Lawrence Garrett v. Killian Auto Service, Inc. ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 22, 2020
The Court of Appeals hereby passes the following order:
A20A1005. LAWRENCE GARRETT v. KILLIAN AUTO SERVICE, INC.
This case began as an action for damages in magistrate court. Following an
adverse ruling, the defendant appealed to the state court, which entered a final
judgment of $2,731.79 in favor of the plaintiff on July 12, 2019. The defendant filed
an OCGA § 9-11-60 (d) motion to set aside the July 12 judgment, which the state
court construed as a motion for reconsideration and denied in an order entered on
August 9, 2019. On September 6, 2019, the defendant filed a notice of appeal to this
Court. We lack jurisdiction for multiple reasons.
First, a motion for reconsideration does not extend the time for filing an
appellate challenge to an appealable order, and the denial of a motion for
reconsideration is not appealable in its own right. See Bell v. Cohran, 244 Ga. App.
510, 510-511 (536 SE2d 187) (2000); Savage v. Newsome, 173 Ga. App. 271, 271
(326 SE2d 5) (1985). Consequently, the state court’s August 9 order is not
appealable, and the defendant’s appeal – filed more than 30 days after the court’s July
12 order – is untimely as to the July 12 order. See OCGA § 5-6-38 (a); Bell, 244 Ga.
App. at 510-511; Savage, 173 Ga. App. at 271. And to the extent that the defendant’s
post-judgment motion in the state court was a proper § 9-11-60 (d) motion – rather
than a motion for reconsideration – he was required to initiate this appeal by filing an
application for discretionary review. See OCGA § 5-6-35 (a) (8), (b); Jim Ellis
Atlanta, Inc. v. Adamson, 283 Ga. App. 116, 116 (640 SE2d 688) (2006).
Regardless, an appeal from a state court order disposing of a de novo appeal
from a magistrate court decision also must be initiated by filing an application for
discretionary review. See OCGA § 5-6-35 (a) (11), (b); Strachan v. Meritor Mtg.
Corp. East, 216 Ga. App. 82, 82 (453 SE2d 119) (1995). And appeals in actions for
damages in which the judgment is $10,000.00 or less likewise must be brought by
discretionary application. OCGA § 5-6-35 (a) (6), (b); Jennings v. Moss, 235 Ga.
App. 357, 357 (509 SE2d 655) (1998). “Compliance with the discretionary appeals
procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257,
257 (471 SE2d 60) (1996). The defendant’s failure to comply with the discretionary
review procedure deprives us of jurisdiction over this direct appeal, regardless of
whether the August 9 order is otherwise appealable. See Jennings, 235 Ga. App. at
357; Strachan, 216 Ga. App. at 82.
For each of the above reasons, this direct appeal is hereby DISMISSED for lack
of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/22/2020
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.