Richard Walker v. U.S. Bank, National Association

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 10, 2017

The Court of Appeals hereby passes the following order: A17A1786. RICHARD WALKER v. U. S. BANK, NATIONAL ASSOCIATION.

U. S. Bank, National Association filed a dispossessory action against Richard Walker in magistrate court. Following an adverse ruling, Walker appealed to the superior court. The superior court entered summary judgment in favor of U. S. Bank, and Walker filed a notice of appeal to this Court. However, the superior court dismissed Walker’s notice of appeal upon finding that Walker had unreasonably and inexcusably caused delay in the filing of a transcript. Walker then filed the instant direct appeal from the superior court’s order that dismissed his notice of appeal. We lack jurisdiction over this appeal for the following reasons. Although an order dismissing a notice of appeal may be directly appealable, see, e.g., American Med. Security Group v. Parker, 284 Ga. 102, 103 (2) (663 SE2d 697) (2008), 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). Here, because the summary judgment disposed of a de novo appeal from a magistrate court decision, Walker was required to follow the discretionary appeal procedures to obtain this Court’s review. See OCGA § 5-6-35 (a) (1); Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d 333) (2003); Strachan v. Meritor Mortgage Corp. East, 216 Ga. App. 82 (453 SE2d 119) (1995). Walker’s failure to do so deprives us of jurisdiction over this appeal, which is hereby DISMISSED. See Thompson v. Salacoa Highland Property Owners’ Assn., 295 Ga. App. 478, 480 (672 SE2d 448) (2009) (dismissing direct appeal, irrespective of trial court’s error of dismissing notice of appeal, where the underlying summary judgment was subject to the discretionary application statute, yet appellant had failed to comply

therewith); Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 706 (463 SE2d 23) (1995).

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/10/2017 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.