Valerie Arroyo v. Joseph Colbert Jr. ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 21, 2017
The Court of Appeals hereby passes the following order:
A17D0462. VALERIE ARROYO v. JOSEPH COLBERT, JR.
Valerie Arroyo filed this civil action against Joseph Colbert, Jr., in the superior
court. Colbert filed a motion to dismiss the complaint for failure to state a claim upon
which relief could be granted. On January 25, 2017, the superior court granted
Colbert’s motion and dismissed Arroyo’s complaint with prejudice. Arroyo filed a
motion for new trial, which the superior court denied on May 5, 2017. On May 22,
2017, Arroyo filed this application for discretionary review of the order dismissing
her complaint.
Even if the order was subject to direct appeal, Arroyo’s application is
untimely.1 See OCGA § 5-6-35 (j) (we will grant an otherwise timely application for
discretionary review if the trial court’s order is subject to direct appeal). To be
timely, a discretionary application must be filed within 30 days of entry of the order
sought to be appealed. See OCGA § 5-6-35 (d). The requirements of OCGA § 5-6-
35 are jurisdictional, and we cannot accept an application for appeal not made in
compliance therewith. See Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57)
(1989).
1
Arroyo states that she is filing her application pursuant to OCGA § 5-6-35 (a)
(1), which provides that applications for discretionary review are required to seek
review of decisions of superior courts reviewing decisions of lower courts by
certiorari or de novo proceedings. Here, it appears that while the parties have been
involved in a related case in magistrate court, the instant action was originally filed
in superior court, and therefore the order is directly appealable. See OCGA § 5-6-34
(a) (1).
Here, Arroyo filed a motion for new trial, which, when timely filed, extends the
time for filing an application for discretionary review. See OCGA § 5-6-35 (d).
However, where a motion for new trial is not a proper vehicle for review of a trial
court’s action, the motion has no validity and will not extend the time for filing an
application for discretionary review. See Bigham v. Wright, 194 Ga. App. 194, 194
(390 SE2d 109) (1990); see also Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447)
(1986). Generally, a party cannot move for new trial if no trial has been had. See
Debter v. Stephens, 297 Ga. 652, 652 (777 SE2d 244) (2015) (a motion for new trial
is not a proper vehicle for challenging the grant of summary judgment); Downs v.
State, 270 Ga. 310, 311 (509 SE2d 40) (1998) (one who has entered a guilty plea
cannot move for new trial, as there was no trial); Gooding v. Boatright, 211 Ga. App.
221, 222 (438 SE2d 685) (1993) (objections that go to the judgment only, and do not
extend to the verdict, cannot properly be made grounds of a motion for new trial).
Because Arroyo’s motion for new trial was not the appropriate vehicle for
challenging the superior court’s ruling, it did not operate to extend the time for filing
an application for discretionary review. See Bigham, supra; Pillow, supra. As no
timely application was filed from the superior court’s January 2017 order dismissing
Arroyo’s complaint, we lack jurisdiction to consider this matter. Accordingly, this
application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/21/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.