Facts
In September 2019, Dequintavious Rivers filed a complaint against Logan McCullers for damages arising from a car accident. On Defendant’s Motion, the trial court dismissed the lawsuit in August 2020 based on lack of service and expiration of the statute of limitations. Rivers subsequently filed a Motion to Vacate, which the trial court denied on November 3, 2020.
On December 2, 2020, Rivers filed a Notice of Appeal. This was not filed within 30 days of the original order dismissing the case, but it was filed within 30 days of the ruling on the Motion to Vacate. Defendant moved to dismiss the appeal as untimely, and in August 2022 the trial court dismissed the appeal. This appeal followed.
Issues & Holdings
The issues in this case were as follows:
- Did the trial court have the authority to dismiss the notice of appeal?
- Was Rivers’ direct appeal of the trial court’s November 2020 order timely?
The Court of Appeals held that the trial court lacked authority to dismiss the notice of appeal. However, it held that the appeal was untimely anyways and dismissed it.
Reasoning
First, the Court of Appeals evaluated whether or not the trial court had the authority to dismiss Rivers’s appeal as it did. The Court concluded that an untimely appeal should be dismissed, but the statutes and case law did not authorize such a dismissal by a trial court. See Jones v. Peach Trader, Inc., 302 Ga. 504 (2017).
Second, the Court of Appeals considered the notice of appeal. It concluded that the notice of appeal was untimely as to the August 2020 dismissal order and that the November 2020 order could not be directly appealed.
The Court determined that the notice of appeal for the August 2020 order was untimely, as it was filed 106 days after the order, which is far longer than the 30-day window provided by O.C.G.A. § 5-6-38(a).
The notice of appeal was timely as to the November 3, 2020 order denying Rivers’s Motion to Vacate, but that order was not directly appealable. If it was construed as a motion to set aside under O.C.G.A. § 9-11-60(d), an application for discretional appeal was required. See Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga. App. 116 (2006). To the extent it could be construed as a motion for reconsideration, the denial of a motion for reconsideration is not appealable. See Bell v. Cohran, 244 Ga. App. 510 (2000).
Conclusion
Rivers is a good reminder to be aware of all filing deadlines when considering an appeal. The deadline to appeal will generally run from the entry of the appealable decision or judgment (unless a motion for a new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict has been filed). See O.C.G.A. § 5-6-38(a). If you do plan to file a motion for reconsideration, or similar motion, you must be aware that it will not extend the deadline to file a notice of appeal.
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Citation: Rivers v. McCullers, 2023 WL A23A0052 (Ga. Ct. App. May 5, 2023)
