Cassandra R. Dan-Fodio v. Wilmington Savings Fund Society, Fsb

Court of Appeals of the State of Georgia

ATLANTA,____________________ March 12, 2019

The Court of Appeals hereby passes the following order:

A19A1233. CASSANDRA R. DAN-FODIO et al. v. WILMINGTON SAVINGS FUND SOCIETY, FSB.

This dispossessory action originated in magistrate court. Following an adverse ruling, Cassandra R. Dan-Fodio and Musa Dan-Fodio (the “Appellants”) appealed to the superior court. The superior court granted Wilmington Savings Fund Society, FSB’s motion for summary judgment and ordered the issuance of a writ of possession. The Appellants then filed an application for discretionary appeal, which we denied. See Case No. A19D0243 (decided Jan. 10, 2019). They also filed this direct appeal, and Wilmington Savings filed a motion to dismiss. We lack jurisdiction for several reasons. 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). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). The Appellants’ failure to follow the proper procedure deprives us of jurisdiction over this appeal. See Bullock, 260 Ga. App. at 875. The Appellants contend that they are entitled to a direct appeal because the superior court lacked jurisdiction to enter its final order and because the superior court’s order was void. However, such an argument does not excuse the Appellants from complying with the discretionary appeal procedure. See Islamkhan v. Khan, 299 Ga. 548, 549-550 (787 SE2d 731) (2016) (considering whether a judgment was void only after granting the appellant’s application for discretionary appeal); Murphy v.

Murphy, 263 Ga. 280, 281 (430 SE2d 749) (1993) (same). Finally, our denial of the Appellants’ application for discretionary appeal was an adjudication on the merits, and therefore the doctrine of res judicata bars this direct appeal from the same trial court order. See Northwest Social & Civic Club, Inc. v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003); Hook v. Bergen, 286 Ga. App. 258, 260-261 (1) (649 SE2d 313) (2007). For these reasons, the Wilmington Savings’s 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,____________________ 03/12/2019 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.