Cain v. Moore

I concur in that part of the opinion which concludes that this direct appeal must be dismissed because it is from an order denying a motion to set aside a judgment, which requires an application under OCGA § 5-6-35 (a) (8).

I do not agree that the motion was based on equitable grounds. Plaintiff complained that the court in effect granted a default summary judgment, basing it on the lack of a response by plaintiff, which the court interpreted as meaning that the motion was unopposed. USCR 6.5 sets out what a response to a summary judgment motion shall include, and USCR 6.2 provides that a…