Tivoli Properties, Inc. v. Fsp One Overton Park LLC

Court of Appeals of the State of Georgia

ATLANTA,__________________ May 01, 2013

The Court of Appeals hereby passes the following order:

A13D0307. TIVOLI PROPERTIES, INC. et al. v. FSP ONE OVERTON PARK, LLC.

In this dispossessory action, Tivoli Properties, Inc. filed this discretionary application from the trial court’s order granting a writ of possession to FSP One Overton Park, LLC and denying Tivoli’s motions to set aside and to dismiss. The court granted the writ due to the tenant’s failure to pay rent into the registry of the court pursuant to OCGA § 44-7-54. The action remains pending below, as the court has not yet adjudicated FSP’s claim for damages. Thus, the order that Tivoli wishes to appeal is not a final judgment. See Landor Condominium Consultants v. Bankers first Federal Sav. & Loan Assn., 198 Ga. App. 274 (401 SE2d 305) (1991). Accordingly, Tivoli was required to follow the interlocutory application procedures set forth in OCGA § 5-6-34 (b), which include obtaining a certificate of immediate review from the trial court. OCGA § 5-6-35, the discretionary appeal statute, does not excuse a party seeking appellate review of an interlocutory order from complying with the additional requirements of OCGA § 5-6-34 (b). See Bailey v. Bailey, 266 Ga. 832 (471 SE2d 213) (1996). Tivoli’s failure to comply with the interlocutory appeal procedures deprives us of jurisdiction over this application, which is hereby DISMISSED.

Court of Appeals of the State of Georgia 05/01/2013 Clerk’s Office, Atlanta,__________________ 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.