Derek Leroy McSmith v. Bank of America, N.A.

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 07, 2019

The Court of Appeals hereby passes the following order: A20A0430. DEREK LEROY MCSMITH v. BANK OF AMERICA, N.A.

This matter began as a dispossessory proceeding in magistrate court. After an unfavorable ruling, McSmith appealed to superior court. In May 2016, the superior court granted summary judgment in favor of Bank of America. We denied McSmith’s discretionary application seeking to appeal from that ruling. See Case No. A16D0408 (June 28, 2016). Subsequently, the superior court granted Bank of America a writ of possession. Two years later, McSmith filed a motion for an out-of-time appeal. The superior court denied that motion, and McSmith filed this timely direct appeal. However, we lack jurisdiction for two reasons. First, out-of-time appeals are not available in civil cases. See Woodall v. Woodall, 248 Ga. 172, 172 (281 SE2d 619) (1981); Register v. Elliott, 285 Ga. App. 741, 744 (647 SE2d 406) (2007). Accordingly, the trial court’s order denying McSmith’s request for an out-of-time appeal is not subject to appellate review. Second, even if McSmith had a right to appellate review here, 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 Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994) (the underlying subject matter generally controls over relief sought in determining 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). McSmith’s failure to file an application for discretionary review

also deprives us of jurisdiction over this appeal. Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/07/2019 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.