Rusty Davis v. Cole Whigham
CourtCourt of Appeals of Georgia
Date FiledOctober 6, 2026
DocketA27A0498
StatusPublished
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Full Opinion
Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 06, 2026
The Court of Appeals hereby passes the following order:
A27A0498. RUSTY DAVIS v. COLE WHIGHAM.
Plaintiff Cole Whigham filed this action for breach of contract and related
claims against defendants Lamar Carver and Rusty Davis. Both defendants were
served, Davis asserted a counterclaim for attorney fees with his answer, and Carver
did not file any responsive pleadings. In December 2023, the trial court entered a
default judgment against Carver. On May 6, 2024, the court struck Davis’s answer as
untimely and entered a default judgment in the total amount of $6,708.25 plus post-
judgment interest against him. Davis filed this direct appeal on June 5, 2026. We lack
jurisdiction.
An appeal in an action for damages in which the judgment is $10,000 or less
must be initiated by filing an application for discretionary review. OCGA
§ 5-6-35(a)(6), (b); Jennings v. Moss, 235 Ga. App. 357, 357 (509 SE2d 655) (1998).
“Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v.
Dep’t of Human Res., 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Consequently —
and pretermitting whether Davis’s counterclaim remains pending before the trial
court, thereby rendering this appeal interlocutory — his failure to comply with the
discretionary review procedure following the $6,708.25 judgment against him
deprives us of jurisdiction over this direct appeal, which is hereby DISMISSED. See
Jennings, 235 Ga. App. at 357; Smoak, 221 Ga. App. at 257–58.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/06/2026
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.