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Synovus Bank v. Peachtree Factory Center, Inc.

Court of Appeals of Georgia

March 27, 2015

SYNOVUS BANK
v.
PEACHTREE FACTORY CENTER, INC. et al

Final judgment. Coweta State Court. Before Judge Howe, Senior Judge.

Thompson, O'Brien, Kemp & Nasuti, J. Patrick O'Brien, Jeremy B. Ross, for appellant.

Hawkins Parnell Thackston & Young, H. Lane Young II, Carl H. Anderson, Jr., Sarah L. Bright, for appellees.

BRANCH, Judge. Barnes, P. J., concurs. Boggs, J., concurs fully and specially.

OPINION

Page 888

Branch, Judge.

Synovus Bank appeals the trial court's order denying its motion for certification of final judgment. We conclude that the order is not appealable and that we cannot intervene and address the merits of this case. The appeal is therefore dismissed.

In August 2011, Synovus issued a commercial promissory note to Peachtree Factory Center, Inc. James Mottola and Theo Mann both guaranteed payment of the note. When the defendants refused to pay the amounts due under the note, Synovus filed suit for the unpaid balance, interest, and attorney fees. The defendants answered and filed a counterclaim, asserting that Synovus had induced them to enter into the transaction in order to allow the bank to refinance the debt of Fourth Quarter XVII, LLC. Defendants claimed that they were not to have any liability under the note or the guaranties after the refinancing occurred, but the refinancing apparently never happened. The defendants also filed a third-party complaint against Fourth Quarter and Stanley Thomas, asserting essentially the same claims included in their counterclaim.

Synovus filed a motion for summary judgment as to its complaint and the defendants' counterclaims. The trial court granted the motion, noting that the third-party complaint remained pending. Synovus sought to have language included in the order that would render the judgment final, but the defendants objected, and the trial court did not include it. Synovus then filed a motion for certification of final judgment, seeking to have the court certify the order as final under OCGA § 9-11-54 (b). The trial court denied the motion for certification but granted Synovus's certificate of immediate review.

We granted Synovus's application for interlocutory appeal to consider whether a trial court's decision not to certify an order as final under OCGA § 9-11-54 (b) is appealable, and, if so, the applicable standard of review. Synovus has asserted a compelling argument for a final judgment because it prevailed on all claims applicable to it in the trial court but cannot collect from the defendants until the third-party complaint is resolved. See MARTA v. Federick, 187 Ga.App. 696, 698 (1) (371 S.E.2d 204) (1988) (judgment entered in multiple party and/or multiple claims case prior to disposition of entire case is not enforceable unless requirements of Rule 54 (b) are met). But the initial question is whether the trial court's decision not to certify the judgment as final under OCGA § 9-11-54 (b) is reviewable on appeal.

[331 Ga.App. 629] Pursuant to OCGA § 9-11-54 (b),

[w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to

Page 889

any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and ...

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