KAPPELMEIER v. HOMER (1997)

Plaintiff Gottfried A. Kappelmeier filed a pro se complaint alleging defendant Speros D. Homer “libeled the Plaintiff by publishing with actual malice and reckless disregard for truth a false and defamatory letter․”   Defendant denied the material allegations and filed a counterclaim, alleging that plaintiff's complaint lacked substantial justification and was frivolous, groundless and vexatious.   This counterclaim was dismissed in an order entered on April 15, 1996.

Thereafter, defendant moved for summary judgment on the basis of privilege, which motion was granted in an order entered November 4, 1996.   On November 27, 1996, plaintiff moved to set aside the trial court's order granting summary judgment but this motion was denied on January 30, 1997.   This direct appeal followed.   Held:

 Under OCGA § 5-6-35(a)(8), orders denying “all motions to set aside a judgment, including those predicated on a nonamendable defect or lack of jurisdiction, may be appealed only by discretionary grant unless the motion to set aside was combined with a motion for new trial or a motion for j.n.o.v. See Martin v. Williams, 263 Ga. 707, 710, 438 S.E.2d 353;  OCGA § 5-6-34(d).”  MMT Enterprises v. Cullars, 218 Ga.App. 559, 561, 462 S.E.2d 771.   In the case sub judice, plaintiff's notice of direct appeal does not confer appellate jurisdiction on this Court to consider the trial court's denial of plaintiff's motion to set aside, in the absence of a proper and timely order granting plaintiff permission to pursue a discretionary appeal.   Consequently, Case No. A97A1539 must be dismissed.

Appeal dismissed.

McMURRAY, Presiding Judge.

BEASLEY and SMITH, JJ., concur.