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© 2003 Alston & Bird LLPAll rights reserved

GEORGIA APPELLATEPRACTICE HANDBOOK

5th edition •••• 2003

AUTHORS AND EDITORIAL BOARD

Project Coordinator: James C. Grant

Chief Editors: Paul J. KaplanJeffrey J. Swart

Assistant Editors: Patrick R. CostelloBryan J. Davis

Judicial Contributors: Justice Leah Ward SearsJudge G. Alan Blackburn

Chapter Editors: Stewart F. AlfordNowell D. BerrethAdam J. BiegelKeith R. BlackwellS. Gardner CulpepperMarc N. GarberDavid S. GivelberRobb E. HellwigRichard B. HolcombPaul J. KaplanShannon Thyme KlingerDouglas G. ScribnerCandace N. SmithJeffrey J. SwartA. Annette Teichert

NOTE: This volume was last published as the Handbook on Appellate Procedure inthe Georgia Supreme Court and the Georgia Court of Appeals.

FORWARD

lston & Bird is pleased to provide this fifth edition of the GeorgiaAppellate Practice Handbook to the Institute for Continuing LegalEducation in Georgia. It will be available through the Institute for use bystudents and members of the Bench and Bar who are interested in

appellate practice.

Previous editions of the Handbook were conceived and completed underthe leadership and guidance of Alston & Bird partner G. Conley Ingram, aformer Georgia Supreme Court Justice, and partner Robert D. McCallum, Jr.Conley Ingram has retired from Alston & Bird and now serves as a Senior Judgeof the Superior Court of Cobb County. Robert McCallum has also left Alston &Bird and serves as Assistant Attorney General of the United States. With thedeparture of these two lawyers from Alston & Bird, I have assumed the projectdirector role for this edition of the Handbook. We are also most grateful toPresiding Justice Leah Ward Sears of the Georgia Supreme Court and PresidingJudge Alan Blackburn of the Georgia Court of Appeals who authored materialsfor the Handbook that will be of special interest to all appellate lawyers.

The names of all Alston & Bird lawyers who have worked on this projectare found at the beginning of each of the Chapters in the Handbook. I commendeach of them on the outstanding effort to make this latest revision Òuser-friendly,Ó accurate, and current. Nevertheless, the complex and dynamic natureof the subject matter could produce an unintentional error. If any is found,please let me know so that an appropriate correction can be made.

It is our wish that this Handbook will be widely used and will contribute tothe continuing legal education of all of us in the area of appellate practice.

Ð James C. GrantProject DirectorFebruaryÊ14, 2003

A

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TABLE OF CONTENTS

Chapter One Appeal Timetable Summary

Chapter Two Jurisdiction, Availability and Dismissal of Appeals

Chapter Three Post-Trial Motions as Part of the Appeals Process

Chapter Four Commencing the Appeal:Notice of Appeal, Transcript and Record

Chapter Five Stays of Proceedings to Enforce a Judgment

Chapter Six Briefs and Enumeration of Errors

Chapter Seven Oral Argument

Chapter Eight Extraordinary Writs

Chapter Nine Internal Procedures of the Appellate Courts

Chapter Ten Proceedings Subsequent to Decisions

Chapter Eleven Special Problems in Criminal Appeals

Chapter Twelve Civil Cases Involving Pro Se Parties in the AppellateContext

Chapter Thirteen Frivolous Appeals

Chapter Fourteen The Importance of Clear Argument

Chapter Fifteen Professionalism in a Principle-Centered Law Practice

Chapter Sixteen Forms

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CHAPTER ONE:TIMETABLE SUMMARY

§ 1.1 Introduction ........................................................................................................ 1

§ 1.1.1 General Information ............................................................................ 1

§ 1.2 Direct Appeals .................................................................................................... 3

§ 1.2.1 Automatic Stay..................................................................................... 3

§ 1.2.2 Notice of Appeal and Cross-Appeal .................................................. 3

§ 1.2.2.1 Time for Filing ....................................................................... 3

§ 1.2.2.2 Extensions of Time for Filing Notice.................................... 4

§ 1.2.3 Filing of Transcript .............................................................................. 4

§ 1.2.4 Record ................................................................................................... 4

§ 1.2.5 Docketing.............................................................................................. 5

§ 1.2.5.1 Closing of the Docket ............................................................ 5

§ 1.2.6 Supersedeas .......................................................................................... 6

§ 1.2.7 Payment of Costs ................................................................................. 6

§ 1.2.8 Oral Argument ..................................................................................... 7

§ 1.2.9 Briefs and Enumerations of Error....................................................... 8

§ 1.2.9.1 Briefs, Generally .................................................................... 8

§ 1.2.9.2 Supplemental Briefs .............................................................. 8

§ 1.2.9.3 Amicus Curiae Briefs ............................................................ 9

§ 1.3Discretionary Appeals of Final Order or Judgment .......................................... 9

§ 1.3.1 Application for Leave, Response, and Decision on Application ..... 9

§ 1.3.1.1 Application............................................................................. 9

§ 1.3.1.2 Costs ....................................................................................... 9

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§ 1.3.1.3 Response................................................................................. 9

§ 1.3.1.4 Decision by Court on Application...................................... 10

§ 1.3.2 Notice of Appeal ................................................................................ 10

§ 1.4 Interlocutory Appeals ...................................................................................... 10

§ 1.4.1 Automatic Stay................................................................................... 10

§ 1.4.2 Certificate of Immediate Review ...................................................... 10

§ 1.4.3 Application for Interlocutory Appeal, Response, and Decision .... 11

§ 1.4.3.1 Application........................................................................... 11

§ 1.4.3.2 Costs ..................................................................................... 11

§ 1.4.3.3 Response............................................................................... 11

§ 1.4.3.4 Decision by Court on Application...................................... 11

§ 1.4.4 Notice of Appeal ................................................................................ 11

§ 1.5 Motion For Reconsideration ............................................................................ 12

§ 1.5.1 Motion in Supreme Court ................................................................. 12

§ 1.5.2 Motion in Court of Appeals .............................................................. 12

§ 1.5.3 Responding to a Motion for Reconsideration.................................. 13

§ 1.6 Certiorari Petitions in the Georgia Supreme Court ....................................... 13

§ 1.6.1 Petition for Certiorari......................................................................... 13

§ 1.6.2 Record ................................................................................................. 13

§ 1.6.3 Response ............................................................................................. 14

§ 1.6.4 Briefs ................................................................................................... 14

§ 1.7 Certiorari Petitions in the United States Supreme Court.............................. 14

§ 1.7.1 Stay of Remittitur ............................................................................... 14

§ 1.7.2 Notice of Intention to Apply and Certificate of Filing.................... 14

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CHAPTER TWO:JURISDICTION, AVAILABILITY AND DISMISSAL OF APPEALS

§ 2.1 Introduction ...................................................................................................... 17

§ 2.2 Right of Appeal Generally............................................................................... 17

§ 2.2.1 Appeals from Superior and State Courts Generally ....................... 18

§ 2.2.2 Appeals from Magistrate, Probate, andJuvenile Courts Generally................................................................. 19

§ 2.3 Jurisdiction of the Georgia Appellate Courts................................................. 19

§ 2.3.1 Jurisdiction of the Georgia Supreme Court ..................................... 19

§ 2.3.2 Jurisdiction of the Georgia Court of Appeals .................................. 20

§ 2.4Appealability of Judgments and Orders .......................................................... 22

§ 2.4.1 Direct Appeals Generally .................................................................. 22

§ 2.4.2 Direct Appeals from Final Judgments.............................................. 22

§ 2.4.3 Direct Appeals from Non-Final Orders and Judgments ................ 24

§ 2.4.4 Motions for Summary Judgment...................................................... 25

§ 2.4.5 Final Orders Appealable Only by Application ............................... 25

§ 2.4.6 Orders Requiring Interlocutory Application for Appeal............... 27

§ 2.4.7 Basis for Granting Interlocutory Appeal.......................................... 27

§ 2.4.8 Orders Requiring Interlocutory Appeal........................................... 28

§ 2.5 Procedure for Filing Appeal ............................................................................ 30

§ 2.5.1 Procedure for Direct Appeal ............................................................. 30

§ 2.5.2 Procedure for Appeal by Application .............................................. 31

§ 2.5.2.1 Appeal of Final Order by Application................................ 31

§ 2.5.2.2 Appeal of Non-Final Order by Application ...................... 32

§ 2.6 Nature of Review on Appeal........................................................................... 33

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§ 2.6.1 Appeals Generally Limited to Corrections of Errors of Law ......... 33

§ 2.6.2 Issues Must Have Been Raised in andRuled Upon by Trial Court............................................................... 33

§ 2.6.3 Scope of Review of Jury Verdicts ..................................................... 34

§ 2.7 Dismissal of Appeals........................................................................................ 35

§ 2.7.1 Statutory Grounds for Dismissal ...................................................... 35

§ 2.7.2 Failure to File a Timely Notice of Appeal ........................................ 35

§ 2.7.3 Appealability of Non-Final Orders or Judgments;Issues That Are Moot ........................................................................ 35

§ 2.7.4 Dismissals for Delays in Transmitting the Transcript or Record... 36

§ 2.7.5 Non-Statutory Grounds for Dismissal ............................................. 36

CHAPTER THREE:POST-TRIAL MOTIONS AS PART OF THE APPEALS PROCESS

§ 3.1 Introduction ...................................................................................................... 37

§ 3.1.1 Post-Judgment Motions for New Trial or JNOVare not Ordinarily a Prerequisite to Appeal.................................... 37

§ 3.1.2 Tolling of Time for Appeal................................................................ 38

§ 3.1.3 To Warrant Post-Judgment Relief, Any Error Must be Harmful... 39

§ 3.1.4 Filing of Post-Trial Motions as Supersedeas toEnforcement of the Judgment........................................................... 40

§ 3.1.5 Jurisdiction of Trial Court When Both a Motionfor New Trial and Notice of Appeal are Filed ................................ 40

§ 3.2 Methods for Attacking Civil Judgments ........................................................ 41

§ 3.3 New Trial .......................................................................................................... 42

§ 3.3.1 General Nature................................................................................... 42

§ 3.3.2 Grounds for New Trial ...................................................................... 42

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§ 3.3.3 Insufficient Grounds for New Trial.................................................. 45

§ 3.3.4 Procedure for Filing a Motion for New Trial................................... 46

§ 3.3.5 Extraordinary Motions for New Trial .............................................. 47

§ 3.3.6 Effect of a Motion for New Trial Uponthe Time for Filing a Notice of Appeal ............................................ 49

§ 3.4 Motions to Set Aside a Judgment.................................................................... 50

§ 3.4.1 General Natural Grounds.................................................................. 50

§ 3.4.2 Procedure............................................................................................ 51

§ 3.4.3 Relationship to Appeals .................................................................... 51

§ 3.5 Motions for Judgment Notwithstanding the Verdict (�JNOV�) .................. 51

§ 3.5.1 General Nature................................................................................... 51

§ 3.5.2 Procedure for Filing a Motion for JNOV.......................................... 53

§ 3.5.3 Combining a Motion for New Trial with a Motion for JNOV ....... 54

§ 3.5.4 Effect of Motion for JNOV on Time for Appeal .............................. 55

§ 3.6 Motions to Amend or Modify a Judgment..................................................... 55

§ 3.6.1 General Provisions............................................................................. 55

§ 3.6.2 Form of the Order .............................................................................. 56

§ 3.6.3 Effect of Motion to Amend or Modify onRunning of Time Limitations ........................................................... 58

§ 3.7 The Inherent Power of the Court Over its Own OrdersDuring the Term of Court ............................................................................... 58

§ 3.8 Motions for Supersedeas Bond........................................................................ 58

§ 3.8.1 General Provisions............................................................................. 58

§ 3.8.2 Time for Filing.................................................................................... 59

§ 3.8.3 Penalties for Failure to Post a Supersedeas Bond ........................... 59

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§ 3.9 Motions for Attorney�s Fees under O.C.G.A. § 9-15-14................................. 59

§ 3.10 Pauper�s Affidavit .......................................................................................... 60

CHAPTER FOUR:COMMENCING THE APPEAL: NOTICE, TRANSCRIPT AND RECORD

§ 4.1 Notice of Appeal............................................................................................... 61

§ 4.1.1 Time to File ......................................................................................... 61

§ 4.1.2 Extensions of Time to File ................................................................. 62

§ 4.1.2.1 Automatic Extensions ......................................................... 62

§ 4.1.2.2 Extensions by Motion.......................................................... 63

§ 4.1.3 Contents .............................................................................................. 64

§ 4.1.4 Cross-Appeal: Time to File and Contents ....................................... 65

§ 4.2 Transcript and Record...................................................................................... 66

§ 4.2.1 Preparing the Transcript ................................................................... 66

§ 4.2.4 Stipulation in Lieu of Transcript....................................................... 67

§ 4.2.3 Physical Evidence .............................................................................. 67

§ 4.2.4 Transmitting the Transcript and Record to the Appellate Court... 68

§ 4.2.5 Costs.................................................................................................... 69

§ 4.2.6 Delays in Preparing the Transcript or Record................................. 70

§ 4.2.7 Amending and Supplementing the Record ..................................... 71

CHAPTER FIVE:STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT

§ 5.1 Introduction ...................................................................................................... 73

§ 5.2 Limited Automatic Stay................................................................................... 74

§ 5.3 Stay for Post-Trial Motions.............................................................................. 75

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§ 5.4 Stay Upon Filing Notice of Appeal in Civil Cases......................................... 75

§ 5.4.1 Timing of Notice of Appeal............................................................... 76

§ 5.4.2 Payment of Costs ............................................................................... 78

§ 5.4.3 Interlocutory Judgments ................................................................... 79

§ 5.4.4 Divorce, Child Custody, and Alimony Judgments ......................... 79

§ 5.4.5 Injunctions .......................................................................................... 80

§ 5.4.6 Contempt Cases ................................................................................. 82

§ 5.5 Discretionary Supersedeas .............................................................................. 83

§ 5.6 Jurisdictional Consequences of Supersedeas ................................................. 84

§ 5.7 Supersedeas Bond ............................................................................................ 85

§ 5.7.1 Bond Required Upon Motion of Appellee....................................... 85

§ 5.7.2 Failure to Comply With Order to Post Bond................................... 86

§ 5.7.3 No Bond Required for State or Agency Thereof ............................. 87

§ 5.7.4 Jurisdiction Over Surety.................................................................... 87

CHAPTER SIX:BRIEFS AND ENUMERATIONS OF ERROR

§ 6.1 Briefs in the Georgia Court of Appeals .......................................................... 89

§ 6.1.1 Rules Governing Procedure .............................................................. 89

§ 6.1.1.1 Docketing and Deadlines.................................................... 89

§ 6.1.1.2 Extensions of Time .............................................................. 90

§ 6.1.1.3 Physical Preparation/Formatting ...................................... 91

§ 6.1.1.4 Page Limitations .................................................................. 92

§ 6.1.1.5 Copies ................................................................................... 92

§ 6.1.1.6 Filing Procedure .................................................................. 93

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§ 6.1.1.7 Clerk�s Office Hours and Contact Information................. 93

§ 6.1.1.8 Costs ..................................................................................... 94

§ 6.1.1.9 Sealed Filings ....................................................................... 94

§ 6.1.2 Rules Governing Structure and Content of Briefs........................... 94

§ 6.1.2.1 In General ............................................................................. 95

§ 6.1.2.1.1 Record and Transcript References ....................... 95

§ 6.1.2.1.2 Citations ................................................................. 95

§ 6.1.2.1.3 Signature ................................................................ 95

§ 6.1.2.1.4 Certificate of Service ............................................. 96

§ 6.1.2.1.5 Attachments and Exhibits .................................... 96

§ 6.1.2.1.6 Inappropriate Remarks......................................... 96

§ 6.1.2.1.7 Motions .................................................................. 96

§ 6.1.2.2 Appellant�s Brief .................................................................. 97

§ 6.1.2.2.1 Parts........................................................................ 97

§ 6.1.2.2.2 Sequence Of Argument ...................................... 100

§ 6.1.2.2.3 Unsupported Enumerated Error........................ 100

§ 6.1.2.3 Appellee�s Brief.................................................................. 101

§ 6.1.2.3.1 Parts...................................................................... 101

§ 6.1.2.3.2 Sequence Of Argument ...................................... 101

§ 6.1.2.3.3 Defending Against Claims ofUnsupported Matters ......................................... 102

§ 6.1.2.4 Supplemental Briefs .......................................................... 102

§ 6.1.2.5 Amicus Curiae Briefs ........................................................ 103

§ 6.2 Briefs in the Supreme Court of Georgia ....................................................... 103

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§ 6.2.1 Rules Governing Procedure ............................................................ 103

§ 6.2.1.1 Docketing and Deadlines.................................................. 103

§ 6.2.1.2 Extensions of Time ............................................................ 104

§ 6.2.1.3 Physical Preparation/Formatting .................................... 104

§ 6.2.1.4 Page Limitations ................................................................ 105

§ 6.2.1.5 Copies ................................................................................. 105

§ 6.2.1.6 Filing Procedure ................................................................ 105

§ 6.2.1.7 Clerk�s Office Hours and Contact Information............... 106

§ 6.2.1.8 Costs ................................................................................... 106

§ 6.2.2 Rules Governing Structure and Content of Briefs......................... 107

§ 6.2.2.1 In General ........................................................................... 107

§ 6.2.2.1.1 Record and Transcript References ..................... 107

§ 6.2.2.1.2 Citations ............................................................... 107

§ 6.2.2.1.3 Certificate of Service ........................................... 107

§ 6.2.2.1.4 Inappropriate Remarks ...................................... 108

§ 6.2.2.2 Appellant�s Brief ................................................................ 108

§ 6.2.2.2.1 Parts...................................................................... 108

§ 6.2.2.2.2 Sequence of Argument ....................................... 110

§ 6.2.2.2.3 Unsupported Enumerated Error........................ 110

§ 6.2.2.3 Appellee�s Brief.................................................................. 111

§ 6.2.2.3.1 Parts...................................................................... 111

§ 6.2.2.3.2 Sequence of Argument ....................................... 111

§ 6.2.2.4 Supplemental Briefs .......................................................... 111

§ 6.2.2.5 Supplemental Record ........................................................ 111

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§ 6.2.2.6 Amicus Curiae Briefs ........................................................ 112

CHAPTER SEVEN:ORAL ARGUMENT

§ 7.1 Court of Appeals Rules.................................................................................. 113

§ 7.1.1 Oral Argument is Not Granted as a Matter of Right .................... 113

§ 7.1.2 Request for Oral Argument............................................................. 113

§ 7.1.3 Time Limitations .............................................................................. 115

§ 7.1.4 Number of Arguments .................................................................... 115

§ 7.1.5 Opening and Closing....................................................................... 115

§ 7.1.6 Courtroom Decorum ....................................................................... 115

§ 7.1.7 Presence of Counsel ......................................................................... 116

§ 7.1.8 Order of Argument .......................................................................... 116

§ 7.1.9 Miscellaneous ................................................................................... 116

§ 7.2 Supreme Court Rules ..................................................................................... 116

§ 7.2.1 Oral Argument Is Granted as a Matter of Right Onlyin Death Penalty Cases.................................................................... 116

§ 7.2.2 Calendaring of Oral Argument....................................................... 117

§ 7.2.3 Request for Oral Argument............................................................. 117

§ 7.2.4 Appearance....................................................................................... 117

§ 7.2.5 Order of Argument .......................................................................... 118

§ 7.2.6 Time Limitations .............................................................................. 118

§ 7.3 Professionalism in Oral Argument ............................................................... 118

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CHAPTER EIGHT:EXTRAORDINARY WRITS

§ 8.1 Petitions for Certiorari ................................................................................... 119

§ 8.2 Petitions for Writ of Habeas Corpus............................................................. 119

§ 8.3 Other Extraordinary Writs............................................................................. 124

§ 8.3.1 Writ of Mandamus........................................................................... 125

§ 8.3.2 Writ of Prohibition........................................................................... 128

§ 8.3.3 Writ of Quo Warranto ..................................................................... 130

CHAPTER NINE:INTERNAL OPERATING PROCEDURES OF THE APPELLATE COURTS

§ 9.1 Introduction .................................................................................................... 133

§ 9.2 Composition and Organization of the Appellate Courts............................ 134

§ 9.2.1 Composition of the Courts .............................................................. 134

§ 9.2.2 Election and Appointment to the Courts....................................... 134

§ 9.2.3 Internal Governance ........................................................................ 135

§ 9.3 Determination of Which Judges or Justices Will Participatein the Decision of a Case................................................................................ 136

§9.3.1 Supreme Court .................................................................................. 136

§ 9.3.2 Court of Appeals.............................................................................. 136

§ 9.4 Scheduling of Arguments .............................................................................. 138

§ 9.4.1 Supreme Court ................................................................................. 138

§ 9.4.2 Court of Appeals.............................................................................. 139

§ 9.5 Procedure for Decision After Argument, Including Assignmentof Cases and Issuance of Opinions ............................................................... 140

§ 9.5.1 Supreme Court ................................................................................. 140

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§ 9.5.2 Court of Appeals.............................................................................. 141

§ 9.5.3 Time Limitations for Decisions....................................................... 142

§ 9.6 Discipline of Judges........................................................................................ 143

CHAPTER TEN:PROCEEDINGS SUBSEQUENT TO DECISIONS

§ 10.1 Decisions of the Georgia Supreme Court and the Georgia Courtof Appeals ..................................................................................................... 145

§ 10.1.1 Entry and Transmittal of Decision................................................ 145

§ 10.1.2 Transmittal of Remittitur to Lower Court ................................... 146

§ 10.1.3 Effect of Transmittal of Remittitur When Judgment Below isAffirmed.......................................................................................... 146

§ 10.1.4 Effect of Transmittal of Remittitur When Decision Below isReversed.......................................................................................... 147

§ 10.2 Motions for Reconsideration in the Georgia Court of Appeals................ 147

§ 10.2.1 Time for Filing Motion .................................................................. 147

§ 10.2.2 Form, Filing, and Service of Motion ............................................. 148

§ 10.2.3 Grounds for Granting Motion....................................................... 148

§ 10.2.4 Subsequent Motions for Reconsideration .................................... 149

§ 10.3 Motions for Reconsideration in the Georgia Supreme Court ................... 149

§ 10.3.1 Time for Filing Motion .................................................................. 149

§ 10.3.2 Form, Filing, and Service of Motion ............................................ 149

§ 10.3.3 Subsequent Motions for Reconsideration .................................... 149

§ 10.4 Writs of Certiorari from the Supreme Court to theGeorgia Court of Appeals............................................................................ 149

§ 10.4.1 Introduction.................................................................................... 149

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§ 10.4.2 Motion for Reconsideration Not Required for Petitionfor Writ of Certiorari...................................................................... 150

§ 10.4.3 Time for Filing Petition for Writ of Certiorari ............................. 150

§ 10.4.4 Filing and Service of Petition ........................................................ 150

§ 10.4.5 Transmittal of Record to Supreme Court..................................... 151

§ 10.4.6 Grounds for Granting Writ of Certiorari ..................................... 151

§ 10.4.7 Motion for Reconsideration .......................................................... 151

CHAPTER ELEVEN:SPECIAL PROBLEMS IN CRIMINAL APPEALS

§ 11.1 Introduction .................................................................................................. 153

§ 11.2 Post-Trial Motions ........................................................................................ 154

§ 11.2.1 Motion for New Trial..................................................................... 154

§ 11.2.2 Motion In Arrest of Judgment....................................................... 156

§ 11.2.3 Writ of Coram Nobis ..................................................................... 157

§ 11.3 Appeals.......................................................................................................... 157

§ 11.3.1 Standing to Appeal ........................................................................ 157

§ 11.3.2 Appealable Decisions .................................................................... 160

§ 11.3.3 Appellate Jurisdiction................................................................... 161

§ 11.3.4 Motion to Stay Execution of Sentence .......................................... 161

§ 11.3.5 Appeals by Indigent Defendants .................................................. 163

§ 11.3.6 Mechanics of the Appeal ............................................................... 167

§ 11.4 State Habeas Corpus .................................................................................... 171

§ 11.4.1 State Habeas Corpus for Non-Sentenced Detainees ................... 172

§ 11.4.2 State Habeas Corpus for Sentenced Detainees ............................ 173

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§ 11.5 Unified Appeal Procedure........................................................................... 176

§ 11.5.1 Review Proceedings in the Superior Court.................................. 177

§ 11.5.2 Appeal Proceedings in the Supreme Court ................................. 178

§ 11.5.3 The Unified Appeal Procedure Checklist .................................... 179

CHAPTER TWELVE:CIVIL CASES INVOLVING PRO SE PARTIES

§ 12.1 Introduction .................................................................................................. 181

§ 12.2 Pro Se Parties Generally............................................................................... 182

§ 12.2.1 No Constitutional Right to be Represented by an Attorneyin a Civil Case................................................................................. 182

§ 12.2.2 Pro Se Parties Are Not Permitted to Violate Georgia LawRegarding the Unauthorized Practice of Law ............................. 183

§ 12.3 Despite Liberality Typically Afforded Pro Se Parties, Their Failure toAdhere to Court of Appeals Rules or Appellate Procedure is Often Fatal toTheir Appeals................................................................................................ 184

§ 12.3.1 Failure to Appeal to Proper Court or Seek Certificate ofImmediate Review ......................................................................... 184

§ 12.3.2 Failure to File Notice of Appeal In Timely Manner .................... 186

§ 12.3.3 Deficiencies in or Lack of Record on Appeal............................... 186

§ 12.3.4 Unreasonable Delay in Transmitting Record or Failure to PayCosts ................................................................................................ 187

§ 12.3.5 Deficiencies in or Lack of Enumeration of Errors, Citation ofAuthority ........................................................................................ 188

§ 12.3.5.1 Failure to Properly Enumerate Error ............................. 188

§ 12.3.5.2 Abandonment of Enumerated Errors ............................ 189

§ 12.3.5.3 Citation of Authorities .................................................... 190

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§ 12.4 In Addition to Dismissal of a Civil Case, the Appellate Courts MayImpose Monetary Sanctions Upon a Pro Se Appellant as a Result of aFrivolous Appeal .......................................................................................... 190

§ 12.4.1 The Appellate Courts May Impose Monetary Sanctions AgainstPro Se Appellants for Frivolous Appeals..................................... 190

§ 12.4.2 Georgia Courts Have Been Hesitant, at Times, to AssessMonetary Penalties Against Pro Se Appellants for Questionableor Somewhat Frivolous Appeals .................................................. 191

CHAPTER THIRTEEN:FRIVOLOUS APPEALS

§ 13.1 Introduction .................................................................................................. 193

§ 13.2 Statutory Damages for Frivolous Appeals ................................................. 194

§ 13.2.1 Requirement of Judgment for a Sum Certain .............................. 195

§ 13.2.2 �Solely for Delay�: What Makes an Appeal Frivolous .............. 196

§ 13.2.2.1 �Colorable� Issues: Distinguishingthe Frivolous Appeal ....................................................... 197

§ 13.2.2.2 Badges of Delay ............................................................... 199

§ 13.3 Court Rules ................................................................................................... 199

§ 13.3.1 Supreme Court Rule 6 ................................................................... 199

§ 13.3.2 Court of Appeals Rule 15 .............................................................. 200

§ 13.4 Unavailability of Other Provisions ............................................................. 201

CHAPTER FOURTEEN:THE IMPORTANCE OF CLEAR ARGUMENT

Chapter 14................................................................................................................. 203

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CHAPTER FIFTEEN:PROFESSIONALISM IN THE PRINCIPLE-CENTERED LAW PRACTICE

§ 15.1 Whatever Happened to Ethics?................................................................... 207

§ 15.2 Ethics, Professionalism, and the Practice of Law....................................... 208

§ 15.3 The Principle-Centered Law Practice ......................................................... 209

§ 15.4 Helpful Hints for the Principle-Centered Lawyer..................................... 210

§ 15.4.1 Initial Employment ........................................................................ 210

§ 15.4.2 Settlement ....................................................................................... 210

§ 15.4.3 Counseling the Client .................................................................... 210

§ 15.4.4 Communications ............................................................................ 211

§ 15.4.5 Controlling the Case and Decision-Making................................. 211

§ 15.4.6 Appeal and Post-Trial Evaluation ................................................ 212

§ 15.4.7 Handling a Client�s Money ........................................................... 212

§ 15.4.8 Stay Out of Business with Your Client......................................... 212

§ 15.4.9 Avoid Conflicts of Interest ............................................................ 212

§ 15.4.10 Do Not Make False Representations .......................................... 212

§ 15.4.11 Handle or Limit Your Workload ................................................ 213

APPENDIX A: A LAWYER�S CREED................................................................... 214

APPENDIX B: ASPIRATIONAL STATEMENT ON PROFESSIONALISM....... 215

APPENDIX C: GENERAL ASPIRATIONAL IDEALS......................................... 216

APPENDIX D: SPECIFIC ASPIRATIONAL IDEALS .......................................... 217

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CHAPTER SIXTEEN:FORMS

Form 1: Notice of Appeal (Civil)............................................................................ 222

Form 2: Notice of Cross-Appeal (Civil)................................................................. 224

Form 3: Notice of Appeal (Criminal)..................................................................... 226

Form 4: Appellee�s Designation of Record ........................................................... 228

Form 5: Appellant�s/Appellee�s Brief (Cover Page; Supreme Court) ................ 229

Form 6: Appellant�s/Appellee�s Brief (Body; Supreme Court)........................... 230

Form 7: Appellant�s Brief (Court of Appeals)....................................................... 232

Form 8: Appellee�s Brief (Court of Appeals) ........................................................ 234

Form 9: Motion for New Trial (Civil) .................................................................... 236

Form 10: Motion for New Trial (Criminal) ........................................................... 238

Form 11: Request for Oral Argument (Court of Appeals) ................................... 240

Form 12: Request for Oral Argument (Supreme Court) ...................................... 242

Form 13: Petition for Leave to Appeal................................................................... 243

Form 14: Application for Leave to Appeal Interlocutory Order ......................... 245

Form 15: Application for Leave to Appeal an Interlocutory Order.................... 247

Form 16: Application for Discretionary Appeal................................................... 249

Form 17: Notice of Intention to Apply for Certiorari........................................... 251

Form 18: Application for Writ of Habeas Corpus ................................................ 253

Form 19: Motion for Reconsideration.................................................................... 256

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1 APPEAL TIMETABLE SUMMARYCandace N. Smith*

§ 1.1 Introduction

This chapter discusses generally the timetables for appeals in the GeorgiaCourt of Appeals and Supreme Court. As this chapter provides only a summaryof the timetables applicable to appeals, it is in no way intended as a substitute fora careful review of the appropriate rules and statutes. Thus, all attorneys arecautioned to consult the pertinent chapters of this Handbook as well as therelevant statutes and rules for more detailed information.

§ 1.1.1 General Information

Except for the notice of appeal and where otherwise indicated, all filingsshould be made with the Clerk of the appellate court to which appeal is beingtaken.1 A document is deemed filed when it is physically delivered to the

* Ms. Smith is a partner with the law firm of Alston & Bird LLP and focuses on civil litigation.She received her undergraduate degree from Brown University in 1990 and her J.D. fromHarvard University in 1993.

1 The offices of the Clerk of both the Supreme Court and the Court of Appeals are openMonday through Friday from 8:30 a.m. to 4:30 p.m. Ga. S. Ct. R. 1; Ga. Ct. App. R. 2(a).

GEORGIA APPELLATE PRACTICE HANDBOOK

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Clerk�s office,2 with sufficient costs, if applicable, and clocked in by the Clerk�soffice staff.3 A document sent via registered or certified mail is deemed filed inthe Clerk�s office on the date listed on the official postmark appearing on thedocument�s transmittal envelope or container, with the exception of a motion forreconsideration in the Court of Appeals, which is deemed filed only on the dateit is physically received in the Clerk�s office.4 If there is no clear postmark date,the filing date is the date on which the document is received.5 Alternatively, adocument will be deemed filed as of the date upon which it is delivered to theU.S. postal service or commercial delivery company for overnight delivery asevidenced by the receipt provided by the same.6

A letter requesting an extension of time must reach the Supreme Courtbefore the last day for filing.7 In the Supreme Court, a document may be filed byfacsimile with prior permission of the Court.8 A filing received by facsimile willbe deemed filed as of the date the facsimile is received, so long as the original hasbeen received by mail.9 When an expiration date falls on a Saturday, Sunday, orofficial state or national holiday, the time for filing is extended to the nextbusiness day.10

2 The Court of Appeals� Clerk�s office has provided a drop box for filing documents after

hours. Ga. Ct. App. R. 2(b). Any items placed in the drop box after 4:30 p.m., Mondaythrough Friday, will be docketed to the date the documents were placed in the drop box. Id.The Judicial building is open from 7:30 a.m. until 5:30 p.m. Id. When the Court personnelremove the documents from the drop box, they shall clock the documents to the present dateand time and file the documents to the date the items were placed in the drop box. Id.

