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Luster v. Bank of America, N.A.

Court of Appeals of Georgia

March 4, 2015

LUSTER
v.
BANK OF AMERICA, N.A. et al

Reconsideration denied March 25, 2015 -- Cert. applied for.

Dismissal; want of prosecution. Catoosa Superior Court. Before Judge House.

Appeal dismissed.

Lois Luster, pro se.

Lotstein Legal, Marcus G. Keegan, A. Michelle Canter, McGuire Woods, Jarrod S. Mendel, Andrew G. Phillips, for appellees.

MILLER, Judge. Doyle, P. J., and Dillard, J., concur.

OPINION

Page 395

Miller, Judge.

Lois Luster filed a wrongful foreclosure suit against Bank of America, N.A., successor by merger with Countrywide Home Loans Servicing, Investors One Corporation, Kondaur Capital Corporation, [331 Ga.App. 511] MERSCORP, Inc., and Campbell & Brannon, LLC.[1] After Luster failed to appear in court, the trial court dismissed her suit for want of prosecution. Thereafter, the trial court denied Luster's motion for new trial or, alternatively, to set aside the dismissal, and Luster filed this appeal. Since we lack jurisdiction to consider Luster's appeal, it must be dismissed.

" It is our duty to inquire on our own motion into the issue of this Court's jurisdiction." (Citations omitted.) Southwest Health & Wellness, LLC v. Work, 282 Ga.App. 619, 622 (1) (a) (639 S.E.2d 570) (2006).

The trial court dismissed Luster's suit for want of prosecution on February 5, 2014. A judgment dismissing a plaintiff's entire complaint is a final order and is directly appealable under OCGA § 5-6-34 (a) (1). See Andemeskel v. Waffle House, Inc., 227 Ga.App. 887 (1) (490 S.E.2d 550) (1997). Pursuant to OCGA § 5-6-38 (a), a notice of appeal must be filed within 30 days of the appealable decision. Luster did not, however, file a notice of appeal within 30 days after the dismissal of her suit. Instead, Luster filed a motion, captioned " a motion for new trial or, alternatively, a motion to set aside the dismissal," which the trial court denied on April 9, 2014. Luster then filed a notice of appeal on April 15, 2014, seeking review of the trial court's April 9 order.

" [T]he appealability of an order is determined, not by its form or the name given to it ..., but rather by its substance and effect." (Footnote omitted.) First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 885 (655 S.E.2d 605) (2008).

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. A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree. If a judgment or decree is ...

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