Eric Wedlowe v. Cotton State Mortgage, Inc.

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 07, 2016

The Court of Appeals hereby passes the following order: A16A1853. ERIC WEDLOWE v. COTTON STATE MORTGAGE, INC. et al.

Eric Wedlowe filed a petition to quiet title against several defendants, including Bank of America, N. A. After a special master determined that Bank of America was the only proper defendant, Bank of America moved for judgment on the pleadings. The trial court granted the motion and entered final judgment on May 1, 2015. Wedlowe filed a motion for new trial, which the trial court denied on August 21, 2015. Wedlowe then filed this direct appeal.1 Bank of America has filed a motion to dismiss. The proper and timely filing of the notice of appeal is an absolute requirement to confer appellate jurisdiction upon this Court. See Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995). Here, Wedlowe filed a motion for new trial which, when timely filed, extends the time for filing a notice of appeal. See OCGA § 5-6-38 (a). However, “[w]here a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal.” Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447) (1986). Generally, a party cannot move for new trial if no trial has been had. See Downs v. State, 270 Ga. 310 (509 SE2d 40) (1998) (one who has entered a guilty plea cannot move for new trial as there was no trial); see also Debter v. Stephens, 297 Ga. 652 (777 SE2d 244) (2015) (motion for new trial is not a proper vehicle for challenging the grant of summary judgment); Gooding v. Boatright, 211 Ga. App. 221, 222 (438

1 Wedlowe directed his appeal to the Supreme Court, which transferred the matter to this Court.

SE2d 685) (1993) (“Objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial”) (punctuation omitted). Because the motion for new trial was not the appropriate vehicle for challenging the trial court’s ruling, it did not operate to extend the time for filing a notice of appeal. See Pillow, supra. As no timely appeal was filed from the trial court’s May 2015 order granting judgment on the pleadings, we lack jurisdiction to consider this matter. Accordingly, Bank of America’s motion to dismiss is hereby GRANTED, and this appeal is DISMISSED.

Court of Appeals of the State of Georgia 07/07/2016 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.