FOURTH DIVISION

DILLARD, P. J.,

MERCIER and MARKLE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

June 15, 2022

In the Court of Appeals of Georgia

A22A0417. L. SCOTT BORN et al. v. BRUCE G. BORN et al.

DILLARD, Presiding Judge.

Bruce Born and his wife, Phyllis(“plaintiffs”), filed a lawsuit against their son,

L. Scott Born, and his wife, Lisa (“defendants”), seeking a writ of possession as to

property they owned and related damages. The defendants filed an answer and

counterclaims, alleging several equitable defenses and that the plaintiffs gifted them

the property. Upon the plaintiffs’ motion, the trial court granted partial summary

judgment to them as to the defendants’ claim that the property was a gift, as well as

to the defendants’ claims for specific performance, and it issued the plaintiffs a writ

of possession. Thereafter, the defendants filed an application for an interlocutory

appeal, which we denied. In doing so, this Court noted that the defendants had the
right to a direct appeal under OCGA § 9-11-56 (h), but because their application was

untimely, we lacked jurisdiction and, thus, it was subject to dismissal.

Following that dismissal, the trial court—at the defendants’ behest—modified

its previous order and immediately issued an order similarly granting partialsummary

judgment to the plaintiffs but now declining to issue a writ of possession. The

defendants then filed this timely appeal of that order, arguing the trial court erred in

ruling (1) the Statute of Frauds barred the defendants’ claim that the plaintiffs gifted

themthe property, and (2) their equitable defenses were inapplicable. In response, the

plaintiffs contend our dismissal of the defendants’ prior interlocutory application

affirmed the trial court’s initial grant of partial summary judgment, and thus, the

doctrine of res judicata barred the defendants’ motion to modify or set aside that

ruling and their current appeal. The plaintiffs alternatively argue that if the trial

court’s order setting aside the initial summary judgment order is not barred, the court

erred in now denying them a writ of possession. For the reasons set forth infra, we

vacate the trial court’s order modifying or setting aside its initial grant of partial

summary judgment and remand the case for further proceedings consistent with this

opinion.

2
Viewed in the light most favorable to the defendants,

1

the record showsthat in

1985, the plaintiffs acquired a residence on an 11-acre tract of property located at 459

Bandy Lane in Ringgold, Catoosa County, Georgia. In 1994, the plaintiffs executed

a promissory note for $94,500 with Equity One and secured the debt with a security

deed to the residence and five acres of the property in favor of that institution. Under

the terms of the note, the loan was to mature and become due and payable in 2009.

Nevertheless, in 1997, the plaintiffs moved from Ringgold to New Orleans,

Louisiana, in order to pursue a business venture. Consequently, the property was

vacant for several years. 

In 2005, the defendants—the plaintiffs’son Scott and his wife Lisa—sold their

home and reached an oral agreement with the plaintiffs, whereby the defendants

would repair and renovate the 459 Bandy Lane property at their own expense in order

to make it suitable as collateral to refinance the Equity One loan. Additionally, the

parties agreed that the defendants would live on the property and pay the monthly

installments on the prospective refinanced debt. Subsequently, the defendants spent

approximately $62,000—as well as a considerable amount of their own

1

See, e.g., Gresham v. Harris, 349 Ga. App. 134, 138 (825 SE2d 516) (2019)

(reviewing summary judgment by construing the evidence in favor of the

nonmovant).

3
time—repairing and renovating the property. And in 2006, the plaintiffs refinanced

the Equity One loan, executing a note for $90,000 and a security deed to the property

as collateral for the loan in favor of Regions Bank. The deed also noted that upon

payment of the debt the property would be reconveyed to the plaintiffs. 

Then, for close to 14 years, the defendants lived on the property and, for the

most part, paid the monthly installments on the plaintiffs’ Regions Bank loan. But in

July 2019, the plaintiffs informed the defendants that they intended to sell the

property. And on August 6, 2019, the plaintiffs sent a letter to defendants’ counsel,

informing counsel that “[a]t best, [the defendants] have a tenancy at will to occupy

the Property.” The letter further noted that, although the plaintiffs could demand that

the defendants vacate the property immediately, the plaintiffs would give them 60

days to do so—i.e., by October 9, 2019. The defendants refused to comply with the

demand, claiming that the plaintiffs gifted them the property. 

In light of this impasse, on October 16, 2019, the plaintiffs filed a

dispossessory action in the Catoosa County Magistrate Court, seeking a writ of

possession to the property. The defendants filed an answer and counterclaims, at

which point the magistrate court transferred the case to the Superior Court of Catoosa

County, as those counterclaims exceeded the former court’s subject matter

4
jurisdiction. The plaintiffs then amended their complaint, again seeking a writ of

possession, and adding, inter alia, claims for breach of contract, conversion, and

trespass to bailed property. The defendants filed an amended answer and

counterclaims, alleging several equitable defenses and that the plaintiffs gifted them

the property. Discovery then ensued. 

