Opinion
A24A0101
08-22-2023
VIVIENNE A. DOUGLAS et al. v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT.
The Court of Appeals hereby passes the following order:
After the magistrate court issued a writ of possession against them, Vivienne A. Douglas and Owen Alphanso Davis (collectively, "the petitioners") filed a petition for writ of certiorari in the superior court. On April 11, 2023, the superior court dismissed the petition for writ of certiorari, and the petitioners filed both an application for discretionary review, which was denied, see Case No. A23D0305 (May 11, 2023), and this direct appeal. We lack jurisdiction.
As an initial matter, the petitioners are not entitled to a direct appeal from the superior court's order reviewing the magistrate court's order. See OCGA § 5-6-35 (a) (1), (b); Bullock v. Sand, 260 Ga.App. 874, 875 (581 S.E.2d 333) (2003) (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 has been amended, effective July 1, 2023, to apply to superior court decisions reviewing lower court decisions" by petition for review[.]" See Ga. L. 2023, p. 728, § 2. The language cited above is the version that applies to this case as the petitioners filed their writ of certiorari in the superior court in April 2022. See id. at § 5 (providing that the amendment to OCGA § 5-6-35 (a) (1) applies to petitions for review filed in superior or state court on or after July 1, 2023).
Moreover, this Court's denial of the petitioners' discretionary application constitutes a decision on the merits, and a direct appeal from the same order is barred. See Northwest Social &Civic Club, Inc. v. Franklin, 276 Ga. 859, 860 (583 S.E.2d 858) (2003) ("[W]hen this Court examines a request for a discretionary appeal, it acts in an error-correcting mode such that a denial of the application is on the merits [and] the order denying the application is res judicata with respect to the substance of the requested review.") (citation omitted).
For these reasons, the petitioners are not entitled to a direct appeal of the superior court's order, and this appeal is hereby DISMISSED.