Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 December 12, 2016

The Court of Appeals hereby passes the following order:

A17A0201. HOLLI HOTCHKISS v. STONECREST ACQUISITIONS, LLC.

      This case began as a dispossessory proceeding in magistrate court, in which
Stonecrest Acquisitions, LLC, sought and obtained a writ of possession against Holli
Hotchkiss. Hotchkiss did not appeal the magistrate court decision, but rather filed a
“Verified Petition to Void Judgment, Injunction Relief, Punitive Damages, Jury Trial
Demand” in the superior court seeking relief from the writ of possession entered in
favor of Stonecrest by the magistrate court. The superior court entered summary
judgment in favor of Stonecrest. Hotchkiss then filed an “Emergency Motion to
Vacate Order,” which the superior court denied. Hotchkiss filed this direct appeal
from that order. We, however, lack jurisdiction.
      Hotchkiss’s superior court petition was essentially a request for de novo review
of the magistrate court’s order. See Dept. of Transp. v. Camvic Corp., 284 Ga. App.
321, 323 (2) (a) (644 SE2d 171) (2007) (“pleadings, motions, and orders are
construed according to their substance and function and not merely by
nomenclature”). “[A]ppeals from decisions of the superior courts reviewing decisions
of lower courts by certiorari or de novo proceedings shall be by application for
discretionary appeal.” Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d 333)
(2003) (punctuation omitted); see also OCGA § 5-6-35 (a) (1). An application for
appeal is required when the “underlying subject matter” is listed in OCGA § 5-6-35
(a), and therefore, “the discretionary application procedure must be followed, even
when the party is appealing a judgment or order that is procedurally subject to a direct
appeal under OCGA § 5-6-34 (a).” Rebich v. Miles, 264 Ga. 467, 468 (448 SE2d
192) (1994). “Otherwise, any party could avoid the discretionary review procedure
by seeking relief, however inappropriate, that would trigger the right to a direct
appeal.” Id. at 469. Therefore, because Hotchkiss did not follow the proper
procedure for requesting appellate review in this case, we lack jurisdiction over this
appeal, which is hereby DISMISSED.




                                       Court of Appeals of the State of Georgia
                                              Clerk’s Office, Atlanta,____________________
                                                                        12/12/2016
                                              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.
