Paul Smith v. Grande Club Apartments

• Court: Court of Appeals of Georgia
• Decided: October 27, 2016
• Docket: A17A0312
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 27, 2016

The Court of Appeals hereby passes the following order:

A17A0312. PAUL SMITH v. GRANDE CLUB APARTMENTS.

Paul Smith has filed a notice of appeal of the trial court’s order granting Grande Club Apartments’ motion for summary judgment and entering judgment against Smith in the amount of $2,280.48. We lack jurisdiction. First, Smith’s appeal is untimely. A notice of appeal must be filed within 30 days after entry of the appealable decision or judgment complained of. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). The trial court entered its order on December 18, 2015, but Smith did not file his notice of appeal until January 28, 2016, 41 days later.1 Second, Smith has failed to file an application for discretionary appeal as required by OCGA § 5-6-35 (a) (6). “Although the grant of a motion for summary judgment is in general directly appealable, where the amount of the judgment is $10,000.00 or less, an application for discretionary appeal is required.” (Punctuation omitted.) Ca-Shar v. McKesson Corp., 204 Ga. App. 865, 865 (420 SE2d 810) (1992) (citing OCGA § 5-6-35 (a) (6)). As the total judgment in favor of Grande Club Apartments is less than $10,000.00, the entry of summary judgment provides no basis for a direct appeal in this case. See Ca-Shar, supra at 865-866. Smith’s failure to

1 While Smith asserts that he did not receive the order until January 23, 2016, a trial court’s failure to timely notify a defendant of an order does not extend the time to file an appeal, and the proper remedy in such situations is to file a motion to set aside the order. See Morgan v. Starks, 214 Ga. App. 265, 266 (447 SE2d 651) (1994); Robinson v. Kemp Motor Sales, 185 Ga. App. 492, 493 (364 SE2d 623) (1988). follow the required procedure deprives us of jurisdiction to consider his appeal. See Jennings v. Moss, 235 Ga. App. 357, 357 (509 SE2d 655) (1998). Accordingly, Smith’s appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 10/27/2016 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.