2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 6 - Trials
§ 9-11-54. Judgments

1. Definition. The term "judgment," as used in this chapter, includes a decree and any order from which an appeal lies.
2. Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, 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, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
3. Relief granted.
   1. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings; but the court shall not give the successful party relief, though he may be entitled to it, where the propriety of the relief was not litigated and the opposing party had no opportunity to assert defenses to such relief.
   2. As used in this subsection, the term "action for medical malpractice" means any claim for damages resulting from the death of or injury to any person arising out of:
      1. Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such services or by any person acting under the supervision and control of a lawfully authorized person; or
      2. Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.
   3. Notwithstanding paragraph (1) of this subsection, where a claim in an action for medical malpractice does not exceed $10,000.00, a judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Where the claim exceeds $10,000.00, a judgment by default may be rendered for the amount determined upon a trial of the issue of damages, provided notice of the trial is served upon the defaulting party at least three days prior to that trial.
4. Costs. Except where express provision therefor is made in a statute, costs shall be allowed as a matter of course to the prevailing party unless the court otherwise directs; but costs against this state and its officers, agencies, and political subdivisions shall be imposed only to the extent permitted by the law.

(Ga. L. 1966, p. 609, § 54; Ga. L. 1976, p. 1047, § 2.)

- For article discussing counterclaims and crossclaims under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 205 (1967). For article discussing Georgia court decision on questions of appellate practice and procedure, see 31 Mercer L. Rev. 1 (1979). For article surveying Georgia cases in the area of trial practice and procedure from June 1979 through May 1980, see 32 Mercer L. Rev. 225 (1980). For annual survey of appellate practice and procedure, see 43 Mercer L. Rev. 73 (1991). For article, "Appeals, Interlocutory and Discretionary Applications, and Post-Judgment Motions in the Georgia Courts: The Current Practice and the Need for Reform Legislation," see 44 Mercer L. Rev. 17 (1992). For article, "Trial Practice and Procedure," see 53 Mercer L. Rev. 475 (2001). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 71 Mercer L. Rev. 327 (2019). For note, "Default Judgments Under the Federal Rules of Civil Procedure and the Georgia Civil Practice Act," see 7 Ga. St. B.J. 385 (1971). For note, "Conflicts of Interest in the Liability Insurance Setting," see 13 Ga. L. Rev. 973 (1979).

ANALYSIS

• General Consideration
• Multiple Claims or Parties
• Relief Granted
• Costs

General Consideration

"Judgment" includes summary judgment.

- Subsection (a) of O.C.G.A. § 9-11-54 includes an order for partial summary judgment as the judgment is appealable under O.C.G.A. § 9-11-56(h). Crolley v. Haygood Contracting, Inc., 207 Ga. App. 434, 429 S.E.2d 93 (1993).

- Under the express language of O.C.G.A. § 9-11-54(b), the mere designation of a judgment as "final" is not controlling. Whether an order is final and appealable is judged by the order's function and substance, rather than any "magic language." Rhymes v. E. Atlanta Church of God, Inc., 284 Ga. 145, 663 S.E.2d 670 (2008).

- After a trial court declined to issue a certificate of immediate review to a former inmate in the inmate's request to appeal the trial court's grant of the county's motion to open a default, pursuant to O.C.G.A. § 5-6-34(b), that issue remained pending below and, accordingly, the appellate court had no jurisdiction to review that matter under O.C.G.A. § 9-11-54. Camp v. Coweta County, 271 Ga. App. 349, 609 S.E.2d 695 (2005), vacated in part, 280 Ga. App. 852, 635 S.E.2d 234 (2006).

- Trial court's determination that a judgment obtained by a lender against two guarantors was not final under O.C.G.A. § 9-1-54(b) because the guarantors' third-party complaint against two others was still pending and was not appealable, although the remaining parties had no incentive to expedite the litigation. Synovus Bank v. Peachtree Factory Ctr., Inc., 331 Ga. App. 628, 770 S.E.2d 887 (2015).

- In an appeal challenging an order of contempt arising as a discovery sanction entered against the appellants, the court held that because the appellants failed to object below about the order to compel and for sanctions, the appellants did not give the trial court opportunity to correct the alleged error, therefore, there was nothing for the appellate court to review. Roberts v. First Ga. Cmty. Bank, 335 Ga. App. 228, 779 S.E.2d 113 (2015).

- Trial judge has inherent power during same term of court in which judgment is rendered to revise, correct, revoke, modify, or vacate such judgment, even upon the judge's own motion, for purpose of promoting justice and in the exercise of sound legal discretion. LeCrew v. Atlanta Arts Alliance, Inc., 126 Ga. App. 656, 191 S.E.2d 572 (1972).

Trial judge has the power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify, or vacate the judgment in the exercise of the judge's discretion. This inherent power of the trial court was not changed by passage of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9. McCoy Lumber Co. v. Garland Lumber Sales, Inc., 182 Ga. App. 75, 354 S.E.2d 686 (1987).

Garnishment court erred in holding that, because the term of court had expired, the court lacked power to correct a judgment so that the judgment would reflect the proper amount of the funds subject to a garnishment as the judgment was actually an interlocutory order rather than a final judgment. Lott v. Arrington & Hollowell, P.C., 258 Ga. App. 51, 572 S.E.2d 664 (2002).

Trial court may not award relief beyond that sought in the complaint when the defendant does not file defensive pleadings and does not appear at trial, and a complaint cannot be amended to conform to the evidence in such circumstances. Hackbart v. Hackbart, 272 Ga. 26, 526 S.E.2d 840 (2000).

Because the superior court modified the court's judgment so as to vacate the court's order of dismissal and provide only for the entry of a default judgment, the issue of dismissal was moot and provided no basis for setting aside the judgment. But, because the court, absent amendment to the demand for judgment or argument supporting the judgment, awarded damages in excess of the amount claimed, that award had to be reversed. Stamps v. Nelson, 290 Ga. App. 277, 659 S.E.2d 697 (2008).

What judge orally declares is no judgment until it is put in writing and entered. Williams v. Horn, 124 Ga. App. 485, 184 S.E.2d 198 (1971).

- Superior court is a court of record, and what the judge orally declares is no judgment until the order has been reduced to writing and entered as such. Tyree v. Jackson, 226 Ga. 690, 177 S.E.2d 160 (1970).

- Consent order is final when there is no language in the consent order reflecting it to be anything other than a final judgment. Levingston v. Crables, 203 Ga. App. 16, 416 S.E.2d 131 (1992).

- Actions appealed pursuant to O.C.G.A. § 5-6-34(a)(2)-(9) may be appealed directly to the Supreme Court without regard to a pending counterclaim and the lack of a final judgment as to counterclaim is no bar to a direct appeal. Westberry v. Saunders, 250 Ga. 240, 296 S.E.2d 596 (1982).

Fieri facias is not an order of final judgment tolling the time for appeal. Newton v. K.B. Property Mgt. of Ga., Inc., 166 Ga. App. 901, 306 S.E.2d 5 (1983).

Denial of summary judgment does not foreclose subsequent grant thereof, as an order or other form of decision is subject to revision at any time before entry of judgment adjudicating all the claims and rights and liabilities of all the parties. Graham Bros. Constr. Co. v. Seaboard Coast Line R.R., 150 Ga. App. 193, 257 S.E.2d 321 (1979); Malloy v. Cauley, 169 Ga. App. 623, 314 S.E.2d 464 (1984).

- In a suit asserting undue influence and seeking revocation of a testator's will, the trial court did not err in granting summary judgment to the defendant on the issue of revocation during the presentation of the plaintiff's case-in-chief because, pursuant to O.C.G.A. § 9-11-54, there is no procedural impediment to a trial court granting a party's motion for summary judgment without disposing of the entire case. Morrison v. Morrison, 282 Ga. 866, 655 S.E.2d 571 (2008).

When the judge specifically reserves an issue for later decision, the issue is still pending, and the judge's preliminary decision cannot form the basis of a final decision for the purpose of appeal. Henderson v. Smith, 177 Ga. App. 89, 338 S.E.2d 520 (1985).

- When the trial court directed verdicts as to the plaintiff's claims on the issues of punitive damages and attorney's fees, and the court then entered judgments on those verdicts and certified the judgments as final, the plaintiff's only recourse was to appeal the judgments as to punitive damages and attorney's fees; those issues could not be relitigated in the plaintiff's renewal action raising other issues which were voluntarily dismissed in the initial suit and not reached by the directed verdicts. Broadfoot v. Aaron Rents, Inc., 260 Ga. 836, 401 S.E.2d 257 (1991).

- Since the trial court's decision to deny the company's motion to set aside, vacate, and annul the county's declaration of taking in a condemnation proceeding was an adjudication of less than all the claims before the trial court, and because the trial court did not make an express determination that the company could pursue an interlocutory appeal, the appellate court lacked jurisdiction over the company's appeal, which meant the appeal had to be dismissed. TJW Enters. v. Henry County, 261 Ga. App. 547, 583 S.E.2d 144 (2003).

