Enver Kacevic v. Najarian Capital LLC

• Court: Court of Appeals of Georgia
• Decided: June 2, 2021
• Docket: A21D0310
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 21, 2021

The Court of Appeals hereby passes the following order:

A21D0310. ENVER KACEVIC v. NAJARIAN CAPITAL LLC.

This case began as a dispossessory proceeding in magistrate court. Following an adverse ruling, defendant Michael Key appealed to the superior court, which issued a writ of possession in favor of Najarian Capital LLC.1 Non-party Enver Kacevic then filed a “Motion to Set Aside Judgment and Remand Case to Federal Court.” On April 9, 2021, the superior court entered an order denying the motion, and on April 21, 2021, Kacevic filed this application for discretionary appeal. We lack jurisdiction. Generally, an application for discretionary appeal must be filed within 30 days of entry of the order sought to be appealed. OCGA § 5-6-35 (d). But the underlying subject matter of an appeal controls over the relief sought in determining the proper appellate procedure. Rebich v. Miles, 264 Ga. 467, 467-468 (448 SE2d 192) (1994). The underlying subject matter here is a dispossessory action. OCGA § 44-7-56 provides that “any” appeal from a dispossessory judgment must be filed within seven days of the date the judgment was entered. Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522 (521 SE2d 456) (1999) (emphasis supplied); see also Radio Sandy Springs v. Allen Road Joint Venture, 311 Ga. App. 334 (715 SE2d 752) (2011). Because this application was filed 12 days after the superior court’s order was

1 Key filed a direct appeal to the Supreme Court, which transferred the matter here. We dismissed the appeal because Key was required to file a discretionary application to obtain appellate review. See Case No. A20A0819 (decided Jan. 7, 2020). entered, it is untimely. “The filing deadline is jurisdictional, and this court is unable to accept an untimely application.” In the Interest of B. R. F., 338 Ga. App. 762, 762 (791 SE2d 859) (2016). Accordingly, this application is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/21/2021 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.