Handler v. Hulsey, A91A0474
| Decision Date | 29 April 1991 |
| Docket Number | No. A91A0474,A91A0474 |
| Citation | 199 Ga.App. 751,406 S.E.2d 225 |
| Parties | HANDLER v. HULSEY. |
| Court | Georgia Court of Appeals |
Swift, Currie, McGhee & Hiers, Guerry R. Moore, David R. Hughes, Stewart, Melvin & House, J. Douglas Stewart, for appellant.
Hulsey, Oliver & Mahar, Julius M. Hulsey, Thomas D. Caulkins, for appellee.
Handler sued Hulsey in magistrate court. After a judgment was entered in favor of Handler on his claim and against Hulsey on his counterclaim, Hulsey appealed to state court for a de novo trial pursuant to OCGA § 15-10-41(b). After a jury trial in state court, judgment was entered in favor of Hulsey on his counterclaim and against Handler's claim. Handler filed a direct appeal to this court. Hulsey moved for dismissal of the direct appeal on the basis that OCGA § 5-6-35(a)(11) requires that an application for discretionary appeal be filed when an appeal is sought from a state court decision reviewing the decision of the magistrate court in a de novo proceeding. Handler counters that OCGA § 5-6-35(a)(11) does not apply, and a direct appeal was proper because the state court judgment from which he appeals was not the result of a de novo proceeding. He claims the de novo nature of the state court proceeding was destroyed when issues not raised in magistrate court were raised for the first time in Hulsey's amended state court counterclaim.
The only avenue of appeal available from the 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. Regardless of whether this litigation was subsequently erroneously expanded in state court to include matters beyond the parameters of a de novo investigation (OCGA § 5-3-29), where the litigation reached the state court by means of a de novo appeal from magistrate court, in order to obtain appellate review of the state court judgment in this Court, an application for appeal must be sought as required by the clear and unambiguous language of OCGA § 5-6-35(a)(11). Further, even accepting Handler's premise, for the reasons stated below, we find the present state court claims were within the parameters of a de novo appeal.
In a de novo appeal of this action from magistrate to state court the issues to be litigated are framed by the claims raised below. russell v. Flynn, 191 Ga.App. 196, 198, 381 S.E.2d 142 (1989). "So long as the subsequent litigation can be said to relate to that civil claim, there is no erroneous evasion of the magistrate court's jurisdiction since the higher court had concurrent jurisdiction over that claim ... When a case is on appeal [in the state court from a magistrate court], any amendment whether in matter of form or substance may be made which could have been made while the case was in the primary court." Id. at 198, 381 S.E.2d 142 (Punctuation and citations omitted.)
The original magistrate court claim brought by Handler and Selbert against Hulsey arose out of an automobile accident. While being towed, an automobile owned by Handler and being used by his stepdaughter, Selbert, broke loose from the towing vehicle and crashed into Hulsey's business sign. A dispute ensued over Handler's liability for damage to the sign, and Hulsey's retention of the automobile, which he claimed was by agreement until the damages were paid....
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In re York
...is limited to the magistrate court's jurisdiction. Simmons v. Pilkenton, 230 Ga.App. 900, 497 S.E.2d 613 (1998); Handler v. Hulsey, 199 Ga.App. 751, 406 S.E.2d 225 (1991). If so, the superior court does not have jurisdiction of the debtors' claim that the foreclosure should be set The super......
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Great W. Cas. Co. v. Diversified Transp. Servs.
...to be any limitation of damages that a plaintiff can seek on a de novo appeal of a magistrate court's ruling. Handler v. Hulsey, 199 Ga. App 751, 752, 406 S.E.2d 225, 227 (1991) (stating that even a new claim may be asserted on a devo appeal, so long as the new claim relates to the subject ......
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Giles v. Vastakis, A03A1819.
...be made which could have been made while the case was in the primary court. (Citation and punctuation omitted.) Handler v. Hulsey, 199 Ga.App. 751, 752, 406 S.E.2d 225 (1991); accord Neal v. Reynolds, 91 Ga. 609, 614(1), 18 S.E. 530 (1893); Wofford v. Vandiver, 72 Ga.App. 623, 627, 34 S.E.2......
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...requires that an application for appeal be filed to obtain appellate review of the superior court's judgment. Handler v. Hulsey, 199 Ga.App. 751, 406 S.E.2d 225 (1991). When determining the proper appellate procedure to be followed, the underlying subject matter generally controls over the ......