- Trial court's order denying substitution of the decedent's administrator as a party, in place of the decedent, was not a final appealable order and as such did not dismiss the complaint, but left issues remaining to be resolved. Williams v. City of Atlanta, 263 Ga. App. 113, 587 S.E.2d 261 (2003).

- When, in a dispossessory action, a trial court dismissed a tenant's counterclaim and designated the dismissal as a final judgment under O.C.G.A. § 9-11-54(b), the tenant had to appeal any adverse rulings in that order within 30 days of the entry of judgment, under O.C.G.A. § 5-6-38, and, by failing to so appeal that judgment, the right to review of those rulings was lost. Lewis v. Carscallen, 274 Ga. App. 711, 618 S.E.2d 618 (2005).

- Trial court's order upholding the constitutionality of Georgia's Child Support Guidelines was erroneously certified by the trial court since the order did not dispose of any claim. However, since the appellate court granted a parent's application for discretionary appeal, the appellate court proceeded to a consideration of the merits of the constitutional issue. Keck v. Harris, 277 Ga. 667, 594 S.E.2d 367 (2004).

- O.C.G.A. § 9-11-54(d) was not applicable to a case because the custodial parent was not the prevailing party as all three counts of the other parent's petition alleging contumacious conduct of the custodial parent were upheld by the trial court. Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011).

- Because neither the original court-ordered parenting plan nor the two subsequent orders amending the plan constituted a final judgment, and the determination of child custody became final only when the final judgment and decree in the divorce case was entered, the wife's motion for new trial, although the motion obviously referenced the bench trial on the child custody issues, was timely filed within 30 days of the date of the final judgment in the divorce case. Hoover v. Hoover, 295 Ga. 132, 757 S.E.2d 838 (2014).

- Trial court did not err in declining to amend a judgment prohibiting a limited liability company (LLC) from making any permanent changes to the surface of the property owners' land in replacing a sewer pipe by including the additional finding that the owners could not make any permanent changes to the surface of the easement until installation of the new sewer pipe because the issue of the owners' planned construction and any potential claims related thereto were not included in the pre-trial order as matters for determination, and the LLC had not previously requested any declaratory or injunctive relief pertaining to that issue prior to the entry of judgment. Parris Props., LLC v. Nichols, 305 Ga. App. 734, 700 S.E.2d 848 (2010).

- Because there had been no ruling on the city's conversion claim, the travel companies incorrectly determined that the companies were authorized to invoke mandamus in an effort to force the trial court to close the city's case as the city's case remained pending, and the trial court properly dismissed the travel companies' petition for a writ of mandamus. Trip Network, Inc. v. Dempsey, 293 Ga. 520, 748 S.E.2d 432 (2013).

Cited in Ward v. National Dairy Prods. Corp., 224 Ga. 241, 161 S.E.2d 305 (1968); D. Davis & Co. v. Plunkett, 119 Ga. App. 453, 167 S.E.2d 663 (1969); Massey v. Consolidated Equities Corp., 120 Ga. App. 165, 169 S.E.2d 672 (1969); Gardner v. Tarpley, 120 Ga. App. 192, 169 S.E.2d 690 (1969); DeKalb County v. Georgia Paperstock Co., 226 Ga. 369, 174 S.E.2d 884 (1970); Brown v. Leggitt, 226 Ga. 366, 174 S.E.2d 889 (1970); Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970); Residential Devs., Inc. v. Dodd, 122 Ga. App. 674, 178 S.E.2d 333 (1970); Cook v. Peeples, 227 Ga. 473, 181 S.E.2d 375 (1971); Parrish v. Clements, 123 Ga. App. 495, 181 S.E.2d 510 (1971); White v. Wright, 124 Ga. App. 151, 183 S.E.2d 90 (1971); Georgia Farm Bureau Mut. Ins. Co. v. Williamson, 124 Ga. App. 549, 184 S.E.2d 665 (1971); Rowe v. Rowe, 228 Ga. 302, 185 S.E.2d 69 (1971); Burdell v. Georgia R.R. Bank & Trust Co., 124 Ga. App. 828, 186 S.E.2d 291 (1971); Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98 (1972); Horn v. Terminal Transp. Co., 126 Ga. App. 169, 190 S.E.2d 158 (1972); Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269 (1972); McDonald v. Rogers, 229 Ga. 369, 191 S.E.2d 844 (1972); Hales v. Sandersville Bldrs. Supply Co., 127 Ga. App. 558, 194 S.E.2d 281 (1972); Barnett v. Thomas, 129 Ga. App. 583, 200 S.E.2d 327 (1973); Stephens v. Zakas, 129 Ga. App. 917, 201 S.E.2d 627 (1973); Roderiquez v. Newby, 130 Ga. App. 139, 202 S.E.2d 565 (1973); Waddell v. Todd, 131 Ga. App. 244, 205 S.E.2d 519 (1974); Benefield v. Elder Bldg. Supply Co., 132 Ga. App. 195, 207 S.E.2d 678 (1974); Myers v. Mobile Am. Corp., 132 Ga. App. 331, 208 S.E.2d 169 (1974); Johnson v. Martin, 132 Ga. App. 813, 209 S.E.2d 256 (1974); Ivey v. Ivey, 233 Ga. 45, 209 S.E.2d 590 (1974); Von Waldner v. Baldwin/Cheshire, Inc., 133 Ga. App. 23, 209 S.E.2d 715 (1974); McReynolds v. Savannah News-Press Div., Southeastern Newspaper Corp., 133 Ga. App. 815, 212 S.E.2d 470 (1975); Mulligan v. Scott, 134 Ga. App. 815, 217 S.E.2d 307 (1975); American Fin. Co. v. First Nat'l Bank, 134 Ga. App. 24, 217 S.E.2d 364 (1975); Jackson v. Piper Aircraft Corp., 135 Ga. App. 86, 217 S.E.2d 404 (1975); Thomas v. Davis, 235 Ga. 32, 218 S.E.2d 787 (1975); Kaye v. Saint Francis Budget Stores, Inc., 136 Ga. App. 68, 220 S.E.2d 75 (1975); Clements v. Warner Robins Supply Co., 235 Ga. 612, 221 S.E.2d 35 (1975); Spikes v. Carter Realty Co., 136 Ga. App. 648, 222 S.E.2d 154 (1975); Southland Inv. Corp. v. McIntosh, 137 Ga. App. 216, 223 S.E.2d 257 (1976); Ensley v. Ensley, 236 Ga. 368, 223 S.E.2d 724 (1976); Roach-Russell, Inc. v. A.B.R. Metals & Servs., Inc., 138 Ga. App. 653, 227 S.E.2d 75 (1976); Richert v. Hill Aircraft & Leasing Corp., 138 Ga. App. 638, 227 S.E.2d 83 (1976); Brannon v. Whisenant, 138 Ga. App. 627, 227 S.E.2d 91 (1976); Dempsey v. Bradley Ctr., Inc., 139 Ga. App. 615, 229 S.E.2d 104 (1976); Young v. Jones, 140 Ga. App. 66, 230 S.E.2d 32 (1976); Rollins Communications, Inc. v. Henderson, Few & Co., 140 Ga. App. 504, 231 S.E.2d 412 (1976); Mundy v. Cincinnati Ins. Co., 141 Ga. App. 106, 232 S.E.2d 621 (1977); Venable v. Lee, 141 Ga. App. 159, 233 S.E.2d 3 (1977); Williams v. Citizens & S. Nat'l Bank, 142 Ga. App. 346, 236 S.E.2d 16 (1977); Kirk v. First Ga. Inv. Corp., 239 Ga. 171, 236 S.E.2d 254 (1977); Smith v. Citizens & S. Nat'l Bank, 142 Ga. App. 797, 237 S.E.2d 207 (1977); Middleton v. State Farm Life Ins. Co., 143 Ga. App. 176, 237 S.E.2d 684 (1977); Kloville, Inc. v. Kinsler, 239 Ga. 569, 238 S.E.2d 344 (1977); Davis v. Correct Mfg. Corp., 143 Ga. App. 460, 238 S.E.2d 553 (1977); Mullis v. Bone, 143 Ga. App. 407, 238 S.E.2d 748 (1977); Williams v. Ray, 144 Ga. App. 634, 241 S.E.2d 502 (1978); Loftin v. Carrollton State Bank, 145 Ga. App. 166, 243 S.E.2d 333 (1978); Brown v. National Van Lines, 145 Ga. App. 824, 245 S.E.2d 27 (1978); Fagala v. Morrison, 146 Ga. App. 377, 246 S.E.2d 408 (1978); Diversified One Investors, Ltd. v. Archway Properties, Inc., 146 Ga. App. 453, 246 S.E.2d 462 (1978); Alesi v. Conant, 146 Ga. App. 455, 246 S.E.2d 464 (1978); Sumner v. Adel Banking Co., 241 Ga. 563, 246 S.E.2d 680 (1978); Bozard v. J.A. Jones Constr. Co., 146 Ga. App. 877, 247 S.E.2d 605 (1978); Jackson v. Piper Aircraft Corp., 147 Ga. App. 178, 248 S.E.2d 239 (1978); Norair Eng'r Corp. v. Saint Joseph's Hosp., 147 Ga. App. 595, 249 S.E.2d 642 (1978); Shmunes v. Coffey Chevrolet & Oldsmobile, Inc., 148 Ga. App. 114, 251 S.E.2d 105 (1978); Trust Co. v. Atlanta Aluminum Co., 149 Ga. App. 605, 255 S.E.2d 82 (1979); Camp v. Martin, 150 Ga. App. 51, 256 S.E.2d 657 (1979); Blatt v. Bernath, 151 Ga. App. 69, 258 S.E.2d 735 (1979); Duvall v. Baker, 244 Ga. 228, 259 S.E.2d 478 (1979); Spurlock v. Commercial Banking Co., 151 Ga. App. 649, 260 S.E.2d 912 (1979); Thurman v. Unicure, Inc., 151 Ga. App. 880, 261 S.E.2d 785 (1979); Norair Eng'r Corp. v. Erickson's, Inc., 152 Ga. App. 489, 263 S.E.2d 165 (1979); Mullinax v. Standard Fire Ins. Co., 152 Ga. App. 425, 263 S.E.2d 231 (1979); SCM Corp. v. Thermo Structural Prods., Inc., 153 Ga. App. 372, 265 S.E.2d 598 (1980); Dehler v. Setliff, 153 Ga. App. 796, 266 S.E.2d 516 (1980); Leverette v. Moran, 153 Ga. App. 825, 266 S.E.2d 574 (1980); Bergen v. Martindale-Hubbell, Inc., 245 Ga. 742, 267 S.E.2d 10 (1980); Horne v. Drachman, 247 Ga. 802, 280 S.E.2d 338 (1981); Martin v. Herr, 158 Ga. App. 329, 280 S.E.2d 387 (1981); Walker v. Walker, 159 Ga. App. 583, 284 S.E.2d 89 (1981); Deans v. Kingston Dev. Corp., 248 Ga. 557, 285 S.E.2d 11 (1981); Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981); United States Life Credit Corp. v. Johnson, 248 Ga. 852, 287 S.E.2d 1 (1982); State Farm Mut. Auto. Ins. Co. v. Hubbell Metals, Inc., 161 Ga. App. 275, 287 S.E.2d 726 (1982); Widener v. Ravenscroft, 161 Ga. App. 12, 289 S.E.2d 257 (1982); Trax, Inc. v. Pentagon Aero-Marine Corp., 162 Ga. App. 276, 290 S.E.2d 196 (1982); United States Life Credit Corp. v. Johnson, 161 Ga. App. 864, 290 S.E.2d 280 (1982); Williamson v. Bank Bldg. & Equip. Corp. of Am., 162 Ga. App. 295, 291 S.E.2d 124 (1982); Shepherd v. Metropolitan Property & Liab. Ins. Co., 163 Ga. App. 650, 294 S.E.2d 638 (1982); Scroggins v. Edmondson, 250 Ga. 430, 297 S.E.2d 469 (1982); Bingham, Ltd. v. Tool Technology, Inc., 166 Ga. App. 220, 303 S.E.2d 761 (1983); Continental Ins. Co. v. Higdon, 167 Ga. App. 231, 306 S.E.2d 20 (1983); Parks v. Atlanta Pub. Sch. Sys. Bd. of Educ., 168 Ga. App. 572, 309 S.E.2d 645 (1983); Chadwick v. Miller, 169 Ga. App. 338, 312 S.E.2d 835 (1983); Georgia Farm Bldgs., Inc. v. Willard, 169 Ga. App. 394, 313 S.E.2d 112 (1984); King v. Gosdin, 169 Ga. App. 878, 315 S.E.2d 666 (1984); Whiddon v. O'Neal, 171 Ga. App. 636, 320 S.E.2d 601 (1984); Davidson v. American Fitness Ctrs., Inc., 171 Ga. App. 691, 320 S.E.2d 824 (1984); Oculus Corp. v. Fred Chenoweth Equip. Co., 172 Ga. App. 547, 323 S.E.2d 836 (1984); Thompson v. Bank of S., 172 Ga. App. 579, 323 S.E.2d 877 (1984); Newsome v. Graham, 254 Ga. 711, 334 S.E.2d 183 (1985); Calhoun Clinic v. Raju, 173 Ga. App. 320, 326 S.E.2d 529 (1985); Collier v. Rogers, 173 Ga. App. 621, 327 S.E.2d 588 (1985); Mr. Transmission, Inc. v. Thompson, 173 Ga. App. 773, 328 S.E.2d 397 (1985); Nowell v. Fain, 174 Ga. App. 592, 330 S.E.2d 741 (1985); Mims v. Citizens & S. Bank, 174 Ga. App. 686, 331 S.E.2d 67 (1985); Woodall v. Orkin Exterminating Co., 174 Ga. App. 435, 332 S.E.2d 173 (1985); C & W Land Dev. Corp. v. Kaminsky, 175 Ga. App. 774, 334 S.E.2d 362 (1985); Vintage Enters., Inc. v. Powers, 175 Ga. App. 785, 334 S.E.2d 383 (1985); DeKalb County Teachers Fed. Credit Union v. Citizens & S. Nat'l Bank, 176 Ga. App. 120, 335 S.E.2d 464 (1985); Craft's Ocean Court, Inc. v. Coast House Ltd., 255 Ga. 336, 338 S.E.2d 277 (1986); Lord Jeff Knitting Co. v. Boyle, 177 Ga. App. 467, 339 S.E.2d 745 (1986); Green v. Carver State Bank, 178 Ga. App. 798, 344 S.E.2d 507 (1986); Days Inn of Am., Inc. v. Sharkey, 178 Ga. App. 718, 344 S.E.2d 518 (1986)

