JENNIFER BENEVENTO v. WINN-DIXIE RALEIGH, LLC ( 2024 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 06, 2024
The Court of Appeals hereby passes the following order:
A24A0944. JENNIFER BENEVENTO et al v. WINN-DIXIE RALEIGH, LLC
Jennifer Benevento was injured when a two-liter bottle of soda fell from atop a
display at a local Winn-Dixie grocery store where Jennifer was shopping. Jennifer and
her husband, John Benevento, then sued Winn-Dixie Raleigh, LLC, alleging that
Winn-Dixie’s negligence caused Jennifer’s injuries. Following the close of discovery,
Winn-Dixie moved for summary judgment and on November 1, 2023, the trial court
entered an order granting that motion. On December 4, 2023, the Beneventos filed
this direct appeal. Winn-Dixie has moved to dismiss the appeal, arguing that because
the Beneventos’ notice of appeal was untimely, we lack jurisdiction to consider the
case. We agree.
A notice of appeal must be filed within 30 days of entry of the judgment or trial
court order sought to be appealed. OCGA § 5-6-38 (a). “The proper and timely filing
of a notice of appeal is an absolute requirement to confer jurisdiction upon an
appellate court.” Perlman v. Perlman, 318 Ga. App. 731, 739 (734 SE2d 560) (2012)
(punctuation omitted). Here, the Beneventos’ notice of appeal was untimely, as it was
filed 33 days after entry of the trial court’s order.1 Accordingly, we lack jurisdiction
1
In their response to the motion to dismiss, the Beneventos argue that the 30th
day after entry of the November 1 order was Saturday, December 2, giving them until
Monday, December 4 to file their notice of appeal. This argument, however, reflects
an error in calculation. The thirtieth day after November 1, 2023, fell on Friday,
December 1, meaning that, to be timely, the Beneventos’ notice of appeal had to be
filed by that date. See OCGA § 1-3-1 (d) (3) (“when a period of time measured in days
to consider this appeal. For that reason, Winn-Dixie’s motion to dismiss is
GRANTED, and this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/06/2024
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.
. . . is prescribed for the exercise of any privilege . . . , the first day shall not be counted
but the last day shall be counted”); State v. Dixon, 194 Ga. App. 146, 146-147 (2) (390
SE2d 600) (1990) (dismissing appeal as untimely where it was filed one day after the
30-day deadline, which fell on a weekday).