3 Ga. Ct. App. R. 4.

4 Ga. S. Ct. R. 13; Ga. Ct. App. R. 4, 37(b).

5 Ga. S. Ct. R. 15.

6 Ga. S. Ct. R. 13.

7 Ga. S. Ct. R. 12. A request for extension of time for filing a brief should be by letter directedto the Clerk of the Supreme Court and should be sent sufficiently in advance of the request sothat if the request is denied the briefs can still be filed within the time fixed by applicablerules. Id.

8 Ga. S. Ct. R. 2.

9 Id.

10 Ga. S. Ct. R. 12; Ga. Ct. App. R. 3.

CHAPTER 1: APPEAL TIMETABLE SUMMARY

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§ 1.2 Direct Appeals

§ 1.2.1 Automatic Stay

Generally, a trial court judgment is automatically stayed for 10 days afterits entry and, during the 10-day period, execution or commencement ofproceedings to enforce the judgment is prohibited.11 A trial court judgment willnot be automatically stayed: (i) when the parties have made such an agreementin a writing filed with the court; (ii) in the case of a default judgment; or (iii)when the judgment is interlocutory or final in an action for an injunction orreceivership.12 When an appeal is taken from a judgment granting, dissolving,or denying an injunction, the trial court, in its discretion, may suspend, modify,restore, or grant an injunction upon such terms as to bond or otherwise as itconsiders proper to secure the rights of the appellee.13 The appellate court hasthe power to stay proceedings and to suspend, modify, restore, or grant aninjunction during the pendency of an appeal and to make any order appropriateto preserve the status quo or the effectiveness of the judgment subsequently to beentered.14

§ 1.2.2 Notice of Appeal and Cross-Appeal

§ 1.2.2.1 Time for Filing

Generally, a notice of appeal must be filed with the trial court within 30days after entry of the appealable decision or judgment.15

When a motion for new trial, in arrest of judgment, or for judgmentnotwithstanding the verdict has been filed, the notice must be filed within 30days after the entry of the order granting, overruling, or otherwise finallydisposing of the motion.16 In civil cases, the appellee may institute a cross-appeal by filing a notice of cross-appeal within 15 days after the service of theappellant�s notice of appeal.17

11 O.C.G.A. § 9-11-62(a).

12 Id.

13 O.C.G.A. § 9-11-62(c).

14 O.C.G.A. § 9-11-62(e).

15 O.C.G.A. § 5-6-38(a).

16 Id.

17 Id.


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§ 1.2.2.2 Extensions of Time for Filing Notice

The granting of an extension of time for filing a notice of appeal or noticeof cross-appeal rests in the discretion of the trial judge.18 The trial court maygrant only one extension of time, and the extension cannot exceed the timeotherwise allowed for the initial filing of the notice. Thus, an extension of timefor filing a notice of appeal may not exceed 30 days, and an extension of time forfiling a notice of cross-appeal may not exceed 15 days.19

§ 1.2.3 Filing of Transcript

Where there is a transcript of evidence or proceedings to be included inthe record on appeal, it is the appellant�s duty to cause the transcript to beprepared and filed.20 However, when the appellant has not designated that thetranscript be made a part of the record on appeal and it is included bydesignation of the appellee, then the appellee must cause the transcript to beprepared and filed at the appellee�s expense.21 Unless extended as provided forby O.C.G.A. § 5-6-39, the party responsible for filing the transcript must cause itto be filed within 30 days after the filing of (i) the notice of appeal or (ii)designation by appellee.22 If the party responsible for filing fails timely to file thetranscript and the trial court determines that the delay was inexcusable,unreasonable, and caused by that party, the trial court may, in its discretion,order that the appeal be dismissed.23

§ 1.2.4 Record

The Clerk of the trial court is required to prepare a complete copy of theentire record of the case within five days after the date of the appellant�s orappellee�s filing of the transcript of evidence and proceedings, omitting onlythose things designated for omission by the appellant which were not designatedfor inclusion by the appellee.24 If the appellant designates any matter to beomitted from the record on appeal, the appellee may, within 15 days after theappellant has served his notice of appeal, file a designation of record, designating

18 O.C.G.A. § 5-6-39(a).

19 O.C.G.A. § 5-6-39(c).

20 O.C.G.A.§ 5-6-42.

21 Id.

22 Id.

23 O.C.G.A. § 5-6-48(c).

24 O.C.G.A. § 5-6-43(a).


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that all or part of the omitted matters be included in the record on appeal.25

Where no transcript of evidence and proceedings is to be sent to the appellatecourt or where the transcript is already on file, the Clerk is required to prepareand transmit the record within 20 days after the date the notice of appeal isfiled.26

Any objection regarding the failure of a party to comply with theprovisions of the Appellate Practice Act relating to the filing of a transcript of theevidence and proceedings or transmittal of the record to the Supreme Court iswaived unless the objection is made and ruled upon in the trial court prior to thetransmittal of the record, and such order is properly appealed.27

§ 1.2.5 Docketing

Upon the docketing of every appeal and application for appeal to theCourt of Appeals, the Clerk mails notice of the docketing date and schedule forbriefing to all counsel.28 Failure of counsel to receive a docketing notice does notrelieve counsel of the responsibility to file briefs timely.29

No appeal to the Court of Appeals is docketed until the notice of appealand a record, and transcript, if requested, are filed in the Clerk�s office.30

Appeals or applications transferred to the Court of Appeals from the SupremeCourt will be docketed as of the date they are received in the Court of Appeals.31

Any Court of Appeals case docketed before the entire record is received by theCourt of Appeals may, at the parties� request, be remanded to the trial court untilsuch time as the record is so prepared and delivered to the Court of Appeals.32

§ 1.2.5.1 Closing of the Docket

The docket for the January, April, and September terms of the Court ofAppeals closes at noon on the 15th day of December, April, and August

25 O.C.G.A. § 5-6-42.

26 O.C.G.A. § 5-6-43(a), (d). For a discussion of the effect of and remedies for a delay in filingthe record or transcript, see § 4.2.6 of this Handbook.

27 Ga. S. Ct. R. 74.

28 Ga. Ct. App. R. 13.

29 Id.

30 Ga. Ct. App. R. 11(a).

31 Ga. Ct. App. R. 11(c).

32 Ga. Ct. App. R. 11(d).


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respectively.33 By order, a closed docket may be opened when expedient for thedocketing of a case, so that judgment may be rendered by the Court of Appealsat the earliest practicable date.34

§ 1.2.6 Supersedeas

The appellant�s filing of a notice of appeal and payment of all costs in thetrial court serves as automatic supersedeas in all civil cases, except for injunctioncases.35 An appellant is not required to give a supersedeas bond unless the trialcourt, upon motion by an appellee, moves for such bond to be given.36 When anappeal is taken by the state or by any county, city, or town or an officer or agencythereof, no bond or other security is required.37

§ 1.2.7 Payment of Costs38

Costs in the appellate courts are incurred upon docketing and must bepaid upon filing,39 or, on direct appeals, with the filing of appellant�s brief.40 Anappellant�s appeal is not to be dismissed for delay if costs for preparing therecord are paid within 20 days (excluding Saturdays, Sundays, and legalholidays) of the appellant�s receipt of the notice of the amount of costs.41

33 Ga. Ct. App. R. 12.

34 Id.

35 O.C.G.A. § 5-6-46(a)

36 Id.

37 O.C.G.A. § 9-11-62(d).

38 As a general matter, costs in all cases are $80.00 unless a pauper�s affidavit is filed. Ga. S. Ct.R. 5; Ga. Ct. App. R. 5. In the Supreme Court, costs are waived if pauper status has beengranted by the trial court and the record so reflects. Ga. S. Ct. R. 5. In the Court of Appeals,costs will be waived if a pauper�s affidavit is filed with that Court or if such an affidavit iscontained in the record on appeal. Ga. Ct. App. R. 5. The Clerk shall not file any matterunless the costs have been paid or a sufficient pauper�s affidavit has been filed. Ga. Ct. App.R. 5. Costs in the Supreme Court are not required for certified questions or in disciplinarycases. Ga. S. Ct. R. 5.

39 Ga. S. Ct. R. 5; Ga. Ct. App. R. 5.

40 Id.

41 O.C.G.A. § 5-6-48(c).


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§ 1.2.8 Oral Argument

In the Court of Appeals, unless expressly ordered by the Court, oralargument is never mandatory.42 The Court of Appeals will place a case on thecalendar for oral argument only upon the granting of a request for oral argumentmade by one of the parties.43 The Clerk of the Court of Appeals mails thecalendar to counsel in each appeal to be orally argued at the addresses shown onthe notice of appeal, unless the Court is otherwise advised under Rule 9(f), atleast 14 days prior to the date the call is to begin.44 Counsel not receiving acalendar at least 10 days prior to the tentative oral argument dates should contactthe Clerk�s office to inquire about oral argument dates.45

In the Supreme Court, no request is necessary when there is a directappeal from a judgment imposing the death penalty; in such cases, oralargument is mandatory.46 Cases in which certiorari has been granted are alsoplaced on the Supreme Court�s oral argument calendar automatically, unlessdisposed of summarily by the Court.47 A written request for oral argument mustbe made in all other appeals to the Supreme Court.48 Except in death penaltycases, oral argument is not mandatory.49

In both the Court of Appeals and the Supreme Court, a request for oralargument must be filed within 20 days from the date the case is docketed.50 As ageneral matter, argument will not be permitted to parties whose briefs have notbeen timely filed.51 However, in the Court of Appeals, the Court may grantpermission for oral argument to a party even though that party did not timelyfile its brief.52

42 Ga. Ct. App. R. 28(a)(1).

43 Ga. Ct. App. R. 14(a).

44 Ga. Ct. App. R. 14(b).

45 Id.

46 Ga. S. Ct. R. 50(1).

47 Ga. S. Ct. R. 50(2).

48 Ga. S. Ct. R. 50(3).

49 Ga. S. Ct. R. 50(1), (3).

50 Ga. S. Ct. R. 50(3); Ga. Ct. App. R. 28(a)(1).

51 Ga. S. Ct. R. 50(3).

52 Ga. Ct. App. R. 28(a)(1).


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Court of Appeals arguments are limited to 30 minutes per case or 15minutes per side.53 Supreme Court arguments are limited to 30 minutes per sidein direct appeals of death penalty judgments, and in all other cases, 20 minutesper side.54 In the Court of Appeals, a request for additional time for argumentmay be made; however, the request must be made in writing at least five daysbefore the date set for hearing.55

§ 1.2.9 Briefs and Enumerations of Error

§ 1.2.9.1 Briefs, Generally

The appellant�s and cross-appellant�s briefs and enumerations of errormust be filed and served within 20 days after the appeal or cross-appeal isdocketed.56 The appellee�s and cross-appellee�s briefs must be filed within 40days after the case is docketed or 20 days after filing of the appellant�s or cross-appellant�s brief, whichever is later.57 In the Court of Appeals, the appellant mayfile a reply brief within 20 days from the filing of the appellee�s brief.58

§ 1.2.9.2 Supplemental Briefs

In the Supreme Court, supplemental briefs may be filed at any time beforedecision.59 In the Court of Appeals, however, supplemental briefs may be filedonly by leave of Court.60 In the Court of Appeals, if pertinent and significantauthorities come to the attention of a party after the filing of that party�s brief orafter oral argument, but before a decision, a party may inform the Court bysupplemental brief.61 Any response to a supplemental brief must be madepromptly and must conform to Rule 24.62

53 Ga. Ct. App. R. 28(a)(2).

54 Ga. S. Ct. R. 54.

55 Ga. Ct. App. R. 28(a)(2).

56 Ga. S. Ct. R. 10; Ga. Ct. App. R. 26(a).

57 Ga. S. Ct. R. 10; Ga. Ct. App. R. 26(b).

58 Ga. Ct. App. R. 26(c).

59 Ga. S. Ct. R. 24.

60 Ga. Ct. App. R. 24.

61 Id.

62 Id.


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§ 1.2.9.3 Amicus Curiae Briefs

Amicus curiae briefs may be filed without leave of court and must includethe identity and interest of the person(s) on whose behalf the brief is filed.63 Thepublished rules of the appellate courts do not impose any particular timeconstraints on the filing of amicus curiae briefs.

§ 1.3 Discretionary Appeals of Final Order or Judgment

For a listing of the final orders or judgments that require an application forappeal, see O.C.G.A. § 5-6-35(a).

§ 1.3.1 Application for Leave, Response, and Decision on Application

§ 1.3.1.1 Application

When required, an application for leave to appeal must be filed within 30days of the entry of the order, decision, or judgment.64 When a motion for newtrial, in arrest of judgment, or for judgment notwithstanding the verdict has beenfiled, the application must be filed within 30 days after the entry of the ordergranting, overruling, or otherwise finally disposing of the motion.65

§ 1.3.1.2 Costs

Costs must be paid at the time the application for leave is filed.66

§ 1.3.1.3 Response

The response to an application for leave to appeal must be filed andserved within 10 days of the filing of the application.67 No response is required,unless ordered by the Court.68 However, the Supreme Court encourages thatresponses be filed.69

63 Ga. S. Ct. R. 23; Ga. Ct. App. R. 25.

64 O.C.G.A. § 5-6-35(d).

65 Id.

66 Ga. S. Ct. R. 5; Ga. Ct. App. R. 5.

67 O.C.G.A. § 5-6-35(e); Ga. S. Ct. R. 33; Ga. Ct. App. R. 31(f). With respect to discretionaryappeal applications, the date of filing and the date of docketing are the same date.

68 Ga. S. Ct. R. 33; Ga. Ct. App. R. 31(f).

69 Ga. S. Ct. R. 33.


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§ 1.3.1.4 Decision by Court on Application

The Supreme Court or Court of Appeals will issue an order granting ordenying an application for leave to appeal within 30 days of the date upon whichthe application was filed.70

§ 1.3.2 Notice of Appeal

If the court issues an order granting leave to appeal, the applicant mustfile a notice of appeal in the trial court within 10 days of the filing of the order.71

The procedure thereafter is the same as in other appeals.72 The filing of anapplication for leave to appeal acts as supersedeas to the extent that a notice ofappeal acts as supersedeas.73

If the court issues an order denying leave to appeal, the applicant maymake a motion for reconsideration or file a petition for certiorari.

§ 1.4 Interlocutory Appeals

§ 1.4.1 Automatic Stay

As stated in § 1.2 above, unless otherwise ordered by the court, aninterlocutory judgment in an action for injunction or receivership is not stayedduring the period after its entry.74

§ 1.4.2 Certificate of Immediate Review

In order for an applicant to seek leave to appeal an interlocutory order, acertificate of immediate review must be issued by the trial court within 10 daysof the entry of the order, decision, or judgment at issue.75

70 O.C.G.A. § 5-6-35(f).

71 O.C.G.A. § 5-6-35(g); Ga. Ct. App. R. 31(g).

72 O.C.G.A. § 5-6-35(g).

73 O.C.G.A. § 5-6-35(h).

74 O.C.G.A. § 9-11-62(a).

75 O.C.G.A. § 5-6-34(b).


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§ 1.4.3 Application for Interlocutory Appeal, Response, and Decision

§ 1.4.3.1 Application

An application for interlocutory appeal must be filed within 10 days aftera certificate of immediate review is granted, i.e., 10 days after the certificate isfiled by the trial court.76 The application must be filed with the clerk of the courtto which the appeal will be taken,77 and simultaneously therewith, a copy of theapplication, together with a list of those parts of the record included with theapplication, must be served upon all opposing parties.78

§ 1.4.3.2 Costs

Costs must be paid at the time the application is filed.79

§ 1.4.3.3 Response

The response to an application for interlocutory appeal must be filed andserved within 10 days of the filing of the application.80

§ 1.4.3.4 Decision by Court on Application

The appellate court will issue an order granting or denying the applicationwithin 30 days of the date upon which the application was filed.81

§ 1.4.4 Notice of Appeal

If the court issues an order granting the application, the applicant mustfile a notice of appeal within 10 days of the filing of the order.82 The notice of

76 Id.; Ga. Ct. App. R. 32(a).

77 The materials from the record included in an application to the Court of Appeals must betabbed and indexed. Ga. Ct. App. R. 30(c). All applications for interlocutory appeal mustinclude a stamp-filed copy of the order to be appealed and a stamp-filed copy of thecertificate of immediate review. Ga. S. Ct. R. 29; Ga. Ct. App. R. 30(b).

78 O.C.G.A. § 5-6-34(b).

79 Ga. S. Ct. R. 6; Ga. Ct. App. R. 5.

80 O.C.G.A. § 5-6-34(b); Ga. S. Ct. R. 30.

81 O.C.G.A. § 5-6-34(b).

82 Id.


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appeal acts as supersedeas as provided by O.C.G.A. § 5-6-46, and the procedurethereafter is the same as in an appeal from a final judgment.83

If the court issues an order denying the application, the applicant maymake a motion for reconsideration or file a petition for certiorari.

§ 1.5 Motion For Reconsideration

§ 1.5.1 Motion in Supreme Court

A motion for reconsideration may be filed in any matter on which theSupreme Court has ruled, within 10 days from the date of the decision.84 Nosecond or subsequent motion for reconsideration may be filed by a party after itsfirst motion has been denied, except by permission of the court.85

§ 1.5.2 Motion in Court of Appeals

A motion for reconsideration filed in the Court of Appeals must be filedand served during the term in which the judgment or dismissal sought to bereviewed was rendered and before the remittitur has been forwarded to theClerk of the trial court, and in any event, must be filed within 10 days from therendering of the judgment or dismissal.86 The rule for filing by registered orcertified mail does not apply to motions for reconsideration.87 No extension oftime will be granted for filing, except when the party seeking an extension hasmade a written application before the expiration of the 10 days, whichapplication must demonstrate �providential cause.�88

By special order, the Court may limit the time within which a motion forreconsideration may be filed to a period less than 10 days.89 No party may file asecond motion for reconsideration unless permitted by order of the Court.90 Thefiling of a motion for permission to file a second motion for reconsideration does

83 Id.

84 Ga. S. Ct. R. 27. A copy of the opinion or disposition must be attached thereto. Id.

85 Ga. S. Ct. R. 28.

86 Ga. Ct. App. R. 37(b).

87 Ga. Ct. App. R. 4, 37(b).

88 Ga. Ct. App. R. 37(b).

89 Ga. Ct. App. R. 37(c).

90 Ga. Ct. App. R. 37(d).


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not toll the 10 days for filing a notice of intention to apply for certiorari to theSupreme Court.91

§ 1.5.3 Responding to a Motion for Reconsideration

There is no specific time limit for responding to a motion forreconsideration. In the Supreme Court, responses to motions for reconsiderationmay be filed at any time.92 In the Court of Appeals, anyone who wants torespond to a motion for reconsideration �must do so expeditiously.�93

§ 1.6 Certiorari Petitions in the Georgia Supreme Court

§ 1.6.1 Petition for Certiorari

Notice of the intention to apply for certiorari must be given to the Clerk ofthe Court of Appeals within 10 days after judgment or the order denying themotion for reconsideration, if one is filed.94 The petition for certiorari must befiled with the Clerk of the Supreme Court within 20 days after the judgment orthe order overruling the motion for reconsideration, if one is filed.95 Ifapplicable, the petitioner must make payment of costs to the Clerk of theSupreme Court simultaneously with his filing of his application for certiorari.96

§ 1.6.2 Record

Upon receiving from the Clerk of the Supreme Court a copy of the noticeof docketing of the petition for certiorari, the Clerk of the Court of Appealsprepares and transmits to the Supreme Court the record of the case, including acertified copy of the Court of Appeals opinion and judgment.97

91 Id.

92 Ga. S. Ct. R. 26.

93 Ga. Ct. App. R. 37(b).


95 Ga. S. Ct. R. 38(2).

96 Ga. S. Ct. R. 5, 38(2).

97 Ga. S. Ct. R. 43.


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§ 1.6.3 Response

A response to a petition for certiorari must be served within 20 days of thefiling of the petition.98 Failure to file a response will be deemed anacknowledgment by the respondent that the requirements of the rules for thegranting of the petition for certiorari have been met.99 However, such anacknowledgement is not binding on the Supreme Court.100

§ 1.6.4 Briefs

When a petition for certiorari is granted, the appellant and appellee mustfile briefs in response to the questions posed by the Supreme Court in its ordergranting certiorari.101 The briefing schedule set forth in Supreme Court Rule 10must be followed, dating from the order granting certiorari.102

§ 1.7 Certiorari Petitions in the United States Supreme Court

§ 1.7.1 Stay of Remittitur

A party desiring to have the remittitur stayed in the Georgia SupremeCourt in order to seek a writ of certiorari from the United States Supreme Courtmust file a motion to stay the remittitur in the Georgia Supreme Court.103 Thismotion must include a concise statement of the issues to be raised in the petitionfor certiorari and must be filed at the time of the filing of a motion forreconsideration, or if no motion for reconsideration is filed, within the timeallowed for the same.104

§ 1.7.2 Notice of Intention to Apply and Certificate of Filing

A notice of intention to petition the United States Supreme Court forcertiorari shall be filed in the Court of Appeals no later than 20 days followingthe denial of a petition for certiorari by the Georgia Supreme Court.105

98 Ga. S. Ct. R. 42.

99 Id.

100 Id.

101 Ga. S. Ct. R. 45.

102 Id.

103 Ga. S. Ct. R. 61.

104 Id.; see also Ga. S. Ct. R. 27.

105 Ga. Ct. App. R. 38(b)(1).


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Simultaneously with the filing of the petition for certiorari in the United StatesSupreme Court, the petitioner must file a copy of the same with the Court ofAppeals.106

106 Ga. Ct. App. R. 38(b)(2).


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2 JURISDICTION, AVAILABILITY,AND DISMISSALS OF APPEALSNowell D. Berreth*

§ 2.1 Introduction

Although the 1965 enactment of the Appellate Practice Act considerablysimplified appellate procedure in Georgia,1 the law relating to appellatejurisdiction, availability, and dismissal of appeals remains complex, andnoncompliance can result in harsh consequences. This chapter is intended toassist the bench and bar in these matters.

§ 2.2 Right of Appeal Generally

Although the United States Constitution does not provide a right toappeal court decisions, states may permit appeals and prescribe conditions and

* Mr. Berreth is an associate practicing civil litigation at Alston & Bird LLP. He received a

B.A. in Journalism from the University of Georgia in 1991 and a J.D. from Georgia StateUniversity in 1998.

1 The Appellate Practice Act was enacted �to simplify the procedure for bringing a case tothe appellate courts and to secure speedy and uniform justice in a uniform and well-ordered manner; not to set traps and pitfalls for unwary litigants.� Felix v. State, 271 Ga.534, 534-35, 523 S.E.2d 1, 2-3 (1999) (internal citations and quotations omitted).


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procedures regarding their availability.2 The Georgia Constitution and variousstatutes create and condition the right to appeal in Georgia.

The Georgia Constitution creates the Supreme Court and the Court of Appeals,along with Superior, State, Probate, Magistrate, Juvenile and several additionallower courts, and vests them with judicial power:

The judicial power of the state shall be vested exclusively in thefollowing classes of courts: magistrate courts, probate courts,juvenile courts, state courts, superior courts, Court of Appeals, andSupreme Court. Magistrate courts, probate courts, juvenile courts,and state courts shall be courts of limited jurisdiction. In addition,the General Assembly may establish or authorize the establishmentof municipal courts and may authorize administrative agencies toexercise quasi-judicial powers. Municipal courts shall havejurisdiction over ordinance violations and such other jurisdiction asprovided by law. Except as provided in this paragraph and inSection X, municipal courts, county recorder�s courts and civilcourts in existence on June 30, 1983, and administrative agenciesshall not be subject to the provisions of this article. The GeneralAssembly shall have the authority to confer �by law� jurisdictionupon municipal courts to try state offenses.3

§ 2.2.1 Appeals from Superior and State Courts Generally

Appeals from Superior and State Courts are provided for in O.C.G.A. § 5-6-33(a):

Either party in any civil case and the defendant in any criminalproceeding in the superior, state, or city courts may appeal fromany sentence, judgment, decision, or decree of the court, or of thejudge thereof in any matter heard at chambers.

The same laws of appellate practice govern all such appeals, regardless ofwhether they are taken from Superior or State courts.4

2 National Union of Marine Cooks & Stewards v. Arnold, 348 U.S. 37, 43 (1954); Lott v. Pittman,

243 U.S. 588, 591 (1917); accord Ex parte McCardle, 74 U.S. (7 Wall) 506 (1868).

3 Ga. Const. art. VI, § 1, ¶ 1; see also Wickham v. State, 273 Ga. 563, 565, 544 S.E.2d 439, 442(2001) (holding that the City Court of Atlanta is constitutional).

4 O.C.G.A. § 15-7-43.

CHAPTER 2: JURISDICTION, AVAILABILITY AND DISMISSAL

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§ 2.2.2 Appeals from Magistrate, Probate, and JuvenileCourts Generally

Appeals from Magistrate, Probate, and Juvenile Courts also are permittedby statute. Judgments and orders from Magistrate Court are appealable to theSuperior or State Courts;5 final judgments and orders of the Juvenile Courts areappealable to the Court of Appeals or the Supreme Court;6 and, with somesignificant exceptions, decisions of the Probate Courts are appealable to SuperiorCourt.7

§ 2.3 Jurisdiction of the Georgia Appellate Courts

Various provisions of the Georgia Constitution and Georgia statutes createand condition the jurisdiction of the Supreme Court and the Court of Appeals.

§ 2.3.1 Jurisdiction of the Georgia Supreme Court

Pursuant to Article VI, Section 6, Paragraph 2 of the Georgia Constitution,the Georgia Supreme Court has exclusive appellate jurisdiction over:

• All cases involving the construction of a treaty or the construction ofthe Constitution of the State of Georgia or of the United States;

• All cases in which the constitutionality of a law, ordinance, orconstitutional provision is drawn into question;8 and

• All cases of election contest.

As provided in Article VI, Section 6, Paragraph 3 of the GeorgiaConstitution, the Supreme Court has appellate jurisdiction over:

• Cases involving title to land;

• Equity cases;9

5 O.C.G.A. § 15-10-41(b)(1).

6 O.C.G.A. § 15-11-64.

7 O.C.G.A. §§ 5-3-1, 5-3-2, 5-6-33 & 15-9-120 et seq.

8 Williams v. State, 273 Ga. 848, 848, 546 S.E.2d 522, 523 (2001).

9 Arrington v. Reynolds, 274 Ga. 114, 115, 549 S.E.2d 401, 401 (2001); Warren v. Bd. of Regentsof the Univ. Sys. of Ga., 272 Ga. 142, 144, 527 S.E.2d 563, 565 (2000); Lee v. Greenland Co., 272Ga. 107, 108, 527 S.E.2d 204, 205 (2000); Redfearn v. Huntcliff Homes Ass�n., 271 Ga. 745,750, 524 S.E.2d 464, 469 (1999); Allen v. Hub Cap Heaven, Inc., 225 Ga. App. 533, 535, 484S.E.2d 259, 263 (1997); Pittman v. Harbin Clinic Prof�l Ass�n, 263 Ga. 66, 67, 428 S.E.2d 328,


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• Cases involving wills;

• Habeas corpus cases;

• Cases involving extraordinary remedies;

• Divorce and alimony cases;

• Cases certified to it by the Court of Appeals; and

• Cases in which a sentence of death was imposed or could have beenimposed.10

The Supreme Court also has exclusive jurisdiction over questions certifiedto it from any state or federal appellate court, or from the United States SupremeCourt.11

The introductory language of Article VI, Section 6, Paragraph 3 of theGeorgia Constitution allows the General Assembly to modify the SupremeCourt�s jurisdiction by statute. Unless this jurisdiction is modified, however, thetypes of cases listed in this paragraph must be appealed directly to the SupremeCourt. The Supreme Court may also review by certiorari cases in the Court ofAppeals that are of gravity or great public importance.12 It has recently beenheld that the Court may also review by certiorari decisions by the Court ofAppeals in criminal cases that are adverse to the State.13

§ 2.3.2 Jurisdiction of the Georgia Court of Appeals

The Georgia Court of Appeals has broad jurisdiction over �all cases notreserved to the Supreme Court or conferred on other courts by law.�14 TheGeorgia Constitution provides:

328-329 (1993); Sysco Food Servs. of Atlanta, Inc. v. Chupp, 225 Ga. App. 584, 584, 484 S.E.2d323 (1997).

10 Ga. Const. art. VI, § 6, ¶ 3.

11 Ga. Const. art. VI, § 6, ¶ 4; O.C.G.A. § 15-2-9.

12 Ga. Const. art. VI, § 6, ¶ 5.

13 State v. Tyson, 273 Ga. 690, 690, 544 S.E.2d 444, 445 (2001).

14 Ga. Const. art. VI, § 5, ¶ 3.


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The Court of Appeals shall be a court of review and shall exerciseappellate and certiorari jurisdiction in all cases not reserved to theSupreme Court or conferred on other courts by law. The decisionsof the Court of Appeals insofar as not in conflict with those of theSupreme Court shall bind all courts except the Supreme Court asprecedents.15

The Court of Appeals has jurisdiction over criminal appeals unless a deathsentence was imposed or could have been imposed in the case. The Court ofAppeals has jurisdiction over all armed robbery, rape, and kidnapping casesunless the death penalty was imposed.16 The Court of Appeals also hasjurisdiction to review trial court orders clarifying judgments under O.C.G.A. § 9-11-60(8).17

As noted above, the Supreme Court has exclusive appellate jurisdictionover cases involving the construction of the Georgia or United StatesConstitutions, as well as any case involving the constitutionality of a law.18

Nevertheless, if a constitutional provision is unambiguous, the Court of Appealsmay apply it without a prior Supreme Court interpretation.19 In addition, theCourt of Appeals has jurisdiction over appeals involving constitutional issues ifthe issue in question has already been decided by the Supreme Court.20

The Court of Appeals may hear appeals contending that the conduct of atrial deprived the appellant of his constitutional rights, and it may hear casesinvolving constitutional issues if the resolution of those issues is not necessary todecide the appeal,21 or if the issues were not properly raised in the trial court.22

15 Id.

16 O.C.G.A. § 15-3-3.

17 Floyd v. Springfield Plantation Prop. Owners� Ass�n. , 245 Ga. App. 535, 536 n.2, 538 S.E.2d455, 457 (2000), cert. denied (Feb. 2, 2001).

18 Ga. Const. art. VI, § 6, ¶ 2.

19 White v. Bd. of Comm�rs of McDuffie County, 252 Ga. App. 120, 122 n.10, 555 S.E.2d 45, 48(2001), cert. denied (Mar. 25, 2002); Scott v. State, 157 Ga. App. 608, 608-609, 278 S.E.2d 49,49-50 (1981).

20 Williams v. State, 273 Ga. 848, 848-49, 546 S.E.2d 522, 523 (2001).

21 Oswell v. State, 181 Ga. App. 35, 36, 351 S.E.2d 221, 222 (1986); Brown v. State, 16 Ga. App.268, 85 S.E. 262, 262 (1915).

22 Walker v. Hall, 226 Ga. 68, 69, 172 S.E.2d 411, 411-12 (1970).


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However, the Court of Appeals may not determine the constitutionality of a statestatute.23

§ 2.4 Appealability of Judgments and Orders

There are two categories of appeals from final judgments: direct (providedfor in O.C.G.A. § 5-6-34(a)), and discretionary (provided for in O.C.G.A. § 5-6-35).Appeals from non-final judgments, termed interlocutory appeals, are providedfor in O.C.G.A. § 5-6-34(b) and are discussed below in Sections 2.4.6 through2.4.8. As the names imply, the appellate courts must hear a direct appeal, whilethey may decline to hear discretionary appeals. Vastly different proceduresapply to the commencement of each appeal.

§ 2.4.1 Direct Appeals Generally

Direct appeals are initiated by filing a notice of appeal with the trial court.The appellant need not obtain the trial court�s or the appellate court�s permissionto pursue a direct appeal. Direct appeals are permitted from most finaljudgments (except those excluded by O.C.G.A. §5-6-35(a), which are discussedbelow in Section 2.4.5) and from a limited number of statutorily-enumeratednon-final judgments.24 In a direct appeal, any other judgment, ruling, or order inthe case which may affect the proceedings below, even if not otherwise directlyappealable, may be raised and ruled on by the appellate court.25

§ 2.4.2 Direct Appeals from Final Judgments

O.C.G.A. § 5-6-34(a)(1) provides for direct appeals to the Supreme Courtor the Court of Appeals from all final judgments (except those final judgmentsenumerated in O.C.G.A. § 5-6-35 that must be pursued as discretionary appealsby application). A judgment or order is �final� when there is no aspect of thecase pending in the lower court.26 In other words, a judgment or order is �final�if there is no remaining issue to be resolved by the trial court, a final ruling onthe merits of the matter has been made, and the parties have no further recourse

23 Burson v. State, 183 Ga. App. 647, 648, 359 S.E.2d 731, 732 (1987).

24 O.C.G.A. § 5-6-34(a).

25 O.C.G.A. § 5-6-34(d); Martin v. Williams, 263 Ga. 707, 710, 438 S.E.2d 353, 355 (1994);Benedict v. Snead, 253 Ga. App. 749, 751, 560 S.E.2d 278, 279 (2002); American Car Rentals,Inc. v. Walden Leasing, Inc., 220 Ga. App. 314, 469 S.E.2d 431 (1996).