Advanced Contouring, Inc. v. McMillan Div. of States Eng'g Corp., 179 Ga. App. 128, 345 S.E.2d 666 (1986); Hodges Plumbing & Elec. Co. v. ITT Grinnell Co., 179 Ga. App. 521, 347 S.E.2d 257 (1986); Pierce v. Cessna Aircraft Co., 179 Ga. App. 549, 347 S.E.2d 261 (1986); Travelers Indem. Co. v. Schenden, 182 Ga. App. 735, 356 S.E.2d 761 (1987); Crumbley v. Wyant, 183 Ga. App. 802, 360 S.E.2d 276 (1987); Chastain Place, Inc. v. Bank S., 185 Ga. App. 178, 363 S.E.2d 616 (1987); Steele v. Gold Kist, Inc., 186 Ga. App. 569, 368 S.E.2d 196 (1988); Harris v. Harris, 258 Ga. 496, 371 S.E.2d 399 (1988); Stancil v. Gwinnett County, 259 Ga. 507, 384 S.E.2d 666 (1989); Coxwell Tractor & Equip. Sales, Inc. v. Burgess, 192 Ga. App. 663, 385 S.E.2d 753 (1989); Pettus v. Paylay, Frank & Brown, 193 Ga. App. 335, 387 S.E.2d 613 (1989); DOT v. B & G Realty, Inc., 193 Ga. App. 649, 388 S.E.2d 749 (1989); First Union Nat'l Bank v. Cumberland Creek Country Club, 194 Ga. App. 332, 390 S.E.2d 422 (1990); Lewis v. McDowell, 194 Ga. App. 429, 390 S.E.2d 605 (1990); Jim Walter Homes, Inc. v. Roberts, 196 Ga. App. 618, 396 S.E.2d 787 (1990); West v. Nodvin, 196 Ga. App. 825, 397 S.E.2d 567 (1990); White v. Lawyers Title Ins. Corp., 197 Ga. App. 780, 399 S.E.2d 526 (1990); Landor Condominium Consultants, Inc. v. Bankers First Fed. Sav. & Loan Ass'n, 198 Ga. App. 274, 401 S.E.2d 305 (1991); Hartley v. Taylor, 198 Ga. App. 641, 402 S.E.2d 372 (1991); Stonica v. State Farm Fire & Cas. Co., 198 Ga. App. 717, 402 S.E.2d 553 (1991); Floyd v. First Union Nat'l Bank, 203 Ga. App. 788, 417 S.E.2d 725 (1992); Adams v. Moffatt, 204 Ga. App. 314, 419 S.E.2d 318 (1992); B.J.'s Flooring, Inc. v. T.C. Interiors, Inc., 204 Ga. App. 441, 419 S.E.2d 528 (1992); Powell v. Harsco Corp., 209 Ga. App. 348, 433 S.E.2d 608 (1993); Jayson v. Gardocki, 221 Ga. App. 455, 471 S.E.2d 545 (1996); Eckland v. Hale & Eckland, 231 Ga. App. 278, 498 S.E.2d 358 (1998); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998); Barge v. St. Paul Fire & Marine Ins. Co., 245 Ga. App. 112, 535 S.E.2d 837 (2000), overruled on other grounds, Green Tree Servicing, LLC v. Jones, 333 Ga. App. 184, 775 S.E.2d 714, 2015 Ga. App. LEXIS 475 (2015); Johnston v. Conasauga Radiology, P.C., 249 Ga. App. 791, 549 S.E.2d 778 (2001); Benedict v. Snead, 253 Ga. App. 749, 560 S.E.2d 278 (2002); Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 585 S.E.2d 643 (2003); Yates Paving & Grading Co. v. Bryan County, 265 Ga. App. 578, 594 S.E.2d 756 (2004); Stubbs v. Pickle, 287 Ga. App. 246, 651 S.E.2d 171 (2007); Ferdinand v. City of East Point, 288 Ga. App. 152, 653 S.E.2d 529 (2007); Planning Techs., Inc. v. Korman, 290 Ga. App. 715, 660 S.E.2d 39 (2008); Southern Mut. Church Ins. Co. v. ARS Mech., LLC, 306 Ga. App. 748, 703 S.E.2d 363 (2010); Cmty. State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011); Wilcher v. Redding Swainsboro Ford Lincoln Mercury, 321 Ga. App. 563, 743 S.E.2d 27 (2013); Ford Motor Co. v. Conley, 294 Ga. 530, 757 S.E.2d 20 (2014); Rumsey v. Gillis, 329 Ga. App. 488, 765 S.E.2d 665 (2014); Sullivan v. Bunnell, 340 Ga. App. 283, 797 S.E.2d 499 (2017); In re Estate of Burkhalter, 343 Ga. App. 417, 806 S.E.2d 875 (2017); Cmty. & S. Bank v. First Bank of Dalton, 344 Ga. App. 815, 811 S.E.2d 490 (2018); Dunwoody Plaza Partners, LLC v. Markowitz, 346 Ga. App. 516, 816 S.E.2d 450 (2018); Wellman v. JP Morgan Chase Bank, N.A., 347 Ga. App. 118, 817 S.E.2d 567 (2018); Moore v. Childs, 347 Ga. App. 560, 820 S.E.2d 186 (2018); Laymac v. Kushner, 349 Ga. App. 727, 824 S.E.2d 768 (2019), cert. denied, No. S19C1091, 2019 Ga. LEXIS 871 (Ga. 2019); Carson v. Brown, 348 Ga. App. 689, 824 S.E.2d 605 (2019).

