Abdul Malik Chestnut v. Shonterria Jeffrey

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 05, 2019

The Court of Appeals hereby passes the following order: A20A0266. ABDUL MALIK CHESTNUT v. SHONTERRIA JEFFREY.

In 2017, Abdul Malik Chestnut filed an action in magistrate court against his former landlord, Shonterria Jeffrey. The magistrate court entered judgment in favor of Chestnut, and Jeffrey appealed to the superior court. The superior court entered judgment in favor of Jeffrey on February 9, 2018. Chestnut thereafter filed a motion to vacate the court’s judgment, which was denied on April 10, 2018. Chestnut filed a direct appeal on May 14, 2018. We lack jurisdiction. First, 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). Chestnut failed to follow the discretionary application procedure, and this direct appeal must be dismissed. See Bullock, supra. Second, even if a direct appeal was authorized, this appeal is untimely. A notice of appeal must be filed within 30 days of the entry of the order sought to be appealed. See OCGA § 5-6-38 (a). Here, the superior court entered its judgment on February 9, 2018, but Chestnut did not file his notice of appeal until May 14, 2018, 94 days later.1 See Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721, 722 (482

1 To the extent that Chestnut seeks to appeal the April 10 order denying his motion to vacate the court’s judgment – which was, in substance, a motion for reconsideration – the motion did not extend the time to appeal the February 9 order, and the April 10 order is not appealable in its own right. See Bell v. Cohran, 244 Ga. App. 510, 510-511 (536 SE2d 187) (2000); Savage v. Newsome, 173 Ga. App. 271, 271 (326 SE2d 5) (1985); see also Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 266

SE2d 704) (1997) (holding that a timely notice of appeal “is an absolute requirement”). For these reasons, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/05/2019 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.

(491 SE2d 471) (1997) (“[P]leadings, motions and orders are to be construed according to their substance and function and not merely as to their nomenclature[.]”). Moreover, even if the April 10 order was directly appealable, Chestnut’s notice of appeal was still untimely as it was filed 34 days after entry of that order. See OCGA § 5-6-38 (a).