Jeanell Thorton v. 3845 Willowbrook, LLC ( 2015 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 21, 2015
The Court of Appeals hereby passes the following order:
A15E0028. JEANELL THORNTON v. 3845 WILLOWBROOK, LLC.
Jeanell Thornton filed an emergency motion in this Court, asking this Court to
stay the execution of a writ of possession for 1705 Liberty Trail, Lithia Springs,
issued by the Magistrate Court of Douglas County on November 5, 2014. Execution
of the writ is scheduled for April 23, 2015. Pursuant to Court of Appeals Rule 40 (b),
“this Court may issue such orders or give such direction to the trial court as may be
necessary to preserve jurisdiction of an appeal or to prevent the contested issue from
becoming moot. This power shall be exercised sparingly. Generally, no order shall
be made or direction given in an appeal until it has been docketed in this Court.”
Thornton contends that the foreclosure proceedings that resulted in the
November 5, 2014 writ of possession were wrongful. The attachments to Thornton’s
emergency motion show that she filed an appeal from the writ of possession to the
Superior Court of Douglas County and that the Superior Court dismissed her appeal
on February 10, 2015. Thornton filed a notice of appeal from the February 10, 2015
ruling on March 3, 2015. Thornton failed to attach a certificate of service, however,
and consequently her direct appeal has not yet been transmitted to this Court for
docketing. Furthermore, the attachments to Thornton’s emergency motion also show
that the Superior Court ordered that she pay specified rent to remain in possession of
the premises pending appeal; Thornton does not show that she is in compliance with
the supersedeas order.
As noted above, because of Thornton’s procedural default, her appeal has not
been docketed in this Court, which indicates that her emergency motion should be
denied. Moreover, Georgia law requires that an appeal in a dispossessory proceeding
must be filed within seven days of the entry of judgment. See OCGA § 44-7-56 (“Any
judgment by the trial court [in a dispossessory proceeding] shall be appealable
pursuant to Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal shall be
filed within seven days of the date such judgment was entered.”); Radio Sandy
Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334, 335 (715 SE2d 752)
(2011). Because Thornton failed to file a notice of appeal from the February 10, 2015
ruling within seven days, it appears likely that Thornton failed to preserve her right
to appeal. Consequently, we conclude that the emergency relief she requests is not
necessary to preserve jurisdiction of an appeal or to prevent the contested issue from
becoming moot. Because Thornton failed to secure the benefits of supersedeas, she
is not entitled to remain in possession of the premises pending appeal, and this Court
must DENY her emergency motion.
Court of Appeals of the State of Georgia
04/21/2015
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.