Ying Chen v. Anna Sander

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 06, 2021

The Court of Appeals hereby passes the following order: A21D0414. YING CHEN v. ANNA SANDER.

Anna Sander filed a petition for stalking temporary protective order against her neighbor, Ying Chen. The trial court granted the protective order, and Chen filed a “Motion to Set Aside or in the Alternative Motion for New Trial.” The trial court denied the motion, and Chen filed this application for discretionary appeal. Chen is entitled to a direct appeal. “Because the protective order did not arise out of a domestic relations matter that would subject it to the discretionary appeal procedures, it is directly appealable.” Bodi v. Ryan, 358 Ga. App. 267, 268 n. 3 (855 SE2d 11) (2021). Here, Chen did not appeal directly from the protective order; she appealed from the trial court’s subsequent order denying her motion for new trial. But the timely filing of a motion for new trial generally extends the deadline for filing a notice of appeal. See OCGA § 5-6-38 (a). Because Chen filed her application for discretionary appeal within 30 days of the trial court’s order denying her motion for new trial, she is entitled to a direct appeal under OCGA § 5-6-34 (a) (1).1 See id.

1 Chen also moved to set aside the trial court’s order based on the trial court’s failure to conduct a hearing within 30 days. See OCGA §§ 16-5-94 (e) and 19-13-3 (c). A discretionary application is required from an order denying a motion to set aside under OCGA § 9-11-60 (d). See OCGA § 5-6-35 (a) (8). To the extent that Chen’s motion is construed as a motion to set aside under OCGA § 9-11-60 (d), Chen is required to file a discretionary application if she only challenges the denial of the motion to set aside. See Voyles v. Voyles, 301 Ga. 44, 46-47 (799 SE2d 160) (2017) (courts look to the issues raised to determine the appropriate appellate procedure). Here, however, Chen also appears to challenge the evidentiary basis for the trial court’s ruling, which is properly raised in a motion for new trial. See The Hudson

This Court will grant an otherwise timely discretionary application if the lower court’s order is directly appealable and the applicant has not already filed a notice of appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED. Chen shall have ten days from the date of this order to file a notice of appeal with the trial court. If she has already filed a notice of appeal, she 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 Clerk’s Office, Atlanta,____________________ 08/06/2021 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.

Trio, LLC v. Buckhead Cmty. Bank, 304 Ga. App. 324, 326 (1) (696 SE2d 372) (2010) (“‘A motion for a new trial is a proper means of seeking a retrial or reexamination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury or a decision by the court thereon.’”).