Trinity v. Applebee's Neighborhood Grill & Bar

Pope, Judge. Plaintiff/appellant Hawa Trinity brought suit against defendant/ appellee Applebee’s Neighborhood Grill & Bar after plaintiff slipped and fell in one of defendant’s restaurants. Defendant filed a motion for summary judgment, which the trial court granted on November 30, 1990. Plaintiff filed a motion for reconsideration of the trial [405] court’s order on December 26, 1990; plaintiff filed a motion to supplement her motion for reconsideration on February 5, 1991 “by amending her prayer to ask that judgment be set aside or in the alternative that plaintiff be granted a new trial.” The trial court denied plaintiff’s motion for reconsideration on February 7, 1991 and plaintiff filed her appeal to this court on March 5, 1991. Defendant filed a motion to dismiss this appeal on September 9, 1991. Decided October 3, 1991. Daryl G. LeCroy, for appellant. Duncan & Mangiafico, Royce F. Morris, for appellee. “An appeal from a judgment denying a motion for reconsideration of a summary judgment order rendered more than 30 days before the notice of appeal is not timely. [Cits.]” Bartlett v. Hembree, 177 Ga. App. 253, 254 (339 SE2d 388) (1985). See also N. C. Constr. Co. v. Action Mobilplatform, 187 Ga. App. 507 (370 SE2d 800) (1988). Although plaintiff sought to amend her motion for reconsideration to request that judgment be set aside or that a new trial be granted, such action did not extend the time for filing the notice of appeal. Pretermitting the question of whether a motion for new trial was the proper procedural vehicle to attack the trial court’s order granting summary judgment in this case, OCGA § 5-5-40 (a) provides that a motion for new trial must be filed within 30 days of the entry of the judgment complained of; no extensions of time are permitted for the filing of such motions. OCGA § 5-6-39 (b). See Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269 (1) (329 SE2d 900) (1985). As to plaintiff’s request that judgment be set aside, “ ‘[e]ven if we were to construe [plaintiff’s] (motion for reconsideration) as a motion to set aside, this court would still have no jurisdiction over the appeal. Appeals from the denial of such motions are discretionary and [plaintiff] did not follow the applicable procedure to secure appellate review of the denial of [her] motion. (Cits.)’ [Cit.]” Alvin Lee Co. v. Garmon Elec. Contractors, 190 Ga. App. 159 (378 SE2d 384) (1989). Accord N. C. Constr. Co., supra. Appeal dismissed. Birdsong, P. J., and Cooper, J., concur.