TIM SUNDY v. FRIENDSHIP PAVILION ACQUISITIONS CO., LLC

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 27, 2019

The Court of Appeals hereby passes the following order:

A20D0016. TIM SUNDY v. FRIENDSHIP PAVILION ACQUISITIONS CO., LLC et al.

This case began as a dispossessory proceeding in magistrate court. After defendant Mediterranean Dining Group, Inc., asserted a counterclaim for damages, the action was transferred to the superior court. At some point, Tim Sundy and David Sundy were added as defendants.1 On December 3, 2018, the superior court issued a judgment awarding the plaintiff Friendship Pavilion Acquisitions Co., LLC, $394,617.47 in unpaid lease obligations and interest against all three defendants. On January 2, 2019, defendant Tim Sundy filed a pro se application for discretionary review of this judgment, which this Court dismissed as untimely under OCGA § 44-7- 56. See Case No. A19D0345 (dismissed Mar. 15, 2019). It appears that Tim Sundy also filed a direct appeal of the December 3, 2018 judgment to the Supreme Court. The status of that appeal is unclear. Tim Sundy filed in the superior court a motion to set aside the December 3, 2018 judgment, as well as a motion for leave to proceed in forma pauperis. On February 11, 2019, the superior court ordered Tim Sundy to present evidence to support his claim of indigency at a hearing on the matter, and ordered the plaintiff to either appear at the hearing or file a response to the motion for leave to proceed in forma pauperis. That same day, the superior court issued an “order staying case until determination of notice of appeal,” in which it stayed ruling on the motion to set aside

1 It appears that additional counterclaim defendants also were added to the case. The status of those parties is unclear.

the December 3, 2018 judgment until the disposition of the direct appeal of that judgment. On February 25, 2019, Tim Sundy filed the instant pro se application for discretionary review of the two February 11, 2019 orders.2 We lack jurisdiction. An application for discretionary review generally may be filed within 30 days of entry of the order sought to be appealed. See OCGA § 5-6-35 (d). The underlying subject matter of an appeal, however, controls over the relief sought in determining the proper appellate procedure. Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334, 335 (715 SE2d 752) (2011). Under OCGA § 44-7-56, appeals in dispossessory actions must be filed within 7 days of the date the judgment was entered. See Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522-523 (521 SE2d 456) (1999). Pretermitting whether the February 11, 2019 orders constitute final orders that disposed of all pending issues in this case, Tim Sundy’s application is untimely, as it was filed 14 days after entry of the orders he seeks to appeal. Consequently, this untimely application is hereby DISMISSED for lack of jurisdiction. Tim Sundy’s motion for recusal, seeking the recusal of all judges of this Court, is hereby DENIED because the motion is legally insufficient. The allegations of bias arise only from prior adverse rulings against him. See Burt v. State, 256 Ga. 483, 485 (4) (350 SE2d 241) (1986) (“In order to be disqualifying the alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.”) (citation and punctuation omitted). The plaintiff has filed a motion requesting that this Court impose frivolous appeal sanctions on Tim Sundy. See Court of Appeals Rule 7 (e) (2) (“The panel of the Court ruling on a case, with or without motion, may by majority vote to impose a penalty not to exceed $2,500 against any party and/or a party’s counsel in any civil case in which there is a direct appeal, application for discretionary appeal, application

2 Tim Sundy initially filed his application in the Supreme Court, which transferred it to this Court. See Supreme Court Case No. S19D0838 (transferred Mar. 20, 2019).

for interlocutory appeal, or motion which is determined to be frivolous.”). The motion for frivolous appeal sanctions is hereby DENIED. However, given Tim Sundy’s history of repeatedly failing to follow the required procedures to seek appellate review, see Case Nos. A19D0345, A18A0290, A18D0215, & A17D0525, we caution him that any future frivolous filings in this Court may result in the imposition of sanctions against him. Information on how and when to seek appellate review can be found in our Citizen’s Guide, which is on our website at www.gaappeals.us.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/27/2019 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.