Opinion
A22A0659
12-16-2021
MIXDEITY, LLC v. 575 BOULEVARD, LLC.
The Court of Appeals hereby passes the following order:
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, LLC 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.
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.
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 S.E.2d 192) (1994). Moreover, "[c]ompliance with the discretionary appeals procedure is jurisdictional." Smoak v. Dept. of Human Resources, 221 Ga.App. 257, 257 (471 S.E.2d 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 S.E.2d 333) (2003). MixDiety's failure to file a discretionary application deprives us of jurisdiction over this direct appeal.
Accordingly, the motion to dismiss is GRANTED, and this appeal is hereby DISMISSED for lack of jurisdiction.