
should be appointed. The court reserved the “issues of accounting . . . for a later
date.” Defendant Ethel Phelps, as Executrix of the Estate of Josiah Phelps, filed a
timely direct appeal from the trial court’s order. However, we lack jurisdiction.
Generally, an order is final and appealable when it leaves no issues remaining
to be resolved, constitutes the trial court’s final ruling on the merits of the action, and
leaves the parties with no further recourse in the trial court. Thomas v. Douglas
County, 217 Ga. App. 520, 522 (1) (457 SE2d 835) (1995). Here, the trial court’s
ruling is not final and the issues regarding an accounting and the appointment of a
special master remain pending below. Phelps was therefore required to use the
interlocutory appeal procedures – including obtaining a certificate of immediate
review from the trial court – to appeal the court’s ruling. See OCGA § 5-6-34 (b);
Sotter v. Stephens, 291 Ga. 79, 82 (727 SE2d 484) (2012) (“The fact that a final
accounting of the estate was pending was sufficient alone to render that order
interlocutory”). Absent a timely certificate of immediate review, the party seeking to
appeal must wait until the final judgment to do so. See OCGA § 5-6-34 (b); Turner
v. Harper, 231 Ga. 175, 176 (200 SE2d 748) (1973). Phelps’s failure to follow the
interlocutory appeal procedures deprives us of jurisdiction over this direct appeal,
which is hereby DISMISSED. See Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213)
(1996).
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/08/2019
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.