Rodrigo Aleyandro v. Rajesh Patel ( 2019 )

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.