Sparkles of Gwinnett, Inc. v. Tenita Hendrix ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 14, 2018
The Court of Appeals hereby passes the following order:
A18D0280. SPARKLES OF GWINNETT, INC. v. TENITA HENDRIX et al.
Eleven months after a default judgment was entered in this civil action against
defendant Sparkles of Gwinnett, Inc., Sparkles filed an OCGA § 9-11-60 (d) motion
to set aside the judgment. The trial court denied Sparkles’s motion, and Sparkles
filed this application for discretionary review. We lack jurisdiction.
In its denial order, the trial court noted that the plaintiff’s motion to compel and
for sanctions remained pending before that court. Consequently, the order Sparkles
seeks to appeal is a non-final order that did not resolve all issues in the case. See
Avco Lycoming v. Newton Aero, Inc., 146 Ga. App. 609, 610 (247 SE2d 135) (1978);
accord Conseco Finance Servicing Corp. v. Hill, 252 Ga. App. 774, 774-775 (1) (556
SE2d 468) (2001) (an order denying a motion to set aside a default judgment is not
final where the case remains pending against other defendants); Cornelius v. Finley,
204 Ga. App. 299, 300-301 (418 SE2d 815) (1992) (an order compelling post-
judgment discovery “is not final in the sense of being dispositive of the case, as
contemplated by OCGA § 5-6-34 (a) (1),” where disputed discovery remains
unanswered). Sparkles therefore was required to follow the interlocutory appeal
procedures set forth in OCGA § 5-6-34 (b). See Bailey v. Bailey, 266 Ga. 832, 832-
833 (471 SE2d 213) (1996); Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587,
588-589 (1) (408 SE2d 103) (1991). Where, as here, both discretionary and
interlocutory appeal procedures apply, an applicant must follow the interlocutory
appeal procedures and obtain a timely certificate of immediate review from the trial
court before filing an application. See Scruggs, 261 Ga. at 588-589 (1); see also
OCGA § 5-6-35 (a) (8) (an appeal from an order denying a motion to set aside under
§ 9-11-60 (d) must be initiated by filing an application for discretionary review).
Sparkles’s failure to follow the proper appellate procedures deprives us of
jurisdiction over this premature application, which is hereby DISMISSED. See
Bailey, 266 Ga. at 833.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/14/2018
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.