Oni Roberts v. Primestar Fund I Trs, Inc

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 17, 2017

The Court of Appeals hereby passes the following order: A17A1380. ONI ROBERTS v. PRIMESTAR FUND I TRS, INC.

This case originated as a dispossessory action in magistrate court. Following an adverse judgment, Oni Roberts appealed to the superior court, and Primestar Fund I TRS, Inc., filed a motion to compel payment of rent into the court registry during the appeal. The trial court granted the motion on August 8, 2016. On September 2, 2016, Roberts filed a notice of appeal from that order. We, however, lack jurisdiction for two reasons. First, a direct appeal is not authorized here. Ordinarily, a party seeking to appeal a superior court order reviewing a magistrate court decision must file an application for discretionary appeal. See OCGA § 5-6-35 (a) (1); Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d 333) (2003). But where, as here, the case remains pending in the superior court, the party must follow the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b), including obtaining a certificate of immediate review from the superior court. See Bailey v. Bailey, 266 Ga. 832, 832- 833 (471 SE2d 213) (1996); Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588-589 (1) (408 SE2d 103) (1991); Rivera v. Housing Auth. of Fulton County, 163 Ga. App. 648 (295 SE2d 336) (1982). Roberts failed to follow the proper appellate procedure. Moreover, even if a direct appeal was authorized, this appeal is untimely. Although a notice of appeal generally must be filed within 30 days of entry of the order sought to be appealed, 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 of this

case is a dispossessory action. And, pursuant to OCGA § 44-7-56, an appeal from a dispossessory judgment must be filed within seven days of the date the judgment was entered. See Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522 (521 SE2d 456) (1999). Here, Roberts filed her notice of appeal 25 days after entry of the superior court order she wishes to appeal. For these reasons, this appeal is hereby DISMISSED for lack of jurisdiction

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/17/2017 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.