§ 12:6. Selecting the proper procedure—Generally
There are three distinct methods of obtaining review in the Georgia appellate courts: the direct appeal, the discretionary application, and the interlocutory appeal, which includes an “interlocutory-discretionary” appeal in a matter subject to the discretionary application requirement. Probably the greatest pitfalls in Georgia appellate practice are the chasms among those three procedures. An appellant must select either a direct appeal, where one simply files a notice of appeal with the trial court; (fn1) a discretionary appeal, where one must secure the permission of the appellate court before filing a notice of appeal; (fn2) or an interlocutory or interlocutory-discretionary appeal, where one must secure permission of both the trial court and the appellate court before filing a notice of appeal. (fn3)
An appellant who selects the wrong procedure has usually made a fatal error that deprives the appellate court of jurisdiction and requires dismissal. (fn4) There is an exception: if an appellant files an application for discretionary appeal in a case that is directly appealable, the appellate court has jurisdiction and must grant the application. (fn5) The application does not substitute for the notice of appeal, however, which must be filed thereafter.(fn6)
Selecting the correct appellate procedure requires review of the following statutes:(1) the direct appeal provisions of the Appellate Practice Act at O.C.G.A. § 5-6-34; (fn7)
(2) the discretionary application provisions of that Act at O.C.G.A. § 5-6-35; (fn8)
(3) the interlocutory application provisions of that Act, for both direct and discretionary cases at O.C.G.A. § 5-6-34(b) and for discretionary cases at O.C.G.A. § 5-6-35(d); (fn9)
(4) the provisions for appeal in prisoner cases at O.C.G.A. § 42-12-8; (fn10)
(5) two statutes governing habeas corpus appeals at O.C.G.A. §§ 9-14-22 and 9-14-52; (fn11)
(6) the provision authorizing immediate direct appeals from orders granting or denying class certification at O.C.G.A. § 9-11-23 (g); and
(7) the provision for “entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment” at O.C.G.A. § 9-11-54. (fn12)
The provisions of the Appellate Practice Act and other statutes that establish the correct appellate procedure are subject to frequent amendment, and as the prisoner-case provisions show, may not be incorporated into that Act as good practice would suggest. A prospective appellant should be certain to check the latest version of the statutes, and to check all other statutes that may bear on the case for stray provisions on the method of review.
Unfortunately, a simple review of the statutes discussed above is not always enough. It is often difficult—and sometimes impossible—to be certain which procedure is correct. That difficulty has three fundamental sources: the arguable applicability of conflicting rules, ambiguity in the scope of the rules, and sometimes, conflicting judicial decisions.
In order to decide how to proceed, an attorney should examine the controlling statutes and the cases interpreting them. In particular, an attorney should review the list of cases subject to the discretionary appeal provision (fn13) with three questions in mind. First, whether the procedural posture of the case brings it within the discretionary appeal procedure. Second, whether the subject matter of the case brings it within the discretionary appeal procedure. Third, whether there is any reason to suspect that—on the basis of some statutory or policy argument for an expansive construction of one of the statutory categories—an appellate court might hold that a discretionary appeal is required.
If there remains any uncertainty whether to follow the direct or discretionary appeal procedure, the appellant will have to make a judgment call among three alternatives, none of which is risk-free.
First, the appellant may seek a direct appeal by filing only a notice of appeal. This choice may be preferred if the appellant is very secure of a right of direct appeal and is willing to take the risk that the court may find that the appeal should have been brought by application. This choice has the advantage of avoiding the practical problems of a discretionary application: a short time frame in which to prepare what may be the appellant’s only brief (fn14) and a remarkably short time frame for the court to consider the merits of the appeal (fn15)—with all the risks that abbreviated, non-plenary review entails in a court suffering under a heavy caseload, and no benefit from the process other than a ruling that one may file the appeal. (fn16)
Second, the appellant may file a discretionary application alone. This choice may be preferred if the appellant is less secure of a right to a direct appeal. Its odds of success can be increased by joining with it an argument that the appellant has a right of direct appeal. (fn17) Although this option suffers from all of the problems just noted, it maximizes the odds of avoiding dismissal for want of jurisdiction.
