Amwaste of Georgia, LLC v. John Dunn

• Court: Court of Appeals of Georgia
• Decided: June 8, 2026
• Docket: A26D0557
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 08, 2026

The Court of Appeals hereby passes the following order:

A26D0557. AMWASTE OF GEORGIA, LLC v. JOHN DUNN et al.

Defendant AmWaste of Georgia, LLC (“AmWaste”) filed a renewed motion to set aside a judgment under both OCGA § 9-11-60(d) and OCGA § 9-11-60(g). AmWaste argued, among other things, that it did not receive a copy of the trial court’s judgment due to a clerical mistake. The trial court denied the motion, and AmWaste filed both this application for discretionary appeal and a notice of appeal. An order denying a motion to set aside under OCGA § 9-11-60(d) requires compliance with the discretionary appeal statute. OCGA § 5-6-35(a)(8). However, a motion to set aside based on the court’s failure to provide notice of its judgment is cognizable as a motion to set aside under OCGA § 9-11-60(g), which may be appealed directly. SiteOne Landscaping Supply, LLC v. Stewart, 363 Ga. App. 855, 858(1) (872 SE2d 915) (2022). “Where both the direct and discretionary appeal statutes are implicated, it is always the underlying subject matter that will control whether the appeal must be brought pursuant to OCGA § 5-6-34 or OCGA § 5-6-35.” Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 257(1) (564 SE2d 715) (2002). Because it appears from the application brief that AmWaste seeks to challenge the trial court’s ruling to the extent it denied a motion to set aside under OCGA § 9-11-60(g), no discretionary application is required. See Voyles v. Voyles, 301 Ga. 44, 47 (799 SE2d 160) (2017) (explaining that “the proper appellate procedure to employ depends upon the issue involved in the appeal”). Because the order at issue may be appealed directly, this Court would ordinarily grant the application under OCGA § 5-6-35(j). Here, however, AmWaste has already filed a notice of appeal. Because this application for discretionary appeal is duplicative of AmWaste’s direct appeal, this application is hereby DISMISSED as superfluous.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/08/2026 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.