Zhi Lin v. Infinity Safeguard Insurance Company

• Court: Court of Appeals of Georgia
• Decided: January 4, 2016
• Docket: A16D0170
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 04, 2016

The Court of Appeals hereby passes the following order:

A16D0170. ZHI LIN et al. v. INFINITY SAFEGUARD INSURANCE COMPANY.

On September 3, 2015, the trial court entered an order granting defendant Infinity Safeguard Insurance Company (“Infinity”)’s motion to dismiss, or in the alternative, motion for summary judgment. Plaintiffs Zhi Lin and Jing Ou filed a “Motion to Vacate Order,” arguing that the court had overlooked a pertinent fact in granting Infinity’s motion. The court denied the motion to vacate, and on December 2, 2015, plaintiffs filed this application for discretionary appeal. We, however, lack jurisdiction. An application for discretionary appeal must be filed within 30 days of entry of the order or judgment 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. Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989). Here, plaintiffs filed their application 90 days after entry of the order granting Infinity’s motion to dismiss or for summary judgment. Although plaintiffs filed a motion to vacate that order, their motion was in substance one for reconsideration.1 See Masters v. Clark, 269 Ga. App. 537, 538 (604 SE2d 556) (2004) (“[T]here is no magic in the nomenclature used. Under our rules, pleadings are judged by their function and not the name used.”) (citation and punctuation omitted). But the filing of a motion for reconsideration does not extend the time for

1 The motion presented no grounds for setting aside the order under OCGA § 9-11-60 (d); instead, it simply argued that the court had the facts wrong. filing a notice of appeal, and the denial of a motion for reconsideration is not itself an appealable judgment. See Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000); Savage v. Newsome, 173 Ga. App. 271, 271 (326 SE2d 5) (1985). Because plaintiffs’ application was not timely filed, it is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 01/04/2016 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.