Opinion
A23A1439
08-22-2023
JAMES HALL v. HSBC BANK USA, NA.
The Court of Appeals hereby passes the following order:
The magistrate court issued a dispossessory judgment in favor of HSBC Bank USA, NA, and against James Hall. Hall petitioned the superior court for a writ of certiorari. The superior court dismissed the case for failure to perfect service. Hall filed a notice of appeal, but the court dismissed the appeal for want of prosecution. Hall then filed this direct appeal, seeking review of the superior court's dismissal of his appeal. We lack jurisdiction.
As a rule, "a trial court's order dismissing a properly filed direct appeal is itself subject to a direct appeal." American Med. Security Group v. Parker, 284 Ga. 102, 103 (2) (663 S.E.2d 697) (2008). However, a trial court's order dismissing an improperly filed direct appeal is not subject to direct appeal. See id. 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), (b); Bullock v. Sand, 260 Ga.App. 874, 875 (581 S.E.2d 333) (2003). "Compliance with the discretionary appeals procedure is jurisdictional." Smoak v. Dept. of Human Resources, 221 Ga.App. 257, 257 (471 S.E.2d 60) (1996). And compliance with the discretionary appeals procedure is required even where the superior court dismisses the action before reaching its merits. Taylor v. City of Atlanta, 184 Ga.App. 795, 796 (363 S.E.2d 45) (1987).
Although the language in this code section has been amended, effective July 1, 2023, the version cited here applies to this case because Hall filed his petition for review in superior court in 2020. See Ga. L. 2023, p. 728, § 5 (providing, in part, 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).
Hall's failure to comply with the discretionary appeal procedure deprives us of jurisdiction over this appeal, which is hereby DISMISSED.