Abdul Malik Chestnut v. Shonterria Jeffrey ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 05, 2019
The Court of Appeals hereby passes the following order:
A20A0266. ABDUL MALIK CHESTNUT v. SHONTERRIA JEFFREY.
In 2017, Abdul Malik Chestnut filed an action in magistrate court against his
former landlord, Shonterria Jeffrey. The magistrate court entered judgment in favor
of Chestnut, and Jeffrey appealed to the superior court. The superior court entered
judgment in favor of Jeffrey on February 9, 2018. Chestnut thereafter filed a motion
to vacate the court’s judgment, which was denied on April 10, 2018. Chestnut filed
a direct appeal on May 14, 2018. We lack jurisdiction.
First, a party seeking to appeal a superior court order reviewing a magistrate
court decision must file an application for discretionary appeal. See OCGA § 5-6-35
(a) (1); Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d 333) (2003). Chestnut
failed to follow the discretionary application procedure, and this direct appeal must
be dismissed. See Bullock, supra.
Second, even if a direct appeal was authorized, this appeal is untimely. A notice
of appeal must be filed within 30 days of the entry of the order sought to be appealed.
See OCGA § 5-6-38 (a). Here, the superior court entered its judgment on February
9, 2018, but Chestnut did not file his notice of appeal until May 14, 2018, 94 days
later.1 See Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721, 722 (482
1
To the extent that Chestnut seeks to appeal the April 10 order denying his
motion to vacate the court’s judgment – which was, in substance, a motion for
reconsideration – the motion did not extend the time to appeal the February 9 order,
and the April 10 order is not appealable in its own right. See Bell v. Cohran, 244 Ga.
App. 510, 510-511 (536 SE2d 187) (2000); Savage v. Newsome, 173 Ga. App. 271,
271 (326 SE2d 5) (1985); see also Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 266
SE2d 704) (1997) (holding that a timely notice of appeal “is an absolute
requirement”).
For these reasons, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/05/2019
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.
(491 SE2d 471) (1997) (“[P]leadings, motions and orders are to be construed
according to their substance and function and not merely as to their
nomenclature[.]”). Moreover, even if the April 10 order was directly appealable,
Chestnut’s notice of appeal was still untimely as it was filed 34 days after entry of
that order. See OCGA § 5-6-38 (a).