Shirley Strawberry v. Vistaray USA, Inc.

• Court: Court of Appeals of Georgia
• Decided: January 24, 2022
• Docket: A22A0751
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 24, 2022

The Court of Appeals hereby passes the following order:

A22A0751. SHIRLEY STRAWBERRY v. VISTARAY USA, INC.

This case began as a dispossessory proceeding in magistrate court against Shirley Strawberry. The magistrate court entered a default judgment against Strawberry, and she appealed to superior court. The superior court conducted a hearing which Strawberry failed to attend. On August 6, 2021, the superior court dismissed Strawberry’s appeal and entered a judgment awarding damages and granting a writ of possession of the subject property to VistaRay, USA, Inc. (“VistaRay”). Then, on August 18, 2021, the superior court issued a writ of possession in the property to VistaRay. Strawberry filed a notice of appeal on September 9, 2021. VistaRay has filed three motions to dismiss the appeal. In its first motion to dismiss, VistaRay argues that the appeal is untimely. In its second and third motions to dismiss, VistaRay argues that Strawberry failed to pay past due and accruing rent and to preserve the issue raised for appeal. We lack jurisdiction for two reasons. First, appeals from superior court decisions reviewing lower court decisions by certiorari or de novo proceedings must be initiated by filing an application for discretionary appeal. OCGA § 5-6-35 (a) (1), (b); Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d 333) (2003). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Strawberry’s failure to follow the proper procedure deprives us over jurisdiction over this appeal. Second, even if a direct appeal were proper in this case, this appeal is untimely. While a notice of appeal generally may be filed within 30 days of entry of the order sought to be appealed, appeals in dispossessory actions must be filed within 7 days of the date the judgment was entered. See OCGA § 44-7-56; Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334, 335-336 (715 SE2d 752) (2011); Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522-523 (521 SE2d 456) (1999). Strawberry’s notice of appeal was filed 34 days after the entry of the superior court’s August 6 order and 22 days after the superior court’s issuance of a writ of possession on August 18. This Court therefore lacks jurisdiction to consider the appeal. See id. Accordingly, this appeal is hereby DISMISSED, VistaRay’s first motion to dismiss is GRANTED, and VistaRay’s second and third motions to dismiss are DENIED as MOOT.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/24/2022 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.