Rodrigo Aleyandro v. Rajesh Patel

• Court: Court of Appeals of Georgia
• Decided: May 21, 2019
• Docket: A19D0428
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 03, 2019

The Court of Appeals hereby passes the following order:

A19D0428. RODRIGO ALEYANDRO v. RAJESH PATEL.

Rajesh Patel filed a dispossessory action in magistrate court against Rodrigo Aleyandro. Following an adverse ruling, Aleyandro appealed to superior court. On March 12, 2019, the parties entered into a consent judgment in superior court where Aleyandro agreed to pay Patel $11,000 in rent by March 15, 2019. Under the consent judgment, no writ of possession would issue if Aleyandro paid the rent to Patel. But, the consent judgment stated that if Aleyandro failed to pay Patel rent, then the superior court would issue a writ of possession to Patel “upon presentation of an affidavit of non-compliance” on or after March 18, 2019. A hearing was held on March 21, 2019, and the superior court issued a judgment and writ of possession against Aleyandro.1 On April 9, 2019, Aleyandro filed this application for discretionary review. We, however, lack jurisdiction. Generally, an application for discretionary appeal must be filed within 30 days of entry of the order sought to be appealed. 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). The underlying subject matter here is a dispossessory action, and OCGA § 44-7-56 provides that appeals in dispossessory actions must be filed within seven 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). Here, Aleyandro’s application is untimely because

1 Aleyandro did not include a copy of the judgment and writ of possession entered on March 21, 2019 with his application materials. it was filed 19 days after the writ of possession was entered on March 21, 2019. Additionally, Aleyandro’s application is likewise untimely as to the March 12, 2019 order, as the application was filed 28 days after the entry of that order. Consequently, Aleyandro’s application is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/03/2019 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.