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Clark v. Davis

The trial court's order awarding petitioner a 2.5 percent commission for his distribution of estate property was not a final judgment since the court had yet to determine the property's fair value.

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Dock H. Davis, the executor of the estate of P. H. Montgomery, Jr., filed a petition in probate court seeking compensation under OCGA § 53-6-143 for distributing certain property in kind.1 The probate court entered an order denying the petition. Davis then appealed this decision to the superior court.2 Following a jury trial, the jury found that Davis was entitled to a commission equal to 2.5 of the value of the property delivered in kind, although it was not asked to make any findings as to the value of such property. The superior court entered judgment on the jury verdict, holding that “the commission allowed to . . . Davis as compensation shall be 2 1/2 of the value of the property delivered in kind.” This judgment also did not set forth the value of such property. George Russom Clark, a residuary legatee under Montgomery’s will, filed a notice of appeal from the superior court’s judgment.3 Because the superior court’s order does not constitute a final judgment pursuant to OCGA § 5-6-34 a 1, we dismiss the appeal.

Generally, when a superior court rules on an appeal from a lower court, the superior court’s decision may be appealed to this court only through the discretionary appeals procedures.4 This rule does not, however, apply to a superior court decision in an appeal from probate court. In such case, the appealability of the superior court’s ruling is governed by OCGA § 5-6-34.5 If the ruling constitutes a “final judgment,” it is directly appealable under OCGA § 5-6-34 a. If the ruling is not a final judgment, the appellant must follow the interlocutory appeals procedures set forth in OCGA § 5-6-34 b.6

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