Sae Shin v. Robert J. Fogarty ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 26, 2021
The Court of Appeals hereby passes the following order:
A20A2123. SAE SHIN et al. v. ROBERT J. FOGARTY.
The plaintiff Robert Fogarty filed a commercial dispossessory action in
magistrate court against Sae Shin, W. Michael Guthrie, Ryan Fulghum, Ryan
Godowns, and 1102 Downtown, Inc. (the “Tenants”). Shin and 1102 Downtown, Inc.
filed a counterclaim for damages. The magistrate court found that the Tenants owed
past due rent of $31,190, and therefore awarded Fogarty possession of the property.
The magistrate court transferred the remaining claims to the Superior Court of
Richmond County. The Tenants appealed the magistrate court’s order to the superior
court.
In the superior court, Fogarty filed a motion for partial summary judgment
regarding possession of the property, which the superior court granted. The Tenants
appealed that order to this Court. The superior court ordered that the Tenants pay
monthly rent into the court registry during the pendency of the appeal. We dismissed
the appeal for failure to file an enumeration of errors and appellate brief.1
After remittitur back to the superior court, Fogarty filed a motion for summary
judgment as to the Tenants’ counterclaims, and requested that the court disburse to
him the money in the court registry. The superior court ordered that the money held
in the court registry — which included $31,190 in the magistrate court’s registry and
additional rent paid into the superior court’s registry — be disbursed to Fogarty, but
1
See Shin v. Fogarty, Case No. A20A0841 (dismissed Jan. 23, 2020).
denied his summary judgment motion as to the Tenant’s counterclaims. The Tenants
now appeal the superior court’s disbursement order. We, however, lack jurisdiction.
An appeal from a superior court decision reviewing a lower court decision by
certiorari or a de novo proceeding must be initiated by filing an application for
discretionary appeal.2 “Compliance with the discretionary appeals procedure is
jurisdictional.”3
“When determining the proper appellate procedure to be followed, the
underlying subject matter generally controls over the relief sought.”4 Here, the
underlying subject matter involves the superior court’s review of the magistrate
court’s dispossessory judgment. Notably, the superior court’s order at issue here did
not address the counterclaims that were transferred from magistrate court. “Thus, as
the underlying subject matter in this appeal was a de novo appeal from the magistrate
court, this appeal was subject to the procedures in OCGA § 5-6-35.”5 “Even when the
superior court decides an issue that was not raised or considered in the magistrate
court, any appeal to this court must be pursuant to the discretionary appeal procedures
because the case reached the superior court through a de novo appeal from the
magistrate court.”6 “Additionally, OCGA § 5-6-35 applies even though the judgment
[the Tenants seek] to appeal was the grant of partial summary judgment.”7
2
OCGA § 5-6-35 (a) (1), (b); Bullock v. Sand, 260 Ga. App. 874, 875 (581
SE2d 333) (2003).
3
Smoak v. Dept. of Human Resources, 221 Ga. App. 257 (471 SE2d 60)
(1996).
4
Bullock, 260 Ga. App. at 875.
5
Id. at 876.
6
Id.
7
Id. at 875.
Accordingly, because the Tenants failed to comply with the discretionary
appeal procedures required by OCGA § 5-6-35, this appeal is hereby DISMISSED
for lack of jurisdiction.8
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/26/2021
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.
8
See Bullock, 260 Ga. App. at 875-876.