26 The Limited, Inc. v. The Learning Childbirth Ctr., Inc., 255 Ga. App. 688, 566 S.E.2d 411, 412(2002); In re M.B.B., 241 Ga. App. 249, 250, 526 S.E.2d 76, 77 (1999); Forrister v. ManisLumber Co., 232 Ga. App. 370, 371, 501 S.E.2d 606, 609 (1998); R.J. Reynolds Tobacco Co. v.Fischer, 207 Ga. App. 292, 293, 427 S.E.2d 810, 812 (1993).


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in the trial court.27 A good practical test for making this determination iswhether there will be any further role for the trial court, if the trial court�sdecision is affirmed. If further action will be required, the judgment generally isnot final. Finality for purposes of an appeal is measured by the same standardsas res judicata finality.28

The following types of rulings, among others, have been deemed directlyappealable:

• Orders denying applications for leave to file quo warranto;29

• Orders denying a motion for a speedy trial or denying a motion todismiss under the speedy trial statute;30

• Orders overruling motions to dismiss in an election contest;31

• Orders denying motions to strike a voluntary dismissal;32

• Judgments on petitions for writs of habeas corpus;33

• Judgments in condemnation proceedings stating that no compensationis to be paid to the condemnee;34

• Orders granting motions to dismiss unless granted as to less than alldefendants;35

27 Vurgess v. State, 187 Ga. App. 700, 701, 371 S.E.2d 191, 192 (1988); Caswell v. Caswell, 157

Ga. App. 710, 710-11, 278 S.E.2d 452, 453 (1981).

28 Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243, 248 S.E.2d 641, 642 (1978).

29 Westberry v. Saunders, 250 Ga. 240, 242, 296 S.E.2d 596, 598 (1982); Thibadeau v. Henley, 233Ga. 884, 884, 213 S.E.2d 657, 658 (1975).

30 Callaway v. State, 275 Ga. 332, 332, 567 S.E.2d 13, 14 (2002); Hubbard v. State, 254 Ga. 694,695, 333 S.E.2d 827, 828 (1985); Reid v. State, 116 Ga. App. 640, 642-644, 158 S.E.2d 461, 465(1967).

31 Blackburn v. Hall, 115 Ga. App. 235, 238-39, 154 S.E.2d 392, 396-97 (1967).

32 Pizza Ring Enters., Inc. v. Mills Mgmt. Sources, Inc., 154 Ga. App. 45, 46, 267 S.E.2d 487, 487(1980).

33 Dismuke v. State, 229 Ga. 347, 348, 190 S.E.2d 915, 916 (1972).

34 City of Atlanta v. Turner Adver. Co., 234 Ga. 1, 2-3, 214 S.E.2d 501, 502 (1975).

35 Coley Fertilizer Co. v. Gold Kist Inc., 174 Ga. App. 471, 472, 330 S.E.2d 597, 598 (1985);Lawler v. Georgia Mut. Ins. Co., 156 Ga. App. 265, 266, 276 S.E.2d 646, 647-48 (1980),overruled on other grounds, Becker v. Fairman, 167 Ga. App. 708, 307 S.E.2d 520 (1983).


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• Temporary orders issuing an injunction after an adversary hearing,when plaintiff is granted all relief sought;36 and

• Other orders that affect the rights of the parties to the litigation andleave no further action for the trial court.37

§ 2.4.3 Direct Appeals from Non-Final Orders and Judgments

In addition to final judgments, a limited number of non-final judgments ororders are also directly appealable. These orders and judgments are enumeratedin O.C.G.A. § 5-6-34(a) and include:

• Judgments involving applications for discharge in bail trover andcontempt cases;

• Judgments or orders directing an accounting;

• Judgments or orders granting or refusing applications for theappointment of receivers or for interlocutory or final injunctions;

• Judgments or orders granting or refusing applications for attachmentagainst fraudulent debtors;

• Judgments or orders granting or refusing to grant mandamus or anyother extraordinary remedy, except with respect to temporaryrestraining orders;

• Judgments or orders refusing applications for dissolution ofcorporations created by the superior courts; and

• Judgments or orders sustaining motions to dismiss a caveat to theprobate of a will.

When an appeal in a case listed in O.C.G.A. § 5-6-34(a), but not in § 5-6-35(a), is begun by filing a timely application for permission to appeal, butwithout also filing a timely notice of appeal, the appellate court nevertheless willgrant the application, and the case will proceed in accordance with O.C.G.A. § 5-6-35(g).38

36 Glynn County Bd. of Tax Assessors v. Haller, 273 Ga. 649, 649-50, 543 S.E.2d 699, 701 (2001).

37 Padgett v. Cowart, 232 Ga. 633, 634, 208 S.E.2d 455, 456 (1974).

38 O.C.G.A. § 5-6-35(j); Fulton County v. Congregation of Anshei Chesed, 572 S.E.2d 530, 531 n.3(2002); Smith v. State, 257 Ga. App. 468, 469, 571 S.E.2d 446, 448 (2002).


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§ 2.4.4 Motions for Summary Judgment

Section 9-11-56(h) of the Georgia Code allows an immediate direct appealwhenever a motion for summary judgment is granted, even in part.39 The partyagainst whom a motion for summary judgment is granted as to fewer than all theissues or all the parties in a case has the option of seeking an immediate directappeal pursuant to O.C.G.A. § 9-11-56(h), or of waiting until final judgment todirectly appeal.40 This exception also applies to the granting of motions forpartial summary judgment,41 but it does not apply to the denial of summaryjudgment. An order denying summary judgment may be appealed only on aninterlocutory basis in accordance with O.C.G.A. § 5-6-34(b).42 However, in adirect appeal of the granting of a summary judgment motion pursuant toO.C.G.A. § 9-11-56(h), any other judgments, rulings, or orders rendered in thecase and which may affect the proceedings below (including the denial of asummary judgment motion) may be raised on appeal and reviewed by theappellate court.43

§ 2.4.5 Final Orders Appealable Only by Application

It is crucial for counsel to review the discretionary appeal statute44 andrelated caselaw before proceeding with an appeal to confirm whether thediscretionary appeal statute applies. As the Supreme Court has admonished:�[B]efore proceeding to this Court, a party should always review thediscretionary application statute to see if it covers the underlying subject matterof the appeal. If it does, then the party must file an application for appeal asprovided in O.C.G.A. § 5-6-35.�45

Pursuant to O.C.G.A. § 5-6-35(a), the following final judgments are notdirectly appealable and require an application for review:

39 Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243, 248 S.E.2d 641 (1978); Benedict v. Snead,

253 Ga. App. 749, 751, 560 S.E.2d 278, 279 (2002).

40 Benedict, 253 Ga. App. at 751, 560 S.E.2d at 279.

41 Advanced Contouring, Inc. v. McMillan Div. of States Eng�g Corp., 179 Ga. App. 128, 129, 345S.E.2d 666, 667 (1986).

42 O.C.G.A. § 9-11-56(h).

43 Cherry v. Coast House, Ltd., 257 Ga. 403, 405, 359 S.E.2d 904 (1987); Southeast Ceramics, Inc.v. Klem, 246 Ga. 294, 295, 271 S.E.2d 199 (1980).

44 O.C.G.A. § 5-6-35.

45 Ferguson v. Composite State Bd. of Med. Exam�rs, 275 Ga. 255, 257, 564 S.E.2d 715, 717 (2002)(emphasis in original) (internal quotations omitted).


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• Appeals from judgments of the Superior Courts reviewing decisions ofthe State Board of Workers� Compensation, the State Board ofEducation, auditors,46 state and local administrative agencies,47 andlower courts by certiorari or de novo proceedings;48

• Appeals from judgments or orders in divorce, alimony, child custody,and other domestic relations cases;49

• Dispossessory or distress warrant cases where the only issue isamount of rent due and the amount is $2,500 or less;

• Cases involving garnishment or attachment except those involvingapplications for attachment against fraudulent debtors;

• Revocations of probation;50

• Actions for damages where judgment is $10,000 or less; 51

• Denials of extraordinary motions for new trials, unless taken as part ofa direct appeal;

• Orders under O.C.G.A. § 9-11-60(d) or (e) denying a motion to setaside a judgment;52

46 McCaughey v. Murphy, 267 Ga. 64, 65, 473 S.E.2d 762, 764 (1996).

47 Ferguson, 275 Ga. at 258, 564 S.E.2d at 718; Consolidated Gov�t of Columbus v. Barwick, 274Ga. 176, 177, 549 S.E.2d 73, 74-75 (2001); Recycle & Recover, Inc. v. Georgia Bd. of NaturalRes., 266 Ga. 253, 254, 466 S.E.2d 197, 198 (1996).

48 This does not apply to decisions of the Public Service Commission and the ProbateCourts, or to cases involving ad valorem taxes and condemnations. O.C.G.A. §5-6-35(a)(1).

49 In December 2002, the Georgia Supreme Court voted �to launch a one-year experiment inwhich the court will grant all �non-frivolous� appeal applications from divorce andalimony cases�� Jonathan Ringel, High Court to Accept All Divorce, Alimony Bids, FULTONCOUNTY DAILY REPORT, Dec. 20, 2002. As this edition of the Handbook goes to press, it istoo soon to tell what effect this may have.

50 Zamora v. State, 226 Ga. App. 105, 105-06, 485 S.E.2d 214, 214 (1997).

51 NF Invs., Inc. v. Whitfield, 245 Ga. App. 72, 72, 537 S.E.2d 207, 208 (2000); Eberhardt v.Georgia Farm Bureau Mut. Ins. Co., 223 Ga. App. 478, 479, 477 S.E.2d 907, 908 (1996); cf.Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 391, 469 S.E.2d 469, 471 (1996) (holding thataction on lien for less than $10,000 does not require discretionary appeal application).

52 Martin v. Williams, 263 Ga. 707, 708, 438 S.E.2d 353, 354 (1994).


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• Appeals from orders granting or denying temporary restrainingorders;

• Awards of attorney�s fees or expenses of litigation under § 9-15-14;53

• Appeals from decisions of state courts reviewing decisions ofmagistrate courts de novo so long as the decision is not otherwisesubject to a right of direct appeal; and

• Appeals from revocation of �first offender probation.�54

§ 2.4.6 Orders Requiring Interlocutory Application for Appeal

If the judgment or order from which an appeal is sought is not final and isnot covered by O.C.G.A. § 5-6-34(a), the appellant must seek and receive acertificate of immediate review from the trial court before filing an applicationfor interlocutory appeal.55 The trial judge must certify, within ten days of theentry of the order, whether the order or ruling is of such importance to the casethat immediate review should be had.56 If the trial judge issues the certificate,the appellant must file an application for interlocutory review with the appellatecourt within ten days of its issuance.57 The appellate court will then decidewhether to allow an appeal. Failure to follow this procedure will lead to adismissal of the appeal.58

§ 2.4.7 Basis for Granting Interlocutory Appeal

Applications for interlocutory appeal are not granted automatically. Theappellate courts have issued rules providing that applications for interlocutoryreview will be granted only if: (1) the issue to be decided appears to bedispositive of the case; (2) the objectionable order appears erroneous and willprobably cause a substantial error at trial, or will adversely affect the rights of theappealing party until the entry of final judgment, in which case the appeal willbe expedited; or (3) the establishment of precedent is desirable.59 The SupremeCourt has the inherent power to assume jurisdiction and consider appeals of

53 Capricorn Sys., Inc. v. Godavarthy, 253 Ga. App. 840, 841-42, 560 S.E.2d 730, 731 (2002).

54 Freeman v. State, 245 Ga. App. 333, 333-34, 537 S.E.2d 763, 763 (2000).

55 O.C.G.A. § 5-6-34(b).

56 Id.; Clayton v. Edwards, 225 Ga. App. 141, 144, 483 S.E.2d 111, 114 (1997).

57 O.C.G.A. § 5-6-34(b); Barnes v. Justis, 223 Ga. App. 671, 672, 478 S.E.2d 402, 403 (1996).

58 Gray v. Springs, 224 Ga. App. 427, 428, 481 S.E.2d 3, 4 (1997).

59 Ga. S. Ct. R. 30, Ga. Ct. App. R. 30.


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interlocutory orders in rare instances when it disagrees with the trial court andconsiders the issues to be of sufficient gravity.60

§ 2.4.8 Orders Requiring Interlocutory Appeal

Although not intended to be complete, the following is a list of orders thathave been held to be appealable only with a certificate of immediate review fromthe trial court and an application to the proper appellate court:

• Orders denying motions to suppress evidence;61

• Orders granting motions to set aside judgments and motions for newtrials;62

• Orders granting or denying motions to dismiss motions to set asidejudgments against garnishees;63

• Orders denying motions to require that a garnishment bond bestrengthened;64

• Orders vacating prior orders substituting parties;65

• Orders granting a writ of possession;66

• Orders sustaining a motion for a directed verdict as to less than allplaintiffs;67

• Orders dismissing one of multiple defendants (unless an expressdetermination of finality as required under O.C.G.A. § 9-11-54(b) ismade);68

60 Waldrip v. Head, 272 Ga. 572, 575-77, 532 S.E.2d 380, 385-86 (2000).

61 Holton v. State, 173 Ga. App. 249, 250, 326 S.E.2d 240, 240 (1985); Cody v. State, 116 Ga.App. 331, 331, 157 S.E.2d 496, 496 (1967).

62 Griffith v. Georgia Bd. of Dentistry, 175 Ga. App. 533, 553, 534, 333 S.E.2d 647, 647-48 (1985);Franklin v. Collins, 162 Ga. App. 755, 293 S.E.2d 364 (1982); Brooks v. State, 229 Ga. 593, 593,194 S.E.2d 256, 256 (1972).

63 Finch v. Kilgore, 120 Ga. App. 320, 320, 170 S.E.2d 304, 305 (1969).

64 Wilson v. Wilson, 130 Ga. App. 175, 176, 202 S.E.2d 681, 682 (1973).

65 Franklin v. Sea Island Bank, 120 Ga. App. 654, 658, 171 S.E.2d 866, 870 (1969).

66 Golden v. Gray, 156 Ga. App. 596, 596-97, 275 S.E.2d 162, 162-63 (1980).

67 Rodriquez v. Newby, 130 Ga. App. 139, 140, 202 S.E.2d 565, 566 (1973).

68 Home Mart Bldg. Ctrs., Inc. v. Wallace, 139 Ga. App. 49, 49, 228 S.E.2d 22, 22 (1976).


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• Orders regarding discovery, depositions, or interrogatories unless theyfall within the very limited collateral orders exception;69

• Judgments denying intervention;70

• Judgments sustaining or dismissing pleas in abatement;71

• Judgments overruling pleas of jurisdiction;72

• Orders overruling or dismissing pleas of res judicata;73

• Orders denying motions for judgment notwithstanding a mistrial;74

• Orders failing to declare acts of the General Assemblyunconstitutional;75

• Orders subject to revision;76

• Orders granting relief from supersedeas or permanent injunction;77

• Determinations of liability without determination of damages;78

• Entry of judgments as to one or more, but fewer than all, claims orparties;79

69 General Motors Corp. v. Hammock, 255 Ga. App. 131, 132-33, 564 S.E.2d 536, 538 (2002), cert.

denied (Sept. 6, 2002); Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 81-82, 485 S.E.2d 525,528-29 (1997).

70 Henderson v. Atlanta Transit Sys., Inc., 233 Ga. 82, 82, 210 S.E.2d 4, 4 (1974).

71 Peach v. State, 116 Ga. App. 703, 704, 158 S.E.2d 701, 702 (1967); Austin v. State, 179 Ga.App. 235, 235, 345 S.E.2d 688, 689 (1986).

72 Carlisle v. Carlisle, 227 Ga. 221, 221, 179 S.E.2d 769, 769 (1971).

73 General Shoe Corp. v. Hood, 119 Ga. App. 648, 648-49, 168 S.E.2d 326, 326 (1969).

74 Phillips v. State, 153 Ga. App. 410, 411, 265 S.E.2d 293, 295 (1980).

75 Lane v. Morrison, 226 Ga. 526, 527, 175 S.E.2d 830, 830 (1970).

76 Stephens v. State Farm Mut. Auto. Ins. Co., 236 Ga. App. 758, 760, 513 S.E.2d 508, 510 (1999);Davis v. Transairco, Inc., 141 Ga. App. 544, 545, 234 S.E.2d 134, 136 (1977).

77 Fulford v. Fulford, 225 Ga. 510, 510, 170 S.E.2d 27, 27 (1969).

78 Havischak v. Neal, 176 Ga. App. 203, 204, 335 S.E.2d 469, 470 (1985).

79 Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243, 248 S.E.2d 641, 642 (1978).


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• Orders dismissing complaints where counterclaims remain pending;80

and

• Orders awarding temporary alimony.81

§ 2.5 Procedure for Filing Appeal

§ 2.5.1 Procedure for Direct Appeal

A notice of appeal must be filed with the trial court within 30 days afterentry of the decision or judgment appealed from unless a motion for a new trial,a motion in arrest of judgment, or a motion for judgment notwithstanding theverdict has been filed.82 In cases in which such a motion is filed, the notice ofappeal must be filed within 30 days of the entry of the order granting, overrulingor otherwise finally disposing of the motion.83 It is important to note that neithera motion for reconsideration nor a motion to set aside extends the time for filinga notice of appeal.84 Nevertheless, it has recently been held that, in general, amotion for reconsideration that is pending in the trial court does not operate toblock the jurisdiction of the Court of Appeals over a notice of appeal regardingthe efficacy of the order that underlies the motion for reconsideration.85 Anycross appeal by the appellee must be filed within 15 days of the service of theappellant�s notice of appeal.86

80 Hadid v. Beals, 233 Ga. App. 5, 6, 502 S.E.2d 798, 799 (1998); Hogan Mgmt. Servs., P.C. v.

Martino, 225 Ga. App. 168, 168-69, 483 S.E.2d 148, 148-49 (1997).

81 Bailey v. Bailey, 266 Ga. 832, 833, 471 S.E.2d 213, 214 (1996).

82 O.C.G.A. § 5-6-38(a). See also § 4.1.1 of this Handbook.

83 O.C.G.A. § 5-6-38(a); Heard v. State, 274 Ga. 196, 197, 552 S.E.2d 818, 821 (2001) (holdingthat a trial court order resolving a motion for new trial, instead of a voluntarywithdrawal of such a motion, is required to extend time for filing notice of appealbeyond 30 days after entry of judgment). See also § 4.1.2 of this Handbook.

84 Bell v. Cohran, 244 Ga. App. 510, 510, 536 S.E.2d 187, 187 (2000); Hardrick v. Morgan, 240Ga. App. 155, 155-56, 522 S.E.2d 742, 743 (1999); MMT Enters., Inc. v. Cullars, 218 Ga. App.559, 561, 462 S.E.2d 771, 773 (1995) (holding that a motion to set aside does not extend thetime for filing an appeal).

85 Threatt v. Forsyth County , 250 Ga. App. 838, 844, 552 S.E.2d 123, 128 (2001), cert. denied(Apr. 15, 2002).

86 O.C.G.A. § 5-6-38(a). See also § 4.1.4 of this Handbook.


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§ 2.5.2 Procedure for Appeal by Application

§ 2.5.2.1 Appeal of Final Order by Application

If the appeal is of a final judgment enumerated in O.C.G.A. § 5-6-35(a), theappellant must file with the appellate court an application for leave to appeal.87

The application required is a petition enumerating the errors to be urged onappeal, stating why the appellate court has jurisdiction, and specifying the orderor judgment being appealed.88 The application must include as exhibits copies ofthe order being appealed, the petition or motion which led directly to the order,and any responses to the petition or motion.89 The application may also includecopies of other parts of the record as the applicant deems appropriate. Court ofAppeals Rule 31 requires that all material submitted be tabbed and indexed. Theappellant has the burden of showing error from the material submitted andpresenting the necessary portions of the record to the court. The application maybe denied if the material submitted is not sufficient for review by the court.90

Accordingly, attorneys should give careful consideration to what portions of therecord they choose to submit and should omit portions of the record only afterconsidered deliberation.

The application must be filed with the clerk of the appellate court within30 days of the entry of the order appealed from.91 A party opposing theapplication must file a response within 10 days from the date the application isfiled.92 The appellate court must then issue an order granting or denying theappeal within 30 days of its filing.93 If the court grants the application, theapplicant must file a notice of appeal within 10 days of the issuance of the ordergranting the application.94 The procedure followed after the filing of the notice isthen the same as in other appeals.95

87 Adivari v. Sears, Roebuck & Co., 221 Ga. App. 279, 280, 471 S.E.2d 59, 60 (1996).

88 O.C.G.A. § 5-6-35(b).

89 O.C.G.A. § 5-6-35(c).

90 Harper v. Harper, 259 Ga. 246, 246-47, 378 S.E.2d 673, 674 (1989).

91 O.C.G.A. § 5-6-35(d).

92 O.C.G.A. § 5-6-35(e).

93 O.C.G.A. § 5-6-35(f).

94 O.C.G.A. § 5-6-35(g).

95 Id.


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A failure to follow the discretionary appeal procedure will lead to adismissal of the appeal.96 However, the filing of a notice of appeal after the entryof judgment but before the granting of the application is not a failure to filetimely and is not grounds for dismissal.97

§ 2.5.2.2 Appeal of Non-Final Order by Application

A party may appeal, on an interlocutory basis, an otherwise non-appealable order under O.C.G.A. § 5-6-34(b). In order to file such aninterlocutory appeal, the appellant must obtain a certificate from the trial judgecertifying that the order, decision, or judgment is of such importance to the casethat immediate review should be permitted.98 This certificate must be obtainedwithin 10 days of the entry of the order. If the trial court issues the certificate, theparty must then file an application for interlocutory review with the appellatecourt within 10 days of the trial court�s issuance of the certificate. Because theappeal is discretionary, the application should articulate the issues involved andthe need for interlocutory review. The application may also include a copy ofthose portions of the record necessary for the court to understand and evaluatethe request. These copies need not be certified.99

The opposing party must be served with a copy of the application on orbefore the date it is filed. The opposing party has 10 days from the date theapplication is filed to tender a response. The response may include those parts ofthe record the opposing party deems necessary to the evaluation of theapplication.

The appellate court is required either to grant or deny the applicationwithin 30 days. If the application is granted, the moving party must then file anotice of appeal within 10 days of the order granting the application, as requiredby O.C.G.A. § 5-6-37. The failure to file a notice of appeal will deprive theappellant of the right to prosecute the appeal even if the application is granted.Once the notice of appeal is filed, it serves as a supersedeas as provided in

96 Parker v. Bellamy-Lunda-Dawson, 190 Ga. App. 257, 258, 378 S.E.2d 502, 503 (1989); AAA

Van Servs., Inc. v. Willis, 182 Ga. App. 46, 46, 354 S.E.2d 631, 632 (1987).

97 Randall v. Randall, 274 Ga. 107, 108, 549 S.E.2d 384, 386 (2001); Wannamaker v. Carr, 257 Ga.634, 635, 362 S.E.2d 53, 54 (1987).

98 The certificate need not contain any �magic words,� but substantial compliance with thestatute is required. Clayton v. Edwards, 225 Ga. App. 141, 144, 483 S.E.2d 111, 114 (1997).

99 O.C.G.A. § 5-6-34(b).


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O.C.G.A. § 5-6-46, and the interlocutory appeal proceeds in the same manner asan appeal from a final judgment.100

Before 1995, there was no provision for granting an extension of time tofile discretionary and interlocutory applications with the appellate courts. Trialcourts still may not grant an extension,101 and the rules of the Court of Appealsprohibit such a request. 102 Current Supreme Court Rule 12, however, allows forthe possibility of the grant of an extension of time for filing applications,although an extension will be given only in unusual circumstances and onlywhen the request is filed before the expiration of the original period for filing.

§ 2.6 Nature of Review on Appeal

§ 2.6.1 Appeals Generally Limited to Corrections of Errors of Law

Georgia�s appellate courts do not sit as fact-finding bodies and generallyreview appeals for the correction of errors of law.103 Nevertheless, the appellatecourts will review a trial court�s factual determinations to determine if there is�any evidence� to support them.104 Moreover, although the excessiveness orinadequacy of a damages award is a factual question,105 the appellate court willreview the award in light of the evidence to determine whether it is �soflagrantly excessive or inadequate, in light of the evidence, as to create a clearimplication of bias, prejudice, or gross mistake . . . .�106

§ 2.6.2 Issue Must Have Been Raised in and Ruled Uponby Trial Court

The appellate courts review only those issues presented to and ruled uponby the trial court and properly presented to the appellate court. If an issue,including a constitutional issue,107 is not presented to or ruled upon by the trial

100 Id.

101 Rosenstein v. Jenkins, 166 Ga. App. 385, 304 S.E.2d 740 (1983).

102 Ga. Ct. App. R. 16.

103 Young v. Scott, 212 Ga. App. 572, 575, 442 S.E.2d 768, 770-71 (1994).

104 Cannon v. Wesley Plantation Apartments, 256 Ga. App. 244, 247, 568 S.E.2d 137, 139 (2002).

105 Moody v. Dykes, 269 Ga. 217, 221-22, 496 S.E.2d 907, 912 (1998).

106 Kohl v. Tirado, 256 Ga. App. 681, 682, 569 S.E.2d 576, 578 (2002), cert. denied (Sept. 30,2002).

107 Bain v. State, No. A02A1064, 2002 WL 31553851 (Ga. Ct. App. Nov. 19, 2002); Kohl v.Manning, 223 Ga. 755, 158 S.E.2d 375 (1967).


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court, it typically is waived.108 However, the appellate court nevertheless mayallow the appeal when manifest injustice would result in the absence of appellatereview. The error alleged must appear in the appellate record109 and must bespecified in the enumerations of error.110 Similarly, if an issue raised in the trialcourt is not raised on appeal, it is waived. If the error is not set forth in theenumerations of error, the appellate court will not hear or decide the issue, eventhough it may be raised in oral argument.111 An enumeration of error may notbe enlarged by brief on appeal to cover issues not contained in the originalenumeration.112

§ 2.6.3 Scope of Review of Jury Verdicts

The appellate courts may set aside a jury verdict if the trial courtcommitted legal error, such as improperly excluding or allowing evidence, orincorrectly charging the jury.113 Absent legal error, the appellate courts will notdisturb a jury verdict supported by �some evidence.�114 However, when a juryreturns a general verdict without specifying under what legal theory the awardis made, the verdict will be reversed if any of the legal theories submitted to it isheld to be improper.115

The appellate courts will not disturb the trial court�s findings of fact (withor without the assistance of a jury) if they are supported by �any evidence,�unless they are premised upon erroneous conclusions of law.116 If the trialcourt�s decision is correct for any reason, it will not be set aside.117 Additionally,

108 Dudley v. State, 197 Ga. App. 877, 877-78, 399 S.E.2d 747, 748 (1990); MacDonald v.

MacDonald, 156 Ga. App. 565, 566, 275 S.E.2d 142, 144 (1980).

109 Moss v. State, 194 Ga. App. 181, 181, 390 S.E.2d 268, 269 (1990); Moye v. State , 127 Ga. App.338, 341, 193 S.E.2d 562, 564 (1972).

110 O.C.G.A. § 5-6-40.

111 Sanders v. Hughes, 183 Ga. App. 601, 603, 359 S.E.2d 396, 398 (1987).

112 Ailion v. Wade, 190 Ga. App. 151, 378 S.E.2d 507, 509 (1989).

113 Upchurch v. Upchurch, 76 Ga. App. 215, 216, 45 S.E.2d 855, 856 (1947).

114 Irwin County v. Owens, 256 Ga. App. 359, 363, 568 S.E.2d 578, 582 (2002); Durdin v. Taylor,159 Ga. App. 675, 676, 285 S.E.2d 51, 52 (1981).

115 Department of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 426 S.E.2d 905, 909(1992).

116 Guye v. Home Indem. Co., 241 Ga. 213, 216, 244 S.E.2d 864, 866 (1978); Page v. Braddy, 255Ga. App. 124, 126, 564 S.E.2d 538, 541 (2002); Barber v. Perdue, 194 Ga. App. 287, 289, 390S.E.2d 234, 236 (1989).

117 Glynn County v. Palmatary, 247 Ga. 570, 574, 277 S.E.2d 665 (1981); Gwinnett Place Assocs.,L.P. v. Pharr Eng�g, Inc., 215 Ga. App. 53, 55, 449 S.E.2d 889, 892 (1994).


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an appellate court will not entertain moot cases or rule upon hypotheticalissues.118

§ 2.7 Dismissal of Appeals

Though it is the policy of the Georgia appellate courts to reach the meritsof appeals and avoid dismissals,119 there are several instances in which an appealmust or may be dismissed.

§ 2.7.1 Statutory Grounds for Dismissal

There are three statutory grounds that require the dismissal of an appeal:(1) the failure to file a timely notice of appeal; (2) the filing of a notice of appealfrom a decision or judgment which is not appealable; or (3) an appeal involvingquestions that have become moot.120 In any of these instances, the appeal will bedismissed.121

§ 2.7.2 Failure to File a Timely Notice of Appeal

The timely and proper filing of a notice of appeal is a jurisdictionalcondition precedent to the exercise of jurisdiction by either appellate court.122 Ifthe notice is not properly and timely filed, the appeal must be dismissed.123

§ 2.7.3 Appealability of Non-Final Orders or Judgments;Issues That Are Moot

An appeal will be dismissed if it is from a non-appealable, non-final orderor judgment.124 The courts will not entertain issues that are moot, and an appeal

118 Rogers v. Composite State Bd. of Med. Exam�rs, 245 Ga. 364, 364-65, 265 S.E.2d 1, 2 (1980);

Great N. Nekoosa Corp. v. Board of Tax Assessors, 244 Ga. 624, 627-28, 261 S.E.2d 346 (1979).

119 Bates v. Snelling, 172 Ga. App. 448, 448, 323 S.E.2d 179, 180 (1984); Corbin v. First Nat�lBank, 151 Ga. App. 33, 34, 258 S.E.2d 697, 698 (1979).

120 O.C.G.A. § 5-6-48(b).

121 Pimper v. State ex rel. Simpson, 274 Ga. 624, 555 S.E.2d 459 (2001), cert. denied, 122 S.Ct. 1962(2002); Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53, 54-55, 226 S.E.2d 737, 738-39(1976); Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117, 446 S.E.2d 794 (1994).

122 Caldwell v. Elbert County Sch. Dist., 247 Ga. 359, 360, 276 S.E.2d 43, 44 (1981); Hester v.State, 242 Ga. 173, 175, 249 S.E.2d 547, 549 (1978); Hammond v. Unified Gov�t of Athens-Clarke County, 240 Ga. App. 432, 432, 525 S.E.2d 709, 710 (1999).

123 Rowland v. State, 264 Ga. 872, 875, 452 S.E.2d 756, 760 (1995); Hammond, 240 Ga. App. at432, 525 S.E.2d at 710. For more detailed discussion of the deadline and extensions forfiling a notice of appeal, please see Chapter 4 of this Handbook.

124 In re G.C.S., 186 Ga. App. 291, 291-92, 367 S.E.2d 103, 104 (1988); D.C.E. v. State, 130 Ga.App. 724, 725, 204 S.E.2d 481, 482 (1974).


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may be dismissed on this ground as well.125 The courts have had some difficultyarticulating exactly when a case is moot, and when it should or should not bedismissed, but a moot case generally is one that seeks to determine an abstractquestion that does not arise upon existing facts or rights.126 Although the trialcourt is not specifically empowered under O.C.G.A. § 5-6-48 to dismiss an appealfor mootness, the Court of Appeals will affirm the trial court�s dismissal of anotice of appeal when the issues presented are or have become moot.127

§ 2.7.4 Dismissals for Delays in Transmitting the Transcript or Record

Most motions to dismiss appeals are filed with the appellate court. UnderO.C.G.A. § 5-6-48(c), however, the trial court may dismiss an appeal if there is aninexcusable delay in the preparation and filing of the transcript of evidence andproceedings or in the transmission of the record to the appellate court.128

§ 2.7.5 Non-Statutory Grounds for Dismissal

In addition to the statutory grounds for dismissal of an appeal, theappellate courts will dismiss an appeal if the appellant becomes a fugitive fromjustice after filing the notice of appeal,129 or if reversal of the judgment would notbenefit the appellant.130 In addition, an appellant�s failure to comply with anorder of the appellate court directing the party to file a brief and enumeration oferrors may result in the dismissal of the appeal.131

125 Pimper, 274 Ga. at 626-27, 555 S.E.2d at 462; Kappers, 214 Ga. App. at 117-18, 446 S.E.2d at

795-56; In re I. B., 219 Ga. App. 268, 276-77, 464 S.E.2d 865, 871-72 (1995).

126 Chastain v. Baker, 255 Ga. 432, 433, 339 S.E.2d 241, 242 (1986).

127 Grant v. Gaines, 265 Ga. 159, 159, 454 S.E.2d 481, 481-82 (1995); Attwell v. Lane Co., 182 Ga.App. 813, 814, 357 S.E.2d 142, 143 (1987).

