Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                  October 09, 2014

The Court of Appeals hereby passes the following order:

A15D0042. CERTO, LLC. et al v. ROCK WEST INVESTMENTS II, LLC.

       On September 9, 2014, Certo, LLC. filed an application for discretionary appeal
of the superior court’s August 26, 2014 order granting Rock West Investments II,
LLC. a writ of possession and summary judgment on two counts. However, because
this case originated as a dispossessory action in magistrate court and issues remain
pending in the superior court, we lack jurisdiction.
       The application in this case clearly shows that Rock West filed a dispossessory
proceeding in magistrate, asserting that Certo was a tenant holding over. Following
an adverse ruling in magistrate court, Certo appealed to the superior court, which
granted a writ of possession to Rock West. Certo then filed the instant application for
discretionary appeal. His application, however, is untimely. Generally, an application
for discretionary appeal must be filed within 30 days of entry of the order sought to
be appealed. See OCGA § 5-6-35 (d). But the underlying subject matter of an appeal
controls over the relief sought in determining the proper appellate procedure. Rebich
v. Miles, 264 Ga. 467, 467-468 (448 SE2d 192) (1994). OCGA § 44-7-56 provides
that an appeal from any dispossessory judgment must be filed within seven days of the
date the judgment was entered. See Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521
(521 SE2d 456) (1999). Because Certo did not file its application within seven days
after the trial court’s order, the application is untimely, and we therefore do not have
jurisdiction to consider it.
       Moreover, the application shows that although the trial court issued its ruling
on the writ of possession, the matter remained pending in the trial court. The superior
court’s order indicates, “The parties shall come before the Court for a hearing on
Plaintiff’s remaining claims . . . on Monday, October 20, 2014 . . . Failure to appear
could result in dismissal of your case or a default judgment being entered against
you.” Because the trial court’s order was not final, Certo was required to comply with
the interlocutory appeal procedures of OCGA § 5-6-34 (b) in order to obtain appellate
review of this order. See Pace Constr. Corp. v. Northpark Assoc.,215 Ga. App. 438,
439 (450 SE2d 828) (1994). For these reasons, we lack jurisdiction over this
application, which is hereby DISMISSED.



                                       Court of Appeals of the State of Georgia
                                                                           10/09/2014
                                              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.
