Errol Malcolm v. Jarion Crawford ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 10, 2017
The Court of Appeals hereby passes the following order:
A18D0096. ERROL MALCOLM v. JARION CRAWFORD et al.
Errol Malcolm filed a complaint for damages against Jarion Crawford and
Enterprise Leasing Company of Georgia, LLC in state court, seeking damages
resulting from an automobile accident. Malcolm obtained an order for service by
publication, and some time later, Crawford filed a motion to dismiss for lack of
diligence in attempting service. The trial court granted Crawford’s motion on May
24, 2017. Malcolm filed a motion to reconsider/vacate final order, which the trial
court denied on August 17, 2017. Malcolm then filed this application on September
14, 2017. However, we lack jurisdiction.
As a threshold matter, we note that no provision of OCGA § 5-6-35, the
discretionary appeal statute, appears to apply to the case at bar. Ordinarily, we will
grant a timely application when the lower court’s order is subject to direct appeal.
See OCGA § 5-6-35 (j). Here, however, the trial court’s order is not subject to direct
appeal.
The trial court’s May 24 order was, in fact, final. The trial court dismissed the
complaint with prejudice as to both defendants. As no issue remained pending below,
the order was final for purposes of appeal. See OCGA § 5-6-34 (a) (1); Andemeskel
v. Waffle House, 227 Ga. App. 887, 887 (1) (490 SE2d 550) (1997). To appeal this
order, Malcolm was required to file a notice of appeal within 30 days of its entry. See
OCGA § 5-6-38 (a). “The proper and timely filing of a notice of appeal is an absolute
requirement to confer jurisdiction upon an appellate court.” Perlman v. Perlman, 318
Ga. App. 731, 739 (4) (734 SE2d 560) (2012) (citation and punctuation omitted).
Instead of filing a timely notice of appeal, Malcolm filed his motion for
reconsideration or to vacate the final order, offering additional evidence in opposition
to Crawford’s motion to dismiss. He then filed this discretionary application within
30 days of the trial court’s order denying his motion. An order denying a motion for
reconsideration, however, is not appealable in its own right. See Bell v. Cohran, 244
Ga. App. 510, 511 (536 SE2d 187) (2000). Moreover, a motion for reconsideration
does not extend the time for filing an appeal from the underlying order. See Cheeley-
Towns v. Rapid Group, Inc., 212 Ga. App. 183 (1) (441 SE2d 452) (1994); Harris v.
State, 278 Ga. 280, 282 n.3 (600 SE2d 592) (2004) (“[A] motion to reconsider does
not toll the time for filing an application to appeal.”). Accordingly, we lack authority
to grant Malcolm’s application under OCGA § 5-6-35 (j), and it is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/10/2017
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.