Harold R. Lilly v. City of Carrollton, Georgia

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 23, 2015

The Court of Appeals hereby passes the following order: A16A0180. HAROLD R. LILLY v. CITY OF CARROLLTON, GEORGIA.

Harold Lilly sued the City of Carrollton for damages. On February 12, 2015, the trial court entered an order dismissing the complaint with prejudice. Lilly filed several pro-se motions, which the trial court denied. Lilly filed an application for discretionary appeal seeking review of the trial court’s orders. We dismissed the application for lack of jurisdiction because Lilly had no right of direct appeal. See Case No. A15D0364, dismissed May 7, 2015. On June 8, 2015, Lilly filed a motion to set aside the judgment. The City of Carrollton responded to Lilly’s motion and sought attorney fees pursuant to OCGA § 9-15-14. Lilly filed another pro se motion that purported to challenge allegations raised in the motion for fees. On July 22, 2015, the trial court entered orders denying Lilly’s motion to set aside, granting attorney fees to the City of Carrollton, and dismissing Lilly’s pro se motion. Lilly filed a notice of appeal challenging the trial court’s orders. The City of Carrollton has filed a motion to dismiss the appeal for lack of jurisdiction. An appeal from the denial of a motion to set aside under OCGA § 9-11-60 (d) must be taken by application for discretionary appeal. OCGA § 5-6-35 (a) (8); see MMT Enterprises, Inc. v. Cullars, 218 Ga. App. 559, 561 (462 SE2d 771) (1995). Similarly, an appeal from an order awarding attorney fees and litigation expenses under OCGA § 9-15-14 must be made by discretionary application rather than direct appeal. See OCGA § 5-6-35 (a) (10). Finally, as the trial court did not set aside the dismissal order, Lilly has no right to the relief requested in his most recently filed motion.

Under these circumstances, Lilly’s failure to comply with the discretionary review procedure deprives us of jurisdiction over this appeal. Accordingly, the City of Carrollton’s motion to dismiss is hereby GRANTED, and this appeal is DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 11/23/2015 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.