Darryl E. Perry v. Ysmr Equities, Inc. ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 18, 2019
The Court of Appeals hereby passes the following order:
A19A1810. DARRYL E. PERRY v. YSMR EQUITIES, INC. et al.
This case began as a dispossessory proceeding in magistrate court, and
following an adverse ruling, Darryl E. Perry appealed to the superior court. The
superior court issued a writ of possession and Perry filed this direct appeal. We,
however, lack jurisdiction for two reasons.
First, 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). Perry’s failure to follow the proper procedure deprives us of
jurisdiction over this appeal.
Second, while a notice of appeal generally must be filed within 30 days of entry
of the order sought to be appealed under OCGA § 5-6-38 (a), the underlying subject
matter of an appeal 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). The underlying subject matter here is a dispossessory
judgment. Under OCGA § 44-7-56, appeals in dispossessory actions must be filed
within seven days of the date the judgment was entered. Ray M. Wright, Inc. v. Jones,
239 Ga. App. 521, 522-523 (521 SE2d 456) (1999). The proper and timely filing of
a notice of appeal is an absolute requirement to confer jurisdiction on this Court. Id.
at 523. Perry’s November 26, 2018 notice of appeal is untimely, as it was filed ten
days after entry of the superior court’s November 16, 2018 order.
For each of these reasons, Perry’s appeal is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/18/2019
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.