Mixdeity, LLC v. 575 Boulevard, LLC ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 16, 2021
The Court of Appeals hereby passes the following order:
A22A0659. MIXDEITY, LLC v. 575 BOULEVARD, LLC.
This case began as a dispossessory proceeding in magistrate court. In April
2021, the magistrate court issued a writ of possession in favor of landlord 575
Boulevard, LLC. Tenant MixDiety, LLC1 appealed to the superior court. Following
a bench trial, the superior court issued judgment in favor of 575 Boulevard, and
MixDiety filed this appeal. 575 Boulevard has filed a motion to dismiss, arguing that
the appeal should have been brought by discretionary application. We agree.
An application for appeal is required when the “underlying subject matter” is
listed in OCGA § 5-6-35 (a), and “the discretionary application procedure must be
followed, even when the party is appealing a judgment or order that is procedurally
subject to a direct appeal under OCGA § 5-6-34 (a).” Rebich v. Miles, 264 Ga. 467,
468 (448 SE2d 192) (1994). Moreover, “[c]ompliance with the discretionary appeals
procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257,
257 (471 SE2d 60) (1996). 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); Bullock v. Sand, 260 Ga.
App. 874, 875 (581 SE2d 333) (2003). MixDiety’s failure to file a discretionary
application deprives us of jurisdiction over this direct appeal.
1
Although many of the lower courts’ records refer to the tenant as MixDiety,
LLC, the tenant’s actual name appears to be MixDiety Media, LLC.
Accordingly, the motion to dismiss is GRANTED, and this appeal is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/16/2021
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.