Larue Long sued Greenwood Homes, Inc. for damages incurred when a pipe burst in her house, which had been built by Greenwood Homes. Greenwood Homes appeals the trial court’s denial of its motion for summary judgment, and, for reasons that follow, we reverse. Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.1 When a question of law is at issue, we apply the plain legal error standard of review and do not defer to the trial court’s ruling.2 The relevant facts here are not disputed. In December 2003, Long brought an action against Greenwood Homes in DeKalb County magistrate court, alleging that the home she purchased from Greenwood Homes was defective because a pipe had burst. In February 2004, the magistrate court found in favor of Greenwood Homes. Long appealed the magistrate court judgment to the superior court of DeKalb County on February 23, 2004. In August 2006, Long dismissed her appeal, purportedly under OCGA § 9-11-41. On November 20, 2006, Long brought an action against Greenwood Homes in the state court of DeKalb County, alleging breach of warranty and negligent construction arising out of the same facts alleged in magistrate court. Greenwood Homes moved for summary judgment, arguing that once Long dismissed her appeal, the magistrate court judgment became final under OCGA § 5-3-7, and Long cannot now avail herself of the renewal statute. The trial court denied Greenwood Homes’s motion for summary judgment, and this appeal followed.
This appeal turns on a question of law: whether a party, having filed an appeal from a magistrate court decision in superior court, may dismiss that appeal and refile the action in state court under the renewal statute. Greenwood Homes contends that this question is controlled by OCGA § 5-3-7, which states that, in the case of an appeal to the superior court: “an appeal shall suspend but not vacate a judgment and, if dismissed or withdrawn, the rights of all the parties shall be the same as if no appeal had been entered.” Accordingly, Greenwood Homes argues that the result of Long’s dismissal is that the magistrate court judgment “stands as if no appeal had been entered.”
