Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 28, 2021
The Court of Appeals hereby passes the following order:
A21A0660. GARTH COOPER v. BANK OF AMERICA, N.A.
This case began as a dispossessory proceeding in magistrate court. Following
an adverse ruling, defendant Garth Cooper appealed to the state court, which
dismissed the appeal as untimely. Cooper then filed a notice of appeal directed to the
superior court, where he subsequently filed an OCGA § 9-11-60 (d) motion to set
aside the state court’s dismissal order. On June 6, 2019, the superior court dismissed
Cooper’s appeal for lack of jurisdiction. Nevertheless, on August 24, 2020, the
superior court denied Cooper’s motion to set aside. On September 3, 2020, Cooper
filed a direct appeal to this Court. We lack jurisdiction for multiple reasons.1
First, an appeal from a trial court order denying an OCGA § 9-11-60 (d) motion
to set aside must be initiated by filing an application for discretionary review. See
OCGA § 5-6-35 (a) (8), (b); Jim Ellis Atlanta, Inc. v. Adamson, 283 Ga. App. 116,
116 (640 SE2d 688) (2006). Second, an appeal from a superior court decision
reviewing a lower court decision by certiorari or de novo proceedings likewise must
be initiated by filing an application for discretionary review, as must an appeal from
a state court order disposing of a de novo appeal from a magistrate court decision. See
OCGA § 5-6-35 (a) (1), (11), (b); Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d
333) (2003); Strachan v. Meritor Mtg. Corp. East, 216 Ga. App. 82, 82 (453 SE2d
1
Given our ruling that we lack jurisdiction over this appeal, we express no
opinion on the propriety of the superior court’s denial of Cooper’s motion to set aside
after it dismissed his appeal.
119) (1995). Cooper’s failure to follow the proper procedure deprives us of
jurisdiction over this direct appeal.
Third, while a notice of appeal generally may be filed within thirty days of
entry of the order sought to be appealed, appeals in dispossessory actions must be
filed within seven days of the date the judgment was entered. See OCGA § 44-7-56;
Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334, 335-336
(715 SE2d 752) (2011). Cooper untimely filed his notice of appeal ten days after
entry of the denial of his motion to set aside, thereby independently depriving us of
jurisdiction over this appeal.
For each of the above reasons, this appeal is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/28/2021
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.