Jionel E. Pierre v. Rbs Citizens, N.A.

Court of Appeals of the State of Georgia

ATLANTA,__________________ April 26, 2013

The Court of Appeals hereby passes the following order: A13A1458. JIONEL E. PIERRE v. RBS CITIZENS, N.A.

On June 4, 2012, the state court granted summary judgment in favor of the plaintiff. Defendant Jionel Pierre filed a motion for new trial and a motion to set aside the summary judgment order under OCGA § 9-11-60 (d). The trial court denied both motions. On December 5, 2012, Pierre filed a notice of appeal. Pursuant to OCGA § 9-11-56 (h), the grant of summary judgment is reviewable by direct appeal. Whiddon v. Stargell, 192 Ga. App. 826, 828 (386 SE2d 884) (1989). However, a notice of appeal must be filed within 30 days after entry of the order. See OCGA § 5-6-38 (a). Pierre did not file a notice of appeal within 30 days after entry of the trial court’s order granting summary judgment. Instead, he filed a motion for new trial and a motion to set aside. Although a timely motion for new trial will extend the time for filing an appeal, it is not a proper method for challenging the grant of summary judgment. See Blackwell v. Sutton, 261 Ga. 284 n. 1 (404 SE2d 114) (1991) (“A motion for new trial, by its very nature, would not lie to correct an erroneous grant of summary judgment.”). Accordingly, Pierre’s motion for new trial did not extend the time for filing the notice of appeal. See Leader Nat. Ins. Co. v. Martin, 185 Ga. App. 27 (363 SE2d 281) (1987). As to the motion to set aside under OCGA § 9-11-60 (d), the trial court’s order denying this motion could only be appealed through the discretionary appeal procedures. See OCGA § 5-6-35 (a) (8); Rogers v. Estate of Harris, 276 Ga. App. 898, 899 (625 SE2d 65) (2005). Pierre did not follow those procedures here.

Because Pierre did not file a timely notice of appeal from the trial court’s summary judgment order, we lack jurisdiction to consider this appeal. It is therefore DISMISSED.

Court of Appeals of the State of Georgia 04/26/2013 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.