EDGERRIN TYREE JAMES v. CARLOS NEAL

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 16, 2021

The Court of Appeals hereby passes the following order:

A22A0514. EDGERRIN TYREE JAMES v. CARLOS NEAL et al.

Carlos Neal and Tony Wyzzard (“the plaintiffs”) filed suit against Edgerrin Tyree James seeking to hold him personally liable for a judgment. The trial court granted the plaintiffs’ motion for default judgment. James filed a motion to open default under OCGA § 9-11-55 and to have the judgment set aside. On July 13, 2021, the trial court denied the motion, finding that, because judgment had been entered, James was not entitled to open default. To the extent James sought to set aside the judgment under OCGA § 9-11-60 (d), the trial court denied the motion. James appeals from this ruling. We, however, lack jurisdiction. In a related appeal filed by James, which we dismissed as moot, James sought to appeal the denial of his motion for supersedeas bond. Case No. A22A0309, (dismissed Oct. 6, 2021). At that time, the trial court had not yet transmitted James’s appeal from the grant of the default judgment. As we instructed therein, James was not entitled to open default under OCGA § 9-11-55 (b). Construing his motion according to its substance rather than its nomenclature, James sought to have the default judgment set aside. See Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590 (690 SE2d 397) (2010) (in pleadings, substance controls over nomenclature). An appeal from an order denying a motion to set aside under OCGA § 9-11-60 (d) must be taken by application for discretionary review. See OCGA § 5-6-35 (a) (8); Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga. App. 116 (640 SE2d 688) (2006). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). James’s failure to follow the required appellate procedure deprives us of jurisdiction over this appeal, which is hereby DISMISSED. The plaintiffs in this case have filed a motion for attorney fees, which is DENIED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/16/2021 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.