BQE HOSPITALITY GROUP, INC. D/B/A THE BQE RESTAURANT & LOUNGE v. DEVUAN LIGHTNER

• Court: Court of Appeals of Georgia
• Decided: September 28, 2022
• Docket: A23A0306
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 28, 2022

The Court of Appeals hereby passes the following order:

A23A0306. BQE HOSPITALITY GROUP, INC. d/b/a THE BQE RESTAURANT & LOUNGE v. DEVUAN LIGHTNER.

In this tort action, Devaun Lightner sued BQE Hospitality Group, Inc. for damages. BQE failed to file a timely answer, and Lightner moved for entry of default judgment. The trial court granted Lightner’s motion, held a hearing on damages, and on May 11, 2021, entered a final order and judgment in which it awarded Lightner $305,442.16 in damages. On November 17, 2021, BQE filed an extraordinary motion for new trial, which the trial court denied on December 21, 2021. It does not appear that BQE appealed that order. On May 13, 2022, BQE filed a second extraordinary motion for new trial, or alternatively, a motion to set aside the judgment under OCGA § 9-11-60 (d) (2), or a motion for trial or modification of the judgment for excessive damages.1 The trial court summarily denied the motion on June 21, 2022, and BQE filed a notice of appeal on July 19, 2022. We, however, lack jurisdiction. An order denying an extraordinary motion for new trial may only be appealed by discretionary application. See OCGA § 5-6-35 (a) (7); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997). Moreover, an appeal from an order denying a motion to set aside a judgment under OCGA § 9-11-60 (d) must also be taken by application for discretionary review. See OCGA § 5-6-35 (a) (8); Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga. App. 116, 116-117 (640 SE2d 688) (2006). “Compliance

1 BQE’s motion for a new trial on damages must be construed as an extraordinary motion for new trial because it was filed a year after entry of the final judgment. See OCGA § 5-5-40 (a) (all motions for new trial shall be made within 30 days of the entry of the judgment, except in extraordinary cases). with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). BQE’s failure to comply with the requisite appellate procedure deprives this Court of jurisdiction over this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/28/2022 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.