Third, the appellant may file both a direct appeal and a discretionary application. Past versions of this book recommended this choice, following the advice of some appellate judges. (fn18) The appellate courts recognized that appellants often sought to appeal both by direct appeal and application out of an abundance of caution, (fn19) and they expressed a willingness to consider the proper appeal and dismiss the redundant one (fn20) or to consolidate them. (fn21) They specifically held that a denial of an application for discretionary review was not an adjudication of the merits of a direct appeal filed in the same case, at least if the denial was based on the fact that discretionary review would be redundant. (fn22) Past versions of this book therefore recommended seeking to appeal by both routes as an inelegant but “not dangerous” solution to uncertainty, but this assessment should be reconsidered in view of current appellate practice. Both courts now regard their review of applications for discretionary appeal as error-correcting and hold that, if the trial court appears to have committed reversible error, they must grant the application. (fn23) Consistently, they regard denials of discretionary applications as res judicata of the absence of reversible error, (fn24) thus establishing the law of the case. (fn25) It is unclear whether the current and earlier cases can be harmonized by holding that denials of applications will preclude a direct appeal when the denial is based on a review of the merits, but not if it is based on a non-merits issue such as redundancy. However that may be, a practitioner who tries to appeal by both routes will encounter all of the practical problems associated with discretionary appeals noted above, and in addition, may lose the time and expense of a direct appeal that will be rejected because a denial of a discretionary appeal precludes further review.
In one respect, seeking review by both routes may be more dangerous than seeking review by application alone: the authority of the appellate court to grant an application when the appellant has a right of direct appeal under O.C.G.A. § 5-6-35(j) seems premised upon filing a timely application “without also filing a timely notice of appeal,” which may limit the jurisdictional relief that this subsection provides. On the other hand, the same text may amount to legislative recognition and validation of the practice of seeking to appeal by both routes. Such validation would stand as an obstacle to according res judicata effect to the denial of an application as against a timely direct appeal, but the effect of the ruling as res judicata may have constitutional status as the law of the case. (fn26) If this analysis is correct, seeking review by both routes may be the worst option, having the disadvantages of both of the other options without all of their advantages.
0Judge, Georgia Court of Appeals. Member of the Atlanta and DeKalb Bars.
a1Member of the Augusta Bar.
a2Member of the Macon Bar Association.
a3Judicial Staff Attorney. Member of the DeKalb Bar.
a4Member, State Bar of Georgia.
a5Assistant District Attorney, Middle Judicial District.
1 O.C.G.A. § 5-6-34.
2 O.C.G.A. § 5-6-35.
3 O.C.G.A. § 5-6-34(b).
4 State v. International Keystone Knights of the Ku Klux Klan, Inc., 788 S.E.2d 455 (Ga. 2016) (quoting this work); Bedford v. Bedford, 246 Ga. 780, 273 S.E.2d 167 (1980) (direct appeal dismissed because appeal by application required); Rogers v. Department of Human Resources, 195 Ga. App. 118, 392 S.E.2d 713 (1990) (appeal dismissed for failure to include a certificate of immediate review). But see Schmidt v. Schmidt, 270 Ga. 461, 510 S.E.2d 810 (1999), in which the Supreme Court exercised its inherent authority to decide a case because the procedural route for such cases had been unsettled; Augusta-Richmond County v. Lee, 277 Ga. 483, 592 S.E.2d 71 (2004) (“We initially dismissed the County’s direct appeal because its underlying subject matter is appropriate for a discretionary appeal, despite the fact that generally an order granting mandamus relief can be directly appealed under O.C.G.A. 5-6-34(a)(6). We granted the County’s motion for reconsideration, however, because we have previously accepted direct appeals involving the County and the same ordinance in three almost identical cases.”); Andrews v. State, 276 Ga. App. 428, 623 S.E.2d 247 (2005) (holding, as a matter of first impression that, a defendant who is adjudicated guilty and sentenced after the trial court finds he violated a drug court contract made pursuant to O.C.G.A. § 16-13-2(a) is not entitled to a direct appeal, but also holding that this ruling would apply only to appeals “filed after the date of this opinion,” because “the Code is unclear on this issue, there has been no case law directly addressing this issue until now, and the State failed to file a motion to dismiss the direct appeal or even challenge this Court’s jurisdiction, it would be manifestly unfair for this Court, sua sponte, to dismiss Andrews’ direct appeal”); and Waldrip v. Head, 272 Ga. 572, 532 S.E.2d 380 (2000), in which the Supreme Court exercised its inherent authority to dispense with the requirement of a certificate of immediate review in “cases that involve an issue of concern, gravity, and importance to the public and no timely opportunity for appellate review.”