Following discovery, the plaintiffs filed a motion for partial summary

judgment, arguing (1) the defendants’ claim that the plaintiffs gifted them the

property was barred by the Statute of Frauds, (2) no statutory or equitable exceptions

to the Statute of Frauds were applicable, and (3) they were entitled to a writ of

possession to the property. On July 12, 2021, the trial court granted partial summary

judgment in favor of the plaintiffs, ruling—as the plaintiffs had argued—that the

defendants’ claim the property was a gift was barred by the Statute of Frauds and no

statutory or equitable exceptions to the Statute of Frauds were applicable. The court

further ruled that the plaintiffs were entitled to a writ of possession and that it would

be effective “at the expiration of seven days after the date of this order.” That same

day, the trial court also issued a certificate of immediate review, stating incorrectly

5
that the partial grant of summary judgment was not subject to direct appeal.

2 And ten

dayslater, on July 22, 2021, the defendantsfiled a petition for interlocutory appellate

review with this Court. 

On the same day the defendants filed the foregoing petition, the Catoosa

County Sheriff’s Office served them with a notice informing them that the time for

challenging the dispossessory warrant—i.e., seven days from the trial court’s grant

of partial summary judgment—had lapsed and ordered them to immediately vacate

the premises. The defendants subsequently filed a motion to stay the writ pending

their appeal to this Court. And on July 30, 2021, they filed a motion requesting that

the trial court modify, revoke, or reconsider its grant of partial summary judgment,

arguing the court had the inherent power to modify its own judgments within the

same term of court. 

While that motion was pending, on August 19, 2021, this Court issued an order

dismissing the defendants’ interlocutory application.

3 Specifically, we noted that an

2

See OCGA § 9-11-56 (h) (“An order granting summary judgment on any issue

or as to any party shall be subject to review by appeal.”); see Trey Inman & Assoc. v.

Bank of Am., N. A., 306 Ga. App. 451, 455 (1) (702 SE2d 711) (2010) (noting that a

grant of partial summary judgment is subject to direct appeal).

3

See L. Scott Born et al. v. Bruce Born et al., Case No. A22I0005, Order (Aug.

19, 2021).

6
order granting summary judgment on any issue is directly appealable under OCGA

§ 9-11-56 (h), and that we “will grant a timely application for interlocutory review if

the order complained of is subject to direct appeal and the applicants have not

otherwise filed a notice of appeal.”4 But importantly, we further explained that

compliance with the applicable filing deadline is an absolute requirement to confer

jurisdiction, and we cannot grant an untimely application.

5 And given that the appeal

of any judgment in a dispossessory action must be filed within seven days of the date

the judgment was entered, the defendants’ application filed ten days after judgment

was untimely and required dismissal based on lack of jurisdiction.

6

4 Threatt v. Rogers, 269 Ga. App. 402, 403 (604 SE2d 269) (2004); accord

Born, Case No. A22I0005, Order (Aug. 19, 2021).

5

See Born, Case No. A22I0005, Order (Aug. 19, 2021); State v. Wheeler, 310

Ga. 72, 76 (3) (849 SE2d 401) (2020) (holding that compliance with statutory

deadlines for filing a notice of appeal or an interlocutory application is an absolute

requirement for conferring jurisdiction upon the appellate courts of this State); In the

Interest of B. R. F., 338 Ga. App. 762, 762 (791 SE2d 859) (2016) (holding that

applications for discretionary review must be timely to confer jurisdiction).

6

See OCGA § 44-7-56 (2006) (“Any judgment by the trial court shall be

appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5, provided that any such

appeal shall be filed within seven days of the date such judgment was entered . . . .”);

Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522-23 (521 SE2d 456) (1999)

(holding that an appeal in a dispossessory case must be filed within seven days of an

adverse order).

7
Immediately after the dismissal, the plaintiffs filed a response to the

defendants’ motion to modify, revoke, or reconsider its grant of partial summary

judgment, arguing that our dismissal of the defendants’ application for interlocutory

review—attempting to appeal the trial court’s grant of partial summary

judgment—barred any further review of that issue. Nevertheless, on October 4, 2021,

the trial court granted the defendants the relief they requested, modifying its prior

order granting summary judgment and then entering a new order identical to the

initial grant, with the important exception that it did not award the plaintiffs a writ of

possession. The defendants then filed a notice of appeal of that order. Shortly

thereafter, the plaintiffs filed an application for interlocutory appeal, seeking to

challenge the trial court’s grant of the defendants’request to modify the initial partial

summary judgment order.7 We dismissed that application as superfluous, but

7

See Bruce Born et al. v. L. Scott Born et al., A22I0061 (Nov. 9, 2021).