128 For a more detailed discussion of this issue, please see § 4.2.6 of this Handbook.

129 Russell v. State, 152 Ga. App. 663, 663, 263 S.E.2d 552, 552 (1979).

130 McGalliard v. Jones, 133 Ga. App. 44, 44, 209 S.E.2d 664, 664-65 (1974).

131 Ga. Ct. App. R. 26; Crane v. State, 249 Ga. 501, 501-02, 292 S.E.2d 67, 67-8 (1982); Reeder v.General Motors Acceptance Corp., 235 Ga. App. 617, 618-19, 510 S.E.2d 337, 339-40 (1998);Taylor v. Columbia County Planning Comm�n, 232 Ga. 155, 157-58, 205 S.E.2d 287, 289-90(1974).

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3 POST-TRIAL MOTIONSAS PART OF THE APPEALS PROCESSS. Gardner Culpepper*

§ 3.1 Introduction

This Chapter will discuss several post-trial motions that litigants may fileafter the entry of judgment by a Georgia superior or state court, includingmotions: (i) for new trial; (ii) for judgment notwithstanding the verdict(�JNOV�); (iii) to set aside the judgment; (iv) to amend or modify a judgment;(v) for a supersedeas bond; and (vi) for attorney�s fees and costs.

§ 3.1.1 Post-Judgment Motions for New Trial or JNOV are notOrdinarily a Prerequisite to Appeal

The filing of a motion for new trial or for JNOV typically is not aprerequisite to appeal.1 A party may elect to file either type of motion or simplyto appeal directly. There is an exception, however, that applies when

* Mr. Culpepper is a partner with the law firm of Alston & Bird LLP. His practice is primarily

devoted to commercial litigation. He received an A.B. from Dartmouth College in 1992 and aJ.D. from Vanderbilt University in 1995.

1 O.C.G.A. § 5-6-36(a) & (b); Brissette v. Munday, 115 Ga. App. 131, 134, 153 S.E.2d 606, 608(1967) (generally speaking, an unsuccessful litigant �may elect to attack the judgment in thecourt below or to appeal directly�); Dempsey v. Ellington, 125 Ga. App. 707, 708, 188 S.E.2d908, 909 (1972) (same).


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there is �newly discovered evidence� (or �other like instances�2) that isdeveloped or discovered subsequent to the verdict or judgment and otherwisedoes not appear in the record.3 In such instances, a motion for new trial must befiled in the trial court to preserve the issue on appeal. Further, because a claimfor ineffective assistance of counsel must be raised at the earliest �practicablemoment,� if an appellant files a motion for new trial, failure to raise the claim forineffective assistance could preclude appellate consideration.4

Motions for new trial or for JNOV do not, however, have the same impactupon an appellant�s obligation to enumerate errors on appeal. An appellant firstfiling a motion for new trial may appeal on points of error different than thoseenumerated in the motion for new trial, and if the motion for new trial is denied,need not enumerate the denial of the motion for new trial as error.5 On the otherhand, there is precedent stating that a party who moves for directed verdict, andthen later for JNOV, has used the JNOV as a means for reviewing the adversedirected verdict ruling at the trial level. Thus, if the JNOV is denied in thiscircumstance, then the movant must enumerate the denial �as error on appeal orbecome bound by the ruling and judgment unexcepted to, which becomes thelaw of the case.�6

§ 3.1.2 Tolling of Time for Appeal

The filing of a motion for new trial, motion in arrest of judgment, ormotion for JNOV tolls the time for filing a notice of appeal.7 The 30-day timeperiod for filing a notice of appeal8 begins to run anew from the date of the 2 The author is aware of no Georgia authority concerning �other like instances.� Arguably,

however, such instances would arise when the validity of the prior adjudication could beaffected significantly by facts outside the record.

3 O.C.G.A. § 5-6-36(a).

4 McGhee v. State, 237 Ga. App. 541, 544-545, 515 S.E.2d 656, 659-660 (1999).

5 O.C.G.A. § 5-6-36; Hulsey v. Sears, Roebuck & Co., 138 Ga. App. 523, 525, 226 S.E.2d 791, 792(1976); State Hwy. Dep�t v. Hilliard, 114 Ga. App. 328, 329, 151 S.E.2d 491, 493 (1966).

6 Wood v. Mobley, 114 Ga. App. 170, 171, 150 S.E.2d 358, 360 (1966); but see O.C.G.A. § 9-11-60(h) (abolishing �law of the case� doctrine).

7 O.C.G.A. § 5-6-38(a); see also Donnelly v. Stynchcombe, 246 Ga. 118, 269 S.E.2d 10, 11 (1980); butsee City of Lawrenceville v. Davis, 233 Ga. App. 1, 4, 5, 502 S.E.2d 794, 797-798 (1998). (holdingthat certain municipal courts are not �courts of record� capable of granting new trials and, assuch, a motion for new trial filed with such a municipal court does not toll the time forappeal).

8 When either the state or the defendant in a criminal case involving a capital offense for whichthe death penalty is sought wishes to appeal any judgment, ruling, or order in the pretrialproceedings of such a case, such an appeal must be brought as provided in O.C.G.A. § 17-10-35.1. See O.C.G.A. § 5-6-38(c).

CHAPTER 3: POST-TRIAL MOTIONS

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court�s order granting, overruling, or otherwise finally disposing of the motion.9Note, however, that a motion for new trial that is subsequently withdrawn doesnot necessarily toll the time for appeal because �[a] party�s voluntary withdrawalof its motion for new trial, standing alone, is not the statutorily-required courtorder finally disposing of the motion for new trial.�10

A motion to amend findings of fact under O.C.G.A. § 9-11-52(c) does nottoll the time for filing a notice of appeal unless it is joined with a motion for newtrial.11 Likewise, neither a motion for reconsideration nor a motion to set aside,vacate, modify, or amend a prior order or judgment tolls the time for filing.12

§ 3.1.3 To Warrant Post-Judgment Relief, Any Error Must be Harmful

The appellate courts have held that the harmful error sufficient to entitle alitigant to post-trial relief must be �legal error,� consisting of both error andinjury. In the absence of either �constituent element,� the grant of a new trial orother post-judgment relief is unwarranted.13

The Georgia Code articulates this concept by focusing on whether the�substantial rights� of the parties have been affected, explaining that

no error in either the admission or the exclusion ofevidence and no error or defect in any ruling or

9 O.C.G.A. § 5-6-38(a); see also Denson v. Kloack, 177 Ga. App. 483, 484, 339 S.E.2d 761, 762 (1986)

(holding that when co-defendants were found liable as joint tortfeasors, a notice of appealwas timely when filed within 30 days after one co-defendant�s motion for new trial wasdenied even though the other codefendant appellant did not join in the motion).

10 Heard v. State, 274 Ga. 196, 197, 552 S.E.2d 818, 821 (2001); but see Ailion v. Wade, 190 Ga. App.151, 153, 378 S.E.2d 507, 508 (1989) (stating that withdrawal of motion for new trial bysubmitting consent order, which the court signed and entered, creates the court ordernecessary to toll the time for appeal).

11 American Flat Glass Distribs., Inc. v. Michael, 260 Ga. 312, 312, 392 S.E.2d 855, 855 (1990); see alsoO.C.G.A. § 9-11-52(c).

12 See, e.g., Adamson v. Adamson, 226 Ga. 719, 177 S.E.2d 241 (1970); Blackwell v. Sutton, 261 Ga.284, 404 S.E.2d 114 (1991); In re Interest of A.C.J., 211 Ga. App. 865, 866, 440 S.E.2d 751, 752(1994); Mathis v. Hegwood, 169 Ga. App. 547, 548, 314 S.E.2d 122, 123 (1984), overruled on othergrounds, MMT Enters, Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995); Robinson v.Carswell, 147 Ga. App. 521, 249 S.E.2d 331 (1978); MMT Enters., Inc. v. Cullars, 218 Ga. App.559, 560-561, 462 S.E.2d 771, 773 (1995); Anton v. Garvey, 160 Ga. App. 157, 286 S.E.2d 493(1981).

13 Norris v. Sikes, 102 Ga. App. 609, 117 S.E.2d 214 (1960).


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order or in anything done or omitted by the court orby any of the parties is ground for granting a newtrial or for setting aside a verdict or for vacating,modifying, or otherwise disturbing a judgment ororder, unless refusal to take such action appears to thecourt inconsistent with substantial justice. The courtat every stage of the proceeding must disregard anyerror or defect in the proceeding which does not affectthe substantial rights of the parties.14

Without error of the caliber described above, a motion for new trial willnot be granted.

§ 3.1.4 Filing of Post-Trial Motions as Supersedeas to Enforcement ofthe Judgment

The filing of a motion for new trial or motion for judgmentnotwithstanding the verdict acts as a supersedeas unless otherwise ordered bythe court.15 Upon motion, the court may condition the supersedeas upon thegiving of a bond with good security in such amount as the court may order.16

§ 3.1.5 Jurisdiction of Trial Court When Both a Motion for New Trialand Notice of Appeal are Filed

Prior to the decision of the Georgia Supreme Court in Housing Authority ofAtlanta v. Geeter,17 the prevailing party in the trial court could prevent the losingparty from filing a motion for new trial by appealing an adverse decision on anancillary claim (or, in the case of a successful defendant, a counterclaim), such asa claim for attorney�s fees or bad faith insurance damages, thereby �divesting thetrial court of jurisdiction.� The Geeter decision put an end to this tactic, holdingthat a timely notice of appeal does not prevent the trial court from ruling on amotion for new trial.

Even though a notice of appeal may divest the trial court ofjurisdiction, we conclude that such divestiture does not becomeeffective during the period in which a motion for new trial may befiled. In the event a motion for new trial is timely filed as providedin O.C.G.A. § 5-5-40, the effectiveness of the divestiture

14 O.C.G.A. § 9-11-61.

15 O.C.G.A. 9-11-62(b); see also discussion infra at Section 3.5 and Chapter 5.

16 Id.

17 252 Ga. 196, 312 S.E.2d 309 (1984).


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of jurisdiction is then delayed until the motion for new trial is ruledupon and a notice of appeal to the ruling has been filed or theperiod for appealing the ruling has expired.18

The appellate courts have further held that a trial court has jurisdiction tohear and decide a timely-filed motion f o r new trial even if filed by the sameparty that filed the notice of appeal.19 A d d i ti o na l l y , th e tr i al co ur t may , on it sow n mo ti o n, gr an t a ne w tr i a l �w i th i n th e ti m e in wh i c h a moti on f or ne w tr i al ma y be fi l e d e ve n tho ug h a not i ce of app e a l has be e n f i l e d . �20

I m po r t ant l y , the Ge et er co ur t al s o he l d th at �[ t] h e pr ope r me a ns of pl ac i n g thi s i ss ue be f o r e th i s co ur t w ou l d be to f i l e a mot i on f or a st ay of the d i r e ct ap pe al wi th th e Cou r t of A pp e al s, and , i f the stay w e r e d e n i e d , the n to pe ti ti on fo r a w r i t of ce r ti or ar i . � 21 Re l y i n g on thi s la ng u ag e , so me ap pe l l a te ca se s hav e he l d th at w h e n a ti me l y no ti ce of ap pe al an d ti m e l y mot i o n f or ne w tr i a l ar e b oth f i l e d , i f a moti on to sta y i s not f i l e d in th e Co ur t of A pp e a l s, the n th e Co ur t of A pp e a l s ma y mov e for w a r d an d de c i d e the appe al . I n such a ca se , an act ual r ul i ng b y the ap pe l l ate cour t wi l l di ve s t th e tr i al co ur t of �j u r i sd i ct i o nto g r a nt th e mot i o n f or ne w tr i al . � 22

§ 3.2 Methods for Attacking Civil Judgments

In civil matters, O.C.G.A. § 9-11-60 prescribes the �exclusive means� forattacking a judgment,23 providing for both �collateral� and �direct� attacks.24 A�collateral attack,� which may be made only as to �a judgment void on its face,�need not be made in the court where the judgment was rendered, but

18 Id. at 197, 312 S.E.2d at 311 (citations omitted).

19 O�Kelly v. State, 196 Ga. App. 860, 397 S.E.2d 197, 198 (1990); Griffin v. Loper, 209 Ga. App. 504,505, 433 S.E.2d 653, 654 (1993). But, if after judgment the losing party files an untimely motionfor new trial and either party files a timely notice of appeal, the trial court is divested ofjurisdiction to entertain the motion for a new trial. See Andrews v . Rentz, 266 Ga. 782, 783, 470S.E.2d 669 (1996).

20 Housing Authority, 252 Ga. at 197, 312 S.E.2d at 311.

21 Id.

22 See, e.g., Sharif v . Tidwell Homes, I n c . , 252 Ga. 205, 206, 312 S.E.2d 114, 115-116 (1984); Rich v . Georgia Farm Bureau Mut. Ins. Co., 176 Ga. App. 663, 337 S.E.2d 370, 371 (1985).

23 But see Section 3.7, infra, regarding the inherent powers of the trial court.

24 Henry v. Adair Realty Co., 141 Ga. App. 182, 184, 233 S.E.2d 39, 40 (1977); Henry v. Polar RockDev. Corp., 143 Ga. App. 189, 190, 237 S.E.2d 667, 668 (1977).


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instead may be made �in any court by any person.�25 A direct attack, however,may be made only by a motion for a new trial or motion to set aside thejudgment, either of which must be filed in the court that rendered the judgmentunder attack.26

§ 3.3 New Trial

Motions for new trial are governed by O . C . G . A § 9-11-60(b), (c), and (f),and O . C . G . A . § 5-5-1 et seq. Forms for both civil and criminal new trial motionsare set forth in O . C . G . A . § 5-5-42.

§ 3.3.1 General Nature

The Georgia Code grants the superior courts, state courts, juvenile courts,and the City Court of Atlanta the power to correct their own errors and grantnew trials in such manner and under such rules as they may establish accordingto the law and the usages and customs of courts.27 Probate courts, in turn, havethe power to correct errors and grant new trials in civil cases provided for byO.C.G.A. § 15-9-6 under such rules and procedures as apply to the superiorcourts.28

A motion for new trial must be based upon �some intrinsic defect whichdoes not appear on the face of the record or pleadings. �29 Further, a trial courtmay, in some circumstances, grant a motion for new trial on a limited issue or asto only some of the parties.30

§ 3.3.2 Grounds for New Trial

A trial court may grant a new trial on the general grounds that (i) the�verdict of a jury is found contrary to evidence and the principles of justice andequity,� or (ii) the �verdict may be decidedly and strongly against the weight

25 O.C.G.A. § 9-11-60(a).

26 O.C.G.A. § 9-11-60(b), (c) & (d).

27 O.C.G.A. § 5-5-1(a).

28 O.C.G.A. § 5-5-1(b).

29 O.C.G.A. § 9-11-60(b) & (c).

30 See, e.g., Petty v. Barrett, 187 Ga. App. 83, 369 S.E.2d 294 (1988); Anthony v. Anthony, 143 Ga.App. 691, 694-695, 240 S.E.2d 167, 170 (1977) (holding that a trial court, faced with motion fornew trial, �can review a verdict severably rather than as a whole . . . if it can logicallyseparate issues rightly decided from those wrongly decided�) (citations omitted); Kimbell v.DuBose, 139 Ga. App. 224, 228, 228 S.E.2d 205, 207-208 (1976) (explaining when, in joint andseveral liability context, a new trial is appropriate with respect to some, but not all,defendants).


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of the evidence.�31 Such a general motion for new trial can be used to challengenot only a finding of guilt or liability, but also, pursuant to O.C.G.A. § 51-12-12(and otherwise), a finding of inadequate32 or excessive damage.33

Granting of a motion for ne w tr i al base d on the gener al gr ounds is lef t tothe sol e discre ti on of the tr ial jud g e. 34 T he fir st gr ant of a new tr ial based upong ener al gr ounds wil l not be distur be d by an appe l late cour t unl ess the appe ll antshows that: (i ) the tr ial jud ge ab used hi s di scr eti on in granti ng the ne w tri al ; and ( ii ) the law and facts de mand the ve r di ct notw ithstandi ng the jud gme nt of the pre si di ng jud ge .35 I f the grant of a ne w tri al in a ci vi l case is base d on the d iscr eti on of the judg e, the jud ge must set forth by wr i tten or de r the re ason(s) for the exe r ci se of his di scr etion, thoug h the ord er ne ed not to conf or m to the provi si ons of O.C.G. A. § 9 - 1 1 - 5 2 . 36

A motion for new trial also may be granted on more particularized specialgrounds, some of which include:

(1) A juror�s failure to answer, or to answer honestly, a question posedin voir dire, but only if the movant can show that a correct responsewould have provided a valid basis to challenge the juror for cause;37

(2) Improper and prejudicial arguments by counsel, such as argumentsusing facts not in evidence;38

31 See O.C.G.A. §§ 5-5-20, 5-5-21.

32 See, e.g., Brooks v. Williams, 127 Ga. App. 311, 313-314, 193 S.E.2d 231, 233 (1972). The rule inGeorgia used to be that �[w]hen the rule concerning comparative negligence is involved in acase, the verdict of the jury cannot be set aside on the ground that the amount of the damagesawarded is inadequate.� Beal v. Braunecker, 185 Ga. App. 429, 432, 364 S.E.2d 308, 312 (1987)(citations omitted). This holding was overruled by Robinson v. Star Gas of Hawkinsville, Inc.,269 Ga. 102, 498 S.E.2d 524 (1998). �Robinson makes it clear that a jury verdict in acomparative negligence case may be reviewed by the trial court and that a new trial may beawarded under O.C.G.A. § 51-12-12(b)� if the jury award of damages is sufficientlyinadequate or excessive. Dawson v. Fulton DeKalb Hosp. Auth., 236 Ga. App. 96, 97, 511 S.E.2d199, 200 (1999).

33 See, e.g., Baxter v. Weiner, 246 Ga. 28, 29, 268 S.E.2d 619, 620 (1980).

34 Kitchin v. Kitchin, 219 Ga. 417, 419, 133 S.E.2d 880, 882 (1963); Blanchard v. Westview Cemetery,Inc., 133 Ga. App. 262, 263-264, 211 S.E.2d 135, 137-138 (1974), aff�d and remanded, 234 Ga. 540,216 S.E.2d 776 (1975).

35 O.C.G.A. § 5-5-50; see also Thomas v. Wiley, 240 Ga. App. 135, 137, 522 S.E.2d 714, 716 (1999).

36 O.C.G.A. § 5-5-51.

37 Gainesville Radiology Group v. Hummel, 263 Ga. 91, 94, 428 S.E.2d 786, 789 (1993).

38 Locklear v. Morgan, 129 Ga. App. 763, 767, 201 S.E.2d 163, 167 (1973).


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(3) The trial judge�s expression of an opinion to the jury, whether duringthe charge or the progress of the case, as to what has or has not beenproved;39

(4) Error of the court in failing to give a proper jury charge, or in givingan erroneous charge;40

(5) Instances where �any material evidence may be illegally admitted toor illegally withheld from the jury over the objection of themovant;�41

(6) Improper submission of an issue to the jury;42

( 7) D iscove r y of new , compe te nt, admi ssib l e and mater i al evi d ence if cer tain cond i ti ons are me t. 43 H ow eve r, it is impor tant to note that thi sg round is not f avor e d; 44

( 8) I nstance s whe re ver d ict and jud g me nt ar e based on te stimony of aw itne ss who is subse quently f ound gui lty of pe rj ury ; 45

( 9) A suf fi cie ntl y cl ose fami ly rel ati onshi p be twe en a juror and theprose cutor w hich is not discove r ed unti l af ter tr ial; 46 and

39 O.C.G.A. § 9-10-7.

40 O.C.G.A. § 5-5-24(a); Edwards v. McKenzie, 114 Ga. App. 395, 399, 151 S.E.2d 469, 472 (1966).

41 O.C.G.A. § 5-5-22.

42 Denny v. D.J.D., Inc., 186 Ga. App. 727, 729-730, 368 S.E.2d 329, 330-331 (1988).

43 O.C.G.A. § 5-5-23. The six bases for the grant of a new trial on newly discovered evidenceare: (1) the evidence came to the knowledge of the moving party since trial; (2) it was not dueto the lack of due diligence that the moving party did not acquire the evidence sooner; (3) theevidence is so material that it would probably produce a different verdict; (4) the evidence isnot cumulative only; (5) the affidavit of the witness should be produced or the absenceaccounted for; and (6) the effect of the evidence will not be solely to impeach the credibility ofa witness. Hegedus v. Hegedus, 255 Ga. 44, 45-46, 335 S.E.2d 284, 285 (1985); Collins v. Kiah, 218Ga. App. 484, 462 S.E.2d 158 (1995).

44 Cantrell v. Red Wing Rollerway, Inc., 184 Ga. App. 506, 507, 361 S.E.2d 720, 722 (1987).

45 Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773, 773-775, 175 S.E.2d 65, 65-66 (1970).

46 Tatum v. State, 206 Ga. 171, 176-177, 56 S.E.2d 518, 522 ( 1949).


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( 10) L ack of notice of tri al whe re lack of notice doe s not appe ar on face ofr ecor d but i s d evel ope d by the evi de nce .47

Whe n the grant of a ne w tri al is base d on special ground s invol vi ng a que stion ofl aw , the gene ral rul e that the fir st gr ant of a new tri al wi l l not be di sturb ed doesnot appl y. 48 I nste ad, the fi rst grant of a ne w tri al on spe cial gr ounds involvi ng que stions of law ge ner al l y is r evie wab le b y the Cour t of Appe als.49

§ 3.3.3 Insufficient Grounds for New Trial

A new tr ial wil l not b e granted base d upon:

( 1) I nsuf fi cie ncy of the ple adi ng s; 50

( 2) F ai lure of counse l and cl ie nt to appe ar at tri al wi thout expl anation for absence and without a showi ng of a me ri tori ous d e fe nse; 51

( 3) T he tri al court�s ex pr ession of an opinion as to unconte sted andund isputed f act;52

( 4) A n inad ver te nt state me nt, or me r e sli p of the j ud ge � s tongue that is notpre judi cial to the compl aining par ty ; 53

( 5) E rr oneous instr ucti on whe re sel f -i nd uce d by pl ainti ff �s wr itten r equestto char g e; 54 or

(6) Entry o f an invalid d ef ault judgment.55

47 Hill v. Bailey, 187 Ga. App. 413, 414-415, 370 S.E.2d 520, 522 (1988) (citing Newman v. Greer, 131

Ga. App. 128, 129-130, 205 S.E.2d 486, 487 (1974)).

48 Armstrong v. Vallion, 187 Ga. App. 380, 370 S.E.2d 215 (1988) (citing Cobb County KennestoneHosp. v. Crumbley, 179 Ga. App. 896, 348 S.E.2d 49 (1986)).

49 Smith v. Telecable of Columbus, Inc., 238 Ga. 559, 234 S.E.2d 24 (1977).

50 McJenkin Ins. & Realty Co. v. Burton, 92 Ga. App. 832, 90 S.E.2d 27 (1955).

51 Southern Ariz. Sch. for Boys, Inc. v. Morris, 123 Ga. App. 67, 68, 179 S.E.2d 548 (1970); see alsoScriver v. Lister, 235 Ga. App. 487, 489, 510 S.E. 2d 59, 61 (1999) (holding that counsel�s ownnegligence in failing to appear for trial was insufficient grounds for new trial).

52 Columbus Transp. Co. v. Curry, 104 Ga. App. 700, 705, 122 S.E.2d 584, 588 (1961).

53 City of Summerville v. Sellers, 94 Ga. App. 152, 159, 94 S.E.2d 69, 76 (1956).

54 Reese v. Lyons, 193 Ga. App. 548, 388 S.E.2d 369, 370 (1989).

55 Royal Lepage Real Estate Servs. v . Spalding Partners, Ltd., 192 Ga. App. 284, 285, 384 S.E.2d 424,426 (1989), vacated by, Spalding Partners, Ltd. v .Royal Lepage Real Estate Serv., 387 S.E.2d 877(Ga. 1990).


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§ 3.3.4 Procedure for Filing a Motion for New Trial

The Georgia Code requires that motions for new trial be filed with theclerk o f c o u r t . 56 Therefore, a litigant who presents only an oral motion for newtrial or merely sends it to a judge for signature, without more, risks thepossibility that the motion will be deemed untimely filed or that the court willrefuse to consider the motion.57 The trial c o u r t � s authority to grant a new trial isnot dependent, however, upon the filing o f a motion b y a party to the action.Instead, the court may grant a new trial on its own motion (except in criminalcases in which the defendant was acquitted), so long as this motion is timelymade.58

A motion for new trial must be filed within 30 days after the �entry ofjudgment on the verdict or entry of the judgment when the case is tried withouta jury.�59 A judgment is �entered� when it is signed by the judge and filed withthe clerk.60 The Georgia Code expressly states that no extension o f time may begranted for the filing o f a motion for new trial.61 A motion for new trial filedprior to the entry o f judgment is premature, invalid, and void.62 Similarly,unless it meets the requirement of an extraordinary motion for new trial (seediscussion infra at Section 3.3.5), a motion for new trial filed subsequent to the 30-day period after the entry of a judgment is a nullity and does not toll the time forfiling a notice of appeal.63

56 O.C.G.A. § 5-5-44.

57 See Smith v . Forrester, 145 Ga. App. 281, 283, 243 S.E.2d 575, 576-577 (1978); Motor Contract C o .v . Wigington, 116 Ga. App. 398, 400-401, 157 S.E.2d 321, 322-323 (1967).

58 See O.C.G.A. § 5-5-40(h).

59 O.C.G.A. § 5-5-40(a). An exception to this rule exists when the new trial motion i s joinedwith a motion under O.C.G.A. § 9-11-52(c) to amend or make additional findings. In suchcases, the time for filing i s shortened to 20 days after entry o f judgment.

60 O.C.G.A. § 9-11-58(b).

61 See O.C.G.A. §§ 5-6-39(b), 9-11-6(b).

62 Harrison v . Harrison, 229 Ga. 692, 693, 194 S.E.2d 87, 87-88 (1972); Jessup v . Newman, 191 Ga.App. 772, 772-773, 383 S.E.2d 136, 137-138 (1989).

63 Johnson v. State, 227 Ga. 219, 180 S.E.2d 94 (1971); Crolley v. Johnson, 185 Ga. App. 671, 672-673,365 S.E.2d 277, 278 (1988); see also Porter v. State, 271 Ga. 498, 521 S.E.2d 566, 567 (1999).


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As a matter of right, a properly filed motion for new trial may beamended to add additional grounds at any time up until the trial court�sdisposition of the motion.64 Further, it should be noted that an appellant is notlimited on appeal to the issues presented in the motion for new trial and mayargue any additional, properly raised enumeration of error.65

Although the utility of the requirement is questionable in light of thecommon practice by which motion hearings are scheduled by the court uponnotice to the parties, the Georgia Code still states that service of a motion for newtrial must be accompanied by a �rule nisi� setting forth the hearing date for themotion.66 Failure to do so potentially could provide the court with grounds todismiss the motion.67 Service of the motion and accompanying rule nisi aregoverned by O.C.G.A. §§ 5-5-44 and 5-6-32. Service by mail upon opposingcounsel68 should suffice.69 Although neither O.C.G.A. § 5-5-44 nor O.C.G.A. § 5-6-32(a) prescribes a specific time within which service must be perfected, serviceshould be made in ample time to allow the opposite party to prepare for thehearing.70

§ 3.3.5 Extraordinary Motions for New Trial

Motions for new trial made subsequent to the 30-day period after entry ofjudgment are referred to as �extraordinary motions.�71 Such motions are notfavored and are only granted when there is �some good reason� shown as to

64 O.C.G.A. § 5-5-40(b); see also Hegedus v. Hegedus, 255 Ga. 44, 45, 335 S.E.2d 284, 285 (1985)

(amendment to motion for new trial is not required to be filed within 30-day period afterentry of judgment during which initial motion for new trial must be filed; amendments tonew trial motion are allowed until trial court�s final disposition of the motion). Note,however, that a motion for a new trial may not be amended to add a motion for JNOV morethan 30 days after the entry of judgment. See Preferred Risk Ins. Co. v. Boykin, 174 Ga. App.269, 270, 329 S.E.2d 900, 903 (1985).

65 O.C.G.A. § 5-5-40(g); see also Smith v. State, 244 Ga. App. 165, 167, 543 S.E.2d 903, 907 (2000);Hulsey v. Sears, Roebuck & Co., 138 Ga. App. 523, 524-525, 226 S.E.2d 791, 792 (1976).

66 O.C.G.A. § 5-5-44.

67 Griggs v. State, 167 Ga. App. 581, 584-85, 307 S.E.2d 75, 78 (1983).

68 At least two decisions that predated the Appellate Practice Act of 1965 suggested thatpersonal service on a party might be required. See, e.g., Braziel v. Hunter, 103 Ga. App. 854,121 S.E.2d 39 (1961); Jones v. Fox, 49 Ga. App. 573, 176 S.E. 530, 531 (1934).

69 See O.C.G.A. § 5-6-32(a); Hughes v. Newell, 152 Ga. App. 618, 619, 263 S.E.2d 505, 506 (1979).

70 See Trammell v. Throgmorton, 210 Ga. 659, 661, 82 S.E.2d 140, 141 (1954); Peavy v. Peavy, 167 Ga.219, 220, 145 S.E. 55, 56 (1928).

71 O.C.G.A. § 5-5-41.


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why the motion was not made during the 30-day period.72 When the trial courtconsiders the ground(s) for an extraordinary motion for new trial, it acts as thetrier of fact and its ruling on the motion will not be disturbed absent a manifestabuse of discretion.73 Notice of the motion must be given to the opposing partyat least 20 days prior to the hearing.74

Normally, the �good reason� or �good cause� necessary to justify thefiling of an extraordinary motion for new trial consists of newly discoveredevidence.75 The Georgia Court of Appeals has noted that

�[o]n an e x tr ao r d i na r y mo ti on fo r a ne w tr i a l b as e d on ne w l y d i sc ov e r e d evi d e nc e , it is i nc umb e n t on th e mov ant to sat i s f y th e co ur t: ( 1) th at the ne w l y d i s cov e r e d ev i d e nc e has com e to hi s k n ow l e d g e si nc e th e tr i al ; ( 2) th at wa nt of d ue di l i g e nce w as no tth e re aso n tha t th e e vi d e n ce w as no t acq ui r e d soon e r ; (3) that the e v i d e n ce wa s so ma te r i a l tha t it wo ul d pr o b ab l y pr od uc e ad i f f e r e nt ve r d i c t; (4 ) tha t it is not cu mu l at i v e onl y ; (5 ) tha t th e af f i d a vi t of the w i tn e s s i s at tac he d to th e mot i on or its ab se nc e ac co un te d f or ; and (6 ) tha t th e ne w ev i d e n ce do e s no t ope r a te so l e l y to i mpe ac h the cr e d i t of a w i tn e s s. �76

Moreover, extraordinary motions for new trial cannot be based on matters(i) that were known to the movant and could have been articulated in a timely-filed motion, or (ii) that could have been discovered in time through the exerciseof proper diligence.77

T h e fi l i n g of an e x tr ao r d i na r y mo ti on fo r ne w tr i a l al so ma y b e pr e d i c ate d on gr ou nd s othe r th an th e d i s co ve r y of ne w evi d e nce , in cl u d i ng :

72 O.C.G.A. § 5-5-41(a); see also Patterson v. State, 228 Ga. 389, 390-391, 185 S.E.2d 762, 763 (1971);

Dyal v. State, 121 Ga. App. 50, 172 S.E.2d 326, 327 (1970).

73 See, e.g., Satterwhite v. State, 235 Ga. App. 687, 680, 509 S.E.2d 97, 100 (1998); Cade v. State, 107Ga. App. 30, 30-31, 129 S.E.2d 405, 406-407 (1962) (holding that a trial judge in passing on thegrounds of an extraordinary motion for new trial occupies the position of trier of fact, and inthe event of conflicting facts, his discretion in refusing the motion will not be disturbedunless manifestly abused).

74 O.C.G.A. § 5-5-41(a).

75 See, e.g., Martin v. Children�s Sesame, Inc., 188 Ga. App. 242, 372 S.E.2d 648, 649 (1988).

76 See, e.g., Smith v. D e p � t of Human Res., 226 Ga. App. 491, 493, 487 S.E.2d 94, 96 (1997).

77 See, e.g., Patterson, 228 Ga. at 390-391, 185 S.E.2d at 763; Barfield v. McEntyre, 136 Ga. App. 294,221 S.E.2d 58 (1975).