Multiple Claims or Parties

Enforceability of judgment.

- Judgment entered in a multiple party and/or multiple claims case prior to the disposition of the entire case is not enforceable unless the requirements of subsection (b) of O.C.G.A. § 9-11-54 are followed. Metropolitan Atlanta Rapid Transit Auth. v. Federick, 187 Ga. App. 696, 371 S.E.2d 204, cert. denied, 187 Ga. App. 908, 371 S.E.2d 204 (1988).

Subsection (b) prevents appellate court from dealing with merits of the trial court's rulings when one of the claims remains for decision and the court did not expressly direct entry of judgment in conformance with subsection (b). Peace Officers' Annuity & Benefit Fund v. Blocker, 135 Ga. App. 822, 219 S.E.2d 456 (1975).

- When the hearing on a declaratory judgment issue was conducted less than 20 days after service of the plaintiff's petitions in violation of O.C.G.A. § 9-4-5, the trial court was without authority to make a ruling on the issue and the court's certification of the court's orders pursuant to subsection (b) of O.C.G.A. § 9-11-54 did not make valid the premature orders. Robert W. Woodruff Arts Ctr., Inc. v. Insardi, 266 Ga. 248, 466 S.E.2d 214 (1996).

- Trial court improperly vacated the court's own order outside of the term in which the order was entered so the order vacating the initial order was a nullity, but, as the initial order, which denied an application to modify or vacate an arbitration award, did not address a counterclaim seeking to confirm the arbitration award, it was not a final order, and so the later order confirming the award was affirmed. Tanaka v. Pecqueur, 268 Ga. App. 380, 601 S.E.2d 830 (2004).

- There are two principal methods by which an appeal might be brought in multi-claim party cases from orders as to less than all claims or parties involved: (1) the complaining party may obtain a certificate of immediate review from the trial judge under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)); and (2) the trial judge may enter an order upon express determination that there are no just reasons for delay and upon express direction for entry of judgment under subsection (b) of Ga. L. 1966, p. 609, § 54 (see now O.C.G.A. § 9-11-54). When the second method is used, the appellate court must still determine whether the judgment rendered meets the requirements of finality contained in former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)). J.C. Penney Co. v. Malouf Co., 125 Ga. App. 832, 189 S.E.2d 453 (1972), rev'd on other grounds, 230 Ga. 140, 196 S.E.2d 145 (1973).

As a church's suit against a minister involved multiple claims, and the trial court's decision adjudicated fewer than all of the claims, in order to appeal, the minister had to either: (1) obtain entry of judgment under O.C.G.A. § 9-11-54(b) based on a finding of no just reason for delay; or (2) obtain a certificate allowing immediate appeal under O.C.G.A. § 5-6-34(b). Because neither § 9-11-54(b) nor § 5-6-34(b) was followed, the minister's appeal was premature. Rhymes v. E. Atlanta Church of God, Inc., 284 Ga. 145, 663 S.E.2d 670 (2008).

Appealability determined by § 5-6-34. - Whether or not judgment was appealable must be determined by former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34), and when a judgment was not dispositive of a case and therefore was not final, and there was no compliance with the interlocutory appeal provision of that section, the appeal was subject to dismissal. Foskey v. Bank of Alapaha, 147 Ga. App. 541, 249 S.E.2d 346 (1978).

Tax commissioner's defective attempt to seek interlocutory review pursuant to O.C.G.A. § 5-6-34(b) did not have the effect of making the judgment appealed from res judicata of the issue appealed; thus, the tax commissioner was entitled to appeal the trial court's denial of the tax commissioner's summary judgment motion in a case where the property owner sought to set aside a deed executed pursuant to a judicial tax foreclosure and sued the tax commissioner and property purchaser in order to do so. Canoeside Props. v. Livsey, 277 Ga. 425, 589 S.E.2d 116 (2003).

Direct appeal was proper, despite the fact that a claim for punitive damages remained pending, because the trial court made a final ruling with regard to compensatory damages and specifically found that there was no just reason for delay. Sam's Wholesale Club v. Riley, 241 Ga. App. 693, 527 S.E.2d 293 (1999).

Order granting writ of possession was not subject to direct appeal because other claims remained pending in the trial court (e.g., issue of commissions owed to the defendant and past rent due and owing to the plaintiff). Whiddon v. Stargell, 192 Ga. App. 826, 386 S.E.2d 884 (1989).

Appeal from an order dismissing a complaint as a sanction for repeated failure to attend scheduled depositions was premature since there was a counterclaim pending in the court below, no determination by the trial judge that there was no just reason for delay, and the appellant failed to follow the applicable procedure for review under O.C.G.A. § 5-6-34(b). Fasse v. Sexton, 193 Ga. App. 9, 387 S.E.2d 17 (1989).

- Georgia Court of Appeals had jurisdiction over a case wherein a purchaser appealed a trial court's grant of summary judgment to other defendants and dismissed them, which occurred prior to settling with the sellers as the purchaser did not voluntarily dismiss the remaining defendants to obtain a directly appealable final order and if the parties had not reached a settlement and proceeded to trial, the purchaser would have been able to directly appeal the judgment resulting from the trial. O'Dell v. Mahoney, 324 Ga. App. 360, 750 S.E.2d 689 (2013).

Determination of finality under subsection (b) satisfies finality requirement of § 5-6-34. - Former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(a)(1)) and subsection (b) of Ga. L. 1966, p. 609, § 54 (see now O.C.G.A. § 9-11-54) are to be construed together so that a determination of finality under the latter satisfies the finality requirement of the former. Thompson v. Clarkson Power Flow, Inc., 149 Ga. App. 284, 254 S.E.2d 401, aff'd, 149 Ga. App. 284, 260 S.E.2d 9 (1979).

- "Final Judgment" order which did not recite the exact language of subsection (b) of O.C.G.A. § 9-11-54 nonetheless expressed a clear intent by the trial judge that the order be final, and therefore appealable, as to two of four defendants. Cherry v. Hersch, 193 Ga. App. 471, 388 S.E.2d 64 (1989).

- O.C.G.A. § 9-11-42 (consolidation and severance) seeks to further judicial convenience or avoid prejudice, not to circumvent the requirements of O.C.G.A. § 9-11-54. Cable Holdings of Battlefield, Inc. v. Lookout Cable Serv., Inc., 173 Ga. App. 355, 326 S.E.2d 552 (1985).

- O.C.G.A. § 9-11-56, which permits direct appeal from any grant of summary judgment, is an exception to the finality rule expressed in subsection (b) of O.C.G.A. § 9-11-54. Edwards v. Davis, 160 Ga. App. 122, 286 S.E.2d 301 (1981).

