Paul Penn, Jr. v. Penny Mac Corporation ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 30, 2016
The Court of Appeals hereby passes the following order:
A17A0612. PAUL PENN, JR. v. PENNY MAC CORPORATION.
In this dispossessory action brought by Penny Mac Corporation against Paul
Penn, Jr., the magistrate court issued a writ of possession in favor of Penny Mac
Corporation, and Penn filed a petition for a writ of certiorari in the superior court. On
August 22, 2016, the superior court issued an order dismissing Penn’s petition. Penn
then filed this direct appeal on October 7, 2016. We lack jurisdiction for two reasons.
First, Penn’s appeal is untimely. Generally, a notice of appeal must be filed
within 30 days of entry of the decision or judgment sought to be appealed. See
OCGA § 5-6-38 (a). The underlying subject matter of an appeal, however, controls
over the relief sought in determining the proper appellate procedure. See Rebich v.
Miles, 264 Ga. 467, 467-468 (448 SE2d 192) (1994). The underlying subject matter
here is a dispossessory judgment. Under OCGA § 44-7-56, an appeal from a
dispossessory judgment must be filed within seven 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). Penn’s appeal is untimely, as it was filed 46 days after the superior
court’s order was entered.
Second, Penn failed to file an application for discretionary appeal as required.
“[A]ppeals from decisions of the superior courts reviewing decisions of lower courts
by certiorari or de novo proceedings shall be by application for discretionary appeal.”
Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d 333) (2003) (punctuation
omitted); see also OCGA § 5-6-35 (a) (1).
Accordingly, Penny Mac Corporation’s motion to dismiss the appeal as
untimely is hereby GRANTED, and this appeal is hereby DISMISSED. However,
Penny Mac Corporation’s motion for immediate transmittal of the remittitur upon
rendition of judgment is hereby DENIED. Penny Mac Corporation included that
motion within its motion to dismiss the appeal as untimely, in violation of Court of
Appeals Rule 41 (b), which provides that all motions shall be filed as separate
documents, and shall not be filed as joint, compound, or alternative motions.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/30/2016
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.