Starship Enterprises of Atlanta, Inc. v. Gwinnett County, Georgia ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 16, 2018
The Court of Appeals hereby passes the following order:
A18D0325. STARSHIP ENTERPRISES OF ATLANTA, INC. v. GWINNETT
COUNTY, GEORGIA.
Starship Enterprises of Atlanta, Inc. (“Starship”), filed a complaint for an
injunction and declaratory judgment against Gwinnett County (“the County”) in the
superior court, seeking to prevent the enforcement of certain zoning ordinances. The
County then filed a counterclaim for a permanent injunction as well as a motion for
summary judgment on its counterclaim, and Starship voluntarily dismissed its
complaint. The superior court granted the County’s motion and its counterclaim, and
Starship filed this application for discretionary appeal.1
The superior court’s order is, however, directly appealable. Under OCGA §
5-6-35 (a) (1), a discretionary application is required to appeal “decisions of the
superior courts reviewing decisions of . . . state and local administrative agencies,”
but this provision applies only when the superior court order to be appealed actually
reviews an agency decision, which is not the case here. See King v. City of
Bainbridge, 272 Ga. 427 (1) (531 SE2d 350) (2000).
Ordinarily, we will grant a timely application for discretionary appeal when the
lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Starship,
1
We previously transferred the application to the Supreme Court on the basis
that jurisdiction may be proper there, but the Supreme Court returned it here. See
Case No. S18D0879 (returned Apr. 4, 2018).
however, has already filed a notice of appeal from the superior court’s order. See
Case No. A18A1492. Accordingly, this application is superfluous, and it is therefore
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/16/2018
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.