If a grant of partial summary judgment is not made final under subsection (b) of O.C.G.A. § 9-11-52, the party against whom summary judgment was granted has the option to either appeal or not appeal at that time, and if the party chooses to appeal, then the appellate decision on the summary judgment ruling is binding under O.C.G.A. § 9-11-60(h). Roth v. Gulf Atl. Media of Ga., Inc., 244 Ga. App. 677, 536 S.E.2d 577 (2000).

- Trial court's corrective action in clarifying an omission as to post-trial interest in the court's earlier partial summary judgment, which had been certified as final, constituted a final order which was directly appealable. Nodvin v. West, 197 Ga. App. 92, 397 S.E.2d 581 (1990).

- Absent express determination that there exists no just cause for delay and express direction for entry of judgment, any order or other form of decision, however designated, which adjudicates less than all claims does not terminate an action as to any of the claims. Davis v. Roper, 119 Ga. App. 442, 167 S.E.2d 685 (1969).

Entry of judgment as to one or more but fewer than all claims or parties was not a final judgment under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(a)(1)) and lacked res judicata effect unless the trial court made an express direction for entry of a final judgment and determination that no just reason for delaying finality of the judgment existed. Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978).

Pendency of a counterclaim plus absence in order of trial judge's express determination that there was no just reason for delay and express direction for entry of judgment prevented order from being final and appealable. Patterson v. Professional Resources, Inc., 242 Ga. 459, 249 S.E.2d 248 (1978); Cleveland v. Watkins, 159 Ga. App. 885, 285 S.E.2d 546 (1981).

When case against state was still pending in court below, entry of judgment as to one or more but fewer than all claims or parties was not a final judgment under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(a)(1)), lacks res judicata effect, and was not appealable unless the trial court made an express direction for entry of final judgment and determination that no just reason for delaying finality of the judgment existed. Wise v. Georgia State Bd. for Examination, Qualification & Registration of Architects, 244 Ga. 449, 260 S.E.2d 477 (1979).

- O.C.G.A. § 9-11-54 makes clear that an order in a pending case which has not been certified is not a final order. Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981).

Order entered on the appellants' motion for new trial as to each of three defendants granting a new trial as to one of the defendants was an adjudication of "fewer than all the claims or the rights and liabilities of fewer than all the parties . . ." within the meaning of O.C.G.A. § 9-11-54(b); and denial of a motion as to the other defendants did not, in absence of the trial court's "express determination" and "express direction" with regard to finality, "terminate the action as to any of the . . . parties," and was not appealable. Chadwick v. Frix, 165 Ga. App. 20, 299 S.E.2d 93 (1983).

Directed verdict in favor of some of the parties is not a final judgment when the case is still pending as to the other parties and when a determination of no just reason for delay and a certification of final judgment is not issued. Lawson v. Athens Auto Supply & Elec., Inc., 200 Ga. App. 609, 409 S.E.2d 60, cert. denied, 200 Ga. App. 895, 409 S.E.2d 60 (1991).

In insureds' suit regarding mold remediation work on the insureds' home, the insureds' were not required to appeal a ruling enforcing a settlement agreement with their insured and an order denying reconsideration of this ruling within 30 days because the orders were not final since the insureds' case remained pending against a construction company, and the trial court did not expressly determine that there was no just cause for delay and designate the orders as final judgments pursuant to O.C.G.A. § 9-11-54(b). Stephens v. Alan V. Mock Construction Co., Inc., 302 Ga. App. 280, 690 S.E.2d 225, cert. denied, No. S10C1012, 2010 Ga. LEXIS 533 (Ga. 2010).

Trial court erred in denying the children's petition for writ of mandamus to compel a judge to allow the children to appeal from the order dismissing the children's appeals because the judge's prior orders were not final judgments within the meaning of O.C.G.A. § 5-6-34(a)(1); thus, the children were not required to appeal from the rulings within 30 days after entry in order to preserve their right to pursue appellate review under O.C.G.A. § 5-6-38(a). Sotter v. Stephens, 291 Ga. 79, 727 S.E.2d 484 (2012).

- Decree may be partly final and partly interlocutory; final as to its determination of all issues of law and fact and interlocutory as to its mode of execution. Levingston v. Crables, 203 Ga. App. 16, 416 S.E.2d 131 (1992).

When the trial court entered judgment in favor of two defendants, but did not resolve a counterclaim of one defendant, the judgment was interlocutory, not final, and was not subject to direct appeal; the court's designation of the judgment as "final" was not controlling. Hadid v. Beals, 233 Ga. App. 5, 502 S.E.2d 798 (1998).

- When default judgment was entered against one party in a multiparty suit, the trial court erred in holding that the judgment was final and that the court was without discretion to vacate the judgment. Daniell v. Heyn, 169 Ga. App. 772, 315 S.E.2d 284 (1984).

When a joint defendant defaults for failure to answer and the court subsequently finds in favor of the other joint defendants on the merits, the default judgment against the first defendant will stand since the default on a procedural issue serves to deny the defendant an opportunity to litigate the merits. Fred Chenoweth Equip. Co. v. Oculus Corp., 254 Ga. 321, 328 S.E.2d 539 (1985).

- Court of Appeals erred in reversing the trial court's grant of partial summary judgment in favor of a county because the trial court did not have authority to enter the court's order purporting to make the grant of partial summary judgment final under O.C.G.A. § 9-11-54(b) since by the arrestee's first notice of appeal, an arrestee put the machinery of appellate review into motion under O.C.G.A. § 9-11-54(h) and committed a procedural default; accordingly, the arrestee was foreclosed from resubmitting the matter for review on appeal of the final judgment, and because the first direct appeal was dismissed, that dismissal was binding upon the trial court under O.C.G.A. § 9-11-60(h). Houston County v. Harrell, 287 Ga. 162, 695 S.E.2d 29 (2010).

- Voluntary dismissal with prejudice of an alleged joint tortfeasor did not void the judgment entered against the remaining defendants, but only adjudicated the liabilities of that party; as the voluntary dismissal neither terminated the action nor rendered the default judgment void, the trial court did not err in refusing to set aside a default judgment. Mateen v. Dicus, 286 Ga. App. 760, 650 S.E.2d 272 (2007), 129 S. Ct. 89, 172 L. Ed. 2d 30 (2008).

- When the action is still pending below as to other defendants, and also as to one defendant with respect to damages, but the trial court has entered the court's order pursuant to subsection (b) of O.C.G.A. § 9-11-54, finding that there is no just reason for delay and that final judgment as to liability is previously entered against that defendant, the Court of Appeals is bound to entertain an appeal by that defendant. Wills v. McAuley, 166 Ga. App. 4, 303 S.E.2d 26, cert. denied, 251 Ga. 41, 305 S.E.2d 120 (1983).

When a new trial was granted on one of the claims against one of the parties, this appeal is controlled by O.C.G.A. § 9-11-54 and in such circumstances, there must be an express determination under the section or there must be compliance with the requirements of O.C.G.A. § 5-6-34(b) (the interlocutory appeals procedure) and when these Code sections are not followed, the appeal is premature and must be dismissed. Holland v. Holland Heating & Air Conditioning, Inc., 203 Ga. App. 213, 416 S.E.2d 557 (1992).

Rulings declaring a mistrial and making pretrial rulings for a new trial involving a judgment debtor did not fall within the provisions of O.C.G.A. § 5-6-34(d) and were not appealable; the case against the debtor remained pending below, although other claims involving the debtor's transferees had been resolved by a jury and were final. Chapman v. Clark, 313 Ga. App. 820, 723 S.E.2d 51 (2012).

§ 5-6-34(b). - When there has been no express determination or no just reason for delay, or direction that an order for entry of judgment was final, providing for immediate appeal, or issuance of a certificate as provided for by former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)), an appeal was premature. American Mut. Liab. Ins. Co. v. Moore, 120 Ga. App. 624, 171 S.E.2d 751 (1969); Carlisle v. Travelers Ins. Co., 195 Ga. App. 21, 392 S.E.2d 344 (1990).

When order appealed from adjudicated less than all claims and did not provide for entry of final judgment as to appellee upon express determination that there was no just reason for delay and upon express direction for entry of judgment as provided in subsection (b) of Ga. L. 1966, p. 609, § 54 (see now O.C.G.A. § 9-11-54), and when there was no certificate as provided for by former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)), there was no appealable judgment. Givens v. Gray, 124 Ga. App. 152, 183 S.E.2d 29 (1971).

In cases involving multiple parties, dismissal of a counterclaim as to one party is not a final order and is not appealable in the absence of an express determination by the judge that there was no just reason for delay, express direction for entry of judgment, and an immediate review certificate. W.L. Pettus Constr. Co. v. Commercial Union Ins. Co., 138 Ga. App. 281, 226 S.E.2d 77 (1976).

