Kenneth Terry v. Davon Leonard Debman

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 08, 2016
The Court of Appeals hereby passes the following order:
A16D0414. KENNETH TERRY v. DAVON LEONARD DEBMAN et al.
On December 17, 2015, Kenneth Terry (“Terry”) obtained a default judgment
against Davon Leonard Debman and Parkwood Motors, Inc. in a negligent
entrustment action filed in July 2015 (the “2015 action”). On February 8, 2016,
Parkwood Motors filed a motion to set aside the default judgment. For reasons that
are not clear, the trial court clerk did not docket the motion in the 2015 action but
instead created a new action, utilizing the motion as the initial pleading in that case
(the “2016 action”). Terry filed a motion to dismiss the 2016 action based upon
insufficient service of process. On May 13, 2016, the trial court entered two orders
in the 2016 action, one of which denied Terry’s motion to dismiss for insufficiency
of service. In the second order, the trial court granted Parkwood Motors, Inc.’s motion
to set aside the default judgment, noting therein that the judgment entered in the 2015
action would be set aside by separate order.1 Terry filed this application for
1
In the 2015 action, the trial court entered orders vacating the default judgment
and opening default. Terry filed a notice of appeal from those orders. To the extent
that he filed this application in an effort to secure judicial review of the trial court’s
order granting the motion to set aside in the 2015 action, we note that the grant of a
motion to set aside is interlocutory. See Vangoosen v. Bohannon, 236 Ga. App. 361,
363 (2) (511 SE2d 925) (1999); Guy v. Roberson, 214 Ga. App. 391, 392 (1) (448
SE2d 60) (1994); English v. Tucker Federal Savings & Loan Assn., 175 Ga. App. 69(332 SE2d 365) (1985). And compliance with the discretionary appeal statute,
OCGA § 5-6-35, does not excuse a party seeking appellate review of an interlocutory
order from complying with the additional requirements of OCGA § 5-6-34 (b). See
Bailey v. Bailey, 266 Ga. 832 (471 SE2d 213) (1996).
discretionary appeal from the orders in the 2016 action. We lack jurisdiction.
As recognized by the trial court, the motion to set aside pertained to the 2015
action; thus any substantive relief to which Terry may be entitled will necessarily be
in the 2015 action. To the extent Terry wishes to appeal the denial of his motion to
dismiss for insufficiency of service of process, the question presented on appeal has
become moot as that action has already concluded. An appeal becomes moot if the
rights insisted upon could not be enforced by a judicial determination. Randolph
County v. Johnson, 282 Ga. 160 (1) (646 SE2d 261) (2007). Accordingly, this
application is DISMISSED as moot. See OCGA § 5-6-48 (b) (3).
Court of Appeals of the State of Georgia
07/08/2016
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.