Lelitia Lane v. U.S. Bank,na

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 01, 2017
The Court of Appeals hereby passes the following order:
A17D0453. LELITIA LANE et al. v. U.S. BANK, NA.
U.S. Bank, National Association, filed a dispossessory action against Lelitia
Lane in magistrate court. In 2013, the magistrate court entered a writ of possession,
and Lane appealed to superior court. The superior court affirmed, and Lane filed an
application for discretionary appeal in this Court.1 We denied the application on
August 21, 2014. See Case Number A14D0466. Lane then filed for bankruptcy,
which hampered U.S. Bank’s ability to execute the writ. In September 2016, U.S.
Bank obtained another writ of possession from the superior court, which Lane sought
to appeal. On March 28, 2017, the trial court entered an order dismissing Lane’s
notice of appeal, and she filed this application for discretionary appeal on May 16,
2017. We, however, lack jurisdiction for at least two reasons.
First, where the questions presented on appeal have become moot, an appeal
is subject to dismissal. See OCGA § 5-6-48 (b) (3). “An appeal becomes moot if the
rights insisted upon could not be enforced by a judicial determination.” Randolph
County v. Johnson, 282 Ga. 160 (1) (646 SE2d 261) (2007). Here, our August 21,
2014 order denying Lane’s application for discretionary appeal was a final decision
on the merits. See McLemore v. Stephenson, 181 Ga. App. 828 (354 SE2d 17) (1987).
“When a final judgment of the trial court is affirmed by this court . . . the controversy
is at an end; the rights of the parties, so far as they are involved in the litigation, are
conclusively adjudicated.” Aetna Cas. & Sur. Co. v. Bullington, 227 Ga. 485, 486 (2)
1
Lane petitioned for certiorari in the Supreme Court, but subsequently
abandoned the petition.
(181 SE2d 495) (1971). Accordingly, Lane no longer has any right with respect to the
underlying dispossessory action that may be enforced by judicial action in the trial
court or that can be affected by appellate review of the trial court’s order.
Second, this application is untimely. 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). 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 7 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). Here, Lane’s application for discretionary appeal was filed 49 days after
the superior court’s order.
For these reasons, we lack jurisdiction to consider this discretionary
application, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/01/2017
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.