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Andrus v. Andrus

The affirmed; trial court had authority to set aside its order dismissing the putative trustees' action seeking a declaration of their rights with respect to real property in the decedent's will for failure to comply with O.C.G.A. § 15-6-21 c's requirement that it provide counsel with notice of its orders.

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William David Andrus and Jane Andrus, as Executrix and Trustee of the Last Will and Testament of Wheeler Noble Hamilton “trustees”, appeal from the trial court’s order setting aside its previous dismissal of a declaratory judgment action filed against them by William Hamilton Andrus, Catherine Shutters, and Bettye Anderson “putative heirs”. For the reasons set forth below, we affirm. The record shows that on February 22, 2001, the putative heirs filed a declaratory judgment action in Walker County Superior Court. The action was brought against the trustees seeking a declaration of the rights of the putative heirs with respect to real property in the Hamilton estate. The trustees moved for summary judgment in their favor, and the trial court held a hearing on September 16, 2003. On November 24, 2003, while the motion was still pending, the trial court held a peremptory calendar call “to dispose by Rule 14 of the Georgia Uniform Superior Court Rules those cases in which no action had been taken for some period of time.” The clerk of court testified in a subsequent hearing that the case was placed on the peremptory calendar due to a clerical mistake and that the parties did not receive notice of the peremptory calendar call. On November 24, 2003, the trial court dismissed the case after the peremptory calendar call, but the putative heirs did not receive a copy or notice of this order either.

On December 11, 2003, after converting the putative heirs’s opposition to the trustees’ motion for summary judgment into a cross-motion for summary judgment,1 the trial court entered a partial summary judgment order in favor of a putative heir, William Hamilton Andrus, even though it had already dismissed his complaint. On January 12, 2004, the trustees filed a motion for new trial,2 instead of a notice of appeal, and the trial court denied the motion on June 28, 2004. The trustees did not appeal from this order.

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