Michael W. Williams v. Frederick L. Willis, III

Court of Appeals of the State of Georgia

ATLANTA,____________________ March 02, 2016

The Court of Appeals hereby passes the following order: A16A0990. MICHAEL W. WILLIAMS v. FREDERICK L. WILLIS, III.

Frederick Willis, III sued Michael Williams for misrepresentation and fraud regarding a real estate venture. Willis received a final judgment on July 5, 1994. In October 2015, Williams filed an Emergency Motion to Set Aside Final Judgment, arguing the judgment is void as duplicative of a 1993 South Carolina judgment. The trial court denied Williams’s motion to set aside, and Williams filed this direct appeal. We lack 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 (2) (462 SE2d 771) (1995). While Williams argues that the 1994 judgment is void and should be set aside pursuant to OCGA § 9-11-60 (a), and a collateral attack pursuant to that subsection is not subject to the discretionary appeal procedures, the Georgia Supreme Court has expressly limited judgments void on their faces under OCGA § 9-11-60 (a) to "those judgments which lack either personal or subject matter jurisdiction." Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993); Utica Mut. Ins. Co. v. Mitchell, 227 Ga. App. 830, 831-832 (490 SE2d 489) (1997). Williams argues that the 1994 judgment is duplicative of a South Carolina judgment; he does not argue that the Georgia court lacked personal or subject matter jurisdiction. Thus, Williams did not raise a valid collateral attack on the default judgment as void on its face. He, therefore, was required to comply with the discretionary appeal procedures of OCGA § 5-6-35 (a) to appeal the denial of his OCGA § 9-11-60 motion to set aside, and his failure to do so deprives this court of the jurisdiction to consider this case.

Accordingly, this appeal is hereby ordered DISMISSED.

Court of Appeals of the State of Georgia 03/02/2016 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.