Yasmine's Hall v. City of Marietta

• Decision Date: 03 June 2008
• Docket Number: No. A08A0387.,A08A0387.
• Citation: 292 Ga.App. 114,663 S.E.2d 741
• Parties: YASMINE'S ENTERTAINMENT HALL et al. v. CITY OF MARIETTA.
• Court: Georgia Court of Appeals

663 S.E.2d 741

292 Ga.App. 114

YASMINE'S ENTERTAINMENT HALL et al. v. CITY OF MARIETTA.

No. A08A0387.

Court of Appeals of Georgia.

June 3, 2008.

Reconsideration Denied June 20, 2008.

Wagner, Johnston & Rosenthal, S. Bradley Shipe, Sandy Springs, for appellants.

Haynie & Litchfield, Douglas R. Haynie, Daniel W. White, Marietta, for appellee.

ANDREWS, Judge.

We granted Nazareth, LLC, Yasmine's Entertainment Hall & Shadia's Restaurant, LLC, and Waleed Jaraysi's (collectively, "Jaraysi") application for discretionary appeal from an order of the superior court dismissing their appeal from a municipal court order. The superior court dismissed the appeal because Jaraysi filed a direct appeal instead of petitioning for a writ of certiorari. Because OCGA § 41-2-9(d) applies in this case and provides for a direct appeal from the municipal court's order, we reverse.

This case arose when the City of Marietta filed a request for the demolition of Jaraysi's property under City Code of Marietta § 10-8-60 and OCGA § 41-2-5 et seq. Following a hearing, the municipal court entered the demolition order.

Jaraysi filed a direct appeal in the superior court under OCGA § 41-2-9(d), which provides: "Where the abatement action does not commence in the superior court, review of a court order requiring the repair, alteration, improvement, or demolition of a dwelling, building, or structure shall be by direct appeal to the superior court under Code Section 5-3-29." The City filed a motion to dismiss the appeal, claiming that Jaraysi's sole method of appeal was by petition for a writ of certiorari as provided by OCGA §§ 15-6-8 and 5-4-1.¹

The superior court granted the City's motion, concluding that OCGA § 41-2-9(d) applies only if the municipality's nuisance ordinance was created under OCGA § 41-2-9(a).² Because Marietta's nuisance ordinance pre-dates OCGA § 41-2-9(a), the superior court concluded that OCGA § 41-2-9(d) does not govern the appellate procedure applicable in this case.

In reaching its conclusion that OCGA § 41-2-9(d) did not apply to this case, the superior court relied on OCGA § 41-2-17, which provides: "Ordinances relating to the subject matter of Code Sections 41-2-7 through 41-2-16 and this Code section adopted prior to July 1, 2001, shall have the same force and effect on and after said date as ordinances adopted subsequent to and by authority of these Code sections." The City argued below and on appeal that OCGA § 41-2-17 demonstrates that the City's ordinance is to be unaffected by the new provisions of OCGA § 41-2-9.

But, there is no evidence that any City ordinance is affected by the provision for direct appeal. The City does not have an ordinance providing for appeals from the municipal court, and therefore there is no alteration or statutory override of any pre-existing nuisance ordinance under OCGA § 41-2-17.

"The `golden rule' of statutory construction requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else." (Citation and punctuation omitted.) City of Winder v. McDougald, 276 Ga. 866, 869, 583 S.E.2d 879 (2003). "Where, as here, the language of a statute is plain on its face, judicial construction is not only unnecessary, but is forbidden." Minnix v. Dept. of Transp., 272 Ga. 566, 571, 533 S.E.2d 75 (2000).

Moreover, this is a case in which there is a general statute that provides for appeals to superior court from decisions of municipal courts and a specific statute that carves out an exception to the general statute. The rule is that the specific statute will prevail over the general, "absent any indication of a contrary legislative intent, to resolve any inconsistency between them." See, e.g., Berry v. City of East Point, 277 Ga.App. 649, 654, 627 S.E.2d 391 (2006).

Here, the legislature, which is presumed to act with knowledge of existing...