THIRD DIVISION
DOYLE, P. J.,
MARKLE and PADGETT, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
April 22, 2025
In the Court of Appeals of Georgia
A25A0036. STUBBS v. LOCAL HOMES, LLC.
PADGETT, Judge.
In this dispossessory case, Richard B. Miller and Scottie Stubbs seek review of
the trial court’s final judgment against Stubbs and award of attorney fees under
OCGA § 9-15-14 to plaintiff Local Homes, LLC (“Local Homes”) against Miller and
Stubbs. For the reasons that follow, we conclude that we lack jurisdiction to consider
this untimely appeal, which we dismiss.
The following facts do not appear to be disputed. Local Homes filed this
dispossessory action in state court, seeking possession of certain premises, past-due
rent, rent accruing through final judgment, and various fees and costs. Stubbs lived on
the premises, and Miller represented Stubbs in the state court case. In September 2023, Local Homes filed a motion seeking the payment of rent into the court’s registry
under the dispossessory statute, which the trial court granted. Later in September, the
state court granted Local Homes a writ of possession, and the sheriff performed a
lockout in October. In January 2024, Local Homes filed a motion for final judgment,
seeking rent through the date of the lockout. In February, Local Homes filed a motion
for attorney fees under OCGA § 9-15-14. On March 14, the trial court entered a final
judgment awarding Local Homes (1) $10,554.41 plus interest against Stubbs, which
included $8,800.41 in rent and $1,500.00 in attorney fees under OCGA § 19-15-14,
and (2) $7,020.00 in attorney fees under OCGA § 9-15-14 against Miller. On April 15,
Miller filed an application for discretionary review of the March 14 order, arguing that
the trial court did not permit Stubbs to present evidence or assert an affirmative
defense to the dispossessory action and that the trial court erred in awarding attorney
fees under OCGA § 9-15-14. We granted Miller’s application on May 9. See Case No.
A24D0316 (May 9, 2024). Miller and Stubbs then filed the underlying notice of appeal
on May 20, seeking to appeal both the March 14 order and the trial court’s subsequent
order requiring Miller and Stubbs each to post a supersedeas bond.
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“It is incumbent upon this [c]ourt to inquire into its own jurisdiction.” State
of Ga. v. Singh, 291 Ga. 525, 526 (1) (731 SE2d 649) (2012) (citation and punctuation
omitted). We conclude that the April 14 application and the parties’ May 20 notice
of appeal were both untimely under OCGA § 44-7-56, the application for appeal
therefore was improvidently granted, and we lack jurisdiction to consider this appeal.
In connection with the passage of the Superior and State Court Appellate
Practice Act, OCGA § 5-3-1 et seq. (the “Act”),1 effective July 1, 2023, the General
Assembly also amended OCGA § 44-7-56, which governs appeals in dispossessory
actions. See Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334,
335 (715 SE2d 752) (OCGA § 44-7-56 governs appeals in dispossessory actions); Ga.
L. 2022, Act 875, §§ 2-35, 3-1.
Prior to this amendment, OCGA § 44-7-56 stated in relevant part that “[a]ny
judgment by the trial court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of
Title 5, provided that any such appeal shall be filed within seven days of the date such
judgment was entered . . . .” OCGA § 44-7-56 (2022). We interpreted “appeal” in the
1
The Act establishes a uniform procedure for appeals from inferior courts, such as magistrate courts, to state or superior courts. Alger v. Atlanta Auto Restoration, LLC, 369 Ga. App. 379, 381 n. 3 (893 SE2d 775) (2023).
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prior version of OCGA § 44-7-56 to include both direct and discretionary appeals. See
Born v. Born, 364 Ga. App. 511, 514 (874 SE2d 846) (2022) (application to appeal any
judgment in a dispossessory action must be filed within seven days of the judgment);
Court of Appeals Rule 31 (a) (“[A] discretionary application involving a dispossessory
action must be filed within seven days of the entry of the trial court’s order.”). OCGA
§ 44-7-56 now states, in relevant part,
(a) Any judgment by the trial court shall be appealable pursuant to
Chapters 3, 6, and 7 of Title 5.
(b) An appeal made pursuant to subsection (a) of this Code section shall
proceed as follows:
(1) A copy of the petition for review filed in the reviewing superior
or state court or the notice of appeal shall be filed with the clerk of
the trial court within seven days after the date the judgment was
entered in the trial court[.]
While the statute expressly requires, in dispossessory actions, that petitions for review
to superior or state court and notices of appeal to this Court be filed within seven days
of a judgment, the statute does not specifically address the time by which parties must
file applications for discretionary appeal in such cases when such applications are
required under OCGA § 5-6-35 (a).
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When considering the meaning of a statute, a court must “presume that the
General Assembly meant what it said and said what it meant” and afford the statutory
text its “plain and ordinary meaning.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751
SE2 337) (2013) (citations and punctuation omitted). But, the appellate court “may
review the text of the provision in question and its context within the larger legal
framework to discern the intent of the legislature in enacting it,” especially where the
statutory text is not clear and unambiguous. Patton v. Vanterpool, 302 Ga. 253, 254
(806 SE2d 493) (2017) (citations and punctuation omitted).
Dispossessory actions are summary proceedings to determine the disposition
of the property pending trial of any contested issues. Anita Holdings, LLC v. Outlet
Mall of Savannah, LLC, 357 Ga. App. 403, 405 (1) (850 SE2d 843) (2020) (quoting
Taylor v. Carver State Bank, 177 Ga. App. 856, 857 (341 SE2d 502) (1986), abrogated
on other grounds by Hill v. Levenson, 259 Ga. 395, 395 (1) (383 SE2d 110) (1989)).
