ROBERT H. MCNAIR, CO-EXECUTOR v. RICHARD "RICHIE" HAROLD MCNAIR, PROPOUNDERS

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 17, 2016
The Court of Appeals hereby passes the following order:
A17D0005. ROBERT H. MCNAIR, CO-EXECUTOR v. RICHARD “RICHIE”
HAROLD MCNAIR et al., PROPOUNDERS.
The Probate Court of Turner County entered an order denying a petition to
probate the will of Hazel McNair, and the propounders appealed to the superior court,
which entered judgment in their favor and ruled that the will should be admitted to
probate. Caveator Robert H. McNair appealed that ruling to this Court; that appeal
is pending here as Case No. A15A1627.1 The superior court later granted the
propounders’ motion for OCGA § 9-15-14 attorney fees, and Robert H. McNair filed
an application for discretionary appeal from the fee award in the Supreme Court,
which transferred the case to this Court.
Although an application for discretionary review ordinarily is required to
appeal a trial court’s order awarding OCGA § 9-15-14 attorney fees, no such
application is needed when a direct appeal is pending from the underlying judgment.
See Haggard v. Bd. of Regents of the Univ. System of Ga., 257 Ga. 524, 526-527 (4)
(a) (360 SE2d 566) (1987). Thus, because a direct appeal is pending in the
underlying case in this Court, no application is required here.
Under OCGA § 5-6-35 (j), this Court will grant a timely discretionary
application if the lower court’s order is subject to direct appeal. Accordingly, this
application is hereby GRANTED. Robert H. McNair shall have 10 days from the date
1
We initially transferred Case No. A15A1627 to the Supreme Court, which
then returned it to us, on the ground that the appeal did not concern the validity or
meaning of a will.
of this order to file a notice of appeal with the superior court, if he has not already
done so. The clerk of the superior court is DIRECTED to include a copy of this order
in the record transmitted to the Court of Appeals.
Court of Appeals of the State of Georgia
08/17/2016
Clerk’s Office, Atlanta,____________________
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.