Ray M. Wright, Inc. v. Jones

• Decision Date: 05 August 1999
• Docket Number: No. A99A1630.,A99A1630.
• Citation: 239 Ga. App. 521,521 S.E.2d 456
• Parties: RAY M. WRIGHT, INC. v. JONES et al.
• Court: Georgia Court of Appeals

521 S.E.2d 456

239 Ga. App. 521

RAY M. WRIGHT, INC. v. JONES et al.

No. A99A1630.

Court of Appeals of Georgia.

August 5, 1999.

Buchanan & Land, Jerry A. Buchanan, Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, Teri Y. Callahan, Columbus, for appellant.

Kilpatrick Stockton, Raymond L. Mann III, Atlanta, for appellees.

SMITH, Judge.

This appeal is before us on the motion of appellees Robert Jack Jones and Jo Jones to dismiss for lack of jurisdiction. Because appellant Ray M. Wright, Inc. failed to follow the requirement of OCGA § 44-7-56 that an appeal be filed within seven days of the entry of judgment, its notice of appeal is untimely and we therefore lack jurisdiction to consider this appeal.

This action grew out of a dispute between a homebuilder and its dissatisfied customers. Ray M. Wright, Inc. filed this action in Muscogee Superior Court as a dispossessory proceeding seeking to evict the Joneses from a house it built for them. In August 1997, the Joneses answered and counterclaimed for breach of contract, specific performance, intentional infliction of emotional distress, and attorney fees. In October 1997, on Wright's motion, the trial court ordered that the Joneses pay arrears of rent and continue to pay rent into the registry of the court on a monthly basis. Wright continued to request and obtain the release of funds on a monthly basis throughout this litigation.

The contract between the parties contained an arbitration clause, and the Joneses successfully moved for an order compelling arbitration. The Joneses continued to pay rent into court, and Wright continued to collect it, after arbitration was ordered. The arbitration award resolved the dispute between the parties regarding the contract price for construction and continued the payment of rent pending completion of remedial work on the house. The award later was modified to suspend the payment of rent if the remedial work was not completed within a specified time. The superior court confirmed the arbitration award on February 5, 1999, and Wright filed its notice of appeal on March 4, 1999.

Article 3, Chapter 7 of Title 44 governs dispossessory proceedings. OCGA § 44-7-56 provides, in pertinent part: "Any judgment by the trial court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal shall be filed within seven days of the date such judgment was entered."¹ Wright's notice of appeal is untimely under this Code section.

Wright contends in response to the Joneses' motion that this action is no longer a dispossessory proceeding but an appeal of an order confirming an arbitration award and that the time limitation of OCGA § 44-7-56 therefore should not apply. We disagree.

The Supreme Court of Georgia, in another context, has stated plainly that "the underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal." Rebich v. Miles, 264 Ga. 467, 469, 448 S.E.2d 192 (1994). In Rebich, the Supreme Court dismissed a direct appeal from denial of a writ of mandamus where the underlying subject matter (appeal from an administrative decision) was subject to discretionary review, even though a writ of mandamus ordinarily may be appealed directly. Similarly, in Self v. Bayneum, 265 Ga. 14, 453 S.E.2d 27 (1995), the Supreme Court dismissed an appeal of the denial of a petition for writ of prohibition because the orders complained of arose in a divorce case and the underlying subject matter, divorce, was subject to the discretionary appeal procedure. This principle is equally applicable to an action based on a dispossessory warrant, even if a remedy such as arbitration is also sought.

Moreover, the applicable Code section is not limited in scope to a particular...