ZEP, INC. v. YOLANDA DEVOST, AS DULY APPOINTED REPRESENTATIVE OF THE ESTATE OF CLARENCE GLENN

THIRD DIVISION
                              DILLARD, P. J.,
                           MERCIER and PIPKIN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              https://www.gaappeals.us/rules



                                                                     April 30, 2026




In the Court of Appeals of Georgia
 A26A0521. CLARENCE GLENN et al v. A-ONE CHEMICALS
     AND EQUIPMENT, INC.
 A26A0522. ZEP, INC. v. YOLANDA DEVOST, AS DULY
     APPOINTED REPRESENTATIVE OF THE ESTATE OF
     CLARENCE GLENN, DECEASED et al.
 A26A0523. MICHAEL BURRELL et al v. A-ONE CHEMICALS
     AND EQUIPEMENT, INC.
 A26A0524. ZEP, INC. et al v. MICHAEL BURRELL et al.
 A26A0677. A-ONE CHEMICALS AND EQUIPMENT, INC. v.
     MIKE BURRELL et al.

      DILLARD, Presiding Judge.

      These five consolidated appeals arise from the trial court’s decision to appoint

a special master to preside over the underlying mass-tort litigation. On one side are
plaintiffs–appellants in Case Numbers A26A0521 and A26A0523,1 who argue the

court erred by (1) appointing a special master under Uniform Superior Court Rule 46,

(2) rejecting affidavits of indigency without a hearing, (3) holding them in contempt

for failing to pay the special master’s bill, and (4) ordering them to pay their pro-rata

share of outstanding special-master fees. And on the other side are defendants–cross

appellants in Case Numbers A260522, A26A0524, and A26A0677,2 who argue the

court erred in imposing joint and several liability for the special-master costs—which

are litigation fees borne individually by each party. For the following reasons, as to

Case Numbers A26A0521 and A26A0523, we affirm in part and vacate in part, and we




      1
         The plaintiffs–appellants in Case Number A26A0521 are Clarence Glenn,
Demetrius Phillips, Nicole Milan, and Chris Hudson. The plaintiffs–appellants in
Case Number A26A0523 are Michael Burrell, Christi Burrell, Brian Carter, Grady
Carter, Zarraius Dupree, Willie Gates, James Grove, Debra Grove, Joshua Mitchell,
Lamont Michael, Scot Newton, and Melinda Newton. For the sake of clarity, the
plaintiffs–appellants in these two cases will be referred to collectively as “plaintiffs”
throughout the opinion.
      2
        The defendant–cross appellant in Case Numbers A26A0522 and A26A0524
is Zep, Inc. The defendant–cross appellant in Case Number A26A0677 is A-One
Chemicals and Equipment, Inc. For the sake of clarity, the defendants–cross
appellants will be referred to individually as Zep and A-One or collectively as
“defendants.”
                                           2
remand for further proceedings; and as to Case Numbers A26A0522, A26A0524, and

A26A0677, we vacate.3

      The record shows that plaintiffs—who are represented by the same

attorney—filed two lawsuits against more than 20 defendants (including both

corporate entities and individuals) in December 2020 and February 2022 in the State

Court of Fulton County. Plaintiffs were employees of certain defendants and had job

duties that allegedly exposed them to toxic chemicals produced and manufactured by

other defendants (including Zep and A-One4). They were later diagnosed with a

variety of medical conditions allegedly caused by this exposure. As a result, plaintiffs

brought claims for product liability, negligence, failure to warn, willful concealment,

intentional infliction of emotional distress, noncompliance with 29 CFR 1910.1020,

fraud, and RICO violations. They requested recovery “in excess of $30,000,000

each,” as well as punitive damages and attorney fees.



