                          THIRD DIVISION
                           MILLER, P. J.,
                   MCFADDEN, P. J., and MCMILLIAN, J.

                   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.
                               http://www.gaappeals.us/rules


                                                                     March 8, 2017




In the Court of Appeals of Georgia
 A16A1687. MEDTECH, INC. v. NELSON et al.

      MCFADDEN, Presiding Judge.

      This appeal challenges a trial court’s grant of an extraordinary motion for new

trial vacating an earlier grant of summary judgment. Because a motion for new trial

is not an appropriate vehicle for obtaining review of a grant of summary judgment,

we reverse.

      On October 4, 2010, Everard Nelson and his wife Vivienne Nelson filed a

complaint against Biomet Microfixation, LLC, and MedTech, Inc., asserting claims

for products liability, breach of warranty, and negligence. The complaint alleged that

a bone cement manufactured by Biomet and distributed by MedTech had failed after

it was used to fill a void in Everard Nelson’s skull during a surgery and that the

defendants, among other things, had been negligent in training healthcare personnel
regarding the storage and usage of the product. The Nelsons later filed an amended

complaint, asserting claims of negligence against The Center for Advanced

Neurological Surgery, P. C., as the employer of the doctor who had performed the

surgery. On January 14, 2012, MedTech moved for summary judgment as to all

claims against it. The Nelsons filed no response to MedTech’s motion for summary

judgment and consented to the trial court ruling on the motion without a hearing. On

September 20, 2013, the trial court entered an order granting summary judgment to

MedTech as to the claims against it. In that order, the trial court also found no just

reason for delay and directed the clerk of court to enter judgment in favor of

MedTech pursuant to OCGA § 9-11-54 (b).

      Over a year later, on October 30, 2014, the Nelsons filed two separate motions:

an extraordinary motion for new trial based on a claim of newly discovered evidence

and a motion to set aside under OCGA § 9-11-60 (d) based on an alleged mistake. On

September 17, 2015, the trial court held a hearing on only the extraordinary motion

for new trial. At the hearing, the Nelsons argued that they had made the showings

required to obtain a new trial based on newly discovered evidence. In response,

MedTech first argued that a motion for new trial was not an appropriate vehicle for

seeking review of a grant of summary judgment and then, alternatively, argued that

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the Nelsons had not made all of the showings required to obtain a new trial based on

a claim of newly discovered evidence. On January 13, 2016, the trial court entered an

order granting the Nelsons’ extraordinary motion for new trial. MedTech filed an

application for interlocutory review of the order, which this court granted. This appeal

followed.

       “Where a motion for new trial is not a proper vehicle for review of a trial

court’s action, the motion has no validity. . . . 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[.]” Debter v. Stephens, 297 Ga. 652 (777 SE2d

244) (2015) (citations and punctuation omitted). See also Blackwell v. Sutton, 261 Ga.

284 n. 1 (404 SE2d 114) (1991) (“A motion for new trial, by its very nature, would

not lie to rectify an erroneous grant of summary judgment.”). Consequently, the

Nelsons’ extraordinary motion for new trial was not a proper vehicle to obtain relief

from the grant of summary judgment to MedTech. See generally Ford Motor Co. v.

Conley, 294 Ga. 530, 539 (2) (757 SE2d 20) (2014) (for explanation that distinction

between ordinary and extraordinary motion for new trial is timing, with ordinary

motion timely made within 30 days of entry of judgment on jury verdict or after



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bench trial, while extraordinary motion is untimely). Accordingly, the trial court erred

in granting a motion for new trial that had no validity.

      Moreover, to the extent that the extraordinary motion for new trial could be

characterized as a motion for reconsideration of a summary judgment order that did

not dispose of the entire case, it still would not serve as a valid basis for relief from

the order in this case, which expressly directed judgment in favor of MedTech under

OCGA § 9-11-54 (b). “Summary judgment orders which do not dispose of the entire

case are considered interlocutory and remain within the breast of the court until final

judgment is entered. They are subject to revision at any time before final judgment

unless the court issues an order upon express direction under OCGA § 9-11-54 (b).”

Canoeside Properties v. Livsey, 277 Ga. 425, 427 (1) (589 SE2d 116) (2003)

(citations and punctuation omitted; emphasis supplied). Although the Nelsons’

separate motion to set aside pursuant to OCGA § 9-11-60 (d) was not ruled upon and

is apparently still pending in the trial court, the trial court’s erroneous grant of an

invalid motion for new trial must be reversed.

      Judgment reversed. Miller, P. J., and McMillian, J., concur.




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