When record fails to show that a final judgment has been entered or certificate of immediate review granted, an appeal is premature and must be dismissed. Ward v. Charles D. Hardwick Co., 149 Ga. App. 546, 254 S.E.2d 872 (1979).

When case involving multiple parties remains pending in the superior court, and there is no certificate for immediate review nor express determination and direction pursuant to subsection (b) of this section, the appeal is premature and must be dismissed. Hardy v. Georgia Power Co., 151 Ga. App. 803, 261 S.E.2d 749 (1979).

When there is 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 subsection (b) of O.C.G.A. § 9-11-54, or there must be compliance with the requirements of O.C.G.A. § 5-6-34(b) (procedure for review of judgments not deemed directly appealable). When neither of these sections is followed, an appeal is premature and must be dismissed. Spivey v. Rogers, 167 Ga. App. 729, 307 S.E.2d 677 (1983); Johnson v. Hospital Corp. of Am., 192 Ga. App. 628, 385 S.E.2d 731, cert. denied, 192 Ga. App. 902, 385 S.E.2d 731 (1989); King v. Bishop, 198 Ga. App. 622, 402 S.E.2d 307 (1991).

- Trial court's order dismissing claims was not an appealable final order because claims remained pending in the trial court, and the trial court did not direct entry of final judgment; additionally, there was no compliance with the interlocutory appeals procedure. Church v. Bell, 213 Ga. App. 44, 443 S.E.2d 677 (1994); Financial Inv. Group, Inc. v. Cornelison, 238 Ga. App. 223, 516 S.E.2d 844 (1999).

- When there was no express determination that there was no just reason for delay nor express direction for entry of judgment under subsection (b) of Ga. L. 1966, p. 609, § 54 (see now O.C.G.A. § 9-11-54), nor was there a certificate for immediate review, under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)), an appeal from an order dismissing the plaintiff's claim was premature when there was a counterclaim pending in the court below. Campbell v. George, 129 Ga. App. 644, 200 S.E.2d 503 (1973); Cleveland v. Watkins, 159 Ga. App. 885, 285 S.E.2d 546 (1981).

- Declaratory judgment finding is not final and an appeal therefrom is premature when a counterclaim is still pending in the trial court and there is the absence of a determination by the trial judge that there is no just reason for delay and an express direction for entry of judgment. Union Indem. Ins. Co. v. Cherokee Ins. Co., 168 Ga. App. 82, 308 S.E.2d 238 (1983).

Order that merely dismissed a complaint but did not dispose of a counterclaim was not a final appealable judgment. Hogan Mgt. Servs. v. Martino, 225 Ga. App. 168, 483 S.E.2d 148 (1997).

- When there is no express determination that there is no just reason for delay, and no express direction for entry of judgment, an order dismissing one of two defendants is not a final, appealable judgment. Taylor v. McBerry, 138 Ga. App. 593, 226 S.E.2d 607 (1976).

Unless court, in order dismissing one of multiple defendants, makes express determination of finality as set out in subsection (b) of this section, the case is still pending in the trial court and the procedure for interlocutory appeals must be followed. Home Mart Bldg. Ctrs., Inc. v. Wallace, 139 Ga. App. 49, 228 S.E.2d 22 (1976).

In a case involving joint claims against several defendants, an order dismissing a complaint as to some but not all defendants for failure to state a claim upon which relief can be granted is not a final appealable judgment. Walker v. Robinson, 232 Ga. 361, 207 S.E.2d 6 (1974).

When the trial court grants a defendant's motion to dismiss and denies another defendant's motion to dismiss, filed on other grounds, and the plaintiff appeals, but the dismissal order contains no express determination that there is no just reason for delay, and there is no express direction for the entry of such judgment, the appeal is premature and must be dismissed, even when the trial court grants a certificate for immediate review. All Risk Ins. Agency, Inc. v. Rockbridge San. Co., 166 Ga. App. 728, 305 S.E.2d 390 (1983).

When a trial court grants a directed verdict in favor of one or some defendants in a joint and several action and the plaintiff elects to proceed against the remaining defendants without protest and without moving for a continuance to appeal the directed verdicts, the plaintiff is not deemed to have abandoned any action against the defendants released by directed verdict and such a release is not a final judgment except by express determination. James v. Allen, 173 Ga. App. 636, 327 S.E.2d 501 (1985).

Order granting one co-defendant's motion to dismiss and an order denying the plaintiff's motion to vacate the order of dismissal were not appealable as final orders because the case remained pending against the other co-defendants. Knowles v. Old Spartan Life Ins. Co., 213 Ga. App. 204, 444 S.E.2d 136 (1994).

- When main claim remains pending and the court does not execute a certificate pursuant to subsection (b) of this section, an order dismissing a third-party complaint lacks finality. Davis v. Roper, 119 Ga. App. 442, 167 S.E.2d 685 (1969).

- Directed verdict and judgment for plaintiff in action on a promissory note in which the defendant answered and filed a third-party complaint against an alleged comaker of the note, without disposition of the third-party complaint, was not a final appealable judgment, and an interlocutory appeal was not authorized therefrom. Cramer v. Parrott, 149 Ga. App. 386, 254 S.E.2d 504 (1979).

- In an action for damages alleged to be due as a result of an automobile collision, when the plaintiff's uninsured motorist insurer filed an answer in the insurer's own behalf and has thereby elected to assume the status of a named party, and there had been no certificate of finality pursuant to subsection (b) of Ga. L. 1966, p. 609, § 54 (see now O.C.G.A. § 9-11-54) nor any permission granted for an interlocutory appeal pursuant to former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)), the appeal was premature and must be dismissed. Lysius v. Bertha, 151 Ga. App. 702, 261 S.E.2d 459 (1979).

Order denying defendant's motion to implead third party is not appealable, inasmuch as the order does not finally dispose of any rights of defendant. Davis v. Roper, 119 Ga. App. 442, 167 S.E.2d 685 (1969).

- Order which holds that interpleader is a viable remedy and which dismisses the instigating stakeholder is not directly appealable unless the trial court clearly directs the entry of final judgment under subsection (b) of O.C.G.A. § 9-11-54. Custom One-Hour Photo of Ga., Inc. v. Citizens & S. Bank, 179 Ga. App. 70, 345 S.E.2d 147 (1986).

- Generally, denial of a motion to set aside a default judgment is an appealable judgment, without a certificate of immediate review; however, this is not automatically the case if multiple parties are involved. Cox v. Farmers Bank, 151 Ga. App. 64, 258 S.E.2d 731 (1979).

§ 5-6-34(b). - When the trial court erroneously entered certification pursuant to subsection (b) of Ga. L. 1966, p. 609, § 54 (see now O.C.G.A. § 9-11-54), the appellate court may treat the certification as one entered pursuant to former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)); however, because in such cases cause will have been treated by the trial court and the parties as an appeal from a final judgment, time limitations imposed by that section were not applicable. Georgia Farm Bureau Mut. Ins. Co. v. Wall, 242 Ga. 176, 249 S.E.2d 588 (1978).

- After the trial court certified that a summary judgment in favor of three of four defendants was final and ripe for review, the plaintiff lost the plaintiff's right to obtain appellate review by failing to file a timely notice of appeal, even though the plaintiff had filed a motion for reconsideration. Jarallah v. Aetna Cas. & Sur. Co., 199 Ga. App. 592, 405 S.E.2d 510 (1991).

When a broker who sued a client for a business broker commission also asserted a claim for a real estate commission, and the trial court entered summary judgment denying the real estate commission claim, and found that the judgment was final, under O.C.G.A. § 9-11-54(b), the broker had to appeal that judgment within 30 days of the judgment's entry; so, when the broker waited until the conclusion of a trial on the other claims to appeal the summary judgment, the right to appeal the summary judgment was lost, and the broker's appeal of that issue was dismissed. Bienert v. Dickerson, 276 Ga. App. 621, 624 S.E.2d 245 (2005).

Party against whom summary judgment is granted may appeal after grant thereof or after final judgment is rendered. Surgent v. Surgent, 153 Ga. App. 100, 264 S.E.2d 568 (1980).

In a case in which O.C.G.A. § 9-11-54 applies because of multiple parties or claims, a party against whom summary judgment has been entered may appeal that judgment immediately or may wait until the entire action is concluded and then appeal. Thus, the case is still pending and the grant of summary judgment is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. Edwards v. Davis, 160 Ga. App. 122, 286 S.E.2d 301 (1981).

When third-party claim was necessarily adjudicated against parties as a matter of law by judgment against the parties in plaintiff's action, it was not necessary to expressly include a third-party defendant in that judgment or to make express determination therein which is provided by subsection (b) of this section for situations wherein fewer than all claims presented are adjudicated. Fraser v. Moose, 226 Ga. 256, 174 S.E.2d 412 (1970).