5 O.C.G.A. § 5-6-35(j). Subsection (j) overturns a line of Court of Appeals cases holding that an appellate court has no jurisdiction if a discretionary application is filed in cases where a direct appeal is the required procedure. E.g., In re S.N.S., 182 Ga. App. 803, 357 S.E.2d 127 (1987).
6 See § 13:15 infra.
7 See §§ 12:8 to 12:9 infra.
8 See §§ 13:1 to 13:9 infra.
9 See §§ 15:1 to 15:2 infra.
10 See § 13:1 infra.
11 See § 13:1 infra.
12 See § 10:13 supra.
13 O.C.G.A. § 5-6-35(a).
14 See § 13:14 infra.
15 See § 13:15 infra.
16 See § 13:15 infra.
17 O.C.G.A. § 5-6-35(j). See, e.g., Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011); Bibb County v. Monroe County, 294 Ga. 730, 755 S.E.2d 760 (2014).
18 “[R]emember that you always can file your appeal according to each of the procedures and let the court dismiss the appeal that is inappropriate.” Pope, Recent Developments in Appellate Practice, 2 No. 1, Calendar Call 43, 46 (Spring, 1995). See also Dean v. State, 177 Ga. App. 123, 338 S.E.2d 711 (1985) (Beasley, J., dissenting).
19 Clinton Leasing Corp. v. Patterson, 209 Ga. App. 336, 433 S.E.2d 422 (1993); Chatham County Hosp. Authority v. Mack, 185 Ga. App. 13, 363 S.E.2d 264 (1987).
20 Eickhoff v. Eickhoff, 263 Ga. 498, 499, 435 S.E.2d 914 (1993) (overruled on other grounds by, Lee v. Green Land Co., Inc., 272 Ga. 107, 527 S.E.2d 204 (2000)); Clinton Leasing Corp. v. Patterson, 209 Ga. App. 336, 433 S.E.2d 422 (1993).
21 North Fulton Medical Center, Inc. v. Roach, 265 Ga. 125, 126, 453 S.E.2d 463 (1995).In some cases, where the appellant filed both an application for discretionary appeal and a notice of appeal, where the appellate court dismissed the application, and where the appellate court later determined that the application procedure was the correct procedure after all, the appellate courts have perceived no jurisdictional impediment to “treat[ing] its appellate pleadings as if filed pursuant to an application for discretionary review, and grant[ing] the application.” Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 572 S.E.2d 530 (2002). Accord Cooper v. Unified Government of Athens Clarke County, 275 Ga. 433, 569 S.E.2d 855 (2002).
22 Berger & Washburne Ins. Agency, Inc. v. Commercial Ins. Brokers, Inc., 204 Ga. App. 146, 418 S.E.2d 640 (1992). Cf. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).
23 See § 13:11 infra.
24 PHF II Buckhead LLC v. Dinku, 315 Ga. App. 76, 726 S.E.2d 569 (2012). The court did not discuss the authorities cited earlier in this paragraph.See the further discussion in § 13:11 infra.
25 See § 21:10 infra.
26 Ga. Const. Art. VI, § VI, ¶VI and Art. VI, § V, ¶III.
§ 12:6.Selecting the proper procedure—Generally, Ga. Appellate Practice § 12:6