CHRIS KING v. NICOLE GARY

• Court: Court of Appeals of Georgia
• Decided: February 12, 2025
• Docket: A25A1022
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 12, 2025

The Court of Appeals hereby passes the following order:

A25A1022. CHRIS KING et al. v. NICOLE GARY.

Nicole Gary filed a dispossessory action in magistrate court against Chris King and Yolanda Bell. The magistrate court issued a writ of possession against the defendants on September 18, 2024. The defendants appealed to superior court, and on November 12, 2024, that court affirmed the magistrate ruling and entered a writ of possession. Defendants then filed their notice of appeal to this Court on December 5, 2024. We, however, lack jurisdiction. First, appeals from superior court decisions reviewing lower court decisions by certiorari or de novo proceedings must be initiated by filing an application for discretionary appeal. OCGA § 5-6-35 (a) (1), (b); Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d 333) (2003); see also Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994) (“[T]he underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal.”). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Because the underlying subject matter involves an appeal from magistrate court to superior court, the defendants were required to file a discretionary application. See Bullock, 260 Ga. App. at 875. Second, even if a direct appeal were proper in this case, this appeal is untimely. “The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334, 336 (715 SE2d 752) (2011) (citation and punctuation omitted). While a notice of appeal generally may be filed within 30 days of entry of the order sought to be appealed, appeals in dispossessory actions must be filed within 7 days of the date the judgment was entered. See OCGA § 44-7-56 (b) (1). The defendant’s appeal was untimely filed 23 days after the superior court’s order was entered. For these reasons, we lack jurisdiction over this direct appeal, which is hereby DISMISSED. See Bullock, 260 Ga. App. at 875; Radio Sandy Springs, Inc., 311 Ga. App. at 336 .

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/12/2025 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.