Neely v. Parsell et al.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

No. S26G1095

Irene Neely

v.

Maren Parsell et al.

On Writ of Certiorari from the Court of Appeals of Georgia

No. A25A1958

Decided: September 9, 2026

LAGRUA, Justice.

In 2020, petitioner Irene Neely filed a complaint against her next door neighbors, respondents Maren and Jason Parsell, to resolve a dispute about title to a strip of land on the boundary between the parties’ properties. The Parsells filed an answer and counterclaims. With the parties’ consent, the title issues were heard by a special master, and on February 28, 2024, the trial court entered an order, adopting, in part, the special master’s recommendation, rejecting Neely’s claims and vesting title of the disputed strip in the Parsells. On August 9, 2024, three days before the Parsells’ counterclaims were to be heard in a specially set trial, the Parsells filed a voluntary dismissal of their counterclaims, 1 and on September 9, 2024, Neely filed a notice of

1 Although the February 28 order stated that “[t]his decree conclusively establishes the title to the real property known as … Columbia Drive, Decatur Georgia more particularly described in that Limited Warranty Deed dated April 9th, 2018 …,” the August 9 voluntary dismissal specified that it was “without waiver” of any further “adjudication of any and all matters

appeal of the February 28 Order. In a split decision, the Court of Appeals dismissed the appeal, holding that it lacked jurisdiction to consider the appeal because the notice of appeal was filed more than 30 days after the entry of the trial court’s February 28 order and therefore was untimely. 2 See Neeley v. Parsell, 379 Ga. App. 42, 43 (2026). In her petition for certiorari in this Court, Neely challenges the dismissal of her appeal. For the reasons explained below, we grant Neely’s petition for writ of certiorari, vacate the Court of Appeals’s opinion dismissing her appeal, and remand the case to the Court of Appeals. 3

The Court of Appeals majority held that the Parsells’ “voluntary dismissal of their remaining counterclaims was not a judgment, ruling, or order of the trial court that could itself be

concerning title.” On September 13, 2024, the trial court entered an “Administrative Closure Order,” noting that Neely had filed a notice of appeal and directing the clerk of court to “administratively terminate the action … without prejudice to the rights of the parties to petition the Court to reopen the proceedings for good cause shown.” The jurisdictional implications, if any, of the September 13 order were not addressed in the Court of Appeals’s opinion, in Presiding Judge McFadden’s dissent, or in the petition for certiorari.

2 The appeal was originally docketed in the Court of Appeals on October 7, 2024, but the court ordered that the appeal be stricken from the docket and remanded to the trial court so the record could be completed. See Neely v. Parsell, Case No. A25A0455 (May 27, 2025). The appeal was re- docketed in the Court of Appeals on June 4, 2025. It is not clear why the petitioner’s name was spelled “Neeley” once the appeal was re-docketed in the Court of Appeals.

3 “Our rules contemplate that we may grant a petition for certiorari and dispose of the case summarily, without full briefing and oral argument,” and we elect to do so here because the issue we resolve would not benefit from additional briefing and oral argument. Bray v. Watkins, 317 Ga. 703, 703 (2023) (quotation marks omitted).

appealed, and [the Parsells’] filing of the voluntary dismissal did not extend the time to file a notice of appeal from the trial court’s February 28, 2024 order.” Neely, 379 Ga. App. at 43. The Court of Appeals majority relied on a recent case involving the exact same facts. See Dykes v. Atlanta Paving & Concrete Constr., 375 Ga. App. 119, 122–25 (2025). In Dykes, the Court of Appeals dismissed the plaintiff’s appeal of the order dismissing her claims, holding that her notice of appeal was untimely because it was not filed within 30 days of the entry of the trial court’s order, but was filed after the defendant had voluntarily dismissed its counterclaims. The Court of Appeals majority held that “in determining whether [an order] was a final ruling or judgment in the case and, thus, directly appealable under OCGA § 5-6-34(a), “we look to the point in time when the order was originally entered” and concluded that an interlocutory order does not “become final” when the case is no longer pending below. Dykes, 375 Ga. App. at 123. Presiding Judge McFadden dissented in this case, relying on his dissent in Dykes. In his dissent in Dykes, Presiding Judge McFadden argued that, contrary to the majority opinion’s reasoning, a non-final order resolving one party’s claims “can become final as a consequence of events external to that order.” Dykes, 375 Ga. App. at 126 (McFadden, P.J., dissenting) (citing Blash v. State, 318 Ga. 325, 330 (2024)). As explained below, we agree that Dykes was wrongly decided. We also agree with Presiding Judge McFadden’s dissent below in this case that the trial court’s February 28 order became appealable as a final judgment when the Parsells dismissed their counterclaims.

The statutory provisions relevant for determining the appealability of the February 28 order are found in the Appellate Practice Act (“the Act”), OCGA § 5-6-30 et seq. The first provision of the Act requires that it “shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case …, except as may be specifically referred to in this article.” OCGA § 5-6-30. With that direction from the legislature, we consider the statutes relevant to the jurisdictional issues presented here. To start, “[e]ither party in any civil case … in the superior, state or city courts …, may appeal from any … judgment, decision, or decree of the court….” OCGA § 5-6-33(a)(1). For a judgment or order to be appealable, it must be signed by the judge and filed with the clerk. See OCGA § 5-6- 32 (providing that the “filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment”); Titelman v. Stedman, 277 Ga. 460, 461 (2003) (judgment has not been entered and is not effective for any purpose until it has been both signed by the judge and filed with the clerk). In this case, the February 28 order, which was signed by the judge and filed with the clerk, was a properly entered and effective judgment. But OCGA § 5-6- 32 and 5-6-33 do not address when the judgment became appealable.

