Anne Richards v. Sam Olens

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 12, 2019

The Court of Appeals hereby passes the following order:

A19A2010. ANNE RICHARDS et al. v. SAM OLENS et al.

In November 2016, the trial court dismissed the complaint filed by Anne

Richards and several others (hereinafter the “plaintiffs”), attempting to undo the

election of Sam Olens as president of Kennesaw State University. The plaintiffs filed

a motion to strike an affidavit and motion to set aside the trial court’s judgment based

on fraud and mistake. The trial court denied the motion, and the plaintiffs filed this

direct appeal. We, however, lack jurisdiction.

Under OCGA § 9-11-60 (d), a judgment may be set aside based on (1) lack of

jurisdiction, (2) fraud, accident, or mistake by the adverse party, or (3) a non-

amendable defect on the face of the record of pleadings. Although the motion filed

by the plaintiffs does not include a reference to OCGA § 9-11-60 (d), the substance

of a pleading controls over its nomenclature. See Kuriatnyk v. Kuriatnyk, 286 Ga.

589, 590 (690 SE2d 397) (2010) (in construing pleadings, substance controls over

nomenclature). An appeal from an order denying a motion to set aside a judgment

under OCGA § 9-11-60 (d) must be made by application for discretionary review.

OCGA § 5-6-35 (a) (8). The plaintiffs properly filed a discretionary application,

which we denied. See Case No. A18D0324, denied February 27, 2018. Because that denial was an adjudication on the merits, the doctrine of res judicata bars this direct

appeal. See Northwest Social & Civic Club, Inc. v. Franklin, 276 Ga. 859, 860 (583

SE2d 858) (2003); Hook v. Bergen, 286 Ga. App. 258, 260- 261 (1) (649 SE2d 313)

(2007). Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/12/2019 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.