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Lawskills.com Georgia Caselaw
DEAN'S CATERING v. STURM & ASSOCIATES.
A97A2308.
ELDRIDGE, Judge.
Dispossessory action. Gwinnett Superior Court. Before Judge Davis, pro hac vice.
Rhonda Berry d/b/a Dean's Catering, a commercial tenant, signed a lease with Sturm & Associates, which provided for a monthly rent of $1,000. Berry began withholding rent because of alleged leaks in the roof of the shop. Sturm filed a dispossessory action against Berry in the Magistrate Court of Gwinnett County. Following trial, the magistrate court ruled in favor of Sturm, awarding possession of the premises and back rent.
Berry filed an appeal in the Superior Court of Gwinnett County seeking de novo review of the magistrate's order. By agreement of the parties, the case went to a bench trial. Thereafter, the superior court awarded Sturm possession of the premises and $5,635 in back rent. Berry filed a direct appeal with this Court.
"Appeals from decisions of the superior courts reviewing decisions of . . . lower courts by certiorari or de novo proceedings . . . shall be by application for discretionary appeal. OCGA 5-6-35 (a) (1), (b). The clear intent of section (a) (1), above, was to give the appellate courts (particularly the Court of Appeals . . . ) the discretion not to entertain an appeal where the superior court had reviewed a decision of certain specified lower tribunals (i.e., two tribunals had already adjudicated the case). C & S Nat. Bank v. Rayle, 246 Ga. 727, 730 (273 SE2d 139) (1980)." English v. Delbridge, 216 Ga. App. 366, 367 (454 SE2d 175) (1995). Because the appeal to this Court is taken from the decision of a superior court reviewing a decision of a magistrate court by a de novo proceeding, the discretionary appeal procedures of OCGA 5-6-35 were required and this direct appeal must be dismissed. English v. Delbridge, supra at 367; Lewis v. Barclays American/Mortgage Corp., 204 Ga. App. 227 (419 SE2d 538) (1992); Crowder v. Citizens Trust Bank, 213 Ga. App. 477 (444 SE2d 853) (1994).
Holland & Knight, Susan E. Edlein, Daryl G. Clarida, for appellee.
Rhonda P. Berry, pro se.
DECIDED MARCH 13, 1998.
Thursday May 21 03:23 EDT


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