Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 23, 2020
The Court of Appeals hereby passes the following order:
A21A0234. SPARROW EXTERIORS, LLC v. ALL ROOFING
CONSTRUCTION, LLC.
All Roofing Construction, LLC filed a breach of contract action against
Sparrow Exteriors, LLC and served discovery contemporaneously therewith. On
December 16, 2019, the trial court entered an order striking Sparrow Exteriors’
answer for failure to provide discovery. On December 18, 2019, Sparrow Exteriors
sought reconsideration of that decision, but the trial court denied its request. All
Roofing Construction then filed a motion for judgment on the pleadings and a motion
for attorney’s fees, pursuant to OCGA § 9-15-14. On February 3, 2020, the trial court
granted All Roofing’s motion for judgment on the pleadings, awarded damages, and
scheduled a hearing to determine attorney fees’s. Sparrow Exteriors filed a “Motion
for New Trial,” again asking the trial court to reconsider its decision to strike Sparrow
Exteriors’ answer. On April 21, 2020, the trial court denied the “Motion for New
Trial.” In a footnote, the trial court noted that although that the motion purported to
seek a new trial, it was “truly a motion for reconsideration of this Court’s December
1[6], 2019 order.” On April 24, 2020, Sparrow Exteriors filed a notice of appeal.
Because the notice is untimely from the judgment, we lack jurisdiction to consider
this appeal.
A notice of appeal must be filed within 30 days after entry of the appealable
order. OCGA § 5-6-38 (a). The proper and timely filing of the notice of appeal is an
absolute requirement to confer appellate jurisdiction upon this Court. See Rowland
v. State, 264 Ga. 872 (452 SE2d 756) (1995). In this case, judgment on the pleadings
was entered on February 3, and Sparrow Exteriors filed its notice of appeal on April
24, which was 81 days later.
Regardless of whether Sparrow Exteriors’ “Motion for New Trial” is best
construed as a motion for new trial or, as the trial court observed, as a motion for
reconsideration, it does not make the notice of appeal timely. A motion for new trial
tolls the time to appeal from the judgment, but a party cannot move for a new trial if
no trial has been had. See Gooding v. Boatright, 211 Ga. App. 221, 222 (438 SE2d
685) (1993) (“Objections which go to the judgment only, and do not extend to the
verdict, cannot properly be made grounds of a motion for new trial”) (punctuation
omitted). See also Debter v. Stephens, 297 Ga. 652 (777 SE2d 244) (2015) (motion
for new trial is not a proper vehicle for challenging the grant of summary judgment).
“Where a motion for new trial is not a proper vehicle for review of a trial court’s
action, the motion has no validity and will not extend the time for filing the notice of
appeal.” Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447) (1986). In this case,
the final judgment was a judgment on the pleadings, so a motion for new trial was not
an appropriate vehicle for challenging the trial court’s ruling. See Gooding, 211 Ga.
App. at 222. Accordingly, the motion did not operate to extend the time for filing a
notice of appeal. See Pillow, supra.
Furthermore, to the extent the motion could be considered a motion for
reconsideration, as it specifically asked the trial court to reconsider its findings
related to discovery, it still would not make the notice of appeal timely. Motions for
reconsideration do not extend the time to appeal from the underlying decision, and
the order resolving the motion is not subject to direct appeal. See Bell v. Cohran, 244
Ga. App. 510, 510 (536 SE2d 187) (2000) (“a motion for reconsideration does not toll
the time for filing a direct appeal”).
In sum, no timely appeal was filed from the trial court’s February 3, 2020 order
granting judgment on the pleadings. The notice of appeal – filed 81 days after entry
of the order granting the motion for judgment on the pleadings – does not confer
jurisdiction. See OCGA § 5-6-38 (a). We therefore lack jurisdiction over this
untimely appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
10/23/2020
Clerk’s Office, Atlanta,____________________
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.