8
explained that as part of their response to the defendants’ direct appeal, the plaintiffs

would be able to raise their challengesto the trial court’s order.8 This appeal follows.

9

1. We first address the plaintiffs’ contention that our dismissal of the

defendants’ application for an interlocutory appeal affirmed the trial court’s initial

grant of partial summary judgment, and thus, the doctrine of res judicata bars both

the trial court’s grant of the defendants’ motion to modify the initial summary

judgment order and their current appeal. We agree.

It is well established that a trial court has inherent power to revise, correct, or

modify a judgment so long as it does so via a motion to modify or vacate filed within

the same term of court.

10 Of course, the motion here is essentially a motion to set

aside, and “[g]enerally, we review a trial court’s ruling on a motion to set aside for

8

See id. (citing Ga. Soc’y of Plastic Surgeons v. Anderson, 257 Ga. 710, 711

(1) (363 SE2d 140) (1987) (Per Curiam), which held that “a ruling that becomes

material to an enumeration of error urged by an appellant may be considered by the

appellate court without the necessity of a cross-appeal”).

9 The plaintiffs have also filed a motion to dismiss the defendants’ appeal,

arguing that the trial court’s modification of its initial summary judgment order did

not extend the time in which the defendants could appeal.

10

See Tremble v. Tremble, 288 Ga. 666, 668 (1) (706 SE2d 453) (2011)

(holding that a trial judge’s inherent power to revise, correct, or modify a judgment

“does not extend beyond the same term of court, unless a motion to modify or vacate,

etcetera, was filed within the same term of court” (punctuation omitted)). 

9
abuse of discretion.”

11 But when the facts are undisputed and the issues presented on

appeal involve questions of law, we “review the trial court’s ruling de novo.”12

As noted supra, a grant of partialsummary judgment issubject to direct appeal

under OCGA § 9-11-56 (h).13 But against this backdrop, in Mitchell v. Oliver,

14

 the

Supreme Court of Georgia explained that “[i]f the losing party suffers dismissal of his

§ 9-11-56 (h) appeal for failure to fulfill procedural requirements, the losing party

should, in return for his privilege of direct appeal, suffer the same sanction of res

judicata which attaches to a final judgment from which a procedurally defective

appeal is taken.”15 Consequently, the Mitchell Court concluded “that a losing party

on summary judgment who puts the machinery of immediate appellate review under

OCGA § 9-11-56 (h) into motion, yet commits a procedural defaultfatal to his appeal,

11 Davis v. Crescent Holdings & Inv., LLC, 336 Ga. App. 378, 378 (785 SE2d

51) (2016).

12

Id.

13

See supra note 2 & accompanying text.

14

 254 Ga. 112 (327 SE2d 216) (1985).

15

Id. at 114 (1); accord Houston Cty. v. Harrell, 287 Ga. 162, 163 (695 SE2d

29) (2010).

10
isforeclosed from thereafter resubmitting the matter for review on appeal of the final

judgment.”16

That is essentially what happened here. The defendantsfiled an application for

interlocutory appellate review, but—as we explicitly noted in the order dismissing

that application—they had a right to a direct appeal under OCGA § 9-11-56 (h), and

we regularly grant a timely application for interlocutory review if the order

complained of is subject to direct appeal.

17 But the defendants’ application was

untimely—just as a direct appeal would have been at that point—and, therefore, we

dismissed it for lack of jurisdiction.

18 Given these circumstances, just as in Mitchell,

the defendants put the machinery of appellate review into motion under OCGA § 9-

11-56 (h) and committed a procedural default. Thus, under Mitchell, the defendants

are foreclosed from resubmitting the partial grant of summary judgment for review

on appeal.

19

16 Mitchell, 254 Ga. at 114 (1); accord Harrell, 287 Ga. at 163.

17

See supra note 4.

18

See supra note 6 & accompanying text.

