William Guy Welch v. Northwest Georgia Housing Authority ( 2014 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 03, 2014
The Court of Appeals hereby passes the following order:
A15D0144. WILLIAM GUY WELCH v. NORTHWEST GEORGIA HOUSING
AUTHORITY.
On January 3, 2014, the trial court entered a Final Order Condemning Property
in favor of Northwest Georgia Housing Authority. William Welch filed a motion to
set aside this order. On October 9, 2014, the trial court granted in part and denied in
part Welch’s motion so that property valuation remain pending in the trial court.
Welch filed an application for discretionary appeal on November 11, 2014. We lack
jurisdiction for two reasons.
First, although an appeal from an order denying a motion to set aside under
OCGA § 9-11-60 (d) must be taken by application for discretionary appeal, see
OCGA § 5-6-35 (a) (8); Jim Ellis Atlanta v. Adamson, 283 Ga. App. 116 (640 SE2d
688) (2006), an appeal from the grant of a motion to set aside leaves the case pending
in the trial court below and is not a final judgment. Guy v. Roberson, 214 Ga. App.
391, 392 (1) (448 SE2d 60) (1994). Such non-final orders must be appealed through
the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b). Id. And where
both discretionary and interlocutory application procedures apply, the applicant must
follow the interlocutory appeal procedure and obtain a timely certificate of immediate
review before filing an application. See Scruggs v. Ga. Dept. of Human Resources,
261 Ga. 587, 588 (1) (408 SE2d 103) (1991). Because Welch failed to follow the
interlocutory appeal procedure, we lack jurisdiction to consider this application.
In addition, to be timely, a discretionary application must be filed within 30
days of entry of the order to be appealed. OCGA § 5-6-35 (d). The requirements of
OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for
appeal not made in compliance therewith. See Boyle v. State, 190 Ga. App. 734 (380
SE2d 57) (1989). Because this application was filed 33 days after entry of the order
denying Welch’s motion to set aside, it is untimely and we lack jurisdiction to
consider it. Accordingly, this application is hereby DISMISSED.
Court of Appeals of the State of Georgia
12/03/2014
Clerk’s Office, Atlanta,____________________
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.