Eutha L. Dorsey v. Byung Kim

Court of Appeals of the State of Georgia ATLANTA,____________________ January 25, 2024 The Court of Appeals hereby passes the following order: A24D0208. EUTHA L. DORSEY v. BYUNG KIM. This case began as a dispossessory proceeding in magistrate court. After that court issued a writ of possession and judgment in favor of Byung Kim, Eutha Dorsey appealed to the state court. The state court entered a final judgment in favor of Kim on December 2, 2022. Ten days later, Dorsey filed a direct appeal to this Court; we dismissed the appeal as untimely and for failure to comply with the discretionary review procedures. See Dorsey v. Kim, Case No. A24A0415 (Oct. 16, 2023); OCGA §§ 5-6-35 (a) (11); 44-7-56 (b) (1). Following dismissal of her first appeal, Dorsey filed a motion in the trial court pursuant to OCGA § 9-11-60 (d), seeking to set aside the December 2022 order. The trial court denied that motion on November 9, 2023, and Dorsey filed a direct appeal that same day. As we did with her first appeal, we dismissed Dorsey’s second appeal for lack of jurisdiction. In doing so, we noted that an appeal from a trial court order denying a motion to set aside a judgment must be initiated by filing an application for discretionary review. See Dorsey v. Kim, Case No. A24A0734 (Jan. 5, 2024); OCGA § 5-6-35 (a) (8), (b). Four days after we dismissed Dorsey’s second appeal, she filed the current application for discretionary review, seeking to appeal the trial court’s December 2022 and November 2023 orders. Again, however, we lack jurisdiction. To be timely, a discretionary application must be filed within 30 days of the entry of the order, decision, or judgment sought to be appealed. OCGA § 5-6-35 (d). This statutory deadline is jurisdictional, and this Court cannot accept an application for appeal that fails to comply with the statute. See In the Interest of B. R. F., 299 Ga. 294, 298 (788 SE2d 416) (2016) (holding that an appellate court lacks jurisdiction over an untimely application for discretionary appeal); Hair Restoration Specialists v. State of Georgia, 360 Ga. App. 901, 903 (862 SE2d 564) (2021) (compliance with the discretionary appeals procedure is jurisdictional, and failure to comply with that procedure requires dismissal of the appeal). Here, Dorsey filed her application more than a year following entry of the order of final judgment and 61 days after entry of the order denying her motion to set aside. Accordingly, we lack jurisdiction to consider this application, which is hereby DISMISSED. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/25/2024 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.