John K. Buahin v. Deutsche Bank Trust Co. ( 2014 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 02, 2014
The Court of Appeals hereby passes the following order:
A15D0050. JOHN K. BUAHIN et al. v. DEUTSCHE BANK TRUST
COMPANY.
In this dispossessory action, Deutsche Bank Trust Co. filed a motion to compel
payment of rent into the registry of the court, which the trial court granted on
September 2, 2014. On September 10, 2014, the applicants filed this application for
discretionary appeal, arguing that the superior court erred when it granted a writ of
possession. However, the applicants have not included an order granting a writ of
possession in their application materials.1
The only order submitted in the application materials is the order granting
Deutsche Bank Trust Co.’s motion to compel payment of rent. As to that order, the
application is untimely. Generally, an application for discretionary appeal must be
filed within 30 days of entry of the order sought to be appealed. See OCGA § 5-6-35
(d). But the underlying subject matter of an appeal controls over the relief sought in
determining the proper appellate procedure. Rebich v. Miles, 264 Ga. 467, 467-468
(448 SE2d 192) (1994). OCGA § 44-7-56 provides that an appeal from any
dispossessory judgment must be filed within seven days of the date the judgment was
1
A notice of a Chapter 7 bankruptcy filing by LeShon V. Stewart, one of the
applicants, is included in the application materials. Stewart submitted no
documentation showing the status of the bankruptcy, but Deutsche Bank Trust Co.
maintains that it filed a motion for relief from the stay of bankruptcy, which was
granted on August 25, 2014.
entered. See Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521 (521 SE2d 456) (1999).
Here, the application was not filed until eight days after entry of this order.
Accordingly, this application is untimely, and it is hereby DISMISSED.
Court of Appeals of the State of Georgia
10/02/2014
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.