      3
        Oral argument was held as to Case Number A26A0677 on February 3, 2026,
and is archived on the Court of Appeals of the State of Georgia’s website. See Court
of Appeals of the State of Georgia, Oral Argument, Case No. A26A0677 (Feb. 3,
2026), available at https://vimeo.com/1161864670.
      4
     Importantly, A-One is not a named defendant in the suit underlying Case
Number A26A0521, involving plaintiffs Glenn, Phillips, Milan, and Hudson.
                                           3
       On June 29, 2023, the trial court held a status hearing on the two cases, and

several case-management options were discussed: (1) waiting for the court to have

time to deal with both cases, (2) appointing a senior judge, and (3) appointing a special

master. The trial-court judge stated that neither she nor a senior judge had the time

or resources to manage cases involving so many parties. So, the court appointed a

special master despite plaintiffs’ concern that they could not pay special-master fees

and would be penalized with contempt of court. In response, the court noted: “[A]s

much as I may sympathize with parties who say, ‘I do not have the resources,’ the law

does not allow me to make that a factor in moving this case in an efficient manner in

the way it should be moved.” And after hearing the court’s decision, defendants

voiced concern over how the special master would be paid but said they might be able

to reach a consensus on that issue with a little more time. Later, in a letter to the court,

plaintiffs agreed with the court’s proposed special master and proposed a fee-split

arrangement for its consideration.

       The parties briefly returned to the trial court on August 1, 2023, and there were

questions raised about whether the two cases should be consolidated for special-

master purposes. The parties said they would discuss the matter and get back to the


                                             4
court.5 And on August 9, 2023, in a single order, the trial court appointed a special

master to address “all pre-trial matters” in the cases. As for the cost of this

appointment, the court ordered that it “be allocated as agreed upon by the Parties as

follows: As between the Parties, the Special Master’s fees and expenses shall be

allocated Pro Rata based upon the number of parties in the respective cases, fifty-five

(55) parties (39 Defendants and 16 Plaintiffs).”6 The order continued by providing

that

       [t]he Parties in the respective cases shall be jointly and severally liable to
       the Special Master for the Special Master’s fees and expenses associated
       with that case. The Special Master’s invoices may therefore be
       submitted to any party and shall be paid in full by the receiving party
       within 30 days of submission. As to the division of fees amongst the
       Plaintiffs and Defendants, the Parties are free to develop arrangements
       that work for the Parties as long as those arrangements do not affect the
       joint and several liability to the Special Master.




       5
        The plaintiffs noted in a notice of appeal that another hearing followed but that
a transcript does not exist for this third hearing on the matter.
       6
         The order also provided that the pro-rata share would change if the number
of parties changed. The court then amended the order in October 2024 to provide for
the accrual of interest on any unpaid bills.
                                             5
      Then, in February 2025, a dispute arose regarding the special master’s invoices,

and A-One filed a motion for contempt as to all plaintiffs and a motion to reconsider

the special master’s appointment as to the imposition of joint and several liability for

the fees. A-One claimed that, since the appointment, invoices were sent each month

to a single party, which was then required to pay the invoice in its entirety and “chase

down payment from the other 54 parties.” In December 2024, A-One received an

invoice for $25,680; and despite several efforts to collect, plaintiffs did not pay A-One

their pro-rata share of this invoice—which was equal to $7,470.55 (or $466.91 each).

A-One then learned plaintiffs had not paid several other defendants who received

earlier invoices. As a result, A-One asked the court to hold plaintiffs in contempt. A-

One also requested that the court amend the appointment order to remove the “joint

and several liability” language.7 Zep and other defendants joined A-One’s motion.


      7
         The trial court’s order appointing a special master was an interlocutory order
(not a final order), and so the court could still reconsider and alter its judgment. See
Rudd v. Paden, 279 Ga. App. 141, 144–45(3) (630 SE2d 648) (2006) (explaining that
motion for reconsideration of the denial of motion for summary judgment was timely
because the order was interlocutory, not final). See also OCGA § 15-1-3(6) (providing
that every court has the power to “amend and control its processes and orders, so as
to make them conformable to law and justice”). Also, the order appointing a special
master “may be amended at any time after notice to the parties and an opportunity to
be heard.” Unif. Super. Ct. R. 46(A)(4) (emphasis added).
                                           6
      Plaintiffs opposed Zep and A-One’s motion, reminding the trial court that they

previously “objected” to paying a pro-rata share of the special master’s fees because

they could not afford to do so. More precisely, plaintiffs argued the court should not

hold them in contempt because they were not willfully failing to comply with the

order—they simply could not afford to pay their share. Plaintiffs also claimed their

contingency-fee agreement with counsel did not require him to pay the special-master

fees on their behalf. But plaintiffs took no position on A-One’s request for the court

to remove the joint-and-several-liability requirement from its order.

