Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 November 16, 2018

The Court of Appeals hereby passes the following order:

A18A1784. DUGGER v. ZHU.

      In this pending action concerning a business dispute initiated by Hanping Zhu,
the Superior Court of Murray County struck the answer and defenses of one
defendant, David Dugger, for failing to comply with multiple orders compelling
discovery responses. Zhu filed a motion for default judgment as to his conversion
claim against Dugger (Count 1 of the complaint), which the trial court granted.
Dugger filed a motion to vacate the order granting partial default judgment under
OCGA § 9-11-60, alleging that the motion for default judgment was not served upon
his counsel.1 The trial court denied Dugger’s motion to set aside.
      The trial court determined that there is no just reason for delay as to this ruling
and entered final judgment, and Dugger appeals, contending that the trial court erred
in denying his motion to vacate and set aside the order granting Zhu’s motion for
partial default judgment. Dugger contends that a non-amendable defect appears on
the face of the record, specifically that the record shows that Zhu did not serve his
motion for default judgment upon Dugger’s counsel in compliance with OCGA § 9-




      1
        “Whenever under [the Civil Practice Act] service is required or permitted to
be made upon a party represented by an attorney, the service shall be made upon the
attorney unless service upon the party is ordered by the court. Service upon the
attorney or upon a party shall be made by delivering a copy to the person to be served
or by mailing it to the person to be served at the person’s last known address or, if no
address is known, by leaving it with the clerk of the court.” OCGA § 9-11-5 (b).
11-5 (b).2 Under OCGA § 5-6-35 (a) (8), an application for discretionary appeal must
be filed to appeal from an order denying such a motion to set aside a judgment. Nadel
v. Branch Banking & Trust, 340 Ga. App. 213, 215 (797 SE2d 140) (2017); King v.
Bd. of Regents of Univ. Sys. of Ga., 215 Ga. App. 570 (451 SE2d 482) (1994); Cain
v. Moore, 207 Ga. App. 726, 728 (2) (429 SE2d 135) (1993); TMS Ins. Agency v.
Galloway, 205 Ga. App. 896, 898 (424 SE2d 71) (1992). Dugger’s failure to file a
discretionary application thus deprives this Court of jurisdiction over this appeal,
which is hereby DISMISSED. Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga. App. 116
(640 SE2d 688) (2006). See Rebich v. Miles, 264 Ga. 467, 467-468 (448 SE2d 192)
(1994) (In cases where “both the direct appeal and discretionary appeal statutes are
implicated . . . the underlying subject matter generally controls over the relief sought
in determining the proper appellate procedure.”).



                                        Court of Appeals of the State of Georgia
                                               Clerk’s Office, Atlanta,____________________
                                                                         11/16/2018
                                               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.




      2
          “A motion to set aside may be brought to set aside a judgment based upon .
. . [a] nonamendable defect which appears upon the face of the record or pleadings.
Under this paragraph, it is not sufficient that the complaint or other pleading fails to
state a claim upon which relief can be granted, but the pleadings must affirmatively
show no claim in fact existed.” OCGA § 9-11-60 (d) (3) (1987). An order that is
based on a hearing and entered against a party without notice to that party of the
hearing is subject to a motion to set aside on the ground of a non-amendable defect
where the lack of notice appears on the face of the record. Nadel v. Branch Banking
& Trust, 340 Ga. App. 213, 215 (797 SE2d 140) (2017).
