William Guy Welch v. Northwest Georgia Housing Authority

• Court: Court of Appeals of Georgia
• Decided: December 3, 2014
• Docket: A15D0144
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 03, 2014

The Court of Appeals hereby passes the following order:

A15D0144. WILLIAM GUY WELCH v. NORTHWEST GEORGIA HOUSING AUTHORITY.

On January 3, 2014, the trial court entered a Final Order Condemning Property in favor of Northwest Georgia Housing Authority. William Welch filed a motion to set aside this order. On October 9, 2014, the trial court granted in part and denied in part Welch’s motion so that property valuation remain pending in the trial court. Welch filed an application for discretionary appeal on November 11, 2014. We lack jurisdiction for two reasons. First, although an appeal from an order denying a motion to set aside under OCGA § 9-11-60 (d) must be taken by application for discretionary appeal, see OCGA § 5-6-35 (a) (8); Jim Ellis Atlanta v. Adamson, 283 Ga. App. 116 (640 SE2d 688) (2006), an appeal from the grant of a motion to set aside leaves the case pending in the trial court below and is not a final judgment. Guy v. Roberson, 214 Ga. App. 391, 392 (1) (448 SE2d 60) (1994). Such non-final orders must be appealed through the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b). Id. And where both discretionary and interlocutory application procedures apply, the applicant must follow the interlocutory appeal procedure and obtain a timely certificate of immediate review before filing an application. See Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588 (1) (408 SE2d 103) (1991). Because Welch failed to follow the interlocutory appeal procedure, we lack jurisdiction to consider this application. In addition, to be timely, a discretionary application must be filed within 30 days of entry of the order to be appealed. OCGA § 5-6-35 (d). The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. See Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989). Because this application was filed 33 days after entry of the order denying Welch’s motion to set aside, it is untimely and we lack jurisdiction to consider it. Accordingly, this application is hereby DISMISSED.

Court of Appeals of the State of Georgia 12/03/2014 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.