Terrance Cunningham v. Bim and Associates, Inc.

• Court: Court of Appeals of Georgia
• Decided: July 23, 2021
• Docket: A21D0365
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 07, 2021

The Court of Appeals hereby passes the following order:

A21D0365. TERRANCE CUNNINGHAM et al. v. BIM AND ASSOCIATES, INC.

Terrance Cunningham, proceeding pro se, filed this application for discretionary review, seeking to appeal an order and judgment entered by the Fulton County Magistrate Court in a dispossessory action. We lack jurisdiction for multiple reasons. First, Cunningham’s application is untimely. 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 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); see also Court of Appeals Rule 31 (a). Cunningham’s application was untimely filed on June 9, 2021, 62 days after the magistrate court order sought to be appealed was entered on April 8, 2021. Second, “[t]he only avenue of appeal available from [a] magistrate court judgment is provided by OCGA § 15-10-41 (b) (1), which allows for a de novo appeal to the state or superior court.” Handler v. Hulsey, 199 Ga. App. 751, 751 (406 SE2d 225) (1991). This Court thus may address magistrate court matters only if they already have been reviewed by the state or superior court. See Westwind Corp. v. Washington Fed. S & L Assn., 195 Ga. App. 411, 411 (1) (393 SE2d 479) (1990). Absent an appealable state or superior court order, we are unable to entertain jurisdiction over this case, regardless of its timeliness. For each of the above reasons, Cunningham’s application is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/07/2021 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.