Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A19D0078. SABRINA JONES-SMITH v. PAMELA STALEY CROCKETT.

Sabrina Jones-Smith filed a dispossessory action in magistrate court. Tenant

Pamela StaleyCrockettfiled a motion to transfer the case to superior court. Following

transfer, on July 30, 2018, the superior court entered an order denying Jones-Smith’s

dispossessory action and ordering the parties to mediate the remaining issues “prior

to the hearing of [Crockett’s]Counterclaims.” On August 28, 2018,Jones-Smith filed

an application for discretionary appeal from this ruling.

Under OCGA § 5-6-35 (a) (1), an application for discretionary appeal is

required where litigation beginsin magistrate court and reaches the superior court by

means of a de novo appeal. By its terms, this provision only applies where the

superior court exercises de novo review of the magistrate court’s decision. Because

this case was transferred from magistrate court, OCGA § 5-6-35 (a) (1) does not

apply.

Ordinarily, if a party applies for discretionary review of a directly appealable

order, we grant the application under OCGA § 5-6-35 (j). To fall within this general

rule, however, the application must be timely as the proper and timely filing of the

application is an absolute requirement to confer appellate jurisdiction upon thisCourt.

See Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995). Generally, an application

for discretionary appeal may be filed within 30 days of entry of the order or judgment

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,

September 25, 2018
an appeal from a dispossessory judgment must be filed within seven days of the date

the judgment was entered. See Radio Sandy Springs v. Allen Road Joint Venture, 311

Ga. App. 334, 334-335 (715 SE2d 752) (2011). Because Jones-Smith filed her

application 29 days after the superior court’s order was entered, the application is

untimely. 

Furthermore, the appeal isinterlocutory. After mediation, the parties will return

to the superior court to litigate Crockett’s counterclaims, which rendersthe case nonfinal. Thus, Jones-Smith was required to follow the procedures for interlocutory

review in order to appeal. See OCGA § 5-6-34 (b); Bailey v. Bailey, 266 Ga. 832,

832-833 (471 SE2d 213) (1996); Scruggs v. Ga. Dept. of Human Resources, 261 Ga.

587, 588-589 (1) (408 SE2d 103) (1991); Gray v. Springs, 224 Ga. App. 427, 427

(481 SE2d 3) (1997).

For these reasons, we lack jurisdiction over this application for discretionary

appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

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.

09/25/2018