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( 1 ) E r r o r on th e par t of th e cl e r k � s of f i c e in in f o r mi ng mo va nt s of the co r r e c t f i l i ng d at e , wh e n th e mot i o n w ou l d ha ve be e n ti me l y if cl e r k � s r e p r e s e n ta ti o ns ha d be e n co r r e ct ; 78

( 2 ) F a i l ur e of a d e f e n d an t and hi s coun se l to ap pe a r at tr i a l b as e d up on r e pr e s e nt at i on of cou ns e l fo r pl a i n ti f f th at th e cas e wou l d be r e mo ve d f r o m the d ock e t to d i s cus s se t tl e m e nt ; 79

( 3 ) Co nv i c ti o n of a tr i al w i tn e s s on pe r j u r y char g e s ar i si ng fr omte st i m ony at tr i al ; 80 or

( 4 ) T h e di scov e r y tha t an al l e g e d mur d e r vi ct i m is al i ve af te r tr i al . 81

A s i s tr u e wi th a tim e l y f il e d moti on for ne w t r i a l , t he tr i al cour t ty pi c al l y i s r e q ui r e d to hol d a he ar i n g on an ex tr ao r d i na r y mo ti on fo r ne w tr i a l . 82 A n e x ce pt i on to thi s rul e ex i st s, how ever , whe n the ex tr aor di nary moti on ob vi ously f ai ls to show any me ri t. I n such ci r cumstance s, the motion may b e denie d w ithouta heari ng. 83

§ 3.3.6 Effect of a Motion for New Trial Upon the Time for Filing aNotice of Appeal

A s note d in Secti on 3. l above , a timel y-f il ed moti on for new tri al tol ls the time for appe al , and the 30-d ay pe ri od be gi ns ane w at such ti me as the moti on fornew tri al is over rul ed or dismi sse d. 84 H ow eve r, an improper ly fi le d motion for new tri al wi l l not pre ve nt the 30- day appeal per i od from expi ri ng . For example , since r uli ng s upon the pl eadi ng s are not sub je ct to r evi ew b y motion

78 Martin, 188 Ga. App. at 242-243, 372 S.E.2d at 649-650.

79 Union Life Ins. Co. v. Aaronson, 109 Ga. App. 384, 384-385, 136 S.E.2d 142, 142-143 (1964).

80 Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773, 175 S.E.2d 65, 65-66 (1970).

81 Cox v. Hillyer, 65 Ga. 57, 1880 WL 3544 (1880).

82 D i c k v . S t a t e , 248 Ga. 898, 899, 287 S.E.2d 11, 13 (1982).

83 Id. (�[I]f the pleadings in an extraordinary motion for new trial in a criminal case do notcontain a statement of facts sufficient to authorize that the motion be granted . . . it is noterror for the trial court to refuse to conduct a hearing. . . .�).

84 O.C.G.A. § 5-6-38(a); Allen v. Rome Kraft Co., 114 Ga. App. 717, 718, 152 S.E.2d 618, 620 (1966)(holding that the filing of a motion for new trial tolls the time for filing appeal from judgmentor verdict until the motion for new trial is overruled).


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f or new tr ial , a motion for new tr ial f il ed af te r the cour t has dismisse d a complaintf or f ai l ur e to state a cl ai m wi l l not e xtend the ti me f or fi l ing a notice of appeal. 85

§ 3.4 Motions to Set Aside a Judgment

T he reasons justi fy i ng a moti on to se t asid e , and the pr oced ure s for fil i ng such a motion, ar e set f orth in O. C. G.A . § 9-11- 60( b) -( h).

§ 3.4.1 General Natural Grounds

T he statute descr ib e s thr ee ground s upon whi ch a moti on to se t asid e aj ud gment may be b ase d. 86

F ir st, a moti on to set asid e may be based on a �l ack of juri sdi ction ove r the per son or the sub je ct matte r. �87 Whi le a motion to se t asi de normal l y must be b roug ht wi thi n thre e y ear s of the jud gment compl ained of , an attack base d on lackof juri sdi cti on may b e broug ht at any ti me. 88

Second, a motion to se t asi de may be base d on �[ f ] raud, accide nt, or mistak eor the acts of the adver se party unmi xe d wi th the neg li g ence or faul t of themovant. �89 T he fail ur e of a par ty � s insur ance company or attor ne y to fil e ananswe r or other wi se atte nd to the case has bee n hel d not to be a �mi stak e � wi thi nthe meaning of the statute. 90 I nste ad, �[ a] clai m of mi stak e � re fe rs to the misappr e he nsi on of a past or pr e se nt fact.�91 Simil arl y, a cl ai m of �acci de nt� musti nvol ve �an eve nt, not pr ox imate ly caused by neg l ig ence , ari sing fr om anunf or ese en or une xpl ai ne d cause . �92

L astl y, a motion to se t asi de may be base d on �[ a] nonamend ab le d ef ectw hi ch appe ar s upon the face of the re cord or ple adi ng s. �93 U nd er this subsection,

85 See Pillow v. Seymour, 255 Ga. 683, 341 S.E.2d 447 (1986).

86 O.C.G.A. § 9-11-60(d).

87 O.C.G.A. § 9 -1 1- 6 0( d) ( 1) ; Pet er s v . Hy att L eg al S er vs ., 2 11 Ga . Ap p . 58 7, 58 9, 44 0 S.E.2 d 2 22 , 22 4 -2 25 ( 19 9 3) .

88 O.C.G.A. § 9 -1 1- 6 0( f) ; S my rn a M ar in e , In c. v. S t oc ks , 1 72 Ga . Ap p . 42 6, 42 6, 32 3 S.E.2 d 2 86 , 28 7 ( 19 84 ).

89 O.C.G.A. § 9 -1 1- 6 0( d) ( 2) .

90 Lee v. Restaurant Mgmt. Servs., 232 Ga. App. 902, 904, 503 S.E.2d 59, 61 (1998); Aycock v.Hughes, 189 Ga. App. 838, 839, 377 S.E.2d 689, 690 (1989).

91 Northeast Atlanta Sur. Co. v. State, 197 Ga. App. 399, 400-401, 398 S.E.2d 435, 437 (1990).

92 Id.

93 O.C.G.A. § 9-11-60(d)(3).


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�it is not suff icie nt that the compl aint or othe r ple ad i ng fail s to state a clai m uponw hi ch re li ef can be gr anted , but the pl eadi ngs must aff i rmati ve ly show that noclaim in fact exi ste d. �94 F or ex ampl e , the fai lur e of counse l to re cei ve noti ce of aheari ng constitutes a nonamend ab le de fe ct. 95 B y contr ast, �a matter which isd evel ope d by the evi de nce rathe r than appear ing upon the face of the record orple ad ing s doe s not fal l withi n the or bi t of a motion to se t asi de .�96

§ 3.4.2 Procedure

A motion to set asi d e must be br ought withi n thr e e ye ar s from entry of thej ud gment bei ng attacke d (unle ss the motion is based on a jur i sd icti onal arg ument)and must be broug ht in the cour t that rende r ed the judg ment. 97 A moti on to setasi de �may b e ser ve d by any means by which an or i ginal compl aint may b e l eg al ly ser ve d if it cannot be l e gall y ser ve d as any othe r moti on. �98

§ 3.4.3 Relationship to Appeals

A motion to set asi d e doe s not tol l the time f or fi li ng a notice of appe al. 99

§ 3.5 Motions for Judgment Notwithstanding the Verdict (�JNOV�)

§ 3.5.1 General Nature

A fter a tr ial is concl ud e d and jud gme nt is enter e d, a party who has move d unsucce ssf ul l y for a dir e cted ve rd ict dur ing the tr ial may move in wri ti ng for aj ud gment notw ithstandi ng the ve r di ct (�J NOV�) .100 T he sole purpose of a motionf or JNOV is to al low the tr ial jud ge to revi ew and re consi de r a pre viousl y de ni e dmotion for di re cted ve rd i ct bef ore appe ll ate jud i ci al re sour ces are ex pe nde d and add itional ti me and ex pe nse s ar e incurr ed .101 If, upon reflection, the trial judgedetermines that the motion for directed verdict was

94 Id.

95 Housing Auth. of Atlanta v. Parks, 189 Ga. App. 97, 98, 374 S.E.2d 842, 843 (1988).

96 Gulf Oil Co. v. Mantegna, 167 Ga. App. 844, 846, 307 S.E.2d 732, 734 (1983).

97 O.C.G.A. § 9 -1 1- 6 0( b) an d (f ) .

98 Id.

99 See Note 12, supra.

100 O.C.G.A. § 9-11-50(b).

101 Security Life & Trust Co. v. Smith, 220 Ga. 744, 747, 141 S.E.2d 405, 408 (1965); CrosbyAeromarine, Inc. v. Hyde, 115 Ga. App. 836, 838, 156 S.E.2d 106, 109 (1967).


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valid, the judge is to set aside the verdict and the original judgment and enter anew judgment in accordance with the directed verdict motion.102

The function of a motion for JNOV is not the same as that of a motion fornew trial. It is a summary method of disposing of the �[e]ntire litigation where itis obvious that the party against whom it is directed cannot, under anycircumstances, [prevail] in [the] case.�103 A JNOV does not lie in every instancein which a motion for new trial might be granted, even on the general grounds.104

A movant for JNOV bears a heavy burden because the court must beconvinced that �there is no conflict in the evidence as to any material issue, andthe evidence introduced, with all reasonable deductions therefrom, shall demanda particular verdict.�105 Stated somewhat differently, a JNOV is appropriate onlywhen, without weighing the credibility of the evidence, there can be but onereasonable conclusion as to the proper judgment.106

Importantly, because the sole purpose of a motion for JNOV is to permitthe trial court to review and reconsider its ruling on a prior motion for directedverdict,107 the failure of a party to move for a directed verdict during trial willbar a subsequent motion for JNOV.108 Thus, the standards for granting adirected verdict and a JNOV are the same. 109 Furthermore, grounds asserted in amotion for JNOV will not be considered when they were not asserted in supportof the motion for directed verdict.110

102 Famiglietti v. Brevard Med. Investors, Ltd, 197 Ga. App. 164, 166-167, 397 S.E.2d 720, 722-723

(1990).

103 Robbins v. Hays, 107 Ga. App. 12, 12-13, 128 S.E.2d 546, 548 (1962).

104 Id. at 13, 128 S.E.2d at 548.

105 O.C.G.A. § 9-11-50(a) and (b); Hiers-Wright Assocs. v. Manufacturers Hanover Mortgage Corp.,182 Ga. App. 732, 732-733, 356 S.E.2d 903, 905 (1987).

106 Troy v. Interfinancial, Inc., 171 Ga. App. 763, 767, 320 S.E.2d 872, 878 (1984) (holding that aJNOV �may be granted only when . . . there can be but one reasonable conclusion as to theproper judgment and if there is conflicting evidence or if there is insufficient evidence tomake a one-way verdict proper, [JNOV] should not be awarded�) See also Plane v. UniforceMIS Servs. of Ga. Inc., 232 Ga. App. 757, 758, 503 S.E.2d 621, 623 (1998).

107 Security Life & Trust Co. v. Smith, 220 Ga. 744, 747, 141 S.E.2d 405, 408 (1965).

108 O.C.G.A. § 9-11-50; Whitman v. Burden, 155 Ga. App. 67, 67, 270 S.E.2d 235, 236 (1980).

109 O.C.G.A. § 7-11-50(b); Custom Coating, Inc. v. Parsons, 188 Ga. App. 506, 507, 373 S.E.2d 291,291-292 (1988).

110 O.C.G.A. § 9-11-50(b); see also Wehunt v. ITT Bus. Communications Corp., 183 Ga. App. 560, 560-561, 359 S.E.2d 383, 383-384 (1987).


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The record as it existed at the close of the trial controls whether JNOVshould be granted.111 The trial court may not eliminate evidence on the groundsthat it was received improperly at trial and then dispose of the case on a motionfor JNOV based on the diminished record.112 In other words, the jury verdictmust be construed by the trial court and appellate courts in the light mostfavorable to upholding the jury verdict.113

§ 3.5.2 Procedure for Filing a Motion for JNOV

As is true with a motion for new trial, a motion for JNOV must be filedwithin 30 days after entry of judgment, or if a verdict was not returned, within 30days after the jury was discharged.114 No extensions of time will be granted forthe filing of a motion for JNOV.115

A motion for JN OV fi le d bef or e the entr y of judg ment is void . 116 Simil ar l y, a motion for JN OV fi le d after the ex pir ation of the 30- d ay pe ri od unde r the gui seof an amendme nt to a time ly moti on f or ne w tri al is a null ity and void .117

Whe n the transcri pt of the evid e nce is esse nti al for consi de r ation of amotion for JN OV and the movant fai ls to mak e a re asonab l e ef f or t to ob tai n thetranscr i pt, the tri al court may ex er cise its discre ti on in di smissi ng the motion.118H ow ever , if the cour t is fami li ar wi th the evi de nce , the cour t has discr e ti on to rul e on a motion for JNOV, eve n thoug h the tri al tr anscr ipt is not phy si cal ly avai lab le at the time. 119

111 De Loach v. Myers, 215 Ga. 255, 256, 109 S.E.2d 777, 759 (1959).

112 See, e.g., Bullard v. Carreras, 183 Ga. App. 539, 541-542, 359 S.E.2d 429, 432 (1987); Mays v.Daniels, 179 Ga. App. 677, 677-678, 347 S.E.2d 642, 643 (1986).

113 Troy v. Interfinancial, Inc., 171 Ga. App. 763, 767, 320 S.E.2d 872, 878 (1984).

114 O.C.G.A. § 9-11-50(b).

115 O.C.G.A. § 5-6-39(b).

116 Jessup v. Newman, 191 Ga. App. 772, 772, 383 S.E.2d 136, 137-138 (1989).

117 Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 270-271, 329 S.E.2d 900, 903 (1985).

118 Coates v. Mu1ji Motor Inn, Inc., 178 Ga. App. 208, 209, 342 S.E.2d 488, 490 (1986).

119 Castile v. Rich�s Inc., 131 Ga. App. 586, 586, 206 S.E.2d 851, 852 (1974).


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§ 3.5.3 Combining a Motion for New Trial with a Motion for JNOV

Secti on 9- 11- 50(b ) of the Georg i a Cod e ex pr e ssly pe rmits a moti on for ne w tri al to be joi ne d with a motion for JN OV. When the tw o moti ons ar e comb ined ,sever al di ff e re nt pr oced ural outcome s are possib l e.

F ir st, if the tri al cour t grants the moti on for JNOV, O. C. G. A . § 9-11-50( c) (1) i nstr ucts the court to i ssue a condi tional rul ing on the moti on f or ne w tri al . Then:

• I f the tri al cour t, havi ng gr anted the moti on for JNOV, al socondi ti onall y grant s a ne w tri al , the JN OV re mains final and may bee xami ne d by the Cour t of Appe al s und e r the �any evi de nce � standar dof appe l late re vi ew . 120 I f the ord e r gr anting the JNOV is rever se d onappeal, the new tri al wi l l pr oce ed unle ss the appel late cour t ord er sd if fe re ntl y. 121

• I f the tri al cour t, havi ng gr anted the JN OV, cond itional ly den ies themotion for ne w tr ial , both the grant of the JN OV and the d eni al of a new tri al may be cl ai me d as err or and ex ami ne d on appeal. 122 I f the JNOV i sr ever se d on appeal, subse quent proce e di ng s in the tri al cour t wil l be inaccor dance w i th the appe l late cour t� s ord er . 123

On the other hand , if the motion f or JN OV i s d eni ed , the tri al cour t may stil lr ul e on the motion for ne w tr ial . T hen:

• I f the tri al cour t, havi ng de ni e d the JNOV, gr ants a motion for new tri al , the or de r de nyi ng the motion for J NOV i s not a f i nal jud gment and may not be appe al ed . 124 In such case s, the ne w tri al shal l proce ed .

120 O.C.G.A. § 9-11-50(c)(1); Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268, 416 S.E.2d 274, 276

(1992) (holding that the standard of appellate review of the trial court�s denial of a motion fora directed verdict is the �any evidence� standard).

121 O.C.G.A. § 9-11-50(c)(1).

122 Id.

123 Id.

124 See Days Inn of Am., Inc. v. Sharkey, 178 Ga. App. 718, 718-719, 344 S.E.2d 518, 519 (1986)(holding that in the absence of an O.C.G.A. § 9-11-54(b) order, the trial court�s grant of a newtrial and denial of the motion for JNOV resulted in the continuing pendency of the cases,preventing the order denying JNOV from becoming �final� for appeal purposes); but seeGeneral Motors Acceptance Corp. v. Bowen Motors, Inc., 167 Ga. App. 463, 468, 306 S.E.2d 675,680 (1983) (holding that the denial of a JNOV can be appealed even though motion for a newtrial as to a counterclaim has been granted, if the appeal is taken from a final judgmententered pursuant to O.C.G.A. § 9-11-54(b)).


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• I f the tri al cour t, havi ng de ni e d the motion for JN OV, also denie s the motion for ne w tr ial , the n pr esumabl y b oth rul ing s may be appeale d.

The interplay of these two motions can also lead to some interesting post-trial role reversals between the parties. A party who prevailed at trial, but whoseverdict is set aside in favor of a JNOV, may decide (and is permitted within 30days of the entry of the JNOV) to move for a new trial.125 Likewise, if a partysuffers an adverse decision at trial, is denied a JNOV, and then appeals the denialof his motion for JNOV, the party who prevailed at trial may find himselfadvocating for a new trial in the event that the appellate court finds that a JNOVshould be entered. If the appellate court orders the entry of JNOV in this secondsituation, it also may grant a new trial or remand to the trial court for adetermination of whether a new trial should be granted.126

When a motion for new trial is made with a motion for JNOV, the court�shall specify the grounds for granting or denying the motion for the newtrial.�127 Although findings of fact and conclusions of law are not required,128

failure to specify the grounds upon which a motion for new trial is granted mayrequire that the case be remanded with directions to vacate the prior order andenter a new order specifying the grounds.129

§ 3.5.4 Effect of Motion for JNOV on Time for Appeal

T he fil i ng of a time ly moti on for JN OV toll s the ti me for fi l ing a notice ofappeal. T he 30-d ay pe ri od be gi ns ane w at the ti me the motion for JN OV isg ranted , ove r rule d, or �other wi se fi nal ly d ispos[ ed ] of . �130

§ 3.6 Motions to Amend or Modify a Judgment

§ 3.6.1 General Provisions

U nd er O. C. G. A . § 9- 11- 52, a cour t rul ing on an inte rl ocutory injunction orpre si di ng ove r a non-j ur y tri al , must, upon re que st mad e pri or to such ruli ng ,

125 O.C.G.A.§ 9-11-50(c)(2).

126 O.C.G.A. § 9-11-50(d).

127 O.C.G.A. § 9-11-50(c)(1); see also O.C.G.A. § 5-5-51 (providing that in all civil cases in which anew trial is granted on discretionary grounds, the trial court must set forth the reason(s) forexercising its discretion).

128 Sigmon v. Womack, 158 Ga. App. 47, 51, 279 S.E.2d 254, 258 (1981).

129 Famiglietti v. Brevard Med. Investors, Ltd., 197 Ga. App. 164, 169, 397 S.E.2d 720, 724 (1990).

130 O.C.G.A. § 5-6-38(a).


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i ssue an ord e r that incl ude s fi ndi ng s of fact and concl usi ons of law .131 H ow eve r, the requir eme nts of O. C. G.A . § 9-11- 52( a) �may be wai ve d in wri ti ng or on the r ecor d by the par ti e s. �132 Onl y whe re an appe ll ate court de te r mi ne s that the f indi ng s of fact ar e cle arl y er r oneous wi ll they be set asid e .133 F ur the r, an appel l atecourt must g i ve d ef e re nce to the tri al judg e �s asse ssme nt of wi tness cre d ib il ity .134

§ 3.6.2 Form of the Order

I n dr af ting a j ud gme nt f or a tr i al j udg e si tti ng wi thout a j ury , tw o pri nci pl esshoul d be ke pt in mi nd . Fi rst, the findi ng s of fact must be stated se par atel y fromthe conclusi ons of law in the judg me nt or or de r. 135 T he purpose of se tti ng forthsepar ate find ings of fact is thr ee fol d: (1) to aid in the tr ial jud ge �s pr ocess ofadjudication; (2) to define the facts for purposes of res judicata and collateralestoppel; and (3) to aid the appellate court on review.136 I f an opinion ormemor and um of decisi on is fil ed , it wil l be suff i ci ent if the findi ngs andconcl usi ons are both contai ne d the re i n. 137 When an order fails to specify clearlythe findings of fact and conclusions of law, or fails to contain any such recitation,the case will be remanded with direction that the prior order be vacated and anew order containing appropriate findings and conclusions be entered.138

Second, although the court�s order need not necessarily specify theevidence actually relied upon in making its findings and reaching itsconclusions,139 neither the mere recitation of events that took place at trial nor abare statement of what the court considered in reaching its conclusions is

131 These requirements, however, do not apply to actions involving uncontested divorce,

alimony, custody of minors, nor to motions except as provided in O.C.G.A. § 9-11-41(b). SeeO.C.G.A. § 9-11-52(b).

132 Id.

133 O.C.G.A. § 9-11-52(a).

134 Id.

135 Id.

136 Spivey v. Mayson, 124 Ga. App. 775, 776, 186 S.E.2d 154, 155 (1971).

137 O.C.G.A. § 9-11-52(a).

138 C&H Couriers Inc. v. American Mut. Ins. Co., 166 Ga. App. 853, 854, 305 S.E.2d 500, 501 (1983);Fairburn Banking Co. v. Upton, 172 Ga. App. 81, 82, 321 S.E.2d 814, 815 (1984).

139 Siegel v. General Parts Corp., 165 Ga. App. 339, 339, 301 S.E.2d 292, 293 (1983).


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sufficient.140 I n s t e a d , t he order should state not only the end result of thejudge�s inquiry, but the process by which it was reached.141

The procedure for filing motions to amend or modify a judgment enteredpursuant to O.C.G.A. § 9-11-52(c) is as follows:

Upon motion made not later than 20 days after entry of judgment,the court may make or amend its findings or make additionalfindings and may amend the judgment accordingly. If the motionis made with a motion for new trial, both motions shall be madewithin 20 days after entry of judgment. The question of thesufficiency of the evidence to support the findings may be raised onappeal whether or not the party raising the question has made inthe trial court an objection to findings or a motion for judgment.When findings or conclusions are not made prior to judgment tothe extent necessary for review, failure of the losing party to movetherefor after judgment shall constitute a waiver of any ground ofappeal which requires consideration thereof.142

This code section is not intended, however, to provide a party with asecond opportunity to prove his case after he fails to do so in the first instance.143

It also bears emphasis that this provision requires a party to file a motion toamend or modify �not later than 20 days after entry of judgment. �144

140 See, e.g., In re Interest of D.L.G., 212 Ga. App. 353, 442 S.E.2d 11 (1994); Moore v. Farmers Bank,

182 Ga. App. 94, 95, 354 S.E.2d 692, 693 (1987); C&H Couriers, Inc. v. American Mut. Ins. Co.,166 Ga. App. 853, 305 S.E.2d 500 (1983); Woodruff v. B-X Corp., 154 Ga. App. 197, 197-198, 267S.E.2d 757, 758 (1980).

141 See, e.g., In re Interest of D.L.G., 212 Ga. App. at 353, 442 S.E.2d at 11; Woodruff, 154 Ga. App. at197-198, 267 S.E.2d at 758; Beasley v. Jones, 149 Ga. App. 317, 318-319, 254 S.E.2d 472, 473(1979).

142 O.C.G.A. § 9-11-52(c). Substantive changes were made to this statute by a 1987 amendment.In particular, a non-prevailing party in a non-jury trial now bears the burden of requestingthat the trial court�s judgment be made specific enough for the Court of Appeals to review.Failure to move for clarification of a vague judgment may constitute waiver of some groundsfor appeal.

143 Buckley v. Thornwell, 143 Ga. App. 764, 765, 240 S.E.2d 258, 259 (1977).

144 O.C.G.A. § 9-11-52(c). But see Section 3.7 infra.


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§ 3.6.3 Effect of Motion to Amend or Modify on Running of TimeLimitations

Motions to amend or modi f y ar e not incl ud ed among the post-tr ial motionsw hi ch, by statute , enl ar g e the time for fil i ng a noti ce of appe al .145 T hus, gi ve n the d ecisions conce rning othe r moti ons that are not liste d in O. C.G.A . § 5-6- 38, goodpractice dictates that a noti ce of appe al be fil e d wi thi n 30 days af te r the entr y of j ud gment, eve n if a moti on to amend or modi f y is pe nd ing .146

§ 3.7 The Inherent Power of the Court Over its Own OrdersDuring the Term of Court

Notwithstanding anything written above, according to a long andvenerable line of cases, the trial judge has inherent power to revise, correct,revoke, modify, or vacate its orders through the end of the term of court, for thepurpose of promoting justice and in the exercise of sound legal discretion.147 Theenactment of the Civil Practice Act did not change this rule.148 In fact, thisinherent power may be exercised in a subsequent term when a �motion formodification or other statutorily defined action was filed during the term whenthe challenged order was entered, and is continued to the sub se que nt te rm.�149

T h e te r ms of cou r t va r y co un ty to coun ty , as se t f or th in O. C. G. A . § 15 - 6- 3.

§ 3.8 Motions for Supersedeas Bond

§ 3.8.1 General Provisions

T he fil i ng of a noti ce of appeal ord i nari ly se rve s as super se d eas150 toe nf or ce ment of a ci vil j udg me nt so l ong as the appe ll ant has paid al l costs i nto

145 See O.C.G.A. § 5-6-38(a).

146 See, e.g., Robinson v. Carswell, 147 Ga. App. 521, 249 S.E.2d 331 (1978) (holding that a motion tovacate a summary judgment is not listed in O.C.G.A. § 5-6-38 and thus does not extend timefor appeal); Ellis v. Continental Ins. Co., 141 Ga. App. 809, 234 S.E.2d 377 (1977) (holding that amotion for reconsideration of a judgment arming a worker�s compensation board finding isnot listed in O.C.G.A. § 5-6-38 and does not extend the time for appeal).

147 Bagley v. Robertson, 265 Ga. 144, 145-146, 454 S.E.2d 478, 480 (1995); East Side Lumber & CoalCo. v. Barfield, 193 Ga. 273, 276, 18 S.E.2d 492, 494 (1942); LeCraw v. Atlanta Arts Alliance, Inc.,126 Ga. App. 656, 663, 191 S.E.2d 572, 577 (1972); Armour & Co. v. Youngblood, 107 Ga. App.505, 508, 130 S.E.2d 786, 787 (1963).

148 McCoy Lumber Co. v. Garland Lumber Sales, 182 Ga. App. 75, 76, 356 S.E.2d 686, 687 (1987)(citing Martin v. General Motors Corp., 226 Ga. 860, 178 S.E.2d 183 (1970)).

149 Bagley, 265 Ga. at 145-146, 454 S.E.2d at 480.

150 The filing of a notice of appeal does not act as a supersedeas unless all costs in the trial courthave been paId. O.C.G.A. § 5-6-46(a); Duncan v. Ball, 172 Ga. App. 750, 751, 324 S.E.2d 477,


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the cour t. 151 T he appe ll ee , how eve r, may move the tri al cour t to re qui re theappel lant to post a bond . 152 Secti on 5- 6-44 of the Georg ia Code pr ovid e s that thecourt �shall � re quir e the posting of a bond if such a motion is made . 153 T he amount of the b ond depend s upon the type of judg ment invol ve d .154

§ 3.8.2 Time for Filing

Georg ia Code Se ction 5-6- 46 d oe s not state a d ef i ni te ti me pe ri od i n w hi ch amotion for super se d eas bond shoul d be fi le d . A s a matter of course , how ever , the motion shoul d b e fi l ed , heard , and d e ci de d pri or to the ti me the case is dock ete d inthe appe ll ate court. 155 A rg uab ly , once the case is docke te d , the tri al cour t losesj ur isdi cti on and cannot requi re a super se d eas bond. 156

§ 3.8.3 Penalties for Failure to Post a Supersedeas Bond

I f the appel l ant fai ls to post the bond set by the tr ial cour t, the appe l le e is atl ib er ty to enforce the judg me nt by al l le gal means, incl ud ing levy, ex ecuti on, and g ar ni shment. 157 F ai lur e to post a super se d eas bond is not, howe ve r , gr ounds ford ismi ssi ng the appe al, and the appel l ee who le vi e s on the jud gment cre di tor �sprope rty acts at its own pe ri l if the j ud gme nt i s r ever sed on appeal .158

§ 3.9 Motions for Attorney�s Fees under O.C.G.A. § 9-15-14

Secti on 9-15-14 of the Georgia Code provi de s for the re cover y of attor ne y �sf ee s whe n a litig ant asse rts a claim, def ense, or other posi tion �w i th re spect tow hi ch ther e exi sted such a compl ete absence of any j usti ci abl e issue of

479 (1984); Chappelaer v. General G.M.C. Trucks, Inc., 130 Ga. App. 664, 665, 204 S.E.2d 326, 327(1974).

151 O.C.G.A. § 5-6-46; see O.C.G.A. § 5-6-45 for operation of notice of appeal as supersedeas incriminal cases.

152 O.C.G.A. § 5-6-46(a).

153 Id.

154 See generally discussion infra at Chapter 5.

155 The trial court is not required to conduct an oral hearing prior to granting a motion to requirea supersedeas bond, nor must the trial court give the non-moving party 30 days to respond tothe motion. Rapps v. Cooke, 234 Ga. App. 131, 134, 505 S.E.2d 566, 569-570 (1998).

156 See Park v. Minton, 229 Ga. 765, 769-770, 194 S.E.2d 465, 468 (1972); but see Hughes v. StarBonding Co., 137 Ga. App. 661, 662-663, 224 S.E.2d 863, 863-866 (1976).

157 See Crymes v. Crymes, 240 Ga. 721, 721, 242 S.E.2d 30, 31 (1978).

158 Hawn v. Chastain, 246 Ga. 723, 726-727, 273 S.E.2d 135, 138-139 (1980); see generally Chapter 5.


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l aw or fact that it coul d not be reasonab ly be li e ve d that a court woul d accept the asser te d clai m, def e nse, or othe r position, � or whe n an attor ne y or par ty �b roug htor de fe nde d an acti on, or any part ther eof, that lack ed substanti al justi fi cati on, 159

w as inte rpose d for del ay or har assme nt, or . . . unne ce ssari l y ex pande d the proce ed i ng by other impr ope r conduct, includ ing, but not limi te d to, abuses ofd iscove r y. �160 A moti on f or attor ne y� s f ee s and e x pe nses unde r O.C.G. A. § 9-15-14may b e fil ed �at any time d ur ing the cour se of the acti on but not l ate r than 45 d ay safter the fi nal d ispositi on of the acti on.�161

U nl ess appeal ed as par t of a jud gment that is di r ectl y appealab le , an appe alf rom an aw ar d of attor ne y �s fee s und e r O. C. G.A . § 9- 15 - 1 4 must be soug htthr ough appl i cati on, and a di re ct appeal wi l l be di smissed for fail ure to compl y w ith O. C.G.A . § 5- 6- 35 . 162 A n aw ar d of attor ne y �s fe es and ex pe nse s und er O.C.G.A . § 9- 15 - 1 4 i s de te r mi ne d by the cour t wi thout a jury , is di scr etionar y, andw il l be af fi r me d by the appel late court if: ( i ) und er subse ction (a) , the re is �any e vi de nce � to suppor t it; or (ii ) und er subsection (b ) , the tri al cour t d id not ab use i tsd iscr eti on.163

§ 3. 10 Pauper�s Affidavit

Section 5- 6- 47 of the Ge or g i a Cod e allows an appellant to file an affidavitstating that he or she is indigent and unable to pay costs or to post a supersedeasbond. Such an affidavit of indigence shall act as supersedeas unless successfullycontested, i.e., traversed, under the procedure set forth in O.C.G.A. § 5- 6- 47 ( b ) . The traverse must be filed in the trial court.164

159 As used in this Code Section, �lacked substantial justification� means �substantially

frivolous, substantially groundless, or substantially vexatious.� O.C.G.A. § 9-15-14(b).Attorney�s fees will not be assessed when it is determined that the attorney or party asserteda claim or defense in a good faith effort to establish a new theory of law in Georgia if suchnew theory is based on some recognizable precedential or persuasive authority. O.C.G.A.§ 9-15-14(c).

160 O.C.G.A. § 9-15-14(a), (b).

161 O.C.G.A. § 9-15-14(e).

162 Martin v. Outz, 257 Ga. 211, 357 S.E.2d 91, 91-92 (1987); Bowles v. Lovett, 190 Ga. App. 650, 651,379 S.E.2d 805 (1989); Rolleston v. Huie, 198 Ga. App. 49, 52, 400 S.E.2d 349, 352 (1990); Cheeley-Towns v. Rapid Group, Inc., 212 Ga. App. 183, 441 S.E.2d 452, 452-453 (1994).

163 Haywood v. Aerospec, Inc., 193 Ga. App. 479, 480, 388 S.E.2d 367, 369 (1989); Haggard v. Board ofRegents of the Univ. Sys., 257 Ga. 524, 527, 360 S.E.2d 566, 568 (1987); Sacha v. Coffee Butler Serv.,Inc., 215 Ga. App. 280, 282, 450 S.E.2d 704, 706 (1994).

164 D�Zesati v. Poole, 174 Ga. App. 142, 143, 329 S.E.2d 280, 281 (1985); Mark Trail Campgrounds,Inc. v. Field Enters., Inc., 140 Ga. App. 608, 609, 231 S.E.2d 468, 467 (1976).

