Denise McBride v. Deakon Services, Inc.

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 08, 2019

The Court of Appeals hereby passes the following order: A19A1035. DENISE MCBRIDE v. DEAKON SERVICES, INC. et al.

This action for damages originated in magistrate court. Following an adverse ruling, Denise McBride appealed to the state court. Chris Sockwell, the original plaintiff in the magistrate court, requested that the state court add Deakon Services, Inc. as a plaintiff in the action. The state court granted the motion. The state court ultimately ruled against McBride, and she filed this direct appeal. Sockwell and Deakon Services have filed a motion to dismiss for lack of jurisdiction. Under OCGA § 5-6-35 (a) (11), an appellant must file an application for discretionary review in “[a]ppeals from decisions of the state courts reviewing decisions of the magistrate courts by de novo proceedings so long as the subject matter is not otherwise subject to a right of direct appeal.” McBride contends that the instant appeal is not subject to the discretionary application procedure because Deakon Services, Inc. was not a party to the action before the magistrate court. McBride also argues that the state court erroneously added Deakon Services, Inc. as a plaintiff. However, [r]egardless of whether [the] litigation was subsequently erroneously expanded in state court to include matters beyond the parameters of a de novo investigation (O.C.G.A. § 5-3-29), where the litigation reached the state court by means of a de novo appeal from magistrate court, in order to obtain appellate review of the state court judgment in this Court, an application for appeal must be sought as required by the clear and unambiguous language of O.C.G.A. § 5-6-35 (a) (11).

Handler v. Hulsey, 199 Ga. App. 751, 751 (406 SE2d 225) (1991). Thus, McBride’s direct appeal is subject to dismissal for failure to follow the discretionary appeal procedure. See id. at 751-753. Additionally, McBride previously filed an application for discretionary appeal with respect to the same state court order at issue in this direct appeal. We denied McBride’s application on February 1, 2017, see Case No. A17D0239, and that denial constitutes a decision on the merits. See Elrod v. Sunflower Meadows Dev., LLC, 322 Ga. App. 666, 670 (4) (745 SE2d 846) (2013) (“when this Court examines a request for a discretionary appeal, it acts in an error-correcting mode such that a denial of the application is on the merits”) (punctuation omitted). Accordingly, the doctrine of res judicata bars this direct appeal from the same order. See Northwest Social & Civic Club v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003); Hook v. Bergen, 286 Ga. App. 258, 261 (1) (649 SE2d 313) (2007). Accordingly, the appellees’ motion to dismiss is GRANTED, and this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/08/2019 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.