Tara J. Miller v. Jay Marin Dooley A/K/A Tom Dooley

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 05, 2016

The Court of Appeals hereby passes the following order: A16A0831. TARA J. MILLER et al. v. JAY MARIN DOOLEY.

Jay Marin “Tom” Dooley sued Tara and Eric Miller. Dooley attempted to depose the Millers, who refused to appear for duly noticed depositions. Dooley moved to strike the Millers’ answer and for default judgment as a discovery sanction. On November 2, 2015, the trial court granted Dooley’s motion for default judgment, but reserved the issue of damages. On December 3, 2015, the Millers filed a notice of appeal from the ruling. We lack jurisdiction. First, a notice of appeal must be filed within 30 days after entry of the order on appeal. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. See Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). Here, the notice of appeal was filed 31 days after entry of the trial court’s order and thus is untimely.1 Second, although the trial court entered default judgment against the Millers, the court left pending the issue of damages. Under these circumstances, the order is not final. Thus, the Millers were required to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) in order to appeal. See Neal v. State, 182 Ga. App. 37 (354 SE2d 664) (1987); Attridge v. Maines, 174 Ga. App. 472, 473 (330

1 In their notice of appeal, the Millers suggest that the notice of appeal was untimely because the trial court failed to send a copy of its order. If the Millers’ right to appeal was frustrated due to the trial court’s failure to send a copy of its order, their remedy is to petition the trial court to vacate and re-enter the order as a means of correcting the problem. See Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980).

SE2d 409) (1985). For these reasons, we lack jurisdiction, and this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 02/05/2016 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.