National Roofing and Restoration, LLC v. Natalie Applebee

Court of Appeals of the State of Georgia

ATLANTA,__________________ November 13, 2013

The Court of Appeals hereby passes the following order:

A13A2402. NATIONAL ROOFING AND RESTORATION, LLC v. NATALIE APPLEBEE.

In this action involving a dispute over roof installation, Natalie Applebee moved for entry of a default judgment against National Roofing and Restoration, LLC. The trial court granted Applebee’s motion and entered a final judgment of default against National Roofing for $33,528. National Roofing subsequently filed its “Motion to Open / Set Aside Default Judgment.” The trial court denied the motion, and National Roofing filed this direct appeal, contending that the entry of default judgment was improper. We, however, lack jurisdiction. The denial of National Roofing’s “Motion to Open / Set Aside Default Judgment” was not subject to direct appeal under OCGA § 5-6-34 (a). “In situations where a final judgment has been entered, default cannot be opened unless and until the final judgment has been set aside pursuant to OCGA § 9-11-60 (d).” Pine Tree Publishing v. Community Holdings, 242 Ga. App. 689, 690 (531 SE2d 137) (2000). And, the denial of a motion to set aside a final judgment under OCGA § 9-11-60 is not directly appealable and instead requires the filing of an application for discretionary appeal under OCGA § 5-6-35 (b). See OCGA § 5-6-35 (a) (8); Stone v. Dawkins, 192 Ga. App. 126, 126-127 (384 SE2d 225) (1989). No such application was filed in this case. Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga. App. 116 (640 SE2d 688) (2006). Given National Roofing’s failure to follow the requisite appellate procedure, we lack jurisdiction to entertain this appeal, which is hereby DISMISSED. See id.

Court of Appeals of the State of Georgia 11/13/2013 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.