Amaechi v. Lib Properties, Ltd.
Amaechi v. Lib Properties, Ltd.
Opinion of the Court
On September 13, 2001, plaintiff Elsie Amaechi, pro se, filed a notice of appeal from the August 22, 2001 order of the trial court denying plaintiff’s motion to set aside its order granting summary judgment to Lib Properties, Ltd. and Mark C. Walker. See OCGA § 9-11-60 (d) (2). This appeal comes as a direct appeal from the May 8, 2000 grant of summary judgment instead of as a discretionary appeal from the August 22, 2001 denial of the motion to set aside judgment as indicated in the notice of appeal, although such notice sets out the August 22, 2001 order as the order appealed. Further, the enumeration of error addresses only the grant of summary judgment and not the denial of the motion to set aside. If any attorney failed to properly enumerate the denial of the plaintiff’s motion to set
If the trial court fails to give notice to the party as mandated under OCGA § 15-6-21 (c) of the entry of a final order, the motion to set aside such order should be determined under OCGA § 9-11-60 (g) as a clerical error. See Cambron v. Canal Ins. Co., supra at 148-149 (1). Thus, if the motion is considered by the trial court under OCGA § 9-11-60 (g) instead of under OCGA § 9-11-60 (d), then there exists a right of direct appeal. Carnes Bros., Inc. v. Cox, 243 Ga. App. 863, 864 (534 SE2d 547) (2000); Kendall v. Peach State Machinery, 215 Ga. App. 633, 634 (1) (451 SE2d 810) (1994); Crawford v. Kroger Co., 183 Ga. App. 836 (1) (360 SE2d 274) (1987). However, where the trial court determines that the proper notice was provided to the party by the trial court and that nonreceipt of the notice was through the negligence of the party in failing to provide the court with a change of address, then the trial court’s determination comes under OCGA § 9-11-60 (d) (2), requiring a discretionary appeal, because the trial court sent the notice to the address the party included in their pleadings, and the party failed to correct such address. Porter v. Tissenbaum, 247 Ga. App. 816, 818 (3) (545 SE2d 372) (2001). Such was the case here, where the trial court determined that it was the plaintiff’s fault that notice was not received. Therefore, this Court never reaches the issue the pro se plaintiff seeks to put before this Court, i.e., whether the trial court erred in granting summary judgment.
When summary judgment has been granted and the trial court fails to give notice to the parties within the term when such order was granted, allowing a timely direct appeal, the party’s sole remedy is to seek to set aside the judgment, because the 30-day time within which to make a direct appeal has expired and the judgment has
Appeal dismissed for lack of jurisdiction.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.