Sabino Yanes v. Maria De Escobar

• Court: Court of Appeals of Georgia
• Decided: March 3, 2022
• Docket: A22A0315
• Status: Published

Opinion

FIFTH DIVISION McFADDEN, P. J., GOBEIL AND PINSON, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

March 3, 2022

In the Court of Appeals of Georgia A22A0315. YANES v. ESCOBAR.

MCFADDEN, Presiding Judge.

This appeal must be dismissed because it is subject to the discretionary appeal

procedure and also because it is subject to the shortened appeal deadline for

dispossessory actions.

In November 2019, Maria de Escobar filed a complaint for divorce in the

superior court against her husband, Noe Orlando Escobar-Velasquez. Among other

things, the complaint alleged that Escobar was entitled to the exclusive use and

ownership of the marital residence. In December 2019, Sabino Yanes—who allegedly

purchased the residence from Escobar’s husband—filed a dispossessory action in

magistrate court against Escobar. Escobar filed an answer, counterclaim, and motion

to transfer the dispossessory case to superior court, claiming her husband had fraudulently transferred the marital residence to Yanes, his former brother-in-law. The

magistrate court transferred the dispossessory case to superior court. Yanes then filed

an emergency motion for injunctive relief, seeking Escobar’s removal from the

premises.

On January 24, 2021, the superior court entered three separate orders that (1)

denied Yanes’s motion for injunctive relief, (2) added Yanes as an indispensable

party in the divorce case, and (3) joined the dispossessory and divorce cases in a

single action. On February 22, 2021, Yanes filed notices of direct appeal from all

three rulings. We lack jurisdiction.

“Generally, an order is final and appealable when it leaves no issues remaining

to be resolved, constitutes the court’s final ruling on the merits of the action, and

leaves the parties with no further recourse in the trial court.” State v. White, 354 Ga.

App. 214, 215 (840 SE2d 697) (2020) (punctuation omitted); see also OCGA § 5-6-

34 (a) (1). Here, the case remains pending below, as the superior court has issued no

final ruling.

One of the orders Yanes wishes to appeal is the denial of his motion for an

interlocutory injunction. OCGA § 5-6-34 (a) (4) generally permits a direct appeal in

such circumstances. And when a proper direct appeal is taken, other orders in the case

2 may be considered on appeal, regardless of whether such orders would be subject to

direct appeal on their own. OCGA § 5-6-34 (d). Thus, if Yanes’s direct appeal from

the order denying his interlocutory injunction is proper, then we have jurisdiction to

entertain this appeal. We find the direct appeal improper for two reasons.

First, under OCGA § 5-6-35 (a) (2), an application for discretionary appeal is

required to appeal rulings in domestic relations cases. Because the dispossessory

issue has been joined with Escobar’s divorce action, the case is properly characterized

as a domestic relations case. See Russo v. Manning, 252 Ga. 155, 155 (312 SE2d 319)

(1984) (where the issues appealed either arise from or are ancillary to divorce

proceedings, the appeal falls within the ambit of the discretionary appeal statute).

“Compliance with the discretionary appeals procedure is jurisdictional.” Fabe v.

Floyd, 199 Ga. App. 322, 332 (1) (405 SE2d 265) (1991). Yanes’s failure to follow

the discretionary appeals procedure deprives us of jurisdiction over this direct appeal.

Second, even if we treated the order denying Yanes’s request for injunctive

relief as arising from a dispossessory action, rather than a domestic relations case, we

would still lack jurisdiction. While a notice of appeal generally may be filed within

thirty days of entry of the order sought to be appealed, appeals in dispossessory

actions must be filed within seven days of the date the judgment was entered. See

3 OCGA § 44-7-56; Radio Sandy Springs v. Allen Road Joint Venture, 311 Ga. App.

334, 335-336 (715 SE2d 752) (2011). “The proper and timely filing of a notice of

appeal is an absolute requirement to confer jurisdiction upon the appellate court.”

Radio Sandy Springs, 311 Ga. App. at 336 (punctuation omitted). Yanes’s notice of

appeal, filed 29 days after entry of the superior court’s order denying his motion for

injunctive relief, was not a timely notice of appeal in a dispossessory case.

Appeal dismissed. Gobeil and Pinson, JJ., concur.