Opinion
A23A0147
10-11-2022
KIMBERLY L. TUOPAEH v. NATIONAL COLLEGIATE SUDENT LOAN TRUST 2006-2.
The Court of Appeals hereby passes the following order:
After the trial court entered summary judgment for the plaintiff, Defendant Kimberly L. Tuopaeh filed a motion for new trial. The trial court treated the motion as a motion for reconsideration and denied it. Tuopaeh then filed this appeal. We, however, lack jurisdiction.
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, 872 (452 S.E.2d 756) (1995). In this case, the order granting summary judgment was entered on December 20, 2021, and Tuopaeh filed her notice of appeal on July 22, 2022, which was 214 days later.
Tuopaeh's purported motion for new trial does not make the notice of appeal timely. "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 S.E.2d 447) (1986). We have held that a motion for new trial is not a proper method for challenging the grant of summary judgment. See Leader Nat. Ins. Co. v. Martin, 185 Ga.App. 27, 29 (1) (363 S.E.2d 281) (1987); see also Blackwell v. Sutton, 261 Ga. 284, 284 n. 1 (404 S.E.2d 114) (1991) ("A motion for new trial, by its very nature, would not lie to rectify an erroneous grant of summary judgment.").
Furthermore, to the extent the motion could be considered a motion for reconsideration, the motion did not extend the time to appeal from the underlying order, and the order resolving it is not subject to direct appeal. See Bell v. Cohran, 244 Ga.App. 510, 510 (536 S.E.2d 187) (2000) ("a motion for reconsideration does not toll the time for filing a direct appeal"). And even if we construe Tuopaeh's motion as a motion to set aside under OCGA § 9-11-60 (d), an order denying such a motion may be appealed only by complying with the discretionary appeal procedures. See OCGA § 5-6-35 (a) (8); Arrowhead Alternator v. CIT Communications Finance Corp., 268 Ga.App. 464, 466 (602 S.E.2d 231) (2004).
Because Tuopaeh did not file a timely notice of appeal from the summary judgment order, we lack jurisdiction to consider this appeal, which is hereby DISMISSED.