Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                   July 07, 2015

The Court of Appeals hereby passes the following order:

A15D0448. ROYAL PHILLIPS, et al. v. PHILLIP PHILLIPS, et al.

      The trial court entered a default judgment against Royal Phillips and the Estate
of Maxine Phillips (the “Phillips Defendants”), and after a trial on damages, it
entered its verdict and judgment against them. The Phillips Defendants filed a pro
se motion to vacate the judgment then hired counsel, who filed a motion for new trial.
The trial court denied both motions in separate orders entered on March 6, 2015.
According to the Phillips Defendants, they did not receive either of the orders and did
not learn of them until April 14, 2015, after the period for filing a notice of appeal
had expired. The Phillips Defendants then filed motions to vacate both orders under
OCGA § 9-11-60 (g), arguing that they did not receive proper notice of the rulings.
The trial court denied both motions,1 and the Phillips Defendants filed a timely
application for discretionary review.
      The Phillips Defendants apparently followed the discretionary appeal
procedures because an order denying a motion to set aside under OCGA § 9-11-60
(d) may only be reviewed through discretionary application. See OCGA § 5-6-35 (a)
(8). But “[m]otions to set aside brought on the grounds that the court failed to notify
the losing party of its decision are cognizable as motions to correct a clerical error
pursuant to OCGA § 9-11-60 (g) and are properly the subject of a direct appeal.”
Downs v. C. D. C. Federal Credit Union, 224 Ga. App. 869 (1) (481 SE2d 903)


      1
        The trial court’s order shows that it was signed on May 14, 2015, but it has
no stamped “filed” date. Presuming that it was entered on the day it was signed, this
application is timely.
(1997). The Phillips Defendants, therefore, were not required to file an application
for discretionary appeal. See Leventhal v. Moseley, 264 Ga. 891, 892 (453 SE2d 455)
(1995).
      This Court will grant an otherwise timely discretionary application if the lower
court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this
application is hereby GRANTED. The Phillips Defendants shall have ten days from
the date of this order to file a notice of appeal with the trial court. See OCGA § 5-6-
35 (g). If, however, the Phillips Defendants have already filed a notice of appeal,
they need not file a second notice. The clerk of the trial court is directed to include
a copy of this order in the record transmitted to the Court of Appeals.

                                        Court of Appeals of the State of Georgia
                                                                             07/07/2015
                                               Clerk’s Office, Atlanta,____________________
                                               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.