When claim and counterclaim are submitted to jury, who find verdict for plaintiff in amount sued for, with no reference to the defendant's counterclaim the verdict will be construed as deciding against the defendant's counterclaim so that the judgment is thus final and appealable; such case will not be construed to involve subsection (b) of this section, which concerns undecided issues. Bernath Barrel & Drum Co. v. Ostrum Boiler Serv., Inc., 131 Ga. App. 140, 205 S.E.2d 459 (1974).

- When multiple parties defendant are involved, in order to be an absolute, final, appealable judgment, an order dismissing fewer than all parties should contain an express determination that there is no just reason for delay and an express direction for entry of judgment; without that, the court's decision is subject to revision at any time before entry of judgment adjudicating all claims, rights, and liabilities of all parties. Grizzard v. Davis, 131 Ga. App. 577, 206 S.E.2d 853 (1974).

- In absence of an express determination that there is no just reason for delay, a decision to direct entry or final judgment is subject to revision at any time before entry of judgment adjudicating all claims, rights, and liabilities of all the parties. Clary v. Brown, 139 Ga. App. 799, 229 S.E.2d 680 (1976).

When orders are subject to revision, appeals are premature. Davis v. Transairco, Inc., 141 Ga. App. 544, 234 S.E.2d 134 (1977).

- Even though a dismissal without prejudice may allow the plaintiff to recommence the plaintiff's claim at a later date, it is nonetheless a dismissal of the subject action. Thus, it can be made a final judgment in a case in which other claims remain pending when the trial court expressly determines there is no just reason for delay. Gillis v. Goodgame, 199 Ga. App. 413, 404 S.E.2d 815 (1991), rev'd on other grounds, 262 Ga. 117, 414 S.E.2d 197 (1992).

- Since there was no determination that there was no just reason for delay and express direction of final judgment pursuant to O.C.G.A. § 9-11-54(b), the orders which the plaintiff would appeal were interlocutory and not appealable without compliance with the interlocutory appeal procedure of O.C.G.A. § 5-6-34(b). Wright v. Millines, 212 Ga. App. 453, 442 S.E.2d 300 (1994).

- Denial of a judgment notwithstanding the verdict can be considered on appeal even though a motion for a new trial has been granted, if an appeal is taken from a final judgment entered pursuant to subsection (b) of O.C.G.A. § 9-11-54. GMAC v. Bowen Motors, Inc., 167 Ga. App. 463, 306 S.E.2d 675 (1983).

- Because it is clear from the enumerations of error that the plaintiffs sought to appeal from the trial court's dismissal of the city as a defendant, as well as the grant of summary judgment as to other defendants, the failure to include the dismissal of the city in the notice of appeal does not prevent the court's review of the matter. Rea v. Bunce, 179 Ga. App. 628, 347 S.E.2d 676 (1986), overruled on other grounds, Martin v. Georgia Dep't of Pub. Safety, 257 Ga. 300, 357 S.E.2d 569 (1987).

In a condemnation case, the trial court errs in refusing to review and reconsider a "judgment on tenantability, suitability and lease termination" when such a judgment is not final pursuant to subsection (b) of O.C.G.A. § 9-11-54. Metropolitan Atlanta Rapid Transit Auth. v. Gould Investors Trust, 169 Ga. App. 303, 312 S.E.2d 629 (1983).

- Trial court's order directing the entry of judgment against the defendant pursuant to subsection (b) of O.C.G.A. § 9-11-54 does not constitute a "final" judgment which would preclude the application of the liberal criteria set forth in O.C.G.A. § 9-11-55(b) for opening default when the trial court's order specifically reserves the issue of damages for later determination. Cryomedics, Inc. v. Smith, 180 Ga. App. 336, 349 S.E.2d 223 (1986).

Piece-meal review is not favored by the courts. Foley v. Shanahan, 133 Ga. App. 262, 211 S.E.2d 367 (1974).

- After trial court enters judgment pursuant to subsection (b) of this section, determination must be made as to whether the cause of action is joint or several; a cause of action is several, as opposed to joint, when underlying legal theories which comprise the cause of action against the defendants are different. Dehler v. Setliff, 239 Ga. 19, 235 S.E.2d 540 (1977).

Fact that identical relief is demanded of several defendants does not make an otherwise several cause of action "joint," if legal theories against the individual defendants are dissimilar. Dehler v. Setliff, 239 Ga. 19, 235 S.E.2d 540 (1977).

- When a trial court grants judgment for a defendant on one count of a multi-count complaint and expressly directs entry of a final judgment under subsection (b) of O.C.G.A. § 9-11-54, the defendant must move for attorney's fees relating to that claim within 45 days of the judgment. Little v. GMC, 229 Ga. App. 781, 495 S.E.2d 572 (1998).

- O.C.G.A. § 9-11-54(b) does not in any way preclude the granting of summary judgment on a claim, but merely authorizes a court, even though other claims may remain pending, to enter final judgment on one or more claims if the court makes certain express determinations; assuming a counterclaim by a debtor existed and remained pending in a suit brought against the debtor by a creditor, such did not prevent the trial court from granting summary judgment on the creditor's claim if there was no disputed material fact on that claim. Ahmad v. Excell Petroleum, Inc., 276 Ga. App. 167, 623 S.E.2d 6 (2005).

Seller was entitled to immediate judgment on a promissory note pursuant to O.C.G.A. § 9-11-54(b) because the buyers failed to make payments on the note, and the buyers did not show damages in any amount from the alleged failure of consideration; the note was supported by adequate consideration because the buyers took immediate possession of the seller's business and began operating the business as the buyers' own. West v. Diduro, 312 Ga. App. 591, 718 S.E.2d 815 (2011), cert. denied, No. S12C0522, 2012 Ga. LEXIS 279 (Ga. 2012).

Trial judge may grant relief although the relief was not specifically prayed for. Empire Banking Co. v. Martin, 133 Ga. App. 115, 210 S.E.2d 237 (1974).

- When the issue is raised, the trial court is authorized to grant equitable relief even though that relief is not specifically prayed for. Logan v. Nunnelly, 128 Ga. App. 43, 195 S.E.2d 659 (1973).

Injunctive relief was authorized even though there was no express prayer therefor; however, the propriety of the relief must have been litigated and the opposing party must have had the opportunity to assert defenses to such relief. Church v. Darch, 268 Ga. 237, 486 S.E.2d 344 (1997).

- To the extent that a judgment by default exceeds the amount prayed for, the judgment is a nullity. Jones v. Cooke, 169 Ga. App. 516, 313 S.E.2d 773 (1984).

- Provisions of paragraph (c)(3) of O.C.G.A. § 9-11-54 requiring that notice of trial be served upon a defaulting party in a medical malpractice case involving a claim for damages exceeding $10,000.00 prevail over the provisions of O.C.G.A. § 9-11-5(a) providing that a defaulting party waives all notices of trial. Southwest Community Hosp. & Medical Ctr. v. Thompson, 165 Ga. App. 442, 301 S.E.2d 501 (1983).

- Provision of paragraph (c)(3) of O.C.G.A. § 9-11-54 requiring that the notice of trial be served upon the defaulting party is not satisfied by publication of notice of trial in the official county organ. Southwest Community Hosp. & Medical Ctr. v. Thompson, 165 Ga. App. 442, 301 S.E.2d 501 (1983).

- When the plaintiff sought only equitable relief, the trial court's judgment awarding damages to the plaintiff was not proper. Bennett v. Blackwell, 157 Ga. App. 617, 278 S.E.2d 159 (1981).

- Court may properly grant summary judgment on a ground other than that assigned in the motion since it is clear there is no genuine issue of material fact. Colbert v. Piggly Wiggly S., 175 Ga. App. 44, 332 S.E.2d 304 (1985).

In every confirmation of sale case, issue of resale is always raised regardless of whether the issue has been affirmatively pled in the creditor's complaint, if the debtor is afforded an opportunity to defend against a confirmation as well as against resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233, 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722, 235 S.E.2d 476 (1977).

- When the plaintiff's complaint set forth a claim for in personam relief against the defendant, failure to demand such relief among the prayers is of no consequences. Allied Asphalt Co. v. Cumbie, 134 Ga. App. 960, 216 S.E.2d 659 (1975).

- Language of subsection (c) of this section apparently recognizes the right of the claimant to a money judgment exceeding the amount claimed if within the range of the evidence. Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970), cert. dismissed, 227 Ga. 264, 180 S.E.2d 242 (1971).

- Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), it is not necessary to pray specifically for general or nominal damages in order to present a jury question as to nominal damages. Bradley v. Godwin, 152 Ga. App. 782, 264 S.E.2d 262 (1979).

- Plaintiff did not demand prejudgment interest in the plaintiff's complaint or amended complaint, but since the parties agreed to submit the issue of prejudgment interest to a special master, the plaintiff's failure to include a prayer for prejudgment interest did not preclude recovery of the prejudgment interest. Holloway v. State Farm Fire & Cas. Co., 245 Ga. App. 319, 537 S.E.2d 121 (2000).

Motion to strike certain paragraphs of complaint is not motion to dismiss complaint, and the trial judge erred in so treating the motion and dismissing the complaint for alleged defects in portion of prayers for relief. Goette v. Darvoe, 119 Ga. App. 320, 166 S.E.2d 912 (1969).

