Georgia Appeals Law Guide / Appellate Law Treatise

Final Judgment

The broadest statutory right to an appeal arises after the trial court issues its final judgment in a case. Availability of an appeal from a final judgment does not require the permission of the trial court, and does not require the permission of the appeals court unless the case falls into one of the discretionary appeal categories listed in OCGA § 5-6-35(a). An order is a final judgment “where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court.” Bd. of Regents v. Canas, 295 Ga. App. 505, 506 (672 SE2d 471) (2009) (citation and quotation marks omitted).

Specifically, OCGA § 5-6-34(a)(1) provides for appeal from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35.” Section 5-6-35, the discretionary appeal statute, requires the appellant to apply for discretionary review in certain classes of cases prior to taking an appeal.

Prior to entry of final judgment in the trial court, a party may have other options for appeal. The party can attempt the interlocutory appeal procedure of OCGA § 5-6-34(b). If the case falls into one of the 11 categories listed in OCGA § 5-6-34(a)(2)-(12), the party can file a direct appeal without using the interlocutory appeal procedure, even though the judgment may not be final. Some “collateral orders” are immediately appealable, and in extraordinary cases, a party can seek a writ of mandamus.

The finality of a judgment is determined in part by OCGA § 9-11-54(b). See, e.g., Rhymes v. East Atlanta Church of God, Inc., 284 Ga. 145 (663 SE2d 670) (2008) (interpreting OCGA § 9-11-54(b) and OCGA § 5-6-34(a)(1) together). Section 9-11-54(b) provides in full: “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.” (Emphasis added.) This means that an order is not a final judgment as to any claim or party, unless all claims have been resolved as to all parties, or the trial court makes the express determination provided by this section.

Trial court’s designation not controlling

The use (or non-use) by the trial court of the word “final” in an order does not conclusively determine whether the order is a “final judgment.” “Whether an order is final and appealable is judged by its function and substance, rather than any ‘magic language.’” Hughey v. Gwinnett Cnty., 278 Ga. 740, 741 (609 SE2d 324) (2004) (citation omitted). Further, “the titling of an order as final does not equate to an express determination that there was no just reason for delay and an express direction for the entry of final judgment under OCGA § 9–11–54(b).” Sotter v. Stephens, 291 Ga. 79, 83 (727 SE2d 484) (2012) (citing Rhymes, 284 Ga. 145). See also State v. Clark, 273 Ga. App. 411, 414 (615 SE2d 143) (2005) (noting order may constitute final judgment “even though [it] does not specify that it is a grant of final judgment”) (citation and quotation marks omitted).

Although this rule may be better than any alternative, it is not entirely satisfactory. Parties generally must decide within 30 days or less of a final judgment whether to file a notice of appeal, see OCGA § 5-6-38(a), but cannot know from the trial court’s description of any given order whether it constitutes a final judgment. Further, to the extent that a trial court’s incorrect designation of an order as “final” could be considered reversible error, it apparently is not a type of error that must be preserved, as appeals courts have allowed parties to appeal orders designated as “final” beyond the 30 day period without having objected at the time. E.g., Sotter, 291 Ga. at 84.

Reservation of calculation of damages precludes finality

An order is not a final judgment if it leaves unresolved the calculation of damages. See Sotter, 291 Ga. 79.

Synonymous with “final disposition of the action”

The Georgia provision for attorney’s fees for frivolous litigation, OCGA § 9-15-14, requires a party seeking such attorney’s fees to request them “not later than 45 days after the final disposition of the action.” In Fairburn Banking Co. v. Gafford, 263 Ga. 792 (439 SE2d 482) (1994), the Georgia Supreme Court held that “final disposition of the action” under this statute has the same meaning as “final judgment” in OCGA § 5-6-34(a)(1).

Later amendments indicate non-final

The Georgia Supreme Court has noted that later amendments by the trial court to an order tend to indicate the pre-amendment order was not final. See Hoover v. Hoover, No. S14F0236 (Ga. Apr. 22, 2014).

Claims stayed pending bankruptcy preclude finality

An order is not a final judgment if there are still outstanding claims against any party, even if the claims have been stayed as a result of the party’s bankruptcy. See Distelhurst v. Winn, No. A14A1979 (Ga. App. Aug. 8, 2014).

Order enforcing settlement not final

In Underwood v. Underwood, 282 Ga. 643, 644 (651 SE2d 736) (2007), the Georgia Supreme Court held that “notwithstanding the trial court’s grant of a motion to enforce a settlement, a case is not at an end until such time as the agreement has been made the judgment of the court, thereby terminating the litigation.” (Citation and quotation marks omitted.)