FLOYD HARRELL v. BANK OF AMERICA, N.A. ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 25, 2022
The Court of Appeals hereby passes the following order:
A23A0094. 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. Several
years later in 2022, the Harrells, appearing pro se, filed a “Motion to Set Aside
Judgment for Fraud and Temporary Restraining Order on Foreclosure Until
Discovery,” which the trial court denied. The Harrells filed a notice of appeal from
the trial court’s order. However, we lack jurisdiction.
Although the Harrells’s motion did not explicitly cite OCGA § 9-11-60 (d),
they sought to set aside the judgment on the basis of fraud, which is one of the
grounds set forth in OCGA § 9-11-60 (d) (2). 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). “Compliance
with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human
Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Because the Harrells failed
to follow the requisite discretionary application procedure, we lack jurisdiction to
consider this direct appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/25/2022
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.