      On April 10, 2025, the trial court stayed proceedings until payment was made

to the special master. The court then held a hearing on the motion for contempt.8 A

little over a week after this hearing, plaintiffs filed affidavits of indigency, claiming

they could not pay the special master. The court then issued an order in August 2025,

finding that “Plaintiffs have not shown that they have exhausted all resources and

assets available to them and consequently are still unable to secure the funds necessary

to enable compliance with the order to pay the Special Master fees.” The court also

concluded that the record lacked evidence to “show that Plaintiffs have, in good faith,

      8
        The trial court conducted a hearing on April 22, 2025, but there is no
transcript for this hearing.
                                           7
exhausted all the resources at their command and have made diligent and bona fide

efforts to comply with the order of the court, and that they cannot borrow sufficient

funds to comply with the obligation to pay the Special Master fees.” As a result,

plaintiffs were held in contempt and ordered to pay their pro-rata share of the fees

within ten days of the court’s order. The court made no ruling on the motion to

reconsider its joint-and-several-liability requirement. These appeals follow, in which

the parties challenge not only the August 2025 order but also the order appointing the

special master.9

      1. Plaintiffs’ Appeals - Case Numbers A26A0521 & A26A0523.

      Plaintiffs contend the trial court erred by (a) appointing a special master under

Uniform Superior Court Rule 46, (b) rejecting their affidavits of indigency without a

hearing, (c) holding them in contempt for failing to pay their pro-rata share of the

      9
        Because plaintiffs filed a direct appeal to the trial court’s order holding them
in contempt, see OCGA § 5-6-34(a)(2) (permitting direct appeals from contempt
orders), the parties are also permitted to challenge the earlier order appointing the
special master, see OCGA § 5-6-34 (“Where an appeal is taken under any provision
of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders
rendered in the case which are raised on appeal and which may affect the proceedings
below shall be reviewed and determined by the appellate court, without regard to the
appealability of the judgment, ruling, or order standing alone and without regard to
whether the judgment, ruling, or order appealed from was final or was appealable by
some other express provision of law contained in this Code section, or elsewhere.”).
                                           8
special master’s bill, and (d) ordering them to pay their pro-rata share of the

outstanding special-master fees within ten days of the contempt order. We will

address each of these arguments in turn.

      a. Appointment of the Special Master. Plaintiffs first argue the trial court abused

its discretion by appointing a special master when its decision to do so does not reflect

any consideration of the factors required by Uniform Superior Court Rule 46.10 We

disagree.

      A judge’s exercise of discretion in “referring a matter to an auditor, and, by

extension, a special master, will not be interfered with, absent abuse.”11 And to that

end, Uniform Superior Court Rule 46 provides that when a trial court appoints a

special master, it “should consider the fairness of imposing the likely expenses on the

parties and should protect against unreasonable expense and delay, taking into account


      10
         Although this is an action in state court, the Uniform Superior Court Rules
also apply to state courts. See Unif. State Ct. Rules (Preamble) (“The Uniform Rules
for the Superior Courts shall be applicable in State Courts ... .”).
      11
         Alston & Bird, LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640, 647(6)(a)
(706 SE2d 652) (2010). See Nationstar Mortgage LLC v. Brunt, 330 Ga. App. 202,
202(1) (766 SE2d 818) (2014) (“A trial court is authorized to refer a portion of
litigation pending before it to a special master pursuant to Uniform Superior Court
Rule (USCR) 46, and the exercise of the trial court’s discretion to do so will not be
interfered with by appellate courts absent an abuse of that discretion.”).
                                           9
the burdens and the benefits such an appointment would produce.”12 Rule 46 adds

that “[t]he appointment of a special master shall not deprive any party of access to the

courts or the civil justice system.”13 And as to the special master’s compensation,

Rule 46 explains that the court “shall fix the master’s compensation on the basis and

terms stated in the order of appointment, but the court may set a new basis and terms

after notice and an opportunity to be heard.”14 Once fixed, the compensation must be

paid by either “a party or parties” or “from a fund or subject matter of the action

within the court’s control.”15 Finally, Rule 46 requires the court to “allocate payment

... among the parties after considering the nature and amount of the controversy, the



