Clive Richards v. Pool Body Shop ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 28, 2022
The Court of Appeals hereby passes the following order:
A22D0409. CLIVE RICHARDS v. POOL BODY SHOP.
Clive Richards sued Pool Body Shop in Fulton County State Court. On April
2, 2022, the trial court entered an order finding that Pool Body Shop was not a legal
entity capable of being sued and dismissing the lawsuit without prejudice. Richards
thereafter filed a motion for reconsideration of the dismissal order.1 The trial court
denied that motion on May 12, 2022, and Richards then filed this application for a
discretionary appeal. We, however, lack jurisdiction.
Under OCGA § 5-6-34 (a) (1), direct appeals are permitted from all final orders
dismissing an action in its entirety. Thus, the trial court’s April 2 order was directly
appealable. Id. As a general rule, this Court will grant a timely application for
discretionary review if the lower court’s order is subject to direct appeal. See OCGA
§ 5-6-35 (j). To be timely, however, a discretionary application must be filed within
30 days of the entry of the order, decision, or judgment sought to be appealed. OCGA
1
Although Richards apparently captioned his motion as one to amend the order
pursuant to OCGA § 9-11-52, the motion sought to have the trial court amend its
dismissal order to include findings of fact and conclusions of law and to reverse its
finding as to the legal status of Pool Body Shop. Because pleadings are treated in
accordance with their substance and purpose, rather than by their nomenclature, we
view Richards’s motion as one for reconsideration of the dismissal order. See Martin
v. Williams , 263 Ga. 707, 708 (1) (438 SE2d 353) (1994) (substance and function,
“rather than nomenclature, govern[] pleadings”); L. Henry Enterprises, Ltd. v.
Verifone, Inc., 273 Ga. App. 195, 197 (1) (614 SE2d 841) (2005) (same).
§ 5-6-35 (d). This statutory deadline is jurisdictional, and this Court cannot accept
an application for appeal not made in compliance with OCGA § 5-6-35 (d). See In the
Interest of B. R. F., 299 Ga. 294, 298 (788 SE2d 416) (2016) (holding that an
appellate court lacks jurisdiction over an untimely application for discretionary
appeal); Hair Restoration Specialists v. State of Ga., 360 Ga. App. 901, 903 (862
SE2d 564) (2021) (same). Although Richards’s application is timely as to his motion
seeking a reconsideration of the trial court’s dismissal order, it is untimely as to the
order of dismissal itself. And the filing of a motion for reconsideration does not
extend the time for filing a discretionary application for appeal. See Bell v. Cohran,
244 Ga. App. 510, 511 (536 SE2d 187) (2000); Savage v. Newsome, 173 Ga. App.
271, 271 (326 SE2d 5) (1985). Furthermore, the denial of a motion for
reconsideration of an appealable order or judgment is not itself appealable. Id.Because Richards’s application, filed 60 days after the order of dismissal, is
untimely as to that judgment, and because the order denying his motion for
reconsideration is not appealable, we lack jurisdiction. Accordingly, this application
is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/28/2022
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.