Jonathan Sholar v. Coweta White Oak Associates

Opinion

Court of Appeals of the State of Georgia

May 25, 2012 ATLANTA,_________________

The Court of Appeals hereby passes the following order:

A12A1845. JONATHAN SHOLAR, ET AL. v. COWETA WHITE OAK ASSOCIATES.

The magistrate court issued an order in which it entered a judgment against defendants Jonathan and Linda Sholar in this dispossessory action, severed the plaintiff’s counterclaim for lack of subject matter jurisdiction, and transferred the severed claim to the superior court for resolution. The Sholars appealed to superior court, which dismissed the dispossessory appeal on March 13, 2012.1 On March 23, 2011, the Sholars filed a notice of appeal. We lack jurisdiction for two reasons. First, when a superior court order involves a de novo appeal from a magistrate court decision, an appellant is required to follow the discretionary appeal procedure. See OCGA § 5-6-35 (a) (1); English v. Delbridge, 216 Ga. App. 366, 367 (454 SE2d 175) (1995). Accordingly, the Sholars’s notice of direct appeal does not give rise to a valid appeal. Second, this appeal is untimely. See OCGA § 44-7-56 (providing that an appeal from any dispossessory judgment – such as the one here – must be filed within seven days of the date the judgment was entered); Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521 (521 SE2d 456) (1999). Here, the Sholars did not file their notice of appeal until 10 days after the superior court’s order was entered. For these reasons, we lack jurisdiction over this appeal, and it is hereby DISMISSED.

1 It appears that the counterclaim remains pending. Court of Appeals of the State of Georgia 05/25/2012 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.