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Moreton Rolleston Jr., Living Trust v. Estate of Sims

The Court imposed a $2,500 frivolous appeal penalty against the living trust and its attorney following a long series of suits relating to the collection of a judgment against the trust.

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These two cases arise from the latest in a long series of lawsuits related to the collection of a judgment entered in favor of the Estate of Rebecca Wight Randolph Cherry Sims Estate against Moreton Rolleston. See Moreton Rolleston, Jr., Living Trust v. Kennedy , 277 Ga. 541 591 SE2d 834 2004. Here, as in the previous actions, the Moreton Rolleston, Jr., Living Trust Trust claims that real property is not subject to levy because title is held by it, rather than by Rolleston individually. After filing this action against the Estate and its executor, the Trust moved for default judgment. The trial court denied the motion and, in Case Number S05A1899, the Trust has filed a direct appeal from that order. Subsequently, the trial court dismissed the Trust’s complaint with prejudice, concluding that the suit was barred by the principle of res judicata and that the claim lacked a justiciable basis in fact or law, was utterly vexatious and frivolous, and was brought for an improper purpose. In Case Number S05A1900, the Trust appeals from that order. The two cases are hereby consolidated for disposition in this single opinion. S05A1899

1. Denial of a motion for default judgment is an interlocutory ruling which cannot be appealed directly. Ware v. Handy Storage , 222 Ga. App. 339 474 SE2d 240 1996. Accordingly, this case is hereby dismissed and, pursuant to Rule 6 of this Court, a $2500 penalty for filing a frivolous appeal is imposed against the Trust and its attorney.

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