19

See Harrell, 287 Ga. at 163 (holding that plaintiff, whose first appeal from

grant of summary judgment in favor of defendant was dismissed because the notice

of appeal was not filed within 30 days after the entry of an appealable judgment, was

11
Nonetheless, the defendants contend that because they incorrectlycharacterized

their attempt to appeal as an interlocutory appeal rather than a direct appeal, our

dismissal did not bar the trial court frommodifying itsinitial grant of partialsummary

judgment. Specifically, citing Canoeside Properties, Inc. v. Livsey,

20

they assert that

“[a] defective attempt to seek interlocutory review pursuant to OCGA § 5-6-34 (b)

does not have the effect of making the judgment appealed from res judicata of the

issue.”21 But in stark contrast toCanoeside, which involved an attempt to appeal from

a denial of summary judgment,

22

the dismissal of the defendants’ prior appeal is not

an example of a defective attempt to seek interlocutory review under OCGA § 5-6-34

procedurally barred from resubmitting the matter for review on a second appeal);

Mitchell, 254 Ga. at 114 (1) (holding that appellant, having suffered dismissal of his

appeal for failure to file a notice of appeal within 30 days of entry of order granting

partial summary judgment, was barred by res judicata from thereafter resubmitting

matter for review after final judgment);see also Massey v. Massey, 294 Ga. 163, 164-

65 (2) (751 SE2d 330) (2013) (concluding that husband, who had right to seek

immediate appellate review of contempt order but made fatal procedural error of

failing to also file discretionary application as required, put the machinery of

immediate appellate review into motion, such that he was foreclosed from

resubmitting the matter for review on appeal of other matters).

20

 277 Ga. 425 (589 SE2d 116) (2003).

21

Id. at 427 (1) (quoting Mitchell, 254 Ga. at 114 (1)).

22

See id. at 425 (“This appeal is from an order denying summary judgment to

the defendants . . . .”).

12
(b). As stated in our order dismissing their application, the defendants had a right to

direct appeal, and despite mischaracterizing it as interlocutory, they clearly sought

immediate review of a summary judgment against them. In their application, and as

noted in their motion to stay proceedings filed with the trial court (while their

application was pending), the defendants sought to place the appellate machinery in

motion to immediately challenge the grant of the writ of possession so that theywould

not have to vacate the premises. For them to now claim that their untimely challenge

was a mere defective attempt at interlocutory review because they mistakenly

characterized it as such elevates form over substance and ignores the fact that

“pleadings, motions, and orders are construed according to their substance and

function and not merely by nomenclature.”23Indeed, following the defendants’logic,

if they had timely filed their application, which we would have granted as a direct

appeal, a later dismissal because they failed, for instance, to timely file their appellate

brief would nevertheless have no res judicata effect simply because they

23 Forest City Gun Club v. Chatham Cty., 280 Ga. App. 219, 220 (633 SE2d

623) (2006).

13
characterized their appeal asinterlocutory in nature.24We do not agree thatCanoeside

countenances such a result.

Consequently, this Court’s dismissal of the defendants’ attempt to place the

machinery of immediate appellate review in motion asto the grant of partialsummary

judgment affirmed that judgment, and the trial court was without authority to modify

or set aside that judgment which was res judicata between the parties.

25Accordingly,

we reverse the trial court’s grant of the defendants’ motion to modify, revoke, or

24 Cf. Ferdinand v City of East Point, 301 Ga. App. 333, 336-37 (1) (687 SE2d

617) (2009) (holding that appellant who filed direct appeal of grant of summary

judgment against him but had appeal dismissed for failure to file a brief was

foreclosed from seeking later review of this issue).

25

See Harrell, 287 Ga. at 164 (“A trial court’s ruling circumventing the

appellate court’s dismissal of a direct appeal cannot be permitted; upon return of the

remittitur to the trial court after the first direct appeal, the only action which that court

had authority or power to take was to make the judgment of the Court of Appeals the

judgment of the trial court.” (punctuation omitted)); Williams v. State, 335 Ga. App.

468, 468-70 (1) (781 SE2d 791) (2016) (holding that this Court’s dismissal of

appellant’s attempt to appeal the denial of his motion to suppress effectively affirmed

the trial court’s denial and became the law of the case between the parties;

accordingly, the trial court lacked the authority to circumvent our prior dismissal by

reentering an identical order). Cf. Canoeside, 277 Ga. at 526-27 (1) (holding that

because appellant’s defective attempt to seek interlocutory review under OCGA § 5-

6-34 (b) of the denial of a motion for summary judgment did not have the effect of

making the judgment appealed from res judicata, trial court had authority to vacate

its earlier denial and reissue an identical order for the purpose of permitting appellant

another appeal).

14
reconsider its initial grant of partial summary judgment. Upon remand, we direct the

trial court to reinstate the previous order, including the grant of the writ of possession.

2. Given our holding in Division 1, supra, the plaintiffs’ motion to dismiss the

defendants’ appeal is denied as moot.

Judgment vacated and case remandedwith direction. Mercier and Markle, JJ.,

concur.

15