- Provisions of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) respecting amendment of pleadings by introduction of evidence and grant of relief in accordance with such evidence have no application when the propriety of such relief was not litigated and the opposing party had no opportunity to assert defenses to such relief. Cross v. Cross, 230 Ga. 91, 195 S.E.2d 439 (1973).

Wife's right to alimony is not "litigated" when husband has no notice by her pleading that she will claim alimony and does not defend the action. Lambert v. Gilmer, 228 Ga. 774, 187 S.E.2d 855 (1972).

- In an action to collect the amount due on a loan, the trial court was without authority to raise the defense of usury on behalf of the borrower and erred to the extent the contract excluded the award of interest in the default judgment on the basis that the loan contract was usurious. Ideal Loan & Fin. Corp. v. Little, 217 Ga. App. 385, 457 S.E.2d 274 (1995).

- General prayer "for such other and further relief, etc.", combined with an allegation of cash value, was not, under subsection (c) of this section, sufficient to authorize a default judgment for money damages. Dempsey v. Ellington, 125 Ga. App. 707, 188 S.E.2d 908 (1972).

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) precludes default judgment from exceeding the amount of or differing in kind or form from that prayed for in demand for judgment. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556, 236 S.E.2d 532 (1977).

Judgment in default case granting more relief than originally requested is to that extent a nullity. Orkin Exterminating Co. v. Townsend, 136 Ga. App. 50, 220 S.E.2d 14 (1975).

- Defendant should have the right to submit without contest to a judgment specifically demanded by the plaintiff in the plaintiff's complaint, and when the defendant so submits, should not be under an obligation to follow the proceedings to see to it that such a judgment is taken against the defendant, but should be protected in the assumption that only such a judgment can and will be granted. Dempsey v. Ellington, 125 Ga. App. 707, 188 S.E.2d 908 (1972).

Judgment by default may be corrected to conform to pleadings at subsequent term of court, even after execution has been issued and property sold. Williams v. Stancil, 119 Ga. App. 800, 168 S.E.2d 643 (1969).

- Trial court's order which granted full relief to a company seeking certain e-mail records from the Georgia Department of Agriculture was void; the notice for the case management hearing from which the order emanated did not satisfy the notice requirements in O.C.G.A. § 9-10-2(1) for a hearing on the full merits of the case as the notice stated only "small motions" and procedural matters would be considered, and the department was never afforded an opportunity to present the department's opposition to the request through an O.C.G.A. § 9-11-54(c)(1) hearing. Ga. Dep't of Agric. v. Griffin Indus., 284 Ga. App. 259, 644 S.E.2d 286 (2007).

- Absent transcript of evidence adduced upon interlocutory hearing, it must be assumed on appeal that each item covered by a temporary injunction was contested and that it was supported by the evidence. DeRose v. Holcomb, 226 Ga. 289, 174 S.E.2d 410 (1970).

- As judgments by default are not to be different in kind from or exceed in amount prayed for in demand for judgment, in bank's action seeking special lien on husband's property when bank's complaint contained no prayer for the extraordinary relief of a lien which would antedate the final judgment, the trial court was without authority to order a default judgment and the second trial court was correct in setting aside the bank's equitable lien. First Nat'l Bank v. Blackburn, 254 Ga. 379, 329 S.E.2d 897 (1985).

Grant of bank's motion to set aside default judgment against borrower was proper when a typographical error as to the amount sought in the demand for judgment was in the pleading rather than the judgment, and this defect was apparently intentionally waived by the borrower so as to serve in the borrower's favor in an attempt to take advantage of the limitation imposed by paragraph (c)(1) of O.C.G.A. § 9-11-54 on damages that can be awarded by default judgment. Betts v. First Ga. Bank, 177 Ga. App. 359, 339 S.E.2d 616 (1985).

In a proceeding seeking an interlocutory injunction, the trial court was authorized to issue a permanent injunction if the evidence presented at the trial authorized the interlocutory injunction. United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 475 S.E.2d 601 (1996).

Costs

Discretion of court.

- Subsection (d) of O.C.G.A. § 9-11-54 gives the trial court discretion in assessing costs. Gold Kist, Inc. v. Williams, 174 Ga. App. 849, 332 S.E.2d 22 (1985); Dacosta v. Allstate Ins. Co., 199 Ga. App. 292, 404 S.E.2d 627, cert. denied, 199 Ga. App. 905, 404 S.E.2d 627 (1991).

Because the husband was the losing party on the parties' contested custody dispute in their divorce proceeding, the trial court had authority to assess the husband with the costs of that issue, pursuant to O.C.G.A. § 9-11-54(d), including the cost of a guardian ad litem and a psychologist. Nguyen v. Dinh, 278 Ga. 887, 608 S.E.2d 211 (2005).

When one party won that party's appeal and the other party won its cross-appeal, the court's apportionment of costs (by splitting costs equally between the parties) is appropriate. Gold Kist, Inc. v. Williams, 174 Ga. App. 849, 332 S.E.2d 22 (1985).

- Trial court properly made an award of attorney fees and costs immediately enforceable, when although the court did not employ the language of subsection (b) of O.C.G.A. § 9-11-54 in directing entry of a final judgment on the award of attorney fees and costs, the court unequivocally expressed the court's intent for the award to be final by declaring the award to be a judgment enforceable by post judgment collection. American Express Co. v. Baker, 192 Ga. App. 21, 383 S.E.2d 576, cert. denied, 192 Ga. App. 901, 383 S.E.2d 576 (1989).

Judgment affirmed with direction that defendant pay plaintiff amount of premiums paid to insurer under contract is not sufficient relief to prevent liability for costs of court. Camp v. Fidelity Bankers Life Ins. Co., 129 Ga. App. 590, 200 S.E.2d 332 (1973).

- Order declining to award a limited liability company (LLC) costs was vacated, and the matter was remanded for reconsideration because the jury found in favor of property owners on the owners' claim for nuisance but not on the owners' additional claims for trespass and punitive damages; the jury found in favor of the LLC on the issue of whether replacement with a six-inch or eight-inch pipe would constitute a substantial change and on the LLC's counterclaim for conversion but not on the LLC's additional counterclaims for trespass and punitive damages. Parris Props., LLC v. Nichols, 305 Ga. App. 734, 700 S.E.2d 848 (2010).

- Fee awards afforded to the taxpayer the additional relief to which the taxpayer was statutorily entitled under O.C.G.A. §§ 9-11-54(c)(1) and48-5-311(g)(4)(B)(ii). Fulton County Bd. of Tax Assessors v. Toro Props. VI, LLC, 329 Ga. App. 26, 763 S.E.2d 496 (2014).

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Costs, § 10 et seq. 27A Am. Jur. 2d, Equity, § 197 et seq. 46 Am. Jur. 2d, Judgments, § 41 et seq.

- 4 C.J.S., Appeal and Error, §§ 86, 87. 35B C.J.S., Federal Civil Procedure, § 1113 et seq. 49 C.J.S., Judgments, § 1 et seq.

- Expense of litigation, other than taxable costs, as basis of separate action against party to former suit, 39 A.L.R. 1218.

Judgment in action for services of physician or surgeon as bar to action against him for malpractice, 49 A.L.R. 551.

What amounts to waiver by plaintiff of right to enter default judgment against defendant, or of the default itself after entry, 124 A.L.R. 155.

Power of court to award alimony or property settlement in divorce suit as affected by failure of pleading or notice to make a claim therefor, 152 A.L.R. 445.

Allowance of fees for guardian ad litem appointed for infant defendant, as costs, 30 A.L.R.2d 1148.

Liability of state, or its agency or board, for costs in civil action to which it is a party, 72 A.L.R.2d 1379.

Recovery on quantum meruit where only express contract is pleaded, under Federal Rules of Civil Procedure 8 and 54 and similar state statutes or rules, 84 A.L.R.2d 1077.

Taxable costs and disbursements as including expenses for bonds incident to steps taken in action, 90 A.L.R.2d 448.

Dismissal of plaintiff's action as entitling defendant to recover attorneys' fees or costs as "prevailing party" or "successful party,", 66 A.L.R.3d 1087.

Who is the "successful party" or "prevailing party" for purposes of awarding costs where both parties prevail or affirmative claims, 66 A.L.R.3d 1115.

What amounts to "appearance" under statute or rule requiring notice, to party who has "appeared," of intention to take default judgment, 73 A.L.R.3d 1250.

Medical malpractice: patient's failure to return, as directed, for examination or treatment as contributory negligence, 100 A.L.R.3d 723.

Modern status of state court rules governing entry of judgment on multiple claims, 80 A.L.R.4th 707.

Construction of state offer of judgment rule - Issues of time, 112 A.L.R.5th 47.

Modern status of Federal Civil Procedure Rule 54(b) governing entry of judgment or multiple claims, 89 A.L.R. Fed. 514.