In the Supreme Court of Georgia



                                            Decided: September 14, 2015


     S15A0768. DEBTER, CAVEATOR v. STEPHENS, EXECUTOR.


      MELTON, Justice.

      William Neville Stephens (“Mr. Stephens”) had two children who were

born out of wedlock, Frank Debter and Vickie Estes. Mr. Stephens died on April

27, 2011, after having executed his last will and testament on January 26, 2006.

In his will, Mr. Stephens made several specific bequests of money, and he left

the residue of his estate to Estes. He did not make Debter a beneficiary under the

will. Debter filed a caveat to executor Roy Milton Stephens’ petition to probate

Mr. Stephens’ will in solemn form, challenging the validity of the will. Debter

claimed that the will was a product of undue influence and that Mr. Stephens

intended for Debter to share in his estate as if he were a formally legitimated

child. The probate court rejected Debter’s caveat, and Debter appealed to the

superior court. Once there, the executor filed a motion for summary judgment

which the superior court summarily granted on August 21, 2014. Instead of
filing a timely notice of appeal from this ruling, on September 15, 2014, Debter

filed a motion for new trial, asserting that he had discovered new material

evidence which undermined the superior court’s summary judgment decision.

The trial court denied Debter’s motion for new trial on November 6, 2014,

prompting the current appeal. For the reasons that follow, the appeal must be

dismissed.

      Where a motion for new trial is not a proper vehicle for review of
      a trial court's action, the motion has no validity and will not extend
      the time for filing the notice of appeal. See Sands [v. Lamar
      Properties, Inc., 159 Ga. App. 718 (285 SE2d 24) (1981)] (appeal
      dismissed where trial court ruled on a declaratory judgment as a
      matter of law); and, Shine v. Sportservice Corp., 140 Ga. App. 355
      (231 SE2d 130) (1976) (appeal dismissed where appellant sought
      review of the grant of a summary judgment with a motion for new
      trial).

Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447) (1986). In this regard,

“[a] motion for new trial is not the proper vehicle to obtain a re-examination of

the grant of summary judgment and a motion so filed has no validity and will

not extend the filing date of a notice of appeal.” Shine, supra. Because Debter

did not file his notice of appeal within thirty days of the trial court’s summary

judgment ruling as required by OCGA § 5-6-38 (a), and because his motion for

new trial was not a proper vehicle for review of the trial court’s action, his

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notice of appeal was untimely filed and this appeal must be dismissed. See

Pillow, supra; Shine, supra.

      Even if, under the unique circumstance of newly discovered evidence

being involved in a case, a motion for new trial were the proper vehicle for

extending the time to appeal from a summary judgment ruling, the time period

for filing an appeal in the instant case still would not have been extended.

Indeed, Debter did not present evidence that would qualify as “newly discovered

evidence” to challenge the grant of summary judgment to the executor. He

merely presented evidence that he should have, but failed to, produce earlier in

the case in the form of affidavits from a number of people averring, among other

things, that the deceased openly acknowledged Debter as his son, that he

intended to include Debter in the will, and that in the end the deceased seemed

confused and addled. See, e.g., State v. Abernathy, 295 Ga. 816, 818 (1) (764

SE2d 387) (2014) (new trial may be granted based on newly discovered

evidence only where, among other things, “it was not owing to the want of due

diligence that [the party putting forth the new evidence] did not acquire [the

evidence] sooner”) (citation and punctuation omitted). For this reason, we need

not address in this case any issue as to whether a motion for new trial based on

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newly discovered evidence could toll the time period for filing a notice of appeal

following a summary judgment ruling, and the current appeal must still be

dismissed.

      Appeal dismissed. All the Justices concur.




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