James R. Harper III v. Stephen R Harper ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 07, 2016
The Court of Appeals hereby passes the following order:
A17D0039. JAMES R. HARPER, III v. STEPHEN R. HARPER et al.
The parties are brothers and co-Trustees of the revocable trust of their mother,
who died in January 2015. James T. Harper, III and Stephen R. Harper filed petitions
to probate their mother’s will and subsequently filed caveats to each other’s petitions.
The brothers subsequently entered into an agreement for arbitration which provided
(1) that James Harper was to serve as Executor over their mother’s estate, (2) that
James Harper was to “immediately” transfer all property to the revocable trust, and
(3) that “[a]ll other matters, issues and claims . . . shall be submitted to binding
arbitration.” In February 2016, the trial court entered a consent order regarding the
agreement for arbitration. In March 2016, Steven Harper and a third brother, Thomas
D. Harper, filed a motion to enforce and for contempt in which they also requested
attorney fees. In April 2016, the trial court granted the motion to enforce and ordered
James Harper to transfer the real property into a trust. The trial court also ordered the
parties to return to arbitration and ordered James Harper to pay $26,700.00 in attorney
fees, but reserved its ruling on the motion for contempt until further proceedings.
James Harper then filed his first application seeking discretionary review of the
April 2016 order. This Court dismissed his application for failing to follow the
interlocutory appeal procedures because the case remained pending below. See Case
No. A16D0396 (dismissed June 9, 2016). In May 2016, Steven and Thomas Harper
filed a second motion for contempt and request for attorney fees. During a June 2016
hearing, the parties agreed on the language for the deed of assent and the deed was
executed transferring the real property. Subsequently, in July 2016, the trial court
entered an order denying Steven and Thomas Harper’s request for attorney fees with
regard to the second motion for contempt. James Harper then filed this application
for discretionary appeal again seeking to challenge the April 2016 award of attorney
fees. We, however, lack jurisdiction.
This case remains pending below as the parties are to return to arbitration
pursuant to the consent order. Compare Goshayeshi v. Mehrabian, 232 Ga. App. 81,
82 (501 SE2d 265) (1998) (an order compelling arbitration and staying court
proceedings is not a final judgment within the meaning of OCGA § 5-6-34 (a) (1), but
instead, it is a non-final ruling subject to the interlocutory appeal procedures of
OCGA § 5-6-34 (b)). Because no final judgment has been entered, James Harper was
again required to follow the interlocutory appeal procedures, which include obtaining
a certificate of immediate review from the trial court. See OCGA § 5-6-34 (b); see
also Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588-589 (408 SE2d
103) (1991). Although James Harper filed an application for discretionary appeal, as
described in OCGA § 5-6-35, compliance with that procedure does not excuse a party
seeking appellate review of an interlocutory order from complying with the additional
requirements of OCGA § 5-6-34 (b). See Bailey v. Bailey, 266 Ga. 832, 833 (471
SE2d 213) (1996). James Harper’s subsequent failure to follow the interlocutory
appeal procedures deprives this Court of jurisdiction to consider this application.
Accordingly, this application is DISMISSED.
Court of Appeals of the State of Georgia
09/07/2016
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.