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4 COMMENCING THE APPEAL:NOTICE OF APPEAL, TRANSCRIPT AND RECORDPaul J. Kaplan*

§ 4.1 Notice of Appeal

§ 4.1.1 Time to File

An appeal begins with the filing of a notice of appeal. The proper andtimely filing of such a notice is an absolute requirement for conferringjurisdiction on the appellate court.1

A notice of appeal must be filed with the clerk of the trial court2 within 30days after the trial court enters an appealable decision or judgment3 or within 10

* Mr. Kaplan is an attorney in the law firm of Alston & Bird LLP. His practice is devotedprimarily to trial and appellate matters. He received a B.A. magna cum laude from EmoryUniversity 1993 and a J.D. cum laude from the Georgetown University Law Center in 1998,where he was editor-in-chief of the American Criminal Law Review.

1 Jordan v. Caldwell, 229 Ga. 343, 344, 191 S.E.2d 530, 531 (1972); Hammond v. Unified Gov�t ofAthens-Clarke County, 240 Ga. App. 432, 432, 525 S.E.2d 709, 710 (1999).

2 Under limited circumstances involving expedited direct appeals by a minor to the GeorgiaSupreme Court, parties must file a notice of appeal with the Georgia Supreme Court. Ga.S. Ct. R. 63.

3 O.C.G.A. §§ 5-6-37, 5-6-38(a); see also Clark v. State, 182 Ga. App. 752, 753, 357 S.E.2d 109, 100(1987) (opposing counsel�s consent to late filing does not prevent dismissal).


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days after the appellate court grants an interlocutory or discretionary appeal.4 Ina dispossessory action, however, the notice of appeal must be filed within sevendays after entry of judgment.5 The Georgia Code expressly defines �entry ofjudgment� to be the filing of a signed judgment with the clerk of court.6

Early notices are valid; late ones are not. When a notice of appeal is filedbefore judgment is formally entered, the notice lies dormant until judgment isentered and then becomes immediately effective.7 However, when a notice isfiled after the applicable 10- or 30-day window has expired, the appeal will bedismissed.8

§ 4.1.2 Extensions of Time to File

§ 4.1.2.1 Automatic Extensions

When a party files either a motion for new trial, a motion in arrest ofjudgment, or a motion for judgment notwithstanding the verdict, the time forfiling a notice of appeal is extended to 30 days after the trial court grants, denies,or otherwise disposes of the motion.9 A post-judgment motion triggers thisextension, however, only when the motion is disposed of by court order. If amotion for new trial, for example, is voluntarily withdrawn, the would-be

4 O.C.G.A. §§ 5-6-34(b), 5-6-35(g). Section 5-6-34(b) requires a two-step process for filing an

interlocutory appeal. Within 10 days of rendering an order, decision or judgment that cannotbe directly appealed, the trial court must certify that the issue to be appealed is worthy ofimmediate review. Id. Within 10 days of obtaining such a certificate, the appellant mustpetition the appropriate appellate court for permission to appeal. Id. For a more completediscussion of interlocutory and discretionary appeals, see Chapter Two of this Handbook.

5 O.C.G.A. § 44-7-56.

6 O.C.G.A. § 5-6-31; see also Board of Comm�rs. of Atkinson County v. Guthrie, 273 Ga. 1, 2, 537S.E.2d 329, 331 (2000) (�To constitute an �entry,� the decision must be reduced to writing,signed by the judge, and filed with the clerk.�); Miner v. Harrison, 205 Ga. App. 523, 524-25,422 S.E.2d 899 (1992) (holding that when plaintiff elects to have judgment entered on only thefirst of two counts, second count is not appealable); Sharp v. State, 183 Ga. App. 641, 642, 360S.E.2d 50, 51-52 (1987) (holding that oral order is not appealable until reduced to writing,signed by judge and filed with the clerk).

7 Gillen v. Bostick, 234 Ga. 308, 310-11, 215 S.E.2d 676, 678 (1975); Livingston v. State, 221 Ga.App. 563, 563-568, 472 S.E.2d 317, 319-20 (1996), overruling Staton v. State, 219 Ga. App. 316,464 S.E.2d 888 (1995).

8 In re H.L.W., 244 Ga. App. 498, 498, 535 S.E.2d 834, 835 (2000); Hammond v. Unified Gov�t ofAthens-Clarke County, 240 Ga. App. 432, 432, 525 S.E.2d 709, 710 (1999).

9 O.C.G.A. § 5-6-38.

CHAPTER 4: COMMENCING THE APPEAL

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appellant gains no extension, unless the withdrawal is effected or approved byorder of the court.10

Not all motions will trigger an extension. A motion for reconsideration,for example, does not extend the time for filing a notice of appeal.11 Neitherdoes a motion for new trial if it is untimely filed.12 Likewise, when a motion fornew trial is not the proper vehicle to seek review of a trial court�s action, themotion is of no effect and will not extend the deadline for filing a notice ofappeal.13 A motion to amend findings of fact under O.C.G.A. § 9-11-52(c) willnot toll the time for filing a notice of appeal unless it is joined with a motion fornew trial.14 Clerical changes to a trial court order will not extend the time forfiling a notice of appeal, but a revised order that changes the parties� substantiverights will.15

§ 4.1.2.2 Extensions by Motion

When a party does not receive timely notice that an appealable order hasbeen entered, and when the party thus is deprived of its opportunity to file anotice of appeal, the party may file a motion to set the order aside.16 Upon afinding that the party did not timely receive the order, the trial court shouldgrant the motion to set aside, reenter its original order, and thus give the party itsfull allotment of time in which to appeal.17

10 Heard v. State, 274 Ga. 196, 197, 552 S.E.2d 818, 821 (2001) (overruling Richards v. State, 247 Ga.

App. 345, 542 S.E.2d 622 (2000)).

11 South v. Bank of America, 250 Ga. App. 747, 751 n.16, 551 S.E.2d 55, 58 n.16 (2001); Brown v.Webb, 224 Ga. App. 856, 857, 482 S.E.2d 382, 383 (1997); Bank South Mortgage, Inc. v. Starr, 208Ga. App. 19, 19, 429 S.E.2d 700, 700 (1993).

12 Wright v. Rhodes, 198 Ga. App. 269, 269, 401 S.E.2d 35, 36 (1990) (holding that untimelymotion for new trial does not toll notice of appeal deadline).

13 Pillow v. Seymour, 255 Ga. 683, 684, 341 S.E.2d 447, 448 (1986) (holding that because motion fornew trial was improper means by which to challenge the granting of a motion to dismiss,deadline for filing notice of appeal had not been extended).

14 American Flat Glass Distribs. Inc. v. Michael, 260 Ga. 312, 312, 392 S.E.2d 855, 855 (1990).

15 Yancey v. Poe, 254 Ga. App. 410, 411, 562 S.E.2d 798, 799 (2002) (holding that an amendedorder which reversed which party�s cross-motion for summary judgment had been grantedreset the 30-day clock for filing a notice of appeal prescribed by O.C.G.A. § 5-6-38).

16 Cambron v. Canal Ins. Co. , 246 Ga. 147, 148-49, 269 S.E.2d 426, 428 (1980); Sea Tow/Sea Spill ofSavannah v. Phillips , 247 Ga. App. 613, 614, 545 S.E.2d 34, 35 (2001); Brown v. E.I. Du Pont DeNemours & Co., 240 Ga. App. 893, 895-96, 525 S.E.2d 731, 734 (1999).

17 Id.


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As noted above, the time in which to file a notice of appeal maysometimes be extended automatically. The parties may also seek an extension,however, by motion. The trial court judge or any judge of the appellate court towhich an appeal is taken may grant an extension for filing a notice of appeal orcross-appeal.18 Only one extension is authorized, and it must be obtained beforethe original deadline for filing the notice of appeal expires.19 The extension maynot exceed the time initially allowed for filing the notice. Thus, a 10-daydeadline may be extended for no more than an additional 10 days, and a 30-daydeadline may be extended for no more than an additional 30 days.

When requesting an extension from the Court of Appeals, the movantmust demonstrate a bona fide effort to obtain an extension in the trial court andexplain why the extension could not be obtained.20 A motion for an extensionmust be accompanied by an $80 filing fee.21 The Court of Appeals will not grantan extension of time to file an interlocutory or discretionary application.22

No such rules apply in the Supreme Court.23 Motions filed in that courtthus are subject to the general requirements of Supreme Court Rule 26.

§ 4.1.3 Contents

A notice of appeal must set forth the following:24

(1) the title and docket number of the case;

(2) the name of the appellant and its attorney�s name and address;

(3) a concise statement of the judgment, ruling or order entitling theappellant to take an appeal;

18 O.C.G.A. §§ 5-6-39(a)(1), (2). Extensions are discretionary and may be granted without

motion or notice to the other party. Id.

19 O.C.G.A. §§ 5-6-39(c), (d); Grovnor v. Board of Regents, 231 Ga. App. 120, 120-21, 497 S.E.2d 652,653 (1998); Dillard v. State, 223 Ga. App. 405, 406, 477 S.E.2d 674, 675 (1996); Gibson v. State,207 Ga. App. 491, 491, 428 S.E.2d 421, 422 (1993) (holding that double extension was anullity).

20 Ga. Ct. App. R. 16(a).

21 Id.

22 Ga. Ct. App. R. 16(c).

23 Georgia Supreme Court Rule 12 states that extensions for filing �petitions for certiorari,applications, and motions for reconsideration� will be granted only in �unusual� cases. Thisrule makes no specific mention, however, of extensions for filing a notice of appeal.

24 O.C.G.A. § 5-6-37.


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(4) the court appealed to;

(5) a designation of those portions of the record, if any, to be omittedon appeal;

(6) a concise statement of why the appellate court appealed to hasjurisdiction rather than another appellate court;25

(7) in criminal cases, a brief statement of the offense and punishment;26

and

8) a statement of whether any transcript is to be prepared and sent aspart of the record on appeal.

Designating the wrong appellate court or failing to include a jurisdictionalstatement is not fatal to the appeal and is not grounds for dismissal.27

All parties of record to proceedings in the lower court are parties onappeal, and they must be served with the notice of appeal and all other pleadingsin the manner prescribed in O.C.G.A. § 5-6-32.28

§ 4.1.4 Cross-Appeal: Time to File and Contents

Cross-appeals in civil cases must be filed within 15 days from the date thenotice of appeal is served29 and must contain the following:30

(1) the title and docket number of the case;

(2) the name of the appellee and the name and address of its attorney;

(3) a designation of any portions of the record or transcript that theappellant has directed the clerk to omit but which the appelleedesires to include; and

25 Although not required, appellants are encouraged to cite the specific statutory or

constitutional provision conferring jurisdiction.

26 Failure to state the offense and punishment prescribed is not grounds for dismissal whennotice is otherwise sufficient. Brumby v. State, 264 Ga. 215, 217-18, 443 S.E.2d 613, 615 (1994).

27 O.C.G.A. § 5-6-37.

28 Id.

29 O.C.G.A. § 5-6-38(a); Mobley v. Coast House, Ltd., 182 Ga. App. 305, 310, 355 S.E.2d 686, 690(1987) (appellant�s amending notice of appeal does not toll 15-day deadline for filing notice ofcross-appeal).

30 O.C.G.A. § 5-6-38(a).


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(4) a statement that the appellee takes a cross-appeal.

If the notice of appeal does not specify that the transcript should be sent up onappeal, the notice of cross-appeal must state whether the transcript should beincluded.31

The service requirements for notice of cross-appeal are the same as thosefor the original notice of appeal.32

§ 4.2 Transcript and Record

The �record on appeal� consists of two parts: the trial court record, and, ifdesired, a transcript of trial court proceedings.33 It is the parties� responsibility tosee that the relevant portions of each are transmitted to the appellate court.

§ 4.2.1 Preparing the Transcript

In all civil cases that can be appealed to the Georgia Supreme Court orCourt of Appeals, the trial judge may require that the proceedings be reportedand that the parties share the cost of reporting equally.34 If the parties are unableto pay reporting costs, the trial may go unreported, and if a transcript is laternecessary, the moving party shall prepare the transcript from recollection of theparties.35 A transcript can be prepared from the recollection of the parties onlywhen the trial has not been reported or the transcript is unavailable for someother reason.36

Whenever parties prepare a transcript from recollection, the agreed-upontranscript shall be included as part of the record in the same manner and with

31 O.C.G.A. §§ 5-6-38(a), 5-6-42.

32 O.C.G.A. §§ 5-6-32, 5-6-38(a).

33 Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga. App. 674, 676, 530 S.E.2d 800, 803 (2000).

34 O.C.G.A. § 5-6-41(c). A party has an absolute right in every case, including misdemeanors, tohave the case reported at his own expense. O.C.G.A. § 5-6-41(j); Dumas v. State, 131 Ga. App.79, 83, 205 S.E.2d 119, 122 (1974). A party cannot compel the court reporter to prepare atranscript, even if he offers to pay for it, if he has not also participated in the takedown costs.Ruffin v. Banks, 249 Ga. App. 297, 298-99, 548 S.E.2d 61, 62-63 (2001). However, once atranscript is prepared and filed with the court, it becomes part of the public record, and allmembers of the public, including a non-paying party, may have access to it. Id.

35 O.C.G.A. § 5-6-41(c). Whenever the transcript is prepared from recollection, it may beprepared in narrative form. O.C.G.A. § 5-6-41(d).

36 Whitt v. State, 215 Ga. App. 704, 708, 452 S.E.2d 125, 128 (1994); Harrison v. Piedmont Hosp.,Inc., 156 Ga. App. 150, 151, 274 S.E.2d 72, 74 (1980).


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the same binding effect as any other transcript.37 If the parties are unable toagree as to whether a transcript prepared from recollection is correct, the trialjudge may reconstruct the record herself.38 If the trial judge is unable to recallwhat transpired, she shall enter an order stating that fact.39 If neither an originaltranscript nor one from recollection is provided, the appellate court mustpresume the trial court acted correctly.40

§ 4.2.4 Stipulation in Lieu of Transcript

In lieu of a transcript, the parties may agree to file a stipulation of the case,showing how the questions arose and how they were decided by the trial court,together with a sufficient statement of facts to allow the appellate court to reviewthe questions presented on appeal.41 A stipulation must be accompanied by acertificate of approval from the trial court.42 If the trial judge does not certify thestipulated transcript, the appellate court must affirm the judgment.43 Astipulation of the case is subject to the same filing requirements and deadlines asa conventional transcript.44

§ 4.2.3 Physical Evidence

When a party relies on physical evidence, the party may include aphotograph or other recording of the evidence as part of the transcript in lieu ofsending the original evidence.45 If a party wishes to transmit the actual physicalevidence to the Court of Appeals, the party first must file a motion with the

37 O.C.G.A. § 5-6-41(g).

38 Id.; see also Griggs v. Griggs, 234 Ga. 451, 454, 216 S.E.2d 311, 315 (1975) (holding that trialjudge may reconstruct record from the submission of one or both parties or from judge�s ownrecollection, and correctness of judge�s reconstruction is not subject to review); Harrison v.Piedmont Hosp., Inc., 156 Ga. App. 150, 151, 274 S.E.2d 72, 74 (1980) (holding that trial judge isfinal arbiter of correctness of transcript prepared from recollection).

39 O.C.G.A. § 5-6-41(g).

40 Peterson v. State, 204 Ga. App. 532, 534, 419 S.E.2d 757, 759 (1992).

41 O.C.G.A. § 5-6-41(i); McMillian v. Rodgers, 223 Ga. App. 699, 701, 479 S.E.2d 7, 10 (1996).

42 Id.

43 Saleem v. Snow, 217 Ga. App. 883, 889, 460 S.E.2d 104, 109-110 (1995); King v. State, 195 Ga.App. 353, 354, 393 S.E.2d 709, 710 (1990); Elliott v. Georgia Baptist Convention, 165 Ga. App.800, 801, 302 S.E.2d 714, 715 (1983).

44 Saleem v. Snow , 217 Ga. App. 883, 889, 460 S.E.2d 104, 109-110 (1995); Ponce de Leon Props., Inc.v. Fulton Cotton Mills, 116 Ga. App. 205, 206, 156 S.E.2d 487, 488 (1967).

45 Ga. S. Ct. R. 71; Ga. Ct. App. R. 21.


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court.46 Before filing actual physical evidence with the Supreme Court, however,the party must seek permission from the trial court.47 Upon showing that thetrial court�s permission could not be obtained, a party may seek permissiondirectly from the Supreme Court.48

§ 4.2.4 Transmitting the Transcript and Record to the Appellate Court

The notice of appeal must state which portions of the transcript, if any,should be included in the record.49 When the appellant states that all or part ofthe transcript is to be included in the record on appeal, the appellant must ensurethat the court reporter prepares and files the transcript with the trial court clerkwithin 30 days after the notice of appeal is filed.50

In addition to ordering a transcript if one is desired, the appellant mustdesignate which portions of the record are to be omitted on appeal.51 If theappellant omits any matter from the record, the appellee may, within 15 daysafter the appellant serves the notice of appeal, file a �designation of record�stating that all or part of the omitted matters should be included in the record.52

The clerk of the trial court must transmit the transcript and record to theappellate court within five days after the court reporter files the transcript.53

However, if neither party requests the transcript, the clerk must prepare andtransmit the record within 20 days after the notice of appeal is filed.54 If the

46 Ga. Ct. App. R. 21.

47 Ga. S. Ct. R. 71.

48 Id.

49 O.C.G.A. § 5-6-37; Hageman v. State, 205 Ga. App. 644, 644, 423 S.E.2d 56, 56 (1992).

50 O.C.G.A. §§ 5-6-41(c), 5-6-42. For a discussion of how to extend this deadline, please seeSection 4.2.6 of this Chapter.

51 O.C.G.A. § 5-6-42.

52 Id.

53 O.C.G.A. § 5-6-43(a); Long v. City of Midway, 251 Ga. 364, 364, 306 S.E.2d 639, 640 (1983) (it isthe appellant�s obligation to ensure that the transcript is filed and that costs are paid toprepare the record; it is the trial clerk�s obligation to prepare and transmit the record); HolyFellowship Church of God in Christ v. First Comm. Bank of Henry County, 242 Ga. App. 400, 402,530 S.E.2d 24, 26 (2000) (same).

54 O.C.G.A. § 5-6-43(a).


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record is not prepared within the prescribed time, the clerk shall state bycertificate the cause for the delay and include the certificate in the record.55

Parties should note that there is a presumption in favor of the regularity ofall proceedings in a court of competent jurisdiction. Without a transcript of theproceedings or some other legally acceptable record for review, the appellatecourt will be bound to assume that the trial court�s factual findings are supportedby sufficient competent evidence. Without a transcript or its substitute,therefore, the decision of the trial judge on evidentiary matters is final and notsubject to review.56

§ 4.2.5 Costs

When both parties designate portions of the record and transcript to besent up on appeal, the cost of obtaining the transcript normally falls on the partywho directs it to be transmitted to the appellate court.57 However, if the appelleedesignates additional documents that are necessary to complete the record, thenthe trial court must tax the additional costs against the appellant.58 The cost ofpreparing the record (and transcript, if required) must also be divided among theparties, either by agreement or by order of the trial court, in the event of a cross-appeal.59

The cost of preparing the transcript cannot be recovered; it is not a costthat can be taxed against an appellee if the appellant wins the appeal.60

55 Id.

56 Rivera v. Harris, 259 Ga. 171, 171, 377 S.E.2d 844, 845 (1989); Thompson v. Countrywide HomeLoans Inc., 257 Ga. App. 514, 515, 571 S.E.2d 523, 524 (2002).

57 O.C.G.A. §§ 5-6-41(c), 5-6-42; see also Stone Mountain Mem�l Ass�n v. Stone Mountain Scenic R.R.,Inc., 232 Ga. 92, 94, 205 S.E.2d 293, 295 (1974) (�The Appellate Practice Act makes it clear thatthe cost of obtaining from the court reporter a transcript of the evidence falls on the partydesiring that the same be transmitted to the appellate court.�); Flight Int�l, Inc. v. Dauer, 180Ga. App. 405, 406, 349 S.E.2d 271, 272 (1986) (same).

58 See Jones v. Spindel, 239 Ga. 68, 70-71, 235 S.E.2d 486, 488 (1977) (�[I]f the trial court finds thatthe additional portions designated by the appellee are necessary to complete the record onappeal, the costs must be paid by the appellant; only if considered unnecessary on appeal,should the costs be taxed against the appellee.�); Bennett v. Cotton, 244 Ga. App. 784, 536S.E.2d 802 (2000) (same).

59 O.C.G.A. § 5-6-38(b).

60 Stone Mountain Mem�l Ass�n, 232 Ga. at 93, 205 S.E.2d at 295 (1974); Flight Int�l Inc., 180 Ga.App. at 406, 349 S.E.2d at 272 (1986) (same).


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§ 4.2.6 Delays in Preparing the Transcript or Record

Normally, delays in transmitting the transcript or record will not cause theappeal to be dismissed, as long as the delay is not the fault of either party.However, when a party, rather than the court reporter or clerk, is responsible fora significant delay, the appeal may be dismissed.

The trial court may dismiss an appeal, after notice and a hearing, if atranscript is untimely filed and if the delay is (1) unreasonable, (2) inexcusable,and (3) caused by the party who requested that the transcript be filed.61 An�unreasonable� delay is one that prevents a case from being placed on theearliest possible calendar in the appellate court or that delays the docketing ofthe appeal.62 An �inexcusable� delay is one without just cause, such as whencounsel forgets to order the transcript or confirm whether it has been timelyfiled.63

Where a transcript has been timely ordered, but the court reporter isunable to prepare and file it in time, the party requesting the transcript may seekan extension from the trial court.64 The court is required by statute to grant suchextensions when necessary to allow a court reporter to complete the transcript.65

A party�s failure to seek an extension may factor into the court�s analysis ofwhether a dismissal is warranted,66 but such a failure, standing alone, will notitself cause an appeal to be dismissed.67

An appellant is responsible only for the preparing and filing of thetranscript. It is the trial court clerk�s responsibility to prepare the record inaccordance with the parties� request.68 Once an appellant has filed a notice of

61 O.C.G.A. § 5-6-48(c); Baker v. Southern Ry. Co., 260 Ga. 115, 116, 390 S.E.2d 576, 576-77 (1990);

Dalton v. Vo, 224 Ga. App. 382, 382, 480 S.E.2d 377, 378 (1997).

62 Crown Diamond Co. v. N.Y. Diamond Co., 242 Ga. App. 674, 677, 530 S.E.2d 800, 803 (2000).

63 Id. at 677-78, 530 S.E.2d at 803-04.

64 O.C.G.A. § 5-6-39(a)(3).

65 O.C.G.A. § 5-6-42.

66 See, e.g., Crown Diamond, 242 Ga. App. at 678, 530 S.E.2d at 804 (noting that appellant�s failureto seek extension was one but not only factor court took into account).

67 Baker, 260 Ga. at 116, 390 S.E.2d at 577 (�The failure to apply for an extension does notautomatically convert the delay into one which fits all of the conditions necessary to vest thetrial court with the discretion to dismiss the appeal. The court must find all these conditions[i.e., unreasonable, inexcusable delay caused by party] before an exercise of discretion isauthorized.�).

68 Long v. City of Midway , 251 Ga. 364, 364, 306 S.E.2d 639, 640 (1983); Crown Diamond, 242Ga. App. at 676, 530 S.E.2d at 803.


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appeal, his only duty regarding the trial court record is to pay costs.69

Nevertheless, the trial court may dismiss an appeal if the appellant has causeddelay in transmitting the record, such as by failing to pay costs within 20 days ofreceiving notice of their amount by registered or certified mail.70

Only the trial court can dismiss an appeal for failure to timely file thetranscript; appellate courts cannot.71 To obtain a dismissal, the opposing partymust file a motion with the trial court.72 Dismissing an appeal will not affect thevalidity of a properly filed cross-appeal.73

§ 4.2.7 Amending and Supplementing the Record

At any point during an appeal, a party may ask to supplement the record.The jurisdiction and procedure for such a request differs, however, depending onwhen it is made.

If a party wishes to supplement the record at any time before an appeal isconcluded, the request is governed by O.C.G.A. § 5-6-41(f) and must be made tothe trial court.74 If anything material is omitted from or misstated in the recordon appeal, the trial court, acting either sua sponte or in response to a party�smotion, may have the record corrected and, if necessary, may direct that asupplemental record be certified and transmitted to the appellate court.75 If the

69 Id.; Holy Fellowship Church of God in Christ v. First Community Bank of Henry County, 242 Ga.

App. 400, 402, 530 S.E.2d 24, 26 (2000).

70 O.C.G.A. § 5-6-48(c); Strickland v. State, 257 Ga. App. 304, 305, 570 S.E.2d 713, 714 (2002)(affirming dismissal where appellant failed to pay costs for three months); Cody v. ColdwellBanker Real Estate Corp., 253 Ga. App. 752, 753-54, 560 S.E.2d 275, 277 (2002) (affirmingdismissal where appellant waited 40 days after indigence claim was rejected and two daysafter motion to dismiss was filed before paying costs).

71 O.C.G.A. § 5-6-48(c); Campbell v. Crumpton, 173 Ga. App. 488, 489, 326 S.E.2d 845, 845-46(1985).

72 Campbell, 173 Ga. App. at 489, 326 S.E.2d at 846; see also Ga. S. Ct. R. 74 (�Appellee shall bedeemed to have waived any failure of the appellant to comply with the provisions of theAppellate Practice Act relating to the filing of the transcript of the evidence and proceedingsor transmittal of the record to this Court unless objection thereto was made and ruled uponin the trial court prior to transmittal, and such order is appealed as provided by law.�); Ga.Ct. App. R. 20 (same).

73 O.C.G.A. § 5-6-48(e).

74 O.C.G.A. § 5-6-41(f); Nobles v. Prevost, 221 Ga. App. 594, 595, 472 S.E.2d 134, 135 (1996)(holding that motion to supplement record must be heard in trial court, even after appealwas docketed in Court of Appeals).

75 O.C.G.A. § 5-6-41(f).


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trial court refuses to allow an amendment or other pleading to be included in therecord, the amendment or pleading may nevertheless be filed, with notation ofdisallowance thereon, and shall become part of the record for purposes ofappeal.76

Once an appeal is decided, any motion to amend the record (for example,to support a motion for reconsideration or petition for certiorari) is governed byO.C.G.A. § 5-6-48(d) and must be filed with the appellate court.77

76 O.C.G.A. § 5-6-41(h).

77 O.C.G.A. § 5-6-48(d); State v. Pike, 253 Ga. 304, 307, 320 S.E.2d 355, 357 (1984) (holding that�[o]nce the appellate court renders its decision, O.C.G.A. § 5-6-48 . . . becomes the exclusivemethod for supplementing the record�); Hirsch v. Joint City County Bd. of Tax Assessors, 218Ga. App. 881, 884, 463 S.E.2d 703, 706 (1995) (same).

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5 STAYS OF PROCEEDINGSTO ENFORCE A JUDGMENTShannon Thyme Klinger*

§ 5.1 Introduction

The stay of a lower court judgment pending resolution of an appeal isdesirable for most litigants that have suffered an unfavorable result in the trialcourt. While most lawyers know that to obtain a stay of judgment, one must file anotice of appeal and pay the costs associated therewith, blind reliance on thisgeneral principle is not advised. A stay is not necessarily available in some cases,e.g., in injunction proceedings, and certain procedural oddities, if unaccountedfor, can affect a party�s position significantly.

Any discussion of stays must begin with a definition of the oft-used term�supersedeas.� The word �supersedeas� comes from the Latin word supersedére,meaning �you shall refrain.�1 Quite simply, a supersedeas is an order to stayproceedings in the lower court. It is a carryover from the days when asupersedeas writ would issue that contained �a command to stay the

* Shannon Thyme Klinger is an associate at Alston & Bird LLP, practicing in trial and appellate

matters, antitrust, and white collar criminal defense. She received a B.A. from the Universityof Notre Dame in 1993 and a J.D. with honors from the University of North Carolina Schoolof Law in 1996.

1 Webster�s Seventh New Collegiate Dictionary 883 (1971).


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proceedings at law.�2 Today, although no writ is required, the staying power of asupersedeas is undisputed.

§ 5.2 Limited Automatic Stay

Upon entry of a judgment,3 a party has ten days within which to determineits next legal step. Georgia Code Section 9-11-62(a) prevents the party in whosefavor a judgment was entered from initiating execution and enforcementproceedings during this ten-day period.4 Parties who do not desire a ten-day staycan, by agreement, dispense with it as long as the agreement is in writing andfiled with the clerk.5

Not all judgments qualify for the automatic ten-day stay. In the case of adefault judgment, execution and enforcement proceedings can beginimmediately.6 Immediate execution is also available for an interlocutory or

2 Black�s Law Dictionary 1437 (6th ed. 1990).

3 A �judgment� for purposes of O.C.G.A. § 9-11-62(a) �includes a decree and any order fromwhich an appeal lies.� O.C.G.A. § 9-11-54(a). Judgments that are directly appealable to theSupreme Court or the Court of Appeals are identified in O.C.G.A. § 5-6-34(a). Judgmentsthat are appealable at the discretion of the appellate court are the subject of O.C.G.A. §5-6-35.In addition, in cases involving judgments not otherwise subject to direct appeal, the trialcourt may certify to the Supreme Court or Court of Appeals that the judgment is of suchimportance to the case that immediate review should be had. O.C.G.A. § 5-6-34(b). See infraSection 5.4.3.

The court may direct the entry of a final judgment as to fewer than all the claims or parties;however, the court may do so only upon an express determination that there is no just reasonfor delay. O.C.G.A. § 9-11-54(b). When the court so designates, it �may stay enforcement ofthat judgment until the entering of a subsequent judgment or judgments and may prescribesuch conditions as are necessary to secure the benefit thereof to the party in whose favor thejudgment is entered.� O.C.G.A. § 9-11-62(f).

It is important to note that if a grant of partial summary judgment is not made final pursuantto O.C.G.A. § 9-11-54(b), the party against whom summary judgment was granted has theoption either to appeal or not appeal at the time the partial summary judgment is rendered.Roth v. Gulf Atl. Media of Ga., Inc., 244 Ga. App. 677, 536 S.E.2d 577 (2000). If the partychooses to appeal, then the appellate decision on the summary judgment ruling is bindingunder O.C.G.A. § 9-11-60(h). Id.

4 O.C.G.A. § 9-11-62(a).

5 Id.

6 Id.

CHAPTER 5: STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT

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final judgment in an injunction or receivership action, unless the court ordersotherwise.7

§ 5.3 Stay for Post-Trial Motions

�The filing of a motion for a new trial or motion for judgmentnotwithstanding the verdict shall act as supersedeas� of the judgment and thusprevent the initiation of execution and enforcement proceedings, unless the courtorders otherwise.8 A party has 30 days after entry of judgment to make suchmotions.9

Stays obtained by filing these post-trial motions may be conditioned onposting bond �in such amounts as the court may order.�10 The requesting andposting of a bond is addressed more fully below, in Section 5.7.

Stays obtained from the filing of a motion for new trial or motion for JNOVare not indefinite. Such stays expire upon a final ruling on the motion. If, afterdisposition of these motions, an appeal is desired, the party must file a notice ofappeal within 30 days.11

§ 5.4 Stay Upon Filing Notice of Appeal in Civil Cases

A properly filed notice of appeal �shall serve as supersedeas upon paymentof all costs in the trial court by the appellant and it shall not be necessary that asupersedeas bond be filed.�12 This is by far the most common means to stay ajudgment pending appeal.

What constitutes a properly filed notice of appeal is discussed more fully inChapter Four. The notice must be filed within 30 days after entry of

7 Id.

8 O.C.G.A. § 9-11-62(b) (emphasis added).

9 O.C.G.A. § 9-11-50(b). For discussion of the relationship between this deadline and theautomatic 10-day stay, see infra Section 5.4.1.

10 O . C. G . A . § 9 - 1 1 - 6 2 ( b ) .

11 O . C. G . A . § 5 - 6 - 3 8 .

12 O . C. G . A . § 5 - 6 - 4 6 ( a ) ( e m p h a s i s a dd e d ) . Ho w e ve r , u p o n t h e t i m e l y f i l i n g o f a m o t i o n b y t h e a p p e l l e e , th e c o u r t � s h a l l r e q u i r e � t h a t a s u p e r s e d e a s b o n d b e g i v e n . I d .; s e e i n fr a S e ct i o n 5 . 7 . 1 .


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judgment or within 30 days after the entry of the order finally disposing of certainpost-trial motions.13

§ 5.4.1 Timing of Notice of Appeal

A party must give serious consideration as to when to file a notice ofappeal. Unless the court has provided otherwise, a party against whom ajudgment has been entered may be unprotected by a stay of the judgment on atleast two occasions: (i) during the 20 days after the automatic 10-day stayoutlined in O.C.G.A. § 9-11-62(a) expires and before a notice of appeal or post-trial motion is required to be filed; and (ii) during the 30 days after finaldisposition of post-trial motions and before a notice of appeal is required to befiled. Promptly filing a notice of appeal is of paramount importance when there isa danger that the appellee may execute on the judgment, possibly mooting theappeal, during the time when no stay is in place.

Due to the danger that an opponent can frustrate an appeal during the timeperiod between the expiration of the 10-day automatic stay and the 30-day filingdeadline, a party should be prepared to file its notice of appeal or post-trialmotion prior to expiration of the 10-day automatic stay.

