Opinion
A21A0660
06-28-2021
GARTH COOPER v. BANK OF AMERICA, N.A.
The Court of Appeals hereby passes the following order:
This case began as a dispossessory proceeding in magistrate court. Following an adverse ruling, defendant Garth Cooper appealed to the state court, which dismissed the appeal as untimely. Cooper then filed a notice of appeal directed to the superior court, where he subsequently filed an OCGA § 9-11-60 (d) motion to set aside the state court's dismissal order. On June 6, 2019, the superior court dismissed Cooper's appeal for lack of jurisdiction. Nevertheless, on August 24, 2020, the superior court denied Cooper's motion to set aside. On September 3, 2020, Cooper filed a direct appeal to this Court. We lack jurisdiction for multiple reasons.
Given our ruling that we lack jurisdiction over this appeal, we express no opinion on the propriety of the superior court's denial of Cooper's motion to set aside after it dismissed his appeal.
First, an appeal from a trial court order denying an OCGA § 9-11-60 (d) motion to set aside must be initiated by filing an application for discretionary review. See OCGA § 5-6-35 (a) (8), (b); Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga.App. 116, 116 (640 S.E.2d 688) (2006). Second, an appeal from a superior court decision reviewing a lower court decision by certiorari or de novo proceedings likewise must be initiated by filing an application for discretionary review, as must an appeal from a state court order disposing of a de novo appeal from a magistrate court decision. See OCGA § 5-6-35 (a) (1), (11), (b); Bullock v. Sand, 260 Ga.App. 874, 875 (581 S.E.2d 333) (2003); Strachan v. Meritor Mtg. Corp. East, 216 Ga.App. 82, 82 (453 S.E.2d 119) (1995). Cooper's failure to follow the proper procedure deprives us of jurisdiction over this direct appeal.
Third, while a notice of appeal generally may be filed within thirty days of entry of the order sought to be appealed, appeals in dispossessory actions must be filed within seven days of the date the judgment was entered. See OCGA § 44-7-56; Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga.App. 334, 335-336 (715 S.E.2d 752) (2011). Cooper untimely filed his notice of appeal ten days after entry of the denial of his motion to set aside, thereby independently depriving us of jurisdiction over this appeal.
For each of the above reasons, this appeal is hereby DISMISSED for lack of jurisdiction.