Shannon Donovan v. Debra Donovan

Court of Appeals of the State of Georgia ATLANTA,____________________ March 17, 2016 The Court of Appeals hereby passes the following order: A16D0278. SHANNON DONOVAN v. DEBRA DONOVAN. After the trial court denied Shannon and Debra Donovan’s motion for new trial, they filed a motion to set aside the denial under 9-11-60 (g), asserting that the trial court failed to timely notify them regarding its decision. The trial court denied the motion, and the Donovan’s filed a timely application for discretionary review. The Donovans apparently followed the discretionary appeal procedures because an order denying a motion to set aside under OCGA § 9-11-60 (d) may only be reviewed through discretionary application. See OCGA § 5-6-35 (a) (8). But “[m]otions to set aside brought on the grounds that the court failed to notify the losing party of its decision are cognizable as motions to correct a clerical error pursuant to OCGA § 9-11-60 (g) and are properly the subject of a direct appeal.” Downs v. C. D. C. Federal Credit Union, 224 Ga. App. 869 (1) ( 481 SE2d 903 ) (1997). The Donovans, therefore, were not required to file an application for discretionary appeal. See Leventhal v. Moseley, 264 Ga. 891, 892 ( 453 SE2d 455 ) (1995). This Court will grant an otherwise timely discretionary application if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED. The Donovans shall have ten days from the date of this order to file a notice of appeal with the trial court. See OCGA § 5-6-35 (g). If, however, the Donovans have already filed a notice of appeal, they need not file a second notice. The clerk of the trial court is directed to include a copy of this order in the record transmitted to the Court of Appeals. Court of Appeals of the State of Georgia 03/17/2016 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.