John Smith v. Chase Home Finance, LLC ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 26, 2016
The Court of Appeals hereby passes the following order:
A16D0477. JOHN SMITH et al. v. CHASE HOME FINANCE, LLC.
This case began as a dispossessory proceeding in magistrate court. Following
the issuance of a writ of possession adverse to Lydia and John Smith, they filed a
notice of appeal in superior court. The superior court dismissed the notice of appeal
on June 6, 2016, after the Smiths failed to pay the filing costs. The Smiths filed this
application for discretionary appeal on July 28, 2016. We lack jurisdiction.
Generally, an application for discretionary appeal may be filed within 30 days
of entry of the order sought to be appealed. See OCGA § 5-6-35 (d). However, the
underlying subject matter of an appeal 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.
OCGA § 44-7-56 provides that an appeal from any 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 (521 SE2d 456) (1999). Because the applicants filed
this application 52 days after entry of the superior court’s order, the application is
untimely. And this Court lacks jurisdiction to consider an untimely application. See
Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989). Accordingly, this application
is hereby DISMISSED for lack of jurisdiction.
We note that the applicants are represented by attorney Grady Roberts, who has
represented numerous dispossessory clients before this Court and who is well aware
of the seven day deadline for appealing a dispossessory ruling. Court of Appeals Rule
15 authorizes the imposition of a sanction in any civil case wherein an application is
determined to be frivolous. This application – filed well beyond the seven day
deadline – is frivolous. Accordingly, we hereby fine Grady Roberts $2,500. This
sanction is imposed against attorney Grady Roberts and Roberts Law, LLC, jointly
and severally, for the filing of this frivolous application. This penalty is not assessed
against Roberts’s clients. Upon receipt of this order, the superior court is DIRECTED
to enter judgment in favor of Chase Home Finance LLC in the amount of $2,500
against Grady A. Roberts, III, and Roberts Law, LLC.
Court of Appeals of the State of Georgia
08/26/2016
Clerk’s Office, Atlanta,____________________
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.