Case Information

FLOYD HARRELL et al. v. BANK OF AMERICA, N. A.

A22A0557

Court of Appeals of the State of Georgia

November 23, 2021

ATLANTA

The Court of Appeals hereby passes the following order:

A22A0557. FLOYD HARRELL et al. v. BANK OF AMERICA, N. A.

In 2015, after Bank of America, N. A., filed a complaint for declaratory judgment and petition to remove cloud from title, the trial court entered a final judgment against Floyd and Diane Harrell and in favor of Bank of America. In 2021, the Harrells filed the instant action against Bank of America, seeking to set aside the prior judgment for fraud. On June 25, 2021, the trial court entered an order dismissing the Harrells' complaint, finding that it was without jurisdiction to consider the same because a motion to set aside under OCGA § 9-11-60 (d) cannot serve as the basis for a new action. The Harrells then filed a motion for reconsideration, which the trial court denied on July 9, 2021. On August 10, 2021, the Harrells filed this appeal. We, however, lack jurisdiction.

As a general rule, an appeal from an order denying a motion to set aside brought under OCGA § 9-11-60 (d) must be initiated by filing an application for discretionary review. See OCGA § 5-6-35 (a) (8); Parker v. Robinson, 337 Ga. App. 362, 364 (2) (787 SE2d 317) (2016). But even if the Harrells were entitled to a direct appeal from the trial court's June 25 order dismissing their complaint, their appeal is untimely. A notice of appeal must be filed within 30 days after entry of the judgment sought to be appealed. OCGA § 5-6-38 (a); First Merit Credit Services v. Fairway Aviation, 359 Ga. App. 829, 830 (1) (860 SE2d 126) (2021). And "[t]he proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court." Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334, 336 (715 SE2d 752). Here, the notice of appeal was filed 46 days after the June 25 order. And the denial of a motion for reconsideration is not subject to direct appeal and does not extend the time for filing a notice of appeal. See Luster v. Bank of America, N.A., 331 Ga. App. 510, 512 (769 SE2d 394) (2015).

Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia

Clerk's Office, Atlanta, 11/23/2021

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.

Stephen E. Castten

Clerk.