Antonio Wooten v. the Home Depot, Inc.

Court of Appeals of the State of Georgia October 10, 2012 ATLANTA,__________________ The Court of Appeals hereby passes the following order: A13A0229. ANTONIO WOOTEN v. THE HOME DEPOT, INC. Antonio Wooten filed suit against The Hope Depot, Inc. On January 12, 2012, the trial court entered an order dismissing the case for wont of prosecution. Wooten filed a motion to set aside this ruling.1 The trial court denied the motion on January 30, 2012, finding that there was no basis for setting aside the order under OCGA § 911-60 (d). Wooten seeks to appeal this ruling. We lack jurisdiction. Appeals from orders denying motions to set aside under OCGA § 9-11-60 (d) must be made by application for discretionary appeal. See OCGA § 5-6-35 (a) (8). Wooten’s failure to comply with the discretionary appeal procedure deprives us of jurisdiction over this appeal, which is hereby DISMISSED. See MMT Enterprises, Inc. v. Cullars, 218 Ga. App. 559, 561 (2) ( 462 SE2d 771 ) (1995); Crolley, supra. Court of Appeals of the State of Georgia 10/10/2012 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. [1] Wooten’s attorney learned of the dismissal before the order was entered. Thus, the motion to set aside was premature. We assume, for the sake of argument, that such premature motion was sufficient to invoke a ruling by the trial court. See, e. g., Crolley v. Johnson, 185 Ga. App. 671, 672 ( 365 SE2d 277 ) (1988).