Cornerstone Grill, LLC v. Calvary Portfolio Services, LLC

Court of Appeals of the State of Georgia

ATLANTA,_________________ June 26, 2012

The Court of Appeals hereby passes the following order:

A12A2046. CORNERSTONE GRILL, LLC v. CALVARY PORTFOLIO SERVICES, LLC.

The trial court denied Cornerstone Grille, LLC’s motion to set aside a judgment in this garnishment action. Cornerstone Grille, LLC filed an application for discretionary appeal of the trial court’s order on May 18, 2012, which was docketed as Case No. A12D0399 and denied on June 8, 2012. Cornerstone also filed a direct appeal from the trial court’s order on May 18, 2012. We lack jurisdiction over the direct appeal. Pursuant to OCGA § 5-6-35 (a) (4), appeals in garnishment cases must be made by filing a timely application for discretionary appeal in this Court. See Lamb v. First Union Brokerage Svcs., 263 Ga. App. 733, 736 (1) (589 SE2d 300) (2003). Additionally, appeals from orders denying motions to set aside filed pursuant to OCGA § 9-11-60 (d) must also be made by application for discretionary appeal.1 Therefore, Cornerstone Grille, LLC’s filing of an application for discretionary appeal was appropriate, but as stated earlier, its application was denied. That denial was an adjudication on the merits, so the doctrine of res judicata bars this direct appeal. See Northwest Social & Civic Club v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003); Hook v. Bergen, 286 Ga. App. 258, 261 (1) (649 SE2d 313) (2007). This appeal is therefore DISMISSED.

1 Although Cornerstone Grill, LLC did not cite the statute in its motion, the substance of the motion reveals that it was proceeding under OCGA § 9-11-60 (d) (1), which permits a judgment rendered to be set aside based upon lack of jurisdiction over the person or subject matter.

Court of Appeals of the State of Georgia 06/26/2012 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.