Valeria sanders/aka/valeria Cruz AKA/ Valeria Montrez Sanders v. Sunny Asset LLC

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 06, 2022
The Court of Appeals hereby passes the following order:
A22D0188. VALERIA SANDERS/AKA/VALERIA CRUZ AKA/ VALERIA
MONTREZ SANDERS v. SUNNY ASSET LLC.
This case began as a dispossessory proceeding in magistrate court. Following
an adverse ruling, defendant Valeria Sanders appealed to the superior court. On
February 3, 2020, the superior court issued a writ of possession and judgment in favor
of Sunny Asset, LLC. Proceeding pro se, Sanders filed a direct appeal, which was
dismissed based on her failure to file an application for discretionary review as
required under OCGA § 5-6-35 (a) (1). See Case No. A22A0485 (Dec. 6. 2021).
Sanders then filed this application. She asks that we “amend” her direct appeal to
comply with the discretionary application procedure. Because Sanders failed to file
a timely application for discretionary review, we lack jurisdiction.
First, to the extent that Sanders requests that we construe her timely notice of
appeal as an application for discretionary review, we are unable to do so. Although
“there is no magic in nomenclature,” Doe v. State, 347 Ga. App. 246, 250 (1) (819
SE2d 58) (2018) (punctuation omitted), we cannot construe a notice of appeal, which
must be filed in the trial court, as an application for discretionary appeal, which must
be filed in this Court. See OCGA §§ 5-6-35 (d); 5-6-37.
Moreover, this application is untimely. Ordinarily, an application for
discretionary review must be filed within 30 days of entry of the order sought to be
appealed. See OCGA § 5-6-35 (d). Under OCGA § 44-7-56, however, appeals in
dispossessory actions 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); see also Court of Appeals Rule 31 (a). Sanders’s application was filed
on December 16, 2021, more than twenty-two months after the superior court issued
its order.
Finally, it “is axiomatic that the same issue cannot be relitigated ad infinitum.”
Echols v. State, 243 Ga. App. 775, 776 (534 SE2d 464) (2000) (emphasis in original).
The effect of the dismissal of Sanders’s direct appeal “was to affirm the judgment of
the trial court[,]” which then became res judicata between the parties. Potter-Miller
v. Reed, 302 Ga. App. 199, 200 (2) (690 SE2d 215) (2010).
Having failed to follow the correct appellate procedure in the first instance,
Sanders cannot now “amend” her direct appeal with an untimely application. For this
reason, we lack jurisdiction to consider this application, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/06/2022
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.