Michelle Smith v. Nora Polk

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 24, 2019

The Court of Appeals hereby passes the following order:

A19D0454. MICHELLE SMITH v. NORA POLK et al.

This case began as a dispossessory action in magistrate court with the issuance of a writ of possession in favor of Robin Warren Properties, LLC. Smith appealed to the superior court which dismissed her writ of certiorari. On April 24, 2019, this Court denied her application for discretionary review of the superior court’s dismissal. Case No. A19D0410. Smith then filed a second petition for writ of certiorari on January 30, 2019, which the superior court denied on March 28, 2019. Following this ruling, Smith filed a “Motion for New Trial or Judgment Notwithstanding the Verdict.” On April 1, 2019, the trial court denied Smith’s motion noting that she raised the same arguments raised in previous actions and finding that her many court fillings “have lacked any legal basis, are voluminous, frivolous, and have warranted no relief.” The court ordered a bill of peace pursuant to OCGA § 23- 3-110 prohibiting Smith from filing any future pleadings related to the property without judicial approval. Nevertheless, on April 9, 2019, Smith filed a motion to disqualify the trial judge. The next day, on April 10, the court denied the motion to disqualify as untimely pursuant to Uniform Superior Court Rule 25.1. Smith then filed a pro se application for discretionary review in this Court on April 25, 2019. However, we lack jurisdiction. An application for discretionary review generally may be filed within 30 days of entry of the order sought to be appealed. See OCGA § 5-6-35 (d). The underlying subject matter of an appeal, however, controls over the relief sought in determining the proper appellate procedure. Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334, 335 (715 SE2d 752) (2011). Under OCGA § 44-7-56, appeals in dispossessory actions must be filed within 7 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). Thus, Smith’s application seeking to appeal an order in this dispossessory action is untimely, as it was filed 15 days after entry of the order. Consequently, this untimely application for discretionary review is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/24/2019 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.