FLOYD HARRELL v. BANK OF AMERICA, N.A. ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 23, 2021
The Court of Appeals hereby passes the following order:
A22A0557. FLOYD HARRELL et al. v. BANK OF AMERICA, N. A.
In 2015, after Bank of America, N. A., filed a complaint for declaratory
judgment and petition to remove cloud from title, the trial court entered a final
judgment against Floyd and Diane Harrell and in favor of Bank of America. In 2021,
the Harrells filed the instant action against Bank of America, seeking to set aside the
prior judgment for fraud. On June 25, 2021, the trial court entered an order dismissing
the Harrells’ complaint, finding that it was without jurisdiction to consider the same
because a motion to set aside under OCGA § 9-11-60 (d) cannot serve as the basis for
a new action. The Harrells then filed a motion for reconsideration, which the trial
court denied on July 9, 2021. On August 10, 2021, the Harrells filed this appeal. We,
however, lack jurisdiction.
As a general rule, an appeal from an order denying a motion to set aside
brought under OCGA § 9-11-60 (d) must be initiated by filing an application for
discretionary review. See OCGA § 5-6-35 (a) (8); Parker v. Robinson, 337 Ga. App.
362, 364 (2) (787 SE2d 317) (2016). But even if the Harrells were entitled to a direct
appeal from the trial court’s June 25 order dismissing their complaint, their appeal is
untimely. A notice of appeal must be filed within 30 days after entry of the judgment
sought to be appealed. OCGA § 5-6-38 (a); First Merit Credit Services v. Fairway
Aviation, 359 Ga. App. 829, 830 (1) (860 SE2d 126) (2021). And “[t]he proper and
timely filing of a notice of appeal is an absolute requirement to confer jurisdiction
upon the appellate court.” Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311
Ga. App. 334, 336 (715 SE2d 752). Here, the notice of appeal was filed 46 days after
the June 25 order. And the denial of a motion for reconsideration is not subject to
direct appeal and does not extend the time for filing a notice of appeal. See Luster v.
Bank of America, N.A., 331 Ga. App. 510, 512 (769 SE2d 394) (2015).
Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/23/2021
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.