EDGERRIN TYREE JAMES v. CARLOS NEAL ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 16, 2021
The Court of Appeals hereby passes the following order:
A22A0514. EDGERRIN TYREE JAMES v. CARLOS NEAL et al.
Carlos Neal and Tony Wyzzard (“the plaintiffs”) filed suit against Edgerrin
Tyree James seeking to hold him personally liable for a judgment. The trial court
granted the plaintiffs’ motion for default judgment. James filed a motion to open
default under OCGA § 9-11-55 and to have the judgment set aside. On July 13, 2021,
the trial court denied the motion, finding that, because judgment had been entered,
James was not entitled to open default. To the extent James sought to set aside the
judgment under OCGA § 9-11-60 (d), the trial court denied the motion. James appeals
from this ruling. We, however, lack jurisdiction.
In a related appeal filed by James, which we dismissed as moot, James sought
to appeal the denial of his motion for supersedeas bond. Case No. A22A0309,
(dismissed Oct. 6, 2021). At that time, the trial court had not yet transmitted James’s
appeal from the grant of the default judgment. As we instructed therein, James was
not entitled to open default under OCGA § 9-11-55 (b). Construing his motion
according to its substance rather than its nomenclature, James sought to have the
default judgment set aside. See Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590 (690 SE2d
397) (2010) (in pleadings, substance controls over nomenclature). An appeal from an
order denying a motion to set aside under OCGA § 9-11-60 (d) must be taken by
application for discretionary review. See OCGA § 5-6-35 (a) (8); Jim Ellis Atlanta,
Inc. v. Adamson, 283 Ga. App. 116 (640 SE2d 688) (2006). “Compliance with the
discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human
Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). James’s failure to follow
the required appellate procedure deprives us of jurisdiction over this appeal, which
is hereby DISMISSED. The plaintiffs in this case have filed a motion for attorney
fees, which is DENIED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/16/2021
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.