Amwaste of Georgia, LLC v. John Dunn

Court of Appeals
of the State of Georgia

ATLANTA,____________________
June 08, 2026

The Court of Appeals hereby passes the following order:

A26D0557. AMWASTE OF GEORGIA, LLC v. JOHN DUNN et al.

Defendant AmWaste of Georgia, LLC (“AmWaste”) filed a renewed motion
to set aside a judgment under both OCGA § 9-11-60(d) and OCGA § 9-11-60(g).
AmWaste argued, among other things, that it did not receive a copy of the trial court’s
judgment due to a clerical mistake. The trial court denied the motion, and AmWaste
filed both this application for discretionary appeal and a notice of appeal.
An order denying a motion to set aside under OCGA § 9-11-60(d) requires
compliance with the discretionary appeal statute. OCGA § 5-6-35(a)(8). However, a
motion to set aside based on the court’s failure to provide notice of its judgment is
cognizable as a motion to set aside under OCGA § 9-11-60(g), which may be appealed
directly. SiteOne Landscaping Supply, LLC v. Stewart, 363 Ga. App. 855, 858(1) (872
SE2d 915) (2022).
“Where both the direct and discretionary appeal statutes are implicated, it is
always the underlying subject matter that will control whether the appeal must be
brought pursuant to OCGA § 5-6-34 or OCGA § 5-6-35.” Ferguson v. Composite State
Bd. of Med. Examiners, 275 Ga. 255, 257(1) (564 SE2d 715) (2002). Because it appears
from the application brief that AmWaste seeks to challenge the trial court’s ruling to
the extent it denied a motion to set aside under OCGA § 9-11-60(g), no discretionary
application is required. See Voyles v. Voyles, 301 Ga. 44, 47 (799 SE2d 160) (2017)
(explaining that “the proper appellate procedure to employ depends upon the issue
involved in the appeal”).
Because the order at issue may be appealed directly, this Court would ordinarily
grant the application under OCGA § 5-6-35(j). Here, however, AmWaste has already
filed a notice of appeal. Because this application for discretionary appeal is duplicative
of AmWaste’s direct appeal, this application is hereby DISMISSED as superfluous.

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/08/2026
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.