Serpentfoot v. Jackie Newby

Court of Appeals of the State of Georgia

ATLANTA,__________________ October 09, 2013

The Court of Appeals hereby passes the following order: A14A0262. SERPENTFOOT v. JACKIE NEWBY et al.

After Leevenous J. Dempsey died at Floyd Medical Center, a hospital employee petitioned the probate court to determine who had the right to dispose of the body. Serpentfoot filed a counterclaim, seeking to obtain the body for certain unorthodox burial rituals. The probate court found that the hospital had the right to dispose of the remains and dismissed Serpentfoot’s counterclaim. Serpentfoot appealed to the superior court. On June 17, 2013, the superior court found Serpentfoot had no legal right to dispose of the body. Serpentfoot filed both a motion for reconsideration from this ruling and a motion for new trial. The superior court denied the motions on July 15, 2013, and Serpentfoot filed a notice of appeal on July 18, 2013. A notice of appeal must be filed within 30 days of the entry of the order sought to be appealed. OCGA § 5-6-38 (a). Although Serpentfoot had a right to appeal the trial court’s June 17 order, her notice of appeal was filed 31 days after entry of that order. As to the July 15 order, Serpentfoot does not have the right to appeal the trial court’s denial of her motion for reconsideration, which is neither directly appealable nor effective to extend the time for filing an appeal. See Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000); Savage v. Newsome, 173 Ga. App. 271 (326 SE2d 5) (1985). A properly filed motion for new trial will extend the time for filing a notice of appeal. See OCGA § 5-6-38 (a). If, however, “a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal.” Pillow v. Seymour, 255 Ga. 683, 684

(341 SE2d 447) (1986). Given that no trial was held, Serpentfoot’s motion for new trial was ineffective and did not extend the time for filing. See Turner v. Bynum, 255 Ga. App. 173, 175 (1) (564 SE2d 784) (2002) (motion for new trial cannot be used solely to challenge trial court’s legal conclusions). Under these circumstances, Serpentfoot’s failure to file a notice of appeal within 30 days of the trial court’s June 17, 2013 order renders the appeal untimely. Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 10/09/2013 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.