Kevin Brown v. Spivey Junction Station, LLC

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 12, 2025

The Court of Appeals hereby passes the following order: A26A0851. KEVIN BROWN v. SPIVEY JUNCTION STATION, LLC.

In February2022, Spivey Junction Station, LLC filed this civil action against Kevin Brown. In June2022, the trial court entered default judgment in favor of Spivey Junction Station. Since that time, Brown has filed multiple motions to set aside the judgment pursuant to OCGA § 9-11-60(d), asserting he was never served with the lawsuit. The trial court denied the motions, and Brown appealed to this Court. We dismissed the appeals for Brown’s failure to follow the discretionary appeal procedures. See Case Nos. A23A1493 (May 31, 2023), A26A0168 (Sept. 10, 2025). On September 30, 2025, Brown filed yet another motion to vacate the judgment pursuant to OCGA § 9-11-60(d), which the trial court denied. Brown filed then filed both an application for discretionary review and a notice of appeal. We denied the discretionary application on the merits, see Case No. A26D0171 (Dec. 2, 2025), and the direct appeal has been docketed as the current case. We lack jurisdiction. As we have informed Brown in his previous appeals, an appeal from an order denying a motion to set aside a judgment under OCGA § 9-11-60(d) must be made by application for discretionary appeal. See OCGA § 5-6-35(a)(8); Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga. App. 116, 116 (640 SE2d 688) (2006). Brown’s failure to file a discretionary application thus deprives this Court of jurisdiction over this appeal. Moreover, our denial of Brown’s application in Case No. A26D0171 was an adjudication on the merits of the underlying order and bars the instant appeal. See Hook v. Bergen, 286 Ga. App. 258, 261(1) (649 SE2d 313) (2007) (a ruling on an application for discretionary appeal acts as res judicata in later proceedings); see also

Jackson v. State, 273 Ga. 320, 320 (540 SE2d 612) (2001) (a party “is not entitled to another bite at the apple by way of a second appeal”). For the above reasons, this direct appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/12/2025 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.