The case of Bank South, N.A. v. Roswell Jeep Eagle, Inc.14 illustrates some ofthe problems that can occur once a party loses the protection of the 10-dayautomatic stay. In Bank South, a judgment was entered after a jury verdict for theplaintiff, Roswell Jeep Eagle, Inc., in the amount of $187,681.47.15 On the 13th dayfollowing entry of the judgment, Roswell Jeep began obtaining and filing writs ofexecution in several counties where the defendant, Bank South, N.A., possessedmillions of dollars of real estate.16 The Court of Appeals held that �O.C.G.A. § 9-11-62(a), by negative implication, clearly allows an execution to issue upon ajudgment after the ten-day period has run, if a notice of appeal or post-trialmotion acting as a supersedeas has not been filed.�17 Thus, Roswell Jeep�s actionswere valid.

13 O . C. G . A . § 5 - 6 - 3 8 ( a ) .

14 2 0 0 G a . A p p . 4 8 9 , 4 0 8 S . E . 2 d 5 0 3 ( 1 9 9 1 ) .

15 Id. at 489, 408 S.E.2d at 504.

16 Id. at 489, 491, 408 S.E.2d at 504.

17 Id. at 490-91, 408 S.E.2d at 505.


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Bank South moved the trial court for approval of a cash bond and for anorder expunging the writs of execution. The court approved the bond,18 butrefused to expunge the writs:

[T]here is a longstanding line of Georgia Supreme Court decisions holdingthat the only effect of a supersedeas is to stay further action in the case, anda court is without authority to order that the supersedeas operateretroactively so as to undo what has previously been done in execution ofthe judgment appealed. Consequently, the trial court did not err indenying that portion of the bank�s motion which sought affirmativevoidance and �removal� of the entry of the judgment on the generalexecution dockets. 19

For Bank South, such a holding was of little solace when millions of dollars in realestate had been tied up during the appeal of a judgment valued at under $200,000.According to counsel for the bank, the bank�s primary concern was that no titlecompany would certify good title on the property subject to those liens. Despitethe court�s refusal to expunge the writs, the court did provide language sufficientto appease the title company:

[Bank South�s] cash bond would have the legal effect of standing in lieu ofthe lien which otherwise attaches and remains by way of the recordedwrits although their enforcement is stayed by the supersedeas effected bythe filing of the notice of appeal.20

Although this language, along with a cash bond, satisfied the needs of Bank Southin this particular case, there is no guarantee that a different title company wouldfind such a holding adequate. The lesson from Bank South is that by filing a noticeof appeal or post-trial motion before the 10-day automatic stay expires, one canavoid the potentially costly problems that arise from an aggressive opponent�sefforts to execute on a judgment.

For the same reasons, one should file a notice of appeal immediately uponfinal disposition of post-trial motions.

18 Id. at 489-90, 408 S.E.2d at 504.

19 Id. at 491-92, 408 S.E.2d at 506 (citations omitted).

20 Id. at 492, 408 S.E.2d at 506.


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§ 5.4.2 Payment of Costs

The mere filing of a notice of appeal is insufficient to effect a stay. Aproperly filed notice of appeal serves as a supersedeas only �upon payment of allcosts in the trial court by the appellant.�21 Once the notice of appeal is filed andcosts are paid, then �the supersedeas comes into effect and the trial court losesjurisdiction over a given case while the appeal of that case is pending.�22

When a notice of appeal has been filed, but costs have not been paid, thelower court�s jurisdiction to administer the case is not curtailed. For example,absent payment of costs, a trial court is not deprived of jurisdiction to consider amotion to enforce a settlement agreement23 or to grant a motion for additur24 orconsider a motion for a new trial.25 Not only can the court proceed when costs areunpaid, but it can also dismiss the appeal if a party unreasonably delays in thepayment of costs.26

The costs that must be paid are accrued �trial costs,� which do not includethose costs associated with preparing the record for appeal.27 A detaileddiscussion of �trial costs� is beyond the scope of this chapter. Taxable costs aredealt with generally at O.C.G.A. §§ 9-15-1 to -14.

A party that is financially unable to pay costs can still obtain a stay,pursuant to O.C.G.A. § 5-6-47, by filing an affidavit of indigence and a notice ofappeal. An affidavit of indigence is often referred to as a �pauper�s affidavit.�Challenges to an affidavit of indigence can be made by any party in interestwilling to verify �affirmatively under oath that the same is untrue.�28 A party

21 O . C. G . A . § 5 - 6 - 4 6 ( a ) ; s e e a l s o C h ap p e l a e r v. G e n e r a l G . M . C . T r u c k s , I n c ., 1 3 0 G a . A p p . 6 6 4 ,

6 6 5 , 2 0 4 S . E . 2 d 3 2 6 , 3 2 7 - 2 8 ( 1 9 7 4 ) .

22 D u n c a n v. B a ll , 1 7 2 G a . A p p . 7 5 0 , 7 5 1 , 3 2 4 S . E .2 d 4 7 7 , 4 7 9 ( 1 9 8 4 ) .

23 P e n n y P r of i t F oo d s , I n c . v. M c M u l l e n , 2 1 4 G a . A p p . 7 4 0 , 7 4 1 , 4 4 8 S .E . 2 d 7 8 7 , 7 8 9 ( 1 9 9 4 ) .

24 ARA Health Servs. v. Stitt, 250 Ga. App. 420, 551 S.E.2d 793 (2001), cert. denied, Nov. 30, 2001.

25 R o c k d a l e A w n i n g & I r on Co. v. K e r b o w , 2 1 0 G a . A p p . 1 1 9 , 1 2 0 - 2 1 , 4 3 5 S . E. 2 d 6 1 9 , 6 2 1 ( 1 9 9 3 ) ; C h ap p e l a e r , 1 3 0 G a . A p p . a t 6 6 5 , 2 0 4 S . E . 2 d a t 3 2 7 - 2 8 .

26 O . C. G . A . § 5 - 6 - 4 8 ( c ) .

27 J . M . C l a y t o n C o . v . M a r t i n , 1 7 7 G a . A p p . 2 2 8 , 2 2 9 , 3 3 9 S . E . 2 d 2 8 0 , 2 8 1 ( 1 9 8 5 ) .

28 O . C . G . A . § 5 - 6 - 4 7 ( b ) ; s e e a l s o O . C . G . A . § 9 - 1 5 - 2 ( a ) ( 2 ) .


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traversing an affidavit of indigence must do so in the trial court.29 The court�sfindings on a party�s ability to pay �shall be final� and thus ordinarily are notreviewable regardless of whether the affidavit has been traversed.30

§ 5.4.3 Interlocutory Judgments

The filing of a notice of appeal of an interlocutory judgment acts as asupersedeas only if the provisions of O.C.G.A. § 5-6-34(b) are followed. Pursuantto those provisions, a party must: (i) first ask the lower court to certify an issuefor immediate review and receive such certification; (ii) make application to theappellate court for review and have that application granted; and (iii) then file anotice of appeal, which acts as a supersedeas pursuant to O.C.G.A. § 5-6-46.

If the interlocutory review procedures of O.C.G.A. § 5-6-34(b) are notfollowed, the appellate court does not acquire jurisdiction to hear the appeal,leaving the lower court free to take all action with respect to the judgment that itdeems appropriate.31

§ 5.4.4 Divorce, Child Custody, and Alimony Judgments

Divorce, child custody, and alimony decisions are not final judgmentsappealable as of right pursuant to O.C.G.A. § 5-6-34(a). These decisions areappealable only after application has been made to and approved by the appellatecourt pursuant to O.C.G.A. § 5-6-35. A party seeking to appeal a decisionrespecting �divorce, alimony, child custody, and other domestic relations cases�must file an application for appeal within 30 days of the entry of judgment.32 Thefiling of an application in those cases, and in all cases subject to O.C.G.A.§ 5-6-35(a), �act[s] as a supersedeas to the extent that a notice of appeal acts assupersedeas.�33

29 O . C . G . A . § 5 - 6 - 4 7 ( b ) ; B a l l v . D u n c a n , 1 7 4 G a . A p p . 3 4 1 , 3 4 3 , 3 3 0 S . E . 2 d 1 6 0 , 1 6 2 ( 1 9 8 5 ) ;

M a r k T r a i l C a m p g r o u n d s , I n c . v . F i e l d E n t e r s . , I n c . , 1 4 0 G a . A p p . 6 0 8 , 6 0 8 , 2 3 1 S . E . 2 d 4 6 8 ( 1 9 7 6 ) .

30 O . C . G . A . § 5 - 6 - 4 7 ( b ) ; R o l l e s t o n v . S i m s , 2 5 3 G a . A p p . 1 8 2 , 1 8 9 , 5 5 8 S . E . 2 d 4 1 1 , 4 1 7 ( 2 0 0 1 ) , c e r t . d e n i e d , 1 2 3 S . C t . 5 6 0 ( 2 0 0 2 ) ; Q u a r t e r m a n v . W e i s s , 2 1 2 G a . A p p . 5 6 3 , 5 6 4 , 4 4 2 S . E . 2 d 8 1 3 , 8 1 5 ( 1 9 9 4 ) .

31 Cherry v . C o a s t H o u s e , L t d . , 2 5 7 G a . 4 0 3 , 4 0 4 , 3 5 9 S . E . 2 d 9 0 4 , 9 0 6 ( 1 9 8 7 ) .

32 O.C.G.A. § 5-6-35(a)(2), (d).

33 O.C.G.A. § 5-6-35(h). Appeals requiring applications pursuant to O.C.G.A. § 5-6-35 arediscussed more fully in Chapter Two.


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In divorce cases, courts typically enter �temporary orders� with respect toalimony, child support, and child custody.34 Such temporary orders �remain[] inthe breast of the trial court and may be revised in the discretion of the trial courtat any time prior to final determination of the case.�35 These orders are binding onthe parties pending appellate review of the final judgment and can be enforced bythe parties through contempt proceedings.36

The presence of a temporary order transforms the 10-day automatic stayinto a permanent stay pending resolution of the application for appeal and, if theappeal is accepted, consideration of the merits by the appellate court. Absent atemporary order, the trial court may be unable to adequately address a party�sgrievance pending appellate review. For example, in Walker, the Supreme Courtreversed a trial court finding of willful contempt against an appellant whorefused to relinquish custody of a minor child following entry of a judgmentawarding custody to the appellee.37 The Court held that because no temporaryorder (or similar provision in the final judgment) respecting custody was in place,the appellant�s filing of a notice of appeal divested the trial court of jurisdiction toenter its subsequent order of contempt.38

§ 5.4.5 Injunctions

As mentioned above, judgments respecting injunctions are not protectedby the 10-day automatic stay. Similarly, the mere filing of a notice of appeal froma judgment respecting an injunction will not stay the judgment pending

34 Walker v. Walker, 239 Ga. 175, 176, 236 S.E.2d 263 (1977).

35 Shepherd v. Shepherd, 233 Ga. 228, 232, 210 S.E.2d 731, 734 (1974). A subsequent SupremeCourt decision states that the filing of a notice of appeal �reinvests the trial court withjurisdiction� over such temporary orders. Staten v. Staten, 242 Ga. 399, 400, 249 S.E.2d 81, 82(1978). The concept of reinvestment appears to presume that jurisdiction over the temporaryorders was lost at some point. However, the case cited by the Court in Staten for thisproposition does not support this presumption. Under Twilley v. Twilley, 195 Ga. 297, 299, 24S.E.2d 46, 47 (1943), the Court emphasized that as long as the divorce case was still pendingin the appellate court, the trial judge was vested with the discretion to �continue in force, ormodify, his previous order pertaining to temporary alimony and attorney�s fees.�

36 Walker, 239 G a . a t 176, 236 S.E.2d at 264.

37 Id. at 175, 236 S.E.2d at 263.

38 Id. at 175-76, 236 S.E.2d at 263-4. The mere filing of a notice of appeal in Walker was sufficientto effect a stay because the Court�s decision was entered prior to enactment of legislationrequiring an application for appeal to be made in divorce cases. See O.C.G.A. § 5-6-35.


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appeal.39 The rule is based on the policy that a party should not be able to obtainor prevent through the 10-day stay that which he was unable to obtain or preventthrough the ruling on the merits of the petition for injunctive relief.40

Trial courts do, nonetheless, have the discretion, pursuant to O.C.G.A. § 9-11-62(c), to take such steps as they deem appropriate to maintain the status quopending appeal:

When an appeal is taken from an interlocutory or final judgment granting,dissolving, or denying an injunction, the court in its discretion maysuspend, modify, restore, or grant an injunction during the pendency ofthe appeal upon such terms as to bond or otherwise as it considers properfor the security of the rights of the adverse party.41

Thus, a party who is aggrieved by a judgment respecting an injunction must firstpetition the trial court for relief pending appeal. The burden of obtaining such anorder rests squarely on the appellant.42 If the trial court denies the reliefrequested, the aggrieved party may then petition the Supreme Court of Georgiafor the relief needed during the pendency of the appeal.43

Of course, the party seeking to enjoin an act must guard aggressivelyagainst the risk that the appeal will become moot once the act is carried out. It iswell established that �if the thing sought to be enjoined in fact takes place, thegrant or denial of the injunction becomes moot.�44 A case is moot, and thus

39 See Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); see also Saxton v. Coastal Dialysis &

Med. Clinic, Inc., 220 Ga. App. 805, 470 S.E.2d 252, aff�d, 267 Ga. 177, 476 S.E.2d 587 (1996).

40 Howard, 226 G a . a t 852, 178 S.E.2d at 160 (stating that �no appeal from an order denying aninjunction should have the effect of establishing an injunction independently of an order ofthe court�).

41 See also Etheredge v . All American Hummer Limousines, Inc., 269 G a . 436, 498 S.E.2d 60 ( 1 9 9 8 ) .

42 I d .

43 O.C.G.A. § 9-11-62(e); Citizens to Save Paulding County v . City o f Atlanta, 236 Ga. 125, 125, 223S.E.2d 1 0 1 (1976). But see Virginia Highland Civic Ass�n v. Pace Properties, Inc., 272 Ga. 723, 535S.E.2d 230 (2000) (issuing stay �through the pendency of the appeal� despite fact thatappellant did not first petition the trial court pursuant to O.C.G.A.§ 9-11-62(c)).

44 Brown v. Spann, 271 Ga. 495, 496, 520 S.E.2d 909, 910 (1999). See also Jackson v. Bibb County Sch.Dist., 271 Ga. 18, 515 S.E.2d 151 (1999); Fincher v. Fleet Mortgage Group, Inc., 251 Ga. App. 757,555 S.E.2d 120 (2001).


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subject to dismissal,45 �when the resolution would amount to the determination ofan abstract question not arising upon existing facts or rights.�46 As noted above,to prevent such an appeal from becoming moot, the appealing party must, inaddition to filing the appeal, obtain a supersedeas.47

The same analysis applies to mandatory injunctions, which seek to compela particular act. If a mandatory injunction is granted and the party whoseperformance has been ordered does the thing ordered, its appeal becomes moot.48

Thus, in the case of a mandatory injunction, the party who does not wish tocomply must consider defiance of the order to the point of contempt in order topreserve appellate review of the order.

§ 5.4.6 Contempt Cases

Except for actions punishable by contempt that occur �in the presence ofthe court during the progress of a proceeding,� contemnors are entitled, as amatter of right, to a supersedeas pending appeal.49 Georgia Code Section 5-6-13(a)sets forth the procedures that must be followed to enforce a contemnor�s rights:

A judge . . . shall grant . . . a supersedeas upon application and compliancewith the provisions of law as to appeal and certiorari, where the personalso submits, within the time prescribed by law, written notice that heintends to seek review of the conviction or adjudication of contempt. Itshall not be in the discretion of any trial court judge to grant or refuse asupersedeas in cases of contempt.50

45 O.C.G.A. § 5-6-48(b)(3).

46 Brown, 271 Ga. at 496, 520 S.E.2d at 910 (citing Chastain v. Baker, 255 Ga. 432, 399 S.E.2d 241(1986)).

47 Jackson, 271 Ga. at 19, 515 S.E.2d at 153. See also O.C.G.A. § 9-11-62(c).

48 G r in d l e v . C h a s t a i n , 2 2 9 G a . A p p . 3 8 6 , 3 8 8 , 4 9 3 S . E . 2 d 7 1 4 , 7 1 7 ( 1 9 9 7 ) ( � T o p r e v e n t t h e a p p e a l o f a m a n d a t o r y i n j u n c t i o n f r o m b e c o m i n g m o o t, � i t i s n e ce s s a r y f o r th e a p p e a l i n g p a rt y t o o b t a i n a s u p e r s e d e a s . If a s u p e r s e d e a s i s n o t o b t a i n e d, t h e n t h e or d e r e d a c t i on t a k e s p l a c e a s o r d e r e d , a n d t h e a p p e a l b e c o m e s m o o t� � ) ; B o ar d o f C o m m � r s v . C o o p e r , 2 5 9 G a . 7 8 5 , 3 8 7 S .E . 2 d 1 3 8 ( 1 9 9 0 ) .

49 O.C.G.A. § 5-6-13(b).

50 O . C. G . A . § 5 - 6 - 1 3 ( a ) ( e m p h a si s a d de d ) . S e e B l ak e v . S p e a r s , 2 5 4 G a . A p p . 2 1 , 2 5 , 5 6 1 S . E . 2 d1 7 3 , 1 7 7 ( 2 0 0 2 ) .


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Once a written notice of intent to appeal a contempt judgment is presentedto the court, enforcement of the contempt judgment must halt and thecontemnor�s request for a supersedeas must be granted.51

§ 5.5 Discretionary Supersedeas

In addition to the automatic and/or mandatory stays discussed above,both the trial and appellate courts have discretion to grant a supersedeas inappropriate circumstances.

Trial judges have the authority �[t]o grant for their respective circuits writsof . . . supersedeas.�52 As discussed above, a grant of supersedeas usually occursafter a party has followed the procedures outlined in O.C.G.A. § 5-6-46. By itsown terms, however, O.C.G.A. § 5-6-46(d) does not deprive the trial or appellatecourts from their separate power to grant a supersedeas. For example, �where theprevailing party is insolvent and irreparable injury is about to flow fromenforcement of the judgment,� trial courts properly can exercise their discretionand grant a supersedeas notwithstanding a party�s failure to follow the properprocedures.53

Similarly, both the Court of Appeals and the Supreme Court have rulesthat enable them to grant a supersedeas in appropriate circumstances. The Courtof Appeals Rules provide as follows:

In the exercise of its inherent power this Court may issue such orders orgive such direction to the trial court as may be necessary to preservejurisdiction of an appeal or to prevent the contested issue from becomingmoot. This power will be exercised sparingly. Generally, no order will bemade or direction given in an appeal until it has been docketed in thisCourt.54

51 S e e C a lv e r t En t e r s . , I n c . v . G r i f f in - S p a ld i n g Co u n t y H o s p . A u t h . , 1 9 7 G a . A p p . 7 2 7 , 7 2 8 - 2 9 ,

3 9 9 S . E . 2 d 2 8 7 , 2 8 8 ( 1 9 9 0 ) ; s e e a l s o B r in k l e y v . F l at t , 2 5 6 G a . A p p . 2 6 3 , 2 6 5 , 5 6 8 S . E .2 d 9 5 , 9 8 ( 2 0 0 2 ) ( � U n d e r O . C . G .A . § 5 - 6 - 1 3 , a t r i a l c o u r t h a s n o d i s c r e t i o n t o g r a n t o r r e f u s e a s u p e r s e d e a s i n c a s e s o f c on t e m p t w h e r e t h e de f e n d a n t h a s s u b m i t t e d a n a p p l i c a t i on a n d w r i t t e n n o t i c e i n d i c a t i n g h e r i n te n t i o n t o s e e k a n a p p e a l � ) .

52 O.C.G.A. §§ 15-6-9(1) & 15-7-4(a).

53 B i g g e r s v . H o p e , 1 7 6 G a . 1 4 1 , 1 4 1 , 1 6 7 S . E . 1 7 7 ( 1 9 3 2 ) ; s e e a l s o S c o t t v . T h o m p s o n , 2 0 2 G a . A p p . 7 4 6 , 7 4 8 , 4 1 5 S . E . 2 d 5 0 8 , 5 1 0 ( 1 9 9 2 ) ( d e c l i n i n g t o f i n d a b u s e o f d i s c r e t i o n i n e n t e r i n g s u p e r s e d e a s w h e r e i r r e p a r a b l e h a r m m i g h t h a v e r e s u l t e d i n t h e a b s e n c e o f t h e t r i a l c o u r t � s o r d e r ) .

54 G a . C t . A p p . R . 4 0 ( b ) .


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The Rules of the Supreme Court provide as follows:

The Court may issue supersedeas or other orders whenever deemednecessary. Service of motions for supersedeas shall be made on theopposing party or attorney before filing and so certified. A copy of theorder being appealed and a copy of the Notice of Appeal must be includedwith the motion.55

§ 5.6 Jurisdictional Consequences of Supersedeas

The trial court�s jurisdiction is unaffected by the actions of appellants whofail to do that which is necessary to obtain a supersedeas. For example, asdiscussed above, if an interlocutory order is appealed and proper procedures arenot followed, �the appellate court does not acquire jurisdiction,� no supersedeasis obtained, and the trial court may proceed with all aspects of the case.56

Even when all steps have been taken to obtain a supersedeas, a party mayor may not be relieved of its obligations in the trial court pending resolution of theappeal. The trial court�s jurisdiction during the appellate process depends on thenature of the order or judgment for which a supersedeas has been obtained.

The general rule respecting a trial court�s jurisdiction during the pendencyof an appeal is as follows: �Because of the effect of the supersedeas the trial courtloses all jurisdiction as to matters contained within the appeal.�57 Stated differently,the supersedeas �does not deprive the trial court of jurisdiction as to other mattersin the same case not affecting the judgment on appeal.�58

Actions that directly affect �the judgment on appeal� include, for example,proceedings to enforce the judgment,59 efforts to modify, alter, or amend thejudgment,60 efforts to correct mistakes in judgments pursuant to

55 G a . S . C t . R . 9 .

56 C h e r r y v . C o a s t H o u s e L t d . , 2 5 7 G a . 4 0 3 , 4 0 4 , 3 5 9 S . E . 2 d 9 0 4 , 9 0 6 ( 1 9 8 7 ) ; A m a d o v . C i t y o f A t l a n t a , 22 8 G a . A p p . 7 9 1 , 4 9 2 S . E . 2 d 7 6 1 ( 1 9 9 7 ) .

57 C h e r r y , 257 G a . a t 4 0 4 , 3 5 9 S . E . 2 d a t 9 0 6 ( e m p h a s i s a d d e d ) .

58 C o h r a n v . C a r l i n , 2 4 9 G a . 5 1 0 , 5 1 2 , 2 9 1 S . E . 2 d 5 3 8 , 5 4 0 ( 1 9 8 2 ) ( e m p h a s i s a d d e d ) ; s e e a l s o G i s t v . D e K a l b T i r e C o . , 2 2 6 G a . A p p . 7 5 8 , 4 8 7 S . E . 2 d 3 6 0 ( 1 9 9 7 ) ( s a m e ) .

59 Walker v. Walker, 239 Ga. 175, 175, 236 S.E.2d 263 (1977).

60 Park v. Minton, 229 Ga. 765, 769-70, 194 S.E.2d 465, 468 (1972).


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O.C.G.A. § 9-11-60(g),61 and even the issuance by a court of an amended order.62

If a supersedeas is in place, all such actions are invalid, notwithstanding that theparties may have consented to them. 63 Any action taken respecting the judgmentwhile the trial court is without jurisdiction is deemed a nullity and will bereversed.64

Actions that do not directly affect �the judgment on appeal� often arise inthe context of appeals from orders or judgments that fail to dispose of the entirecase. For example, discovery, and even trial on the merits, may take place duringthe pendency of an appeal from an interlocutory order denying a motion todismiss for failure to state a claim.65 Discovery may also take place �as to matterspending in the trial courts notwithstanding the grant and appeal of summaryjudgments as to counterclaims, cross claims and third party complaints or thegrant and appeal of partial summary judgments.�66

§ 5.7 Supersedeas Bond

§ 5.7.1 Bond Required Upon Motion of Appellee

A supersedeas bond is not automatically required in cases in which anotice of appeal has been filed and costs have been paid. However, �upon motionby the appellee, made in the trial court before or after the appeal is docketed inthe appellate court, the trial court shall require that supersedeas bond be given. . ..�67 Generally, the bond should be in an amount sufficient to satisfy thefollowing, if the appeal is unsuccessful: (i) the judgment in full; (ii) costs; (iii)interest; (iv) damages for delay; (v) modification of the judgment; and (vi) suchcosts, interest, and damages as may be awarded by the appellate court.68 If thejudgment in a civil action included punitive damages, �the

61 Brown v . Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 531, 258 S.E.2d 139, 143 (1979); see also

Grebel v . Prince, 232 Ga. App. 361, 362 n . l, 501 S.E.2d 538, 540 n.1 (1998); Screven v . Drs.Gruskin & Lucas, P.C., 227 Ga. A p p . 756, 757, 490 S.E.2d 422, 424 (1997).

62 Bryan v. Brown Childs Realty Co., 236 Ga. App. 739, 742, 513 S.E.2d 271, 273 (1999).

63 Philips Broad. Equip. Corp. v. Production 70�s, Inc., 133 Ga. App. 765, 766, 213 S.E.2d 35 (1975).

64 Walker, 239 G a . a t 175-76, 236 S.E.2d at 265; Park, 229 G a . a t 769-70, 194 S.E.2d at 468.

65 Argonaut Ins. Co. v. Atlantic Wood Indus., Inc., 187 Ga. App. 477, 479-80, 370 S.E.2d 770, 772-73(1988).

66 Cohran v. Carlin, 249 Ga. 510, 512, 291 S.E.2d 538, 540 (1982).

67 O . C. G . A . § 5 - 6 - 4 6 ( a ) ( e m p h a s i s a dd e d ) .

68 I d .


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supersedeas bond for the punitive damages portion of the judgment shall notexceed $25 million.�69 Slightly different considerations are given to cases in whichthe judgment is for �the recovery of money not otherwise secured� and cases inwhich the judgment �determines the disposition of the property in controversy asin real actions, trover, and actions to foreclose mortgages . . . .�70

Under prior law, motions to require a bond were to be directed to the trialcourt before the appeal was docketed and to the appellate court after the appealwas docketed. This is no longer the case. The trial court is now directed toentertain motions to require a bond either �before or after the appeal isdocketed.�71

§ 5.7.2 Failure to Comply With Order to Post Bond

�The cases uniformly hold that the failure to post a supersedeas bondneither mandates nor permits dismissal of an appeal but simply allows theprevailing party (the appellee) to enforce the judgment pending appeal.�72 �Thewell recognized sanction for failure to post a supersedeas bond is that theappellee may proceed to enforce . . . the judgment, subject to the outcome of theappeal.�73

Thus, where a bond is ordered but not provided, the appellant loses theprotection of a supersedeas, but the appellee who chooses to enforce the judgmentpending appeal acts at his own risk, since the judgment could be reversed.

69 O.C.G.A. § 5-6-46(e). If after notice and hearing the court finds that the party on whose

behalf the supersedeas bond requirement has been limited to $25 million is purposefullydissipating or secreting assets, the limitation in § 5-6-46(e) �shall not apply.� O.C.G.A.§ 5-6-46(f).

70 See O . C. G . A . § 5 - 6 - 4 6 ( a ) ( l i s t i n g c r i t e r i a ) .

71 I d .; s e e R u ff i n v . B a n k s , 2 4 9 G a . A p p . 2 9 7 , 5 4 8 S . E. 2 d 6 1 ( 2 0 0 1 ) ( h o l d i n g th a t t h e t r i a l c o u rt d i d n o t e r r i n r e q u i ri n g s u p e r s e d e a s b o n d a f t e r a p p e a l w a s d o c k e t e d i n t h e a p p e l l a t e c o u r t ) .

72 H a w n v . Ch a s t a in , 2 4 6 G a . 7 2 3 , 7 2 5 , 2 7 3 S . E. 2 d 1 3 5 , 1 3 7 - 3 8 ( 1 9 8 0 ) ; s e e a l s o G i s t v . D e Ka l b T ir e C o ., 2 2 6 G a . A p p . 7 5 8 , 4 8 7 S . E. 2 d 3 6 0 ( 1 9 9 7 ) ( s a m e ) .

73 H a w n , 2 4 6 G a . a t 7 2 7 , 2 7 3 S . E . 2 d a t 1 3 8 - 3 9 ; s e e a l s o H y m a n v . L e a t h e r s , 1 6 8 G a . A p p . 1 1 2 , 3 0 8 S . E . 2 d 3 8 8 ( 1 9 8 3 ) . Th e s a m e r u l e a p p l i e s e q u a l l y t o a p p e a l s f r om t ri a l c ou r t s i n G e or g i a a s i t do e s t o a p p e a l s t o s u p e r i o r c o u r ts i n Ge o r g i a . S e e H a w n , 2 4 6 G a . a t 7 2 7 , 2 7 3 S . E. 2 d a t 1 3 8 - 3 9 . O . C. G . A . § 5 - 3 - 2 2 .


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§ 5.7.3 No Bond Required for State or Agency Thereof

Pursuant to O.C.G.A. § 9-11-62(d), �[w]hen an appeal is taken by the stateor by any county, city, or town within the state, or an officer or agency thereof,and the operation or enforcement of the judgment is stayed, no bond, obligation,or other security shall be required from the appellant.�

§ 5.7.4 Jurisdiction Over Surety

Pursuant to O.C.G.A. § 5-6-46(c), �[b]y entering into an appeal orsupersedeas bond given pursuant to this Code section, the surety submits himselfto the jurisdiction of the court and irrevocably appoints the clerk of the court ashis agent upon whom any papers affecting his liability on the bond may beserved. His liability may be enforced on motion without the necessity of notice oran independent action.�


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6 BRIEFS AND ENUMERATIONS OF ERRORAdam J. Biegel*

§ 6.1 Briefs in the Georgia Court of Appeals1

§ 6.1.1 Rules Governing Procedure

§ 6.1.1.1 Docketing and Deadlines

After an appeal is docketed, the Clerk of Court mails notice of thedocketing date and a schedule for briefing to all counsel.2 Parties are permittedto file an appellant�s brief, an appellee�s brief, and a reply brief.3

* Mr. Biegel is an attorney with the law firm of Alston & Bird LLP focusing on antitrust

counseling and complex litigation. He received his B.A. from Emory University in 1993 and aJ.D. from the University of Chicago in 1998.

1 References in this section to counsel include pro se parties. Ga. Ct. App. R. 1(d). Referencesto appellants and appellees include cross-appellants and cross-appellees, respectively.

2 Ga. Ct. App. R. 13.

3 Ga. Ct. App. R. 24.


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An appellant�s brief and enumeration of errors must be filed within 20days4 after the appeal is docketed.5 Failure to file an appellant�s brief within thattime, unless extended upon motion for good cause shown, may cause the appealto be dismissed and subject the offender to sanctions for contempt.6 A motionfor extension of time to file an appellant�s brief and enumeration of errors mustbe filed prior to the date the documents are due, or the Court may dismiss theappeal.7

An appellee�s brief must be filed within 40 days after the appeal isdocketed or 20 days after the filing of the appellant�s brief, whichever is later.8Failure to file a timely appellee�s brief may result in the brief not beingconsidered, and may subject counsel to sanctions for contempt.9 Failure toreceive the Court�s docketing notice does not relieve counsel of the responsibilityto file a timely brief.10

Appellant may file a reply brief within 20 days after the appellee�s brief isfiled.11

§ 6.1.1.2 Extensions of Time

Parties seeking to extend the time for filing a brief must file a motionrequesting the extension.12 The motion, based on good cause, must be filed priorto the date the brief is due, or else the Court may decline to consider the

4 With respect to all briefing deadlines in the Court of Appeals, when an expiration date falls

on Saturday, Sunday, or an official state or national holiday, the time is extended to the nextbusiness day. Ga. Ct. App. R. 3.

