Terrance Cunningham v. Bim and Associates, Inc. ( 2021 )

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.