      12
           Unif. Sup. Ct. R. 46(A)(3) (emphasis added).
      13
           Id.
      14
           Unif. Sup. Ct. R. 46(H)(1).
      15
         Unif. Sup. Ct. R. 46(H)(2)(a)-(b). See also OCGA § 9-7-22(a) (“The fees of
an auditor to whom a case, whether legal or equitable, has been referred shall be
determined and fixed by the trial judge making the referral or by any other judge
having jurisdiction of the case and serving in the place and stead of the trial judge. The
fees so determined and fixed may be apportioned between and among the parties at
the discretion of the judge.”); Davis v. Harpagon Co., LLC, 300 Ga. App. 644, 646(1)
(686 SE2d 259) (2009) (explaining that “[t]he term ‘auditor,’ for purposes of the
statute, is broad enough to include ‘special master’”), overruled on other grounds by
Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91 (793 SE2d 402) (2016).
                                           10
means of the parties, and the extent to which any party is more responsible than other

parties for the reference to a master.”16

      Here, plaintiffs maintain that—their concerns notwithstanding—the trial court

disregarded these provisions before appointing the special master. But nothing in the

record establishes that plaintiffs proffered evidence of an inability to pay before the

court made its decision to appoint a special master.17 Indeed, plaintiffs concede that

“there was no evidence of [their] means [to pay the fees] before the trial court.”

Instead, plaintiffs’ counsel said he would not “consent” to appointing a special master

because his clients could not pay the special-master fees.18 But once it became clear

the court would appoint a special master, plaintiffs agreed with its suggested special

master and proposed a fee structure. Then, after the special master was appointed and


      16
           Unif. Sup. Ct. R. 46(H)(3).
      17
         See OCGA § 9-15-2(a)(1) (“When any party, plaintiff or defendant, in any
action or proceeding held in any court in this state is unable to pay any deposit, fee,
or other cost which is normally required in the court, if the party shall subscribe an
affidavit to the effect that because of his indigence he is unable to pay the costs, the
party shall be relieved from paying the costs and his rights shall be the same as if he
had paid the costs.”).
      18
        The only time plaintiffs entered any evidence of an alleged inability to pay into
the record was after failing to make payment and when faced with a motion for
contempt.
                                            11
the compensation scheme was delineated, plaintiffs did not move for reconsideration

or modification of the appointment due to an inability to pay19 or because the court

disregarded other Rule 46 factors20 (such as “the extent to which any party is more


      19
          See Hunt v. Thomas, 296 Ga. App. 505, 507(1) (675 SE2d 256) (2009)
(holding appellant waived right to complain on appeal about lack of summary-
judgment hearing when appellant “could have filed a motion for reconsideration, or
at the very least, sent the court a letter objecting to the order on the ground that the
court failed to hold the requested hearing” but instead “took no such action”); Davis,
LLC, 300 Ga. App. at 646(1) (noting there was “no indication in the record that
[party] filed or was granted an affidavit of indigence, which would allow her to waive
payment of the special master’s fees”).
      20
          See Barngrover v. City of Columbus, 292 Ga. 486, 490(2) (739 SE2d 377)
(2013) (holding appellant failed to establish that trial court abused its discretion in
appointing special master when “[a]ppellant voiced no objection to the special
master’s qualifications in the 51 months between the special master’s appointment
and the special master’s report and recommendation”); Mt. Patmos Baptist Church,
Inc. v. Rucker, 376 Ga. App. 612, 614(3) (920 SE2d 484) (2025) (holding that even if
trial court violated Uniform Superior Court Rule 46, appellant failed to demonstrate
that it “objected to the order appointing the special master” (emphasis added));
Standard Bldg. Co., Inc. v. Schofield Interior Contractors, Inc., 315 Ga. App. 516, 520(3)
(726 SE2d 760) (2012) (explaining that because defendants “have not demonstrated
that they objected to the order appointing the special master,” the Court could not
consider their challenge to the appointment (emphasis added)). Cf. Patel v. Patel, 342
Ga. App. 81, 82 (802 SE2d 871) (2017) (noting that appellants “filed a timely motion
to set aside the Appointment Order, strenuously objecting to the appointment of a
special master and explicitly stating that they were unable and unwilling to pay for a
special master’s services” and that they “contemporaneously forwarded their motion
directly to the special master, requesting that he not perform any work on the case and
informing him that they ‘were not in position to incur any additional cost’ and ‘would
not be able to pay his invoice’” (brackets omitted)).
                                           12
responsible than other parties for the reference to a master”). Moreover, the trial

court’s order reflects that the pro-rata allocation of the special master costs was “as

agreed upon by the Parties,” and plaintiffs do not appear to dispute this assertion.

