Opinion
A23A0834
04-06-2023
DAVID ANDREW LYNES v. A. DONALD WATERS, JR. et al.
The Court of Appeals hereby passes the following order:
A. Donald Waters, Jr., and Brenda Waters filed a petition in the Probate Court of Columbia County against David Lynes, seeking an order directing him to remove personal property that interfered with their access to a roadway. In their verified petition, the Waterses also requested an award of fees and costs, as well as other unspecified relief. The probate court entered judgment ordering Lynes to remove the obstructions within 48 hours and specifically retained jurisdiction over the case "to resolve any remaining issues asserted in the . . . [p]etition." Lynes filed this direct appeal from that order. However, we lack jurisdiction.
Columbia County has a population over 90,000, so it comes within the provisions of OCGA §§ 5-6-33 (a) (2), 15-9-120 and 15-9-123.
Lynes has also filed a direct appeal from a superior court order dismissing his appeal from that same probate court order. See Case No. A23A0866.
As a threshold matter, we note that an order of the Columbia County probate court may generally be appealed directly to this Court. However, the order must be final. See OCGA § 5-6-34 (a) (1) (appeals generally may be taken from "[a]ll final judgments, that is to say, where the case is no longer pending in the court below"); OCGA § 15-9-123 (a). In this case, the probate court expressly retained jurisdiction over the case in order to resolve any remaining issues raised in the petition, such as the Waters's request for litigation expenses pursuant to OCGA § 13-6-11. There is no indication that this or any other remaining issues have been resolved and final judgment entered. Consequently, because no final judgment has been entered, Lynes was required to follow the interlocutory appeal procedures to appeal the probate court's order. See OCGA § 5-6-34 (b); In re Estate of Reece, 360 Ga.App. 364, 365-366 (861 S.E.2d 169) (2021); CitiFinancial Servs. v. Holland, 310 Ga.App. 480, 481 (713 S.E.2d 678) (2011). Lynes's failure to comply with the interlocutory appeals procedure deprives us of jurisdiction over this appeal. See Bailey v. Bailey, 266 Ga. 832, 833 (471 S.E.2d 213) (1996). Accordingly, this appeal is hereby DISMISSED.