Icot Holdings, LLC v. Tracy Young

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 15, 2017

The Court of Appeals hereby passes the following order: A18D0158. ICOT HOLDINGS, LLC v. TRACY YOUNG, et al.

ICOT Holdings, LLC (“ICOT”) voluntarily dismissed without prejudice its action against Tracy Young, et al., in which it raised multiple claims including breach of fiduciary duty. ICOT later filed a Motion to Reopen and Dismiss, asking the trial court to reopen the case and enter a dismissal with prejudice. After the trial court denied the motion, ICOT filed this application for discretionary appeal. In its application, ICOT indicates that it has followed the discretionary appeal procedures because the motion is akin to a OCGA § 9-11-60 (d) motion to set aside a judgment. See OCGA § 5-6-35 (a) (8). This Court has held, however, that the discretionary appeal procedures do not apply to orders denying a plaintiff’s motion to set aside its voluntary dismissal. See Collier v. Evans, 205 Ga. App. 764, 766 (3) (423 SE2d 704) (1992). Instead, such orders are directly appealable. Id. Pursuant to OCGA § 5-6-35 (j), we will grant an otherwise timely discretionary application if the lower court’s order is subject to direct appeal. Accordingly, this application is hereby GRANTED. ICOT shall have 10 days from the date of this order to file a notice of appeal with the trial court, if it has not already done so. The trial court clerk is directed to include a copy of this order in the record on appeal.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/15/2017 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.