      Even so, plaintiffs argue they could not have agreed to the special master’s

appointment because the trial court issued its order after considering “the objections”

and record. We disagree—particularly when the record contains an explicit objection

by defendants to plaintiffs’ pre-appointment cost-structure proposal. In light of the

foregoing, we conclude plaintiffs acquiesced to the trial court’s appointment of a

special master and cannot now complain about it.21

      b. Affidavits of Indigency. Next, plaintiffs contend the trial court erred when it

rejected their affidavits of indigency without a hearing. We agree.

      Under OCGA § 9-15-2, when a pauper’s affidavit is filed, “[i]n the absence of

a traverse affidavit contesting the truth of an affidavit of indigence, the [trial] court

      21
        See, e.g., Cockerham v. Cockerham, 359 Ga. App. 891, 899(3) (860 SE2d 163)
(2021) (“[A] litigant cannot submit to a ruling, acquiesce in it, and still complain of
the same.” (quotation marks omitted)); Cheatham Fletcher Scott Architects, P.C. v. Hull
2000, LLLP, 352 Ga. App. 691, 695(3) (835 SE2d 644) (2019) (“No matter how
erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or
acquiesce in the holding, and then complain of the same on appeal. He must stand his
ground. Acquiescence deprives him of the right to complain further.” (quotation
marks omitted)).
                                           13
may inquire into the truth of the affidavit of indigence.”22 And after a hearing, the

court “may order the costs to be paid if it finds that the deposit, fee, or other costs can

be paid and, if the costs are not paid within the time permitted in such order, may

deny the relief sought.”23 Here, plaintiffs claim the court erred because it did not hold

such a hearing.

       As explained above, after defendants filed motions for contempt and the trial

court conducted a hearing on that motion and ordered plaintiffs to do so, only then did

plaintiffs submit affidavits of indigency in response to the motion for contempt. In other

words, plaintiffs failed to present evidence at the hearing on the contempt motion.24

The court then reviewed in camera plaintiffs’ engagement agreement with their

counsel and invoices purporting to show fees paid to counsel. And after considering

the record evidence, the court concluded that plaintiffs had not shown exhaustion of




       22
            OCGA § 9-15-2(b).
       23
            Id.
       24
          Cf. Roberts v. Roberts, 238 Ga. 256, 256 (232 SE2d 534) (1977) (holding
appellant failed to meet his burden of showing his claim that “failure to pay was due
to inability” when he only appeared at the contempt hearing “through his counsel”
and “called no witnesses, but relied on his verified answer to the citation”).
                                            14
all available assets and resources and thus held them in contempt for failing to pay

their share of special-master fees.25

      Defendants did not file a traverse to the affidavits, but the trial court inquired

into their truth when it conducted an in camera review of other documents after

holding a hearing at which plaintiffs’ defense to the contempt charge was their alleged

inability to pay. To be sure, the court had already conducted a hearing on the motion

for contempt. Even so, our law is clear: After plaintiffs filed untraversed affidavits of

indigency, the court was required to conduct a second hearing before it could order

that costs be paid.26 And because the court did not do so, we vacate its ruling holding


      25
         See Darroch v. Willis, 286 Ga. 566, 569(2) (690 SE2d 410) (2010) (noting that
the inability to pay is a defense to contempt “only where the contemnor demonstrates
that he has exhausted all resources and assets available and is still unable to secure the
funds necessary to enable compliance with the court’s order” and that contemnor
must show “clearly that he has in good faith exhausted all the resources at his
command and has made a diligent and bona fide effort to comply with the order of the
court, and that he cannot borrow sufficient funds to comply with the obligation”);
Mahaffey v. Mahaffey, 238 Ga. 64, 65(2) (230 SE2d 872) (1976) (“The burden ... is on
the one refusing to pay ‘to show that he has in good faith exhausted all of the
resources at his command and has made a diligent and bona fide effort to comply with
the decree ... .’”); J. Michael Vince, LLC v. SunTrust Bank, 352 Ga. App. 791,
795(2)(b) (835 SE2d 809) (2019) (“The burden is on the contemnor to prove that it
was financially unable to make the ordered payment.”).
      26
        See Williams v. DeKalb County, 355 Ga. App. 106, 108 (842 SE2d 570) (2020)
(reversing and remanding for a hearing because “the plain language of OCGA § 9-15-2
                                           15
plaintiffs in contempt and remand for reconsideration after conducting the required

