Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 August 27, 2019

The Court of Appeals hereby passes the following order:

A20D0016. TIM SUNDY v. FRIENDSHIP PAVILION ACQUISITIONS CO.,
    LLC et al.

      This case began as a dispossessory proceeding in magistrate court. After
defendant Mediterranean Dining Group, Inc., asserted a counterclaim for damages,
the action was transferred to the superior court. At some point, Tim Sundy and David
Sundy were added as defendants.1 On December 3, 2018, the superior court issued a
judgment awarding the plaintiff Friendship Pavilion Acquisitions Co., LLC,
$394,617.47 in unpaid lease obligations and interest against all three defendants. On
January 2, 2019, defendant Tim Sundy filed a pro se application for discretionary
review of this judgment, which this Court dismissed as untimely under OCGA § 44-7-
56. See Case No. A19D0345 (dismissed Mar. 15, 2019). It appears that Tim Sundy
also filed a direct appeal of the December 3, 2018 judgment to the Supreme Court.
The status of that appeal is unclear.
      Tim Sundy filed in the superior court a motion to set aside the December 3,
2018 judgment, as well as a motion for leave to proceed in forma pauperis. On
February 11, 2019, the superior court ordered Tim Sundy to present evidence to
support his claim of indigency at a hearing on the matter, and ordered the plaintiff to
either appear at the hearing or file a response to the motion for leave to proceed in
forma pauperis. That same day, the superior court issued an “order staying case until
determination of notice of appeal,” in which it stayed ruling on the motion to set aside


      1
       It appears that additional counterclaim defendants also were added to the case.
The status of those parties is unclear.
the December 3, 2018 judgment until the disposition of the direct appeal of that
judgment. On February 25, 2019, Tim Sundy filed the instant pro se application for
discretionary review of the two February 11, 2019 orders.2 We lack jurisdiction.
      An application for discretionary review generally may be filed within 30 days
of entry of the order sought to be appealed. See OCGA § 5-6-35 (d). The underlying
subject matter of an appeal, however, controls over the relief sought in determining
the proper appellate procedure. Radio Sandy Springs, Inc. v. Allen Road Joint
Venture, 311 Ga. App. 334, 335 (715 SE2d 752) (2011). Under OCGA § 44-7-56,
appeals in dispossessory actions must be filed within 7 days of the date the judgment
was entered. See Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522-523 (521 SE2d
456) (1999). Pretermitting whether the February 11, 2019 orders constitute final
orders that disposed of all pending issues in this case, Tim Sundy’s application is
untimely, as it was filed 14 days after entry of the orders he seeks to appeal.
Consequently, this untimely application is hereby DISMISSED for lack of
jurisdiction.
      Tim Sundy’s motion for recusal, seeking the recusal of all judges of this Court,
is hereby DENIED because the motion is legally insufficient. The allegations of bias
arise only from prior adverse rulings against him. See Burt v. State, 256 Ga. 483, 485
(4) (350 SE2d 241) (1986) (“In order to be disqualifying the alleged bias must stem
from an extra-judicial source and result in an opinion on the merits on some basis
other than what the judge learned from his participation in the case.”) (citation and
punctuation omitted).
      The plaintiff has filed a motion requesting that this Court impose frivolous
appeal sanctions on Tim Sundy. See Court of Appeals Rule 7 (e) (2) (“The panel of
the Court ruling on a case, with or without motion, may by majority vote to impose
a penalty not to exceed $2,500 against any party and/or a party’s counsel in any civil
case in which there is a direct appeal, application for discretionary appeal, application

      2
         Tim Sundy initially filed his application in the Supreme Court, which
transferred it to this Court. See Supreme Court Case No. S19D0838 (transferred Mar.
20, 2019).
for interlocutory appeal, or motion which is determined to be frivolous.”). The motion
for frivolous appeal sanctions is hereby DENIED. However, given Tim Sundy’s
history of repeatedly failing to follow the required procedures to seek appellate
review, see Case Nos. A19D0345, A18A0290, A18D0215, & A17D0525, we caution
him that any future frivolous filings in this Court may result in the imposition of
sanctions against him. Information on how and when to seek appellate review can be
found in our Citizen’s Guide, which is on our website at www.gaappeals.us.



                                       Court of Appeals of the State of Georgia
                                              Clerk’s Office, Atlanta,____________________
                                                                        08/27/2019
                                              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.