Many appeals in dispossessory actions come by our discretionary appeals procedure.
See OCGA § 5-6-35 (a) (1) (appeals from decisions of superior courts reviewing
decisions of lower courts by petition for review); OCGA § 5-6-35 (a) (3) (appeals
involving dispossessory warrants in which the only issue to be resolved is the amount
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of rent due and such amount is $2,500.00 or less); OCGA § 5-6-35 (a) (11) (appeals
from decisions of the state courts reviewing decisions of the magistrate courts by de
novo proceedings so long as the subject matter is not otherwise subject to a right of
direct appeal). The procedure for discretionary appeals under OCGA § 5-6-35
originally was enacted by the Georgia General Assembly in order to reduce the
massive caseload of Georgia’s appellate courts and to give the appellate courts the
discretion not to entertain certain types of cases. Ferguson v. Composite State Bd. of
Med. Examiners, 275 Ga. 255, 256 (1) (564 SE2d 715) (2002). Giving litigants in
dispossessory proceedings more time to seek appellate review in cases in which this
Court has discretion to not entertain appeals, than the seven days litigants have to file
a direct appeal, would be contrary to the objective of decreasing this Court’s burden.
If the seven-day deadline provided for in OCGA § 44-7-56 applied only to instances
where appeals do not come by application, the exception (30-day deadline for
application for discretionary appeal) would likely swallow the rule (7-day deadline for
direct appeal).
Moreover, under OCGA § 5-6-35 (j), if a party has a right to direct appeal under
OCGA § 5-6-34 but files an “otherwise timely” application for discretionary review,
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we have jurisdiction over that case “and shall grant the application.” (emphasis
added). Thus, if the seven-day filing deadline provided for in OCGA § 44-7-56 did not
apply to discretionary applications, litigants in dispossessory cases could simply avoid
the seven-day deadline by filing an application for discretionary review under OCGA
§ 5-6-35 within 30 days of the order, which then we would be required to grant under
OCGA § 5-6-35 (j).
In this case, Local Homes filed its dispossessory action seeking possession of
the premises, past-due rent, rent accruing through final judgment, and various fees
and costs under the dispossessory statute and later sought attorney fees under OCGA
§ 9-15-14. The trial court awarded Local Homes possession of the premises and,
ultimately in its final order, past due rent under the dispossessory statute in addition
to attorney fees. First in the application for discretionary review and now on appeal,
Miller and Stubbs have challenged the trial court’s rulings throughout this
dispossessory case. This action thus began as and remains a dispossessory action.
Radio Sandy Springs, Inc., 311 Ga. App. at 335 (“it is the underlying subject matter of
the litigation, rather than the relief granted, which controls in determining the proper
appellate procedure to follow”).
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For these reasons, we determine that the failure to file an application for
discretionary review or a notice of appeal in this case within seven days of the trial
court’s March 14 order deprives us of jurisdiction over this appeal. See id. at 334
(where the action began and continued as a dispossessory action, the seven-day time
limit of OCGA 44-7-56 applied); Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 523
(521 SE2d 456) (1999) (the seven-day time limit of OCGA § 44-7-56 applied where
the action began as and remained a dispossessory proceeding because the party
continued to rely upon the provisions of the dispossessory statutes throughout the
litigation, including the rent provision); Smoak v. Dept. of Human Resources, 221 Ga.
App. 257, 257 (471 SE2d 60) (1996) (“Compliance with the discretionary appeals
procedure is jurisdictional.”); see also Yanes v. Escobar, 362 Ga. App. 896, 898 (80
SE2d 506) 2022) (“The proper and timely filing of a notice of appeal is an absolute
requirement to confer jurisdiction upon the appellate court.”) (citation and
punctuation omitted). Therefore, this appeal is dismissed as being improvidently
granted.
8
We note that the March 14 order could have been directly appealed because this
action began in state court and because this is not an appeal where the only issue to be
resolved is the amount of rent due and such amount is $2,5000.00 or less. See OCGA
§ 5-6-35 (a) (1), (3), and (11). Although “OCGA § 5-6-35(a) (10) requires that an
appeal of an award of attorney fees made pursuant to OCGA § 9-15-14 be preceded
by the grant of a discretionary application[,] a direct appeal is permitted when it is
appealed as part of a judgment that is directly appealable.” Capricorn Sys., Inc. v.
Godavarthy, 253 Ga. App. 840, 841 (560 SE2d 730) (2002) (citation and punctuation
omitted). So, had a timely a notice of appeal of the March14 order been filed, an
application for discretionary review would not be required to appeal the attorney fees
award. The parties, however, waited more than seven days to seek to appeal the
March 14 order.
Finally, although not enumerated separately as error, the notice of appeal
indicated that Miller and Stubbs would be appealing the trial court’s order requiring
them to pay a supersedeas bond.«R2. 191 (notice of appeal), 1 (amended notice of
appeal)» Because this opinion disposes of the appeal upon which the trial court based
its grant of a supersedeas bond, any argument regarding the propriety of the
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supersedeas bond order is rendered moot. See Dubarton Enterprises v. Appalachian
Community Bank, 321 Ga. App. 755, 756 (750 SE2d 682) (2013).
Appeal dismissed. Doyle, P. J., and Markle, J., concur.
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