hearing. It would be premature, then, to address plaintiffs’ two additional contentions

of error with regard to the contempt ruling—i.e., that the court erred in finding them

in contempt when they were incapable of making payment, and in ordering them to

pay their pro-rata share of the outstanding special-master fees within ten days of the

contempt order.27


(b) requires a hearing before a court may order costs to be paid”); Lee v. Batchelor, 345
Ga. App. 559, 561 (814 SE2d 416) (2018) (explaining “there is nothing in the statute
that allows a court inquiring on its own into the truth of a pauper’s affidavit to order
the payment of court costs without a hearing”); Boyd v. JohnGalt Holdings, LLC, 318
Ga. App. 866, 872(3) (736 SE2d 459) (2012) (“[W]ithout a traverse or a hearing, the
[appellants’] affidavits stand unrebutted in the record, and the [appellants] should
have been relieved from paying costs without any adverse impact on their rights to
pursue a legal remedy. Although the trial court attempted to inquire into the validity
of the affidavit, it failed to hold the required hearing.”).
      27
         While plaintiffs do not raise this issue on appeal, we have serious reservations
about the trial court’s ability to hold them in contempt for nonpayment of the special-
master fees when we determined in A&M Hospitalities, LLC v. Alimchandani, 359 Ga.
App. 271 (856 SE2d 704) (2021), that a court erred by requiring plaintiffs to pay
outstanding special-master fees before final judgment. Id. at 276–77(2). See OCGA §
9-15-3 (“The several officers of court are prohibited from demanding the costs in any
civil case or any part thereof until after judgment in the same, except as otherwise
provided by law.”); Mendenhall v. Kingloff, 215 Ga. 726, 728(2) (113 SE2d 449) (1960)
(holding under the predecessor statute to OCGA § 9-15-3 that a court was not
authorized to require a party to advance costs to the auditor and accountant before
judgment). Indeed, given the foregoing, we question the court’s ability to order any
party to pay special-master fees before final judgment. But because no party has
                                           16
      2. Defendants’ Cross-Appeals - Case Numbers A26A0522, A26A0524, A26A0677.

      On cross-appeal, defendants’ sole contention is that the trial court erred in

making all parties jointly and severally liable for paying the special-master fees. And

for their part, plaintiffs state they “have no position on that argument as long as [they]

are not liable for the bills because of their inability to pay ... .” We agree with

defendants and vacate this aspect of the court’s order.

      More precisely, defendants argue that because special-master fees are a cost of

litigation, ordering joint and several liability contravenes the “American Rule,” under

which—in the absence of a statutory or contractual exception—parties are generally

responsible for their own attorney fees and litigation expenses.28 And in tandem with

the motion for contempt, defendants asked the trial court to reconsider its




challenged the appointment order on this basis, we will not delve any further into the
issue. See A.D.A. v. Xytex Corp., Case No. A25A1544, 2026 WL 306451, at *5 (Ga. Ct.
App. Feb. 5, 2026) (“This Court has no duty—or even right—to speculate or make
arguments on Appellants’ behalf; were we to do so, we would be abandoning our role
as neutral adjudicators and becoming Appellants’ advocate.”).
      28
          See City Heights Condo. Ass’n, Inc. v. Bombara, 337 Ga. App. 679, 682(1) n.3
(788 SE2d 563) (2016) (“Under our legal system, the American [R]ule by which each
party is responsible for its own attorneys’ fees and litigation expenses generally applies
unless there is some statutory or contractual exception.”).
                                            17
appointment order on this basis.29 But the court’s order of contempt made no ruling

on the motion for reconsideration, and defendants now challenge the appointment

order itself.30

       Once again, this question implicates the general rule that each party to an action

is responsible for paying their own costs of litigation.31 In this case, before any


