Opinion
A22D0436
07-20-2022
KIM CAMILLE FLORENCE v. ALLY BANK LEASE TRUST.
Ally Bank Lease Trust filed a petition for writ of possession of Kim Camille Florence's automobile, a personal property foreclosure action under OCGA §44-14230. See Brown v. Associates Fin. Servs. Corp., 255 Ga. 457, 457 (339 S.E.2d 590) (1986). The trial court entered final orders granting Ally Bank Lease Trust a writ of possession to recover the automobile and dismissing Florence's counterclaims. Florence timely filed this application for discretionary appeal from the orders.
From the limited materials submitted with the application, it appears that the trial court entered separate orders granting the writ of possession and dismissing the counterclaims. However, as some pages of the court's order(s) appear to be missing from the materials submitted, such a determination is rendered difficult.
Because Florence had a right to file a direct appeal from the judgment on the writ of possession, no application for discretionary appeal was required. See Brown, 255 Ga. at 458 (discretionary application was not required for appeal from judgment granting writ of possession of personal property, as applicant had right of direct appeal from the foreclosure judgment); see generally Motor Warehouse, Inc. v. Richard, 235 Ga.App. 835, 835-836 (1) (510 S.E.2d 600) (1998) (no discretionary application required from attorney fee award because case commenced as a petition to inspect and copy corporate records, and such a petition does not come within the categories of cases subject to discretionary application procedures under OCGA § 5- 6-35 (a)).
Under OCGA § 5-6-35(j), this Court will grant anotherwise timely application for discretionary review if the trial court's order is subject to direct appeal. See City of Rincon v. Couch, 272 Ga.App. 411,412 (612 S.E.2d 596) (2005). And, because the order granting the writ of possession is directly appealable, the court's dismissal of Florence's counterclaims is also subject to direct review. See OCGA § 5-6-34 (d); Brown, 255 Ga. at 458.
Accordingly, Florence's application is hereby GRANTED. Florence shall have ten days from the date of this order to file a notice of appeal with the state court. If, however, she has already filed a notice of appeal, she need not file a second notice. The state court is DIRECTED to include a copy of this order in the appellate record.