To answer the timing question in this case, we look first to OCGA § 5-6-34(a)(1)(B), which provides that “[a]ppeals may be taken to the Supreme Court and the Court of Appeals from … : All final judgments, that is to say, where the case is no longer pending in the court below.” 4 Next, we look to OCGA § 5-6-37, which provides that in order to appeal a final judgment, a party must file a notice of appeal, and to OCGA § 5-6-38, which requires that a notice of appeal be filed “within 30 days after the entry of the appealable decision or judgment complained of.”

Here, the February 28 order was not appealable as a final judgment under OCGA § 5-6-34(a)(1)(A) on the date it was

4 OCGA § 5-6-34(a)(1) notes an exception for certain cases, not at issue here, that are governed by OCGA § 5-6-35.

entered because the Parsells’ counterclaims remained pending. 5 See Islamkhan v. Khan, 299 Ga. 548, 550 (2016) (holding that a “final order of divorce” was not a final judgment where both parties had asked for attorney fees and the trial court reserved ruling on the parties’ requests); First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc. 282 Ga. 883, 884 (2008) (dismissing appeal where order dismissing plaintiffs’ complaint was not a final judgment because defendant’s counterclaim remained pending and there was no other basis for appeal of order); Gorrell v. Fowler, 247 Ga. 67, 67 (1981) (dismissing appeal where order dismissing plaintiff’s complaint was not final because “the counterclaim has not been dismissed and therefore the cause is still pending”); Farmers Co-op. Ins. Co. v. Hicks, 227 Ga. 755, 755 (1971) (dismissing plaintiff’s appeal of order granting motion to dismiss where defendants’ counterclaims remained pending below); Headrick v. Stonepark of Dunwoody Unit Owners Assoc., 331 Ga. App. 772, 774 (2015) (noting that order granting summary judgment was not a final order because counterclaims remained pending but was appealable under OCGA § 9-11-56(h)); Yates v. CACV of Colorado, LLC, 295 Ga. App. 69, 69–70 (2008) (dismissing appeal of order confirming arbitration award where a counterclaim remained pending below). See also Seals v. State, 311 Ga. 739, 741–42 (holding that a criminal case is not final and remains pending in the trial court if one or more counts is unresolved and noting that

5 The February 28 order was appealable as an interlocutory order under the procedures set forth in OCGA § 5-6-34(b), or if the trial court had directed the entry of final judgment under OCGA § 9-11-54(b) (providing that the trial court may enter a final judgment even though a counterclaim or other claim remains pending “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment”).

the same principle applies in civil cases), disapproved of on other grounds by Gonzales v. State, 315 Ga. 661, 665 n.7 (2023). However, once the Parsells dismissed their counterclaims, which were the only matters left for decision after the entry of the February 28 order, nothing remained pending in the trial court, such that there was a “final judgment” that could be appealed under OCGA § 5-6-34(a)(1)(B). And under OCGA §§ 5-6-37 and 5- 6-38, Neely was permitted to file a notice of appeal to challenge the February 28 order within 30 days of the judgment becoming final by the dismissal of the Parsells’ counterclaims. Thus, Neely’s notice of appeal, which was filed on Monday September 9, was timely filed following the Parsells’ August 9 dismissal of their counterclaims. 6

This reading of the statutory provisions is consistent with prior decisions in which we have recognized that a judgment can become final as a consequence of an event other than the entry of the order on appeal. For example, in Blash v. State, we held that we had jurisdiction over the appellant’s appeal of his convictions because the case became final upon the trial court’s entry of a nolle pros order as to unresolved counts and the appellant had filed a premature notice of appeal. 318 Ga. 325, 332 (2024). Because Dykes is contrary to Blash and the statutory interpretation set forth above, we hereby overrule Dykes’s determination that the only relevant date for determining whether an order is appealable as a final judgment under OCGA § 5-6-34(a) is the date the order was “originally entered.” Dykes,

6 Although September 9 was the 32nd day following the Parsells’ dismissal of their counterclaims, the notice of appeal was timely because the 30th day fell on a Saturday. See OCGA § 1-3-1(d)(3).

375 Ga. App. at 123. 7

And our resolution of the jurisdictional issue presented here is consistent with our decision in Heard v. State, 274 Ga. 196 (2001). In Heard, we held that the appellant’s voluntary dismissal of his own motion for new trial prior to the trial court’s ruling on the motion did not extend the time for him to file a notice of appeal, noting that OCGA § 5-6-38(a) provides that the filing of a motion for new trial extends the time for filing a notice of appeal until 30 days “after the entry of the order” on the motion for new trial. Id. at 196–97. The appellant’s attempt to manufacture jurisdiction to appeal by dismissing his motion for new trial was not the “statutorily-required court order finally disposing of the motion for new trial,” and thus, did not extend the time for filing a notice of appeal. Id. at 197. In contrast to Heard, it was the Parsells, and not Neely, who caused the non-final order to become final in this case.

In summary, because Neely’s notice of appeal to challenge the trial court’s February 28 order was timely filed after the judgment became final as a result of the Parsells’ dismissal of their counterclaims, we vacate the Court of Appeals’s dismissal of Neely’s appeal and remand for consideration of the appeal.

Petition for writ of certiorari granted, judgment vacated, and case remanded with direction. All the Justices concur.

7 We likewise overrule the Court of Appeals’s prior cases to the extent they hold that the only relevant date for determining when a judgment is final and appealable is the date an order was originally entered. See, e.g., Paces Funding v. Tillman, 372 Ga. App. 168, 171 (2024); Waye v. Continental Special Risks, 289 Ga. App. 82, 84 (2007).