       29
        As explained in note 7, supra, the trial court may still amend its order on
motion for reconsideration, even though the motion was filed more than a year after
the court appointed the special master.
       30
         As noted above, because plaintiffs filed a direct appeal to the trial court’s
order holding them in contempt, see OCGA § 5-6-34(a)(2) (permitting direct appeals
from contempt orders), the parties are permitted to challenge the earlier order
appointing the special master, see OCGA § 5-6-34 (“Where an appeal is taken under
any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings,
or orders rendered in the case which are raised on appeal and which may affect the
proceedings below shall be reviewed and determined by the appellate court, without
regard to the appealability of the judgment, ruling, or order standing alone and without
regard to whether the judgment, ruling, or order appealed from was final or was
appealable by some other express provision of law contained in this Code section, or
elsewhere.”).
       31
         See generally Williams v. Binion, 227 Ga. App. 893, 893(1) (490 SE2d 217)
(1997) (“Under the American Rule generally applicable in our legal system parties are
responsible for their own attorney fees and expenses of litigation ... , but legislation has
provided some exceptions to this rule. In this state, the major exceptions to the
American Rule arise in cases when a party has asserted unwarranted claims, engaged
in improper defensive tactics, acted in bad faith, been stubbornly litigious, or has
caused unnecessary trouble and expense.” (citation omitted)); Camden I Condo. Ass’n,
Inc. v. Dunkle, 946 F2d 768, 770–71(II) (11th Cir. 1991) (“According to the now
                                            18
determination of liability and final judgment, the trial court ordered that all parties are

jointly and severally liable for the special-master fees. But OCGA § 9-7-22(c) provides

that the fees for a special master “shall be assessed as court costs and shall be paid

prior to the filing of any appeal from the judgment of the court.”32

       We have located no authority directly on point with the procedural posture of

this case; and the parties provide none. Indeed, the plaintiffs claim they have no

position on this argument as it applies to defendants. Nor did the trial court identify

any authority for imposing joint and several liability on all parties at this juncture. But

looking to both the general rule and the language of OCGA § 9-7-22(c), we conclude

the court abused its discretion in imposing joint and several liability for the special-

master costs at this stage of the proceedings when there has been no determination of




axiomatic American Rule, ... all parties are to bear their own costs in litigation.”).
       32
        See Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793,
806(3)(a) (806 SE2d 255) (2017) (physical precedent only) (explaining that “a special
master or auditor appointed by the superior court in a case such as this should be
considered a cost or expense of litigation”).
                                            19
liability on the merits and thus no award of damages.33 As a result, we vacate this

portion of the court’s appointment order.




      33
          Cf. OCGA 9-15-1 (“In all civil cases in any of the courts of this state, except
as otherwise provided, the party who dismisses, loses, or is cast in the action shall be
liable for the costs thereof.”); OCGA § 13-6-11 (“The expenses of litigation generally
shall not be allowed as a part of the damages; but where the plaintiff has specially
pleaded and has made prayer therefor and where the defendant has acted in bad faith,
has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and
expense, the jury may allow them.”); Fed. Deposit Ins. Corp. v. Loudermilk, 305 Ga.
558, 575(2) (826 SE2d 116) (2019) (explaining that “[w]hen fault is
indivisible—including in instances of concerted action—damages are awarded under
joint and several liability”). Cf. also Walker v. U.S. Dep’t of Hous. & Urban Dev., 99
F3d 761, 773(VII)(B) (5th Cir. 1996) (“We know of no case suggesting that joint and
several liability is inappropriate is a case of disparate fault. The standard American
rule is that a plaintiff may recover against any joint wrongdoer and that the
wrongdoers then can file contribution actions against their co-wrongdoers and allocate
fault among themselves.”); Nash v. Chandler, 848 F2d 567, 573(IV) (5th Cir. 1988)
(holding that the State of Texas, which was appearing as an intervenor under 28
U.S.C. § 2403(b), was “not subject to liability on the merits and consequently [could
not] be held jointly and severally liable for attorney’s fees”).
                                           20
      For all these reasons, as to Case Numbers A26A0521 and A26A0523, we vacate

the trial court’s ruling as to contempt and remand for further proceedings consistent

with this opinion, but affirm in all other respects. As to Case Numbers A26A0521,

A26A0524, and A26A0677, we vacate the imposition of joint and several liability for

the special-master fees.

      Judgment affirmed in part and vacated in part, and case remanded with direction as

to Case Nos. A26A0521 & A26A0523. Judgment vacated as to Case Nos. A26A0522,

A26A0524, & A26A0677. Mercier and Pipkin, JJ., concur.




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