Kelvin Akwanza Spooner v. Wells Fargo Bank, N.A.

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 24, 2015

The Court of Appeals hereby passes the following order:

A15D0487. KELVIN AKWANZA SPOONER v. WELLS FARGO BANK, N.A.

et al.

This case began as a dispossessory proceeding in magistrate court. Following an adverse ruling, defendants Kelvin and Melissa Spooner appealed to the superior court. The superior court entered a final judgment and writ of possession in favor of Wells Fargo Bank, N.A. on June 3, 2015.

On June 8, 2015, Kelvin Spooner filed a “Motion to Dismiss [the] Consent Final Judgment and Writ of Possession and Defendant(s) / Appellant(s) Motion for Summary Judgment” and an “Affidavit of Appearance and Appellant’s Brief.”1 The trial court denied Spooner’s June 8 motion on June 22, 2015. On July 2, 2015, Spooner filed the instant application for discretionary appeal in this Court. We lack jurisdiction.

Generally, an application for discretionary appeal may be filed within 30 days of entry of the order sought to be appealed. See OCGA § 5-6-35 (d). However, the underlying subject matter of an appeal controls over the relief sought in determining the proper appellate procedure. See Rebich v. Miles, 264 Ga. 467, 467-468 (448 SE2d 192) (1994). The underlying subject matter here is a dispossessory judgment. Under OCGA § 44-7-56, an appeal from a dispossessory judgment must be filed

1 The substance of this motion is unknown, as Spooner has not included it with his application materials. To the extent that it sought reconsideration of the court’s final judgment, it did not extend the time for filing a discretionary application, and the order denying it is not directly appealable. See Bell v. Cohran, 244 Ga. App. 510, 510-511 (536 SE2d 187) (2000).

within seven days of the date the judgment was entered. See Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522-523 (521 SE2d 456) (1999). Spooner’s July 2 application for discretionary appeal is untimely, whether measured from the trial court’s June 3 final judgment or its June 22 order denying Spooner’s June 8 motion. Accordingly, we lack jurisdiction to review this application, which is hereby DISMISSED.

Court of Appeals of the State of Georgia 07/24/2015

Clerk’s Office, Atlanta,____________________ 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.