A Denial of a Motion for Reconsideration Isn’t Appealable

On July 31, the Court of Appeals dismissed the appeal in Corley v. Ocwen Loan Servicing, A14A1778, primarily because the order being appealed was in substance an order denying a motion for reconsideration. Such orders are “not subject to appellate review.” Id., slip op. at 2. The notice of appeal was not timely filed as to any appealable order, and accordingly the Court of Appeals dismissed the case.

Motions to reconsider are treated differently from certain post-trial motions, which may cause confusion. Under the statutory section governing the time for filing a notice of appeal, OCGA § 5-6-38(a), a notice of appeal may be filed within 30 days after disposition of “a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict.” A motion for reconsideration is not one of the listed categories.

In some cases, a way around the rule denying appellate review to motions for reconsideration is to characterize the motion as one to set aside the judgment, pursuant to OCGA § 9-11-60(d). Denials of such motions can be independently appealed, and it appears that is what the appellants in Corley attempted to do. However, merely titling the motion as a “Motion to Set Aside” is insufficient. Instead, the party seeking relief must rely on the grounds for relief set forth in Section 9-11-60(d). Because the Court of Appeals determined that the Corleys did not do that, the court treated their motion as one for reconsideration. Moreover, an appeal of a denial of a motion to set aside a verdict can only be brought as a discretionary appeal pursuant to OCGA § 5-6-35(a)(8), and the Corleys had not followed the discretionary appeal procedure.

Another option that may be available in certain cases is a motion for an out-of-time appeal. Although this remedy is much better established in criminal cases, it is conceivable that Georgia courts would grant such a motion even outside the criminal context in the proper case. See Gable v. State, 290 Ga. 81, 85 (720 SE2d 170) (2011) (“Georgia courts may excuse compliance with a statutory requirement for appeal only where necessary to avoid or remedy a constitutional violation concerning the appeal”); In re S.M.B., 319 Ga. App. 125, 128 (735 SE2d 122) (2012) (McFadden, J., dissenting) (“I would hold that Georgia courts have the authority to grant permission to file out-of-time discretionary applications to appeal from orders terminating parental rights.”).