Shannon Donovan v. Debra Donovan

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 17, 2016
The Court of Appeals hereby passes the following order:
A16D0278. SHANNON DONOVAN v. DEBRA DONOVAN.
After the trial court denied Shannon and Debra Donovan’s motion for new trial,
they filed a motion to set aside the denial under 9-11-60 (g), asserting that the trial
court failed to timely notify them regarding its decision. The trial court denied the
motion, and the Donovan’s filed a timely application for discretionary review.
The Donovans apparently followed the discretionary appeal procedures
because an order denying a motion to set aside under OCGA § 9-11-60 (d) may only
be reviewed through discretionary application. See OCGA § 5-6-35 (a) (8). But
“[m]otions to set aside brought on the grounds that the court failed to notify the losing
party of its decision are cognizable as motions to correct a clerical error pursuant to
OCGA § 9-11-60 (g) and are properly the subject of a direct appeal.” Downs v. C. D.
C. Federal Credit Union, 224 Ga. App. 869 (1) (481 SE2d 903) (1997). The
Donovans, therefore, were not required to file an application for discretionary appeal.
See Leventhal v. Moseley, 264 Ga. 891, 892 (453 SE2d 455) (1995).
This Court will grant an otherwise timely discretionary application if the lower
court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this
application is hereby GRANTED. The Donovans shall have ten days from the date
of this order to file a notice of appeal with the trial court. See OCGA § 5-6-35 (g).
If, however, the Donovans have already filed a notice of appeal, they need not file a
second notice. The clerk of the trial court is directed to include a copy of this order
in the record transmitted to the Court of Appeals.
Court of Appeals of the State of Georgia
03/17/2016
Clerk’s Office, Atlanta,____________________
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.