5 Ga. Ct. App. R. 26(a), 27.

6 Ga. Ct. App. R. 26(a).

7 Id.

8 Ga. Ct. App. R. 26(b).

9 Id.; see also Ga. Ct. App. R. 13 (requiring State to file briefs in all criminal cases in which it isappellee).

10 Ga. Ct. App. R. 13.

11 Ga. Ct. App. R. 26(c)

12 Ga. Ct. App. R. 16(b).

CHAPTER 6: BRIEFS AND ENUMERATIONS OF ERROR

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motion and may dismiss the appeal.13 Extensions of time for filing briefs arediscretionary, and the Court will only grant extensions by written order. Oralextensions will not be recognized.14

The Court will not grant extensions of time for filing interlocutory ordiscretionary applications or responses.15

§ 6.1.1.3 Physical Preparation/Formatting

As with all documents filed with the Court, briefs must be typed orprinted upon non-transparent, letter-size (8_� x 11�) white paper, and all text,including quotations and footnotes, must be at least double-spaced.16 Textcannot be smaller than Courier 10 characters per inch (�cpi�), 12 point or itsequivalent.17 Notwithstanding the 10 cpi requirement, the Court will acceptbriefs using Times New Roman Regular 14 point (Western).18 Briefs must also bebacked with a non-glossy, white manuscript cover of recyclable paper heavierthan regular stationery-type paper.19 Briefs must be bound at the top withstaples or round-head fasteners.20

Writing may appear on only one side of each page, with each page havingmargins of at least two inches at the top, and one inch on the sides and bottom ofeach page.21 Each page must be numbered sequentially with Arabic numerals.22

13 Ga. Ct. App. R. 16 (b), 26(a).

14 Ga. Ct. App. R. 16(b).

15 Ga. Ct. App. R. 16(c).

16 Ga. Ct. App. R. 1(c), 23(a).

17 Ga. App. 1(c).

18 Id.

19 Id.

20 Id.

21 Ga. Ct. App. R. 23(b)

22 Ga. Ct. App. R. 23(d).


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If the Court deems a brief�s type size, type style, or form to beinappropriate, the brief may be returned to counsel with an order to �redact andrecast� the brief.23

§ 6.1.1.4 Page Limitations

Briefs and responsive briefs are limited to 30 pages in civil cases and 50pages in criminal cases (including indexes, exhibits and appendices), exceptupon the Court�s approval of a written application to exceed this limit filed withthe Clerk of Court.24 Appellant�s reply brief is limited to 15 pages.25

Supplemental briefs, which may be filed only with leave of Court, may notexceed 15 pages.26

§ 6.1.1.5 Copies

As with all documents filed with the Court, the parties must file anoriginal and two copies of each brief.27 To receive a file-stamped copy of a fileddocument, a party should include an extra copy and, if filed by mail, a pre-addressed stamped envelope with sufficient return postage.28

23 Ga. Ct. App. R. 1(c). Failure to redact or recast a brief as ordered may lead to the striking of a

brief or dismissal of an appeal. See, e.g., Dep�t of Transportation v. Gaines, No. A97A2535 (Ga.App. Oct. 28, 1997) (dismissing appeal after brief ordered to be redacted and recast wasresubmitted with same type-size and style errors as original brief, and denying request to filethird brief); compare GLW Int�l Corp. v. Yao, 243 Ga. App. 38, 40, 532 S.E.2d 151, 154 (2000)(declining to dismiss appeal due to violation of brief type-size rule when court did not orderit to be redacted and recast because plaintiff was not prejudiced enough to �warrant theharsh remedy of dismissal�).

When the Court does not return deficient briefs in time for redacting and recasting prior tooral argument, the Court may choose to proceed without requiring additional submissions.See, e.g., Cooper v. State, No. A02A1089, 2002 WL 31684680, at *1 (Ga. Ct. App. Nov. 27, 2002)(considering deficient brief despite its �mind numbing� defiance of type-size and line-spacing requirements, �albeit with a difficulty solely of [appellant�s] own making�).

24 Ga. Ct. App. R. 23(e).

25 Id.

26 Ga. Ct. App. R. 24.

27 Ga. Ct. App. R. 6.

28 Ga. Ct. App. R. 2.

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§ 6.1.1.6 Filing Procedure

The Court deems a brief filed when:

(1) it is physically delivered to the Clerk�s Office, withsufficient costs, and clocked in by the Clerk�s Office staff; or

(2) it is deposited in the United States Postal Service byregistered or certified mail, with sufficient costs, if theofficial United States Postal Service postmark date appearseither (a) on the transmittal envelope or container, or (b) onthe certified mail receipt provided by the United StatesPostal Service at the time the document is mailed. (TheCourt may request submission of the certified mail receipt.)29

Dates affixed by office postage meters or private postage meters are notsufficient proof of mailing and do not cause a brief to be deemed filed as of thatdate.30 The Court does not accept filings by facsimile.31

It should be noted that the filing procedure for briefs is different fromthose for Motions for Reconsideration. Motions for Reconsideration are deemedfiled only on the date of physical receipt in the Clerk�s Office regardless of the dateof mailing.32

§ 6.1.1.7 Clerk�s Office Hours and Contact Information

The Clerk�s Office is open Monday through Friday between the hours of8:30 a.m. and 4:30 p.m. EST/EDT.33 The address of the Clerk�s Office is:

ClerkCourt of Appeals of Georgia334 State Judicial Building40 Mitchell StreetAtlanta, Georgia 3033434

29 Ga. Ct. App. R. 4.

30 Id.

31 Ga. Ct. App. R. 1(e).

32 Ga. Ct. App. R. 4, 37(b); see also Chapter 10.

33 Ga. Ct. App. R. 2(a).

34 Id.


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The telephone number of the Clerk�s Office is (404) 656-3450.35 The Court�s webaddress is http://www.appeals.courts.state.ga.us.

The Clerk�s Office maintains a drop box for filing briefs and otherdocuments after business hours. The Judicial Building is open from 7:30 a.m.until 5:30 p.m. Items placed in the drop box after 4:30 p.m. (Monday throughFriday) will be clocked in the next business morning, but docketed as filed on thedate the document was placed in the drop box.36

§ 6.1.1.8 Costs

The Court of Appeals assesses $80 in costs in all cases. Appellant andappellant�s counsel become liable for costs when the case is docketed, but costsare to be paid upon filing of an actual application or, in direct appeals, uponfiling of the appellant�s brief.37 Parties seeking a waiver of costs must alreadyhave a pauper�s affidavit contained in the record or submit a sufficient pauper�saffidavit to the Court.38 The Clerk will not file any matter until costs have beenpaid or waived.39

Fees must be paid by check or money order. The Clerk�s Office cannot beresponsible for cash submitted with filings.40

§ 6.1.1.9 Sealed Filings

The Court will not permit parties to file briefs or motions under sealunless it has granted counsel�s motion for permission to file such documentsunder seal.41

§ 6.1.2 Rules Governing Structure and Content of Briefs

35 Id.

36 Ga. Ct. App. R. 2(b).

37 O.C.G.A. § 5-6-4; Ga. Ct. App. R. 5.

38 Id.

39 Id.

40 Ga. Ct. App. R. 2.

41 Ga. Ct. App. R. 27(c)(3)(iv).

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§ 6.1.2.1 In General

§ 6.1.2.1.1 Record and Transcript References

All record and transcript citations must be to the (1) volume or part and(2) page number of the record or transcript as sent from the court from which thedecision is appealed.42 Page numbers should be identified with the letter R (forRecord), T (for Transcript) or MT (for Motion Transcript) followed by a dash andthe page number in the record (i.e., R-Page Number of the Record, T-PageNumber of the Transcript and MT-Page Number of the Motion Transcript anddate of the hearing).43

§ 6.1.2.1.2 Citations

Citations of cases must include the case name as well as the volume, page andyear of the Official Reporter (Harrison or Darby). Cases not yet reported must be citedby the Court of Appeals or Supreme Court case number and date of decision.44

§ 6.1.2.1.3 Signature

As with all documents filed with the Court, briefs must be signed bycounsel and include the mailing address and telephone number of the attorneysigning the brief.45 State Bar of Georgia membership numbers of all

42 Ga. Ct. App. R. 27(a)(1), (c)(3)(iii).

43 Ga. Ct. App. R. 27(c)(3)(iii); see also Todd v. Casciano, 256 Ga. App. 631, 631 n.1, 569 S.E.2d 566,567 n.1 (2002) (�Use of lengthy titles supplied by court reporters to volumes of the record isnot helpful.�); Kendall v. Griffin-Spalding County Hosp. Auth., 242 Ga. App. 821, 821, 531 S.E.2d396, 397 (2000) (�References to exhibits introduced in the trial court without further referenceto the volume and page of the record do not satisfy the Rule�s requirement to cite to therecord on appeal.�). Citations to record indexes may not be used. Bennett v. Builders II, Inc.,237 Ga. App. 756, 756-57, 516 S.E.2d 808, 809 (1999).

44 Ga. Ct. App. R. 23(c). Note also the Court�s distinction between its binding precedent and itsphysical precedent. Binding precedent arises from decisions concurred in by all judges of adivision or a full concurrence of a majority of a seven- or twelve-judge Court. Physicalprecedents arise from cases in which, within a division, special concurrences withoutstatements of agreement or concurrences in the judgment only are filed or, with a seven- ortwelve-judge Court, less than a majority generally concurs. Ga. Ct. App. R. 33(a).Unreported opinions are neither physical nor binding precedent, but are merely the law ofthe case as provided by O.C.G.A. § 9-11-60(h). Ga. Ct. App. R. 33(b). In addition, casesaffirmed without opinion under Rule 36 have no precedential value. Ga. Ct. App. R. 36.

45 Ga. Ct. App. R. 1(a).


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submitting attorneys also must be included in the brief.46 Counsel for thedefendant in a criminal case must include the address of the defendant on theface of the brief and notify the Court of any change of address.47

§ 6.1.2.1.4 Certificate of Service

Briefs must be served prior to their filing with the Court. All briefs musthave a Certificate of Service that bears the name and mailing address of allopposing counsel. Service may be shown by certificate of counsel, writtenacknowledgement, or affidavit of the server.48 The certificate, like all signeddocuments submitted to the Court, should bear the submitting attorney�s StateBar of Georgia membership number.49

§ 6.1.2.1.5 Attachments and Exhibits

Documents attached to a brief that have not been certified by the clerk ofthe trial court as part of the appellate record and forwarded to the Court will notbe considered on appeal.50

§ 6.1.2.1.6 Inappropriate Remarks

Personal remarks, which are discourteous or disparaging to opposingcounsel, any judge, or the Court, are forbidden in written materials submitted tothe Court.51

§ 6.1.2.1.7 Motions

Parties may not file motions in the body of briefs.52

46 Id.

47 Ga. Ct. App. R. 23(g).

48 Ga. Ct. App. R. 1(a). See also Ellis v. Stanford, 256 Ga. App. 294, 295, 568 S.E.2d 157, 159 (2002)(denying motion to dismiss due to appellant�s failure to serve the brief and include certificateof service because despite �clear violat[ion]� of Rule 1(a), appellee did obtain brief, receivedextension of time for filing responsive brief and was not prejudiced by delay).

49 Ga. Ct. App. R. 1(a).

50 Ga. Ct. App. R. 23(f).

51 Ga. Ct. App. R. 10; see also Anderson v. Georgia Farm Bureau Mut. Ins. Co., 255 Ga. App. 734,737-38, 566 S.E.2d 342, 345-46 (2002), cert. denied (Sept. 30, 2002) (denying motion to strikebased on personal attacks on counsel because �[a]lthough argumentative, the language inquestion is not so discourteous and disparaging as to warrant granting the motion to strike�).

52 Ga. Ct. App. R. 41(b).


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§ 6.1.2.2 Appellant�s Brief

§ 6.1.2.2.1 Parts

The brief of the appellant must consist of three parts:

(1) Proceedings Below. Part One must be a succinct and accuratestatement of the proceedings below and the material facts relevant to the appeal.This part must include citations to the parts of the record or transcript essentialto the consideration of the enumerated errors, and a statement of the method bywhich each enumerated error was preserved for consideration.53 Facts alleged inthe brief must be supported by evidence in the record to be considered.54

(2) Enumeration of Errors. Part Two must consist of the enumeration oferrors.55 An enumeration of errors must be filed within 20 days after the case isdocketed (the same deadline for appellant�s brief), but no separately-filedenumeration of errors is required, apart from the enumeration included as partof the brief.56 Failure to file an enumeration of errors may result in dismissal ofthe appeal.57

As required by Georgia statute, an enumeration of errors must set forthseparately each error relied upon on appeal.58 It must be concise, and need not

53 Ga. Ct. App. R. 27(a)(1); see also SEC, Inc. v. Puckett, 252 Ga. App. 422, 422, 555 S.E.2d 198, 200(2001), cert. denied (March 25, 2002) (nothing that statement concerning preservation of error�is essential to show the Court that the arguments raised on appeal were, in fact, properlypreserved for appellate review. Appellants should not expect the Court to cull the record toensure that this has been done. By failing to cite to the portion of the record showing whereit purportedly preserved the enumerated errors, [appellant] risked the Court deeming all itsarguments abandoned.�) (footnotes omitted).

54 In re Ray, 248 Ga. App. 45, 545 S.E.2d 617 (2001); see also Stebbins v. Georgia Power Co., 252 Ga.App. 261, 262, 555 S.E.2d 906, 907 (2001), cert. denied (March 25, 2002) (�Exhibits contained inan appellate brief which do not appear in the record or transcript cannot be considered bythis court and afford no basis for reversal.�) (citation and internal quotation marks omitted).

55 Ga. Ct. App. R. 22(a), 27(a)(2).

56 Ga. Ct. App. R. 22(a).

57 Ga. Ct. App. R. 7; Strom v. London, 257 Ga. App. 889, 572 S.E.2d 409 (2002).

58 O.C.G.A. § 5-6-40.


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set out or refer to portions of the record on appeal.59 Prior to 1999, reporteddecisions of the Court reached different results about whether �multifarious� orcompound enumerations of error were properly �set forth and argued separatelyand whether they should be considered.�60 In 1999, the Georgia Supreme Courtheld that such enumerations of error do not violate the statutory requirement aslong as they �identif[y] the trial court ruling asserted to be error.�61 Thus, forexample, an appellant may properly allege in an enumeration that a single trialcourt ruling was in error and provide multiple subsidiary reasons for thisconclusion in the argument section of the brief.62 Or a single enumeration maycontain multiple allegations of related but particularly designated errors, such asrefusing to give certain charges or permitting certain witnesses to testify.63

In addition, even if the enumeration of errors fails to identify clearly theerrors sought to be reviewed, the appeal will still be considered if it is apparentfrom the notice of appeal, the filed enumeration of errors and the record (or anycombination of these documents) what errors are sought to be asserted onappeal.64

The enumeration of errors must be served on the appellee pursuant toO.C.G.A. § 5-6-32,65 need not have approval of the trial court, and when filedshall become part of the record on appeal.66 The enumeration of errors must

59 Id.

60 Felix v. State, 271 Ga. 534, 535-36 and 538 n.3, 523 S.E.2d 1, 3-4 and 5 n.3 (1999) (catalogingcases defining an error and in which compound enumerations led to partial dismissal orconsideration on appeal).

61 Id. at 539, 523 S.E.2d at 5; see also O.C.G.A. § 5-6-30 (requiring that Appellate Procedure Actprovisions be �liberally construed so as to bring about a decision on the merits of every caseappealed and to avoid dismissal of any case or refusal to consider any points raised therein,except as may be specifically referred to in [the Act]�); Adams-Cates Co. v. Marler, 235 Ga. 606,606, 221 S.E.2d 30, 31 (1975) (�[T]he subject matter need be indicated only in the most generalway.�) (quoting Wall v. Rhodes, 112 Ga. App. 572, 145 S.E.2d 756 (1965)).

62 Felix, 271 Ga. at 539-40, 523 S.E.2d at 6.

63 Id. at 538 n.5, 523 S.E.2d at 5 n.5.

64 Id. at 538, 523 S.E.2d at 5; O.C.G.A. § 5-6-48(f).

65 O.C.G.A. § 5-6-40. O.C.G.A § 5-6-32 allows for service on counsel, in person or by mail, withproof shown by acknowledgment or certificate. See also Ga. Ct. App. R. 1(a).

66 O.C.G.A. § 5-6-40.


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also contain a statement of jurisdiction as to why the Court of Appeals � and notthe Supreme Court � has jurisdiction.67

Errors not set forth in the enumeration of errors will not be considered bythe Court, even if subsequently argued to the Court.68 The enumeration of errorsmay not be amended after the original time for filing the enumeration (20 daysafter docketing) has expired.69 Further, an additional brief filed after that datemay not be used to argue an enumerated error not argued in the original brief.70

(3) Argument and Citation of Authorities. Part Three must contain theargument and citation of authorities.71 Part Three also must include a concisestatement of the applicable standard of review for each issue presented in thebrief, with supporting authority.72 Mere restatement or repetition of theenumeration of errors or legal contentions is not argument.73 An appealing

67 Ga. Ct. App. R. 22(b).

68 Felix, 271 Ga. at 539 n.6, 523 S.E.2d at 5 n.5 (stating that �[t]he appellate court is precludedfrom reviewing the propriety of a lower court�s ruling if the ruling is not contained in theenumeration of errors.�); City of East Point v. Seagraves, 240 Ga. App. 852, 524 S.E.2d 755(1999).

69 Hill v. State, 257 Ga. App. 82, 85, 570 S.E.2d 395, 398 (2002); but see Blanton v. Duru, 247 Ga.App. 175, 176, 543 S.E.2d 448, 450 (2000), cert. denied (June 4, 2002) (exercising discretionunder liberal construction of Appellate Procedure Act to consider merits of appeal in whichuntimely brief and enumeration of errors was filed).

70 Hullender v. State, 256 Ga. 86, 92, 344 S.E.2d 207, 211 (1986); Getty v. State, 202 Ga. App. 490,491, 415 S.E.2d 29, 30 (1992).

71 Ga. Ct. App. R. 27(a)(3). See Yang v. Washington, 256 Ga. App. 239, 568 S.E.2d 140 (2002)(�Appellate judges should not be expected to take pilgrimages into records in search of errorwithout the compass of citation and argument.�) (citation and internal quotation marksomitted); Gilbert v. Montlick & Assoc., P.C., 248 Ga. App. 535, 539, 546 S.E.2d 895, 901 (2001),cert. denied (Jan. 9, 2002) (�Argument is defined as a reason given in proof or rebuttal, or acoherent series of reasons offered. Clearly, the central element in those definitions is reason.A mere statement of what occurred during the trial, and the contentions of the appellant,does not constitute an argument in support of such contentions. The failure to support theenumerated errors by citation of authority or argument constitutes an abandonment of suchenumerated errors.�) (citation omitted); Dixon v. Metropolitan Atlanta Rapid Transit Auth., 242Ga. App. 262, 266, 529 S.E.2d 398, 402 (2000) (�Rhetoric is not a substitute for cogent legalanalysis, which is, at a minimum, a discussion of the appropriate law as applied to therelevant facts.�).

72 Ga. Ct. App. R. 27(a)(3).

73 Glisson v. Freeman, 243 Ga. App. 92, 107, 532 S.E.2d 442, 454 (2000); Green v. State, 208 Ga.App. 1, 2-3, 429 S.E.2d 694, 695-96 (1993).


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party may not use this section of the brief to expand its enumeration of errors byarguing the incorrectness of a trial court ruling not mentioned in theenumeration of the errors.74

§ 6.1.2.2.2 Sequence Of Argument

The sequence of argument or arguments in briefs shall follow the order ofthe enumeration of errors and be numbered accordingly.75

§ 6.1.2.2.3 Unsupported Enumerated Error

Each enumerated error must be supported in the brief by specificreference to the record or transcript. In the absence of such reference, the Courtwill not search for or consider such an enumeration.76 Furthermore, anenumerated error not supported in the appellant�s brief by citation of authorityor argument may be deemed abandoned.77

The function of the brief�s argument is to supply the reason the Courtshould support the party�s contentions.78 Mere restatement of enumerated

74 Felix, 271 Ga. at 539 n.5, 523 S.E.2d at 5 n.5.

75 Ga. Ct. App. R. 27(c)(1). See Stagl v. Assurance Co. of Am., 245 Ga. App. 8, 9, 539 S.E.2d 173,175 2000) (�The rules of this court require that there be a direct and logical relationshipbetween the enumerations of error and the arguments contained in the brief.�); see alsoKilburn v. Young, 256 Ga. App. 807, 809-10, 569 S.E.2d 879, 882 (2002), cert. denied (Oct. 28,2002) (�Our requirements as to the form of appellate briefs were created not to provide anobstacle, but to aid parties in presenting their arguments in a manner most likely to be fullyand efficiently comprehended by this Court; a party will not be granted relief should we errin deciphering a brief which fails to adhere to the required form.�) (quoting Campbell v.Breedlove, 244 Ga. App. 819, 535 S.E.2d 308 (2000)); but see Owens v. Department of Human Res.,255 Ga. App. 678, 679 n.1, 566 S.E.2d 403, 404 n.1 (2002) (exercising discretion to addressargument that �does not follow the order of the enumerations, is not logically linked to them,and is not divided and numbered accordingly� to the extent that the Court �can discern mainarguments�).

76 Ga. Ct. App. R. 27(c)(3)(i). See, e.g., Harris v. State, 256 Ga. App. 120, 122, 567 S.E.2d 394, 398(2002) (�We have repeatedly held that it is not the function of this court to cull the record onbehalf of a party.�) (quoting Jackson v. State, 252 Ga. App. 268, 555 S.E.2d 908 (2001)); McLeodv. State, 251 Ga. App. 371, 373, 554 S.E.2d 507, 510 (2001) (refusing to consider enumeration oferror not supported by citation to record or transcript).

77 Ga. Ct. App. R. 27(c)(2). See Felix, 271 Ga. at 539 n.6, 523 S.E.2d at 5 n.6; Davis v. State, 244 Ga.App. 345, 349, 535 S.E.2d 528, 532 (2000).

78 Davis, 244 Ga. App. at 349, 535 S.E.2d at 533; Caring Hands, Inc. v. Georgia Dep�t of Human Res.,222 Ga. App. 608, 610, 475 S.E.2d 660, 662 (1996).


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errors or contentions does not constitute argument, and an enumerated error nototherwise supported may be deemed abandoned.79

§ 6.1.2.3 Appellee�s Brief

§ 6.1.2.3.1 Parts

The brief of appellee should be divided into two parts:

(1) Deficiencies in Appellant�s Statement of Proceedings Below. Part Oneshould point out any material inaccuracy or incompleteness of the factualstatement in appellant�s brief, add any additional statement deemed necessary,and cite any additional parts of the record or transcript deemed material.80

Failure to do so constitutes consent to a decision based on the appellant�sstatement of facts. The Court may accept uncontroverted portions of theappellant�s statement of facts as true.81

(2) Argument and Citation of Authorities. Part Two must contain theargument and citation of authorities relevant to each enumeration of error.82 Inthis part, appellee shall also include the standard of review for a particular errorif different from the one contended by appellant.83

§ 6.1.2.3.2 Sequence Of Argument

The sequence of argument or arguments in briefs should follow the orderof the enumeration of errors and be numbered accordingly.84

79 Savage v. State, 252 Ga. App. 251, 256, 556 S.E.2d 176, 182 (2001), cert. denied (Mar. 25, 2002);

Key v. Grant, 238 Ga. App. 818, 820, 520 S.E.2d 277, 279 (1999).

80 Ga. Ct. App. R. 27(b)(1). This rule applies only to an inaccurate or incomplete statement asevidenced by the transcript and record. The appellee�s brief cannot supply evidence notcontained in the record or transcript. See, e.g., Biven Software, Inc. v. Newman, 222 Ga. App.112, 115, 473 S.E.2d 527, 530 (1996); Voxcom, Inc. v. Boda, 221 Ga. App. 619, 619, 472 S.E.2d 155,155-156 (1996).

81 Ga. Ct. App. R. 27(b)(1). See, e.g., LaBrec v. Davis, 243 Ga. App. 307, 534 S.E.2d 84 (2000), aff�d,274 Ga. 5, 549 S.E.2d 76 (2001).

82 Ga. Ct. App. R. 27(b)(2).

83 Id.

84 Ga. Ct. App. R. 27(c)(1).


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§ 6.1.2.3.3 Defending Against Claims of UnsupportedMatters

In defending against the contention that certain findings, rulings, or othermatters are not supported by the record, counsel may refer to particular pages ofthe record where they may be found.85


Supplemental briefs may be filed only with leave of the Court.86 Leave ofthe Court may be obtained by filing a motion for permission to file asupplemental brief. Such motions may be accompanied by an original and twocopies of the proposed supplemental brief.87 Supplemental briefs may notexpand the issues beyond the scope of the original enumeration of errors norresurrect those unsupported and abandoned in the original brief.88

Supplemental briefs may not exceed 15 pages.89

Parties may not file letter briefs or letter cites.90 If a party wishes toapprise the Court of a recent authority that has come to its attention after thefiling of the party�s brief or after oral argument, but prior to the Court�s decision,the party should file a supplemental brief. An original and two copies of such abrief, which must include a certificate of service, must be filed with the Courtand served on opposing counsel. A response to such a filing should be madepromptly and in accordance with the procedure for filing supplemental briefs.91

85 Ga. Ct. App. R. 27(c)(3)(ii).

86 Ga. Ct. App. R. 24.

87 Id.

88 Holloway v. State, 245 Ga. App. 510, 515, 537 S.E.2d 708, 713 (2000), cert. denied, 122 Ga. 252(2001); Anderson v. Houser, 240 Ga. App. 613, 621 n.23, 523 S.E.2d 342, 349 n.23 (1999).

89 Ga. Ct. App. R. 24.

90 Id.

91 Id.


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Amicus curiae briefs may be filed without leave of Court.92 Such a briefshould disclose the identity and interest of the persons or group on whose behalfthe brief is filed and be limited to issues properly raised by the parties.93 Theonly persons who may file such briefs are members of the Bar of the Court orattorneys appearing by courtesy.94

The Court has refused to consider portions of amicus briefs whichconstitute an attempted expansion of the original appeal.95

§ 6.2 Briefs in the Supreme Court of Georgia96

§ 6.2.1 Rules Governing Procedure

§ 6.2.1.1 Docketing and Deadlines

The Clerk will notify all attorneys by mail of the docketing dates of theirappeals.97 An appellant�s brief must be filed within 20 days98 after the case isdocketed.99

The brief of an appellee must be filed within 40 days after the case isdocketed or 20 days after the filing of appellant�s brief, whichever is later.100

92 Ga. Ct. App. R. 25.

93 Id.

94 Id.

95 Shaver v. Aetna Fin. Co., 148 Ga App. 740, 741, 252 S.E.2d 684, 685 (1979) (decided under priorversion of rules).

96 References in this section to counsel include pro se parties. Ga. S. Ct. R. 4(7). References toappellants and appellees include cross-appellants and cross-appellees, respectively.

97 Ga. S. Ct. R. 8.

98 To calculate the due date for briefs to be filed in the Supreme Court, begin counting with theday after docketing, including weekends and holidays. When an expiration date falls onSaturday, Sunday, or an official state or national holiday, the time is extended until the nextbusiness day. Ga. S. Ct. R. 11.

99 Ga. S. Ct. R. 10.

100 Id.


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An appeal and a cross-appeal may be argued in the same brief, but this does notextend the time for filing.101

Failure to comply with an order of the Court directing the filing of briefsmay result in dismissal of the appeal and imposition of sanctions.102

§ 6.2.1.2 Extensions of Time

Requests for extensions of time for filing briefs should be directed by letterto the Clerk sufficiently in advance of the due date so that, if the request isdenied, the brief may be filed within the required time.103 Requests not showingservice on opposing parties will not be honored.104

§ 6.2.1.3 Physical Preparation/Formatting

All briefs must be typed or printed on letter size (8_� x 11�) paper withcovers on the front and back and stapled on the left side in booklet form.105 Allcovers must be of recyclable paper heavier than regular stationery.106 Coversmust bear the style of the case, the case number, and the names of the personspreparing the brief, along with their bar numbers, if attorneys.107

All briefs must be printed or typed with not less than double-spacingbetween the lines, except in block quotations or footnotes. Margins must be atleast one inch on the top, bottom and each side. The type size must not be

101 Id.

102 Ga. S. Ct. R. 7, 10.

103 Ga. S. Ct. R. 12.

104 Id.

105 Ga. S. Ct. R. 18. Note that the reference in Rule 17 to a different filing format for enumerationof errors has been superseded by Rule 19, which requires the enumeration of errors to befiled as part of an appellant�s brief and formatted according to Rule 18.

106 Ga. S. Ct. R. 18.

107 Id.


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smaller than standard pica or elite type or 12-point Courier font.108 The pages ofeach brief must be sequentially numbered with Arabic numbers.109

§ 6.2.1.4 Page Limitations

All briefs must be limited to 30 pages in civil cases, except upon writtenrequest by letter to the Clerk and authorization by the Court prior to the filingdue date.110

§ 6.2.1.5 Copies

An original and seven copies of all briefs must be filed with the Clerk.111

§ 6.2.1.6 Filing Procedure

The Supreme Court deems a brief filed on the date:

(1) it is physically delivered to the Clerk�s Office;

(2) it is received in the Clerk�s Office by properly addressed mail;

(3) it is postmarked by the United States Postal Service if (a) it is sent viacertified or registered mail, and (b) a clear official or cancellation date is stampedon a properly addressed envelope received by the Court; or

(4) it is delivered to the United States Postal Service or a commercialdelivery company for overnight delivery as evidenced by the receipt provided bythe Post Office or commercial delivery company.112

No filings will be accepted by facsimile without prior permission of theCourt. When such permission is granted, facsimile filings will be filed as of the

108 Ga. S. Ct. R. 16.

109 Ga. S. Ct. R. 21.

110 Ga. S. Ct. R. 20.

111 Ga. S. Ct. R. 15.

112 Ga. S. Ct. R. 1, 13; see also Massaline v. Williams, 274 Ga. 552, 554, 554 S.E.2d 720, 722 (2001)(noting recognition under Rules of commercial delivery services and confirming thatpersonal delivery to clerk is not necessarily the sole means of filing).


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date the facsimile is received, but only after receipt of an additional copy by mail.Service on an opposing party must also be shown on the facsimile filing.113

§ 6.2.1.7 Clerk�s Office Hours and Contact Information

The Clerk�s Office is open Monday through Friday from 8:30 a.m. to4:30 p.m. EST/EDT.114 The address of the Clerk�s office is:

ClerkSupreme Court of GeorgiaRoom 572244 Washington StreetAtlanta, Georgia 30334115

The Clerk�s telephone number is (404) 656-3470. The facsimile number is(404) 656-2253.116 The Court�s web address is http://www2.state.ga.us/Courts/Supreme.

§ 6.2.1.8 Costs

Costs in all cases are $80, unless pauper�s status has been granted in thetrial court and is reflected in the record. Costs must be paid upon filing, exceptfor direct appeals when the costs, which accrue on docketing, must be paid uponfiling of the original brief. Attorneys are liable for the costs, and failure to paycosts subjects the offender to sanctions.117

113 Ga. S. Ct. R. 2.

114 Ga. S. Ct. R. 1.

115 Id.

116 Id.

117 O.C.G.A. § 5-6-4; Ga. S. Ct. R. 5. Costs need not be paid again where a discretionary orinterlocutory application, an application for interim review or for a certificate of probablecause, or a petition for certiorari has been granted. Nor are costs required for certifiedquestions or disciplinary cases. Id.


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§ 6.2.2 Rules Governing Structure and Content of Briefs

§ 6.2.2.1 In General

§ 6.2.2.1.1 Record and Transcript References

Page references to the record and to the transcript are essential and are tobe noted with the letters R and T, respectively, followed by the appropriate pagenumber (i.e., R-Page Number and T-Page Number).118

§ 6.2.2.1.2 Citations

All citations of authority must be complete. Georgia citations mustinclude the volume and page number of the official Georgia reporters (Harrisonor Darby). Cases not yet reported must be cited by the Supreme Court or Courtof Appeals case number and date of decision.119

§ 6.2.2.1.3 Certificate of Service

All briefs filed with the Court, including those filed by facsimile withpermission, must certify service on opposing attorneys and state their names andaddresses.120 If a brief is not so certified, it will not be accepted for filing.121 Inappeals involving the death penalty, murder, aircraft hijacking, and treason,copies of briefs must be served on the Attorney General, the District Attorney,and the attorney for the accused.122

118 Ga. S. Ct. R. 19 n.1. With respect to the failure to make specific citations to the record or

transcript, see Justice v. Dunbar, 244 Ga. 415, 416, 260 S.E.2d 327, 328 (1979) (stating in casedecided under prior version of the rules that proper solution for failure to provide citations isto permit counsel to correct brief).

119 Ga. S. Ct. R. 22. Note that civil cases affirmed by the Court without published opinionsunder Rule 59 have no precedential value. Ga. S. Ct. R. 59.

120 Ga. S. Ct. R. 14.

121 Id.

122 Id.


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§ 6.2.2.1.4 Inappropriate Remarks

Personal remarks that are discourteous or disparaging to opposingcounsel or any judge are forbidden in written materials submitted to the Court.123

§ 6.2.2.2 Appellant�s Brief

§ 6.2.2.2.1 Parts

The Court prescribes no particular arrangement for briefs. However, thevolume of cases received by the Court requires all matters to be presentedsuccinctly. The Court notes in its rules that inclusion of extraneous facts andfrivolous issues tends to obscure critical issues.124

The Court identifies the following order of presentation as the mostefficient:

(1) Type of case. This section should show the Court�s jurisdiction, thejudgment appealed and date of entry.125

(2) Brief statement of facts showing the general nature of the case.126

Citations to evidence in the record in this section are essential.127 The Court willnot consider factual representations contained in an appellate brief when suchevidence does not appear in the record.128

123 Ga. S. Ct. R. 29.

124 Ga. S. Ct. R. 19 n.1.

125 Id.

126Id.

127 Ga. S. Ct. R. 19 n.1.

128 Shelby v. McDaniel, 266 Ga. 215, 216 n.2, 465 S.E.2d 433, 434 n.2, (1996); see also Rivera v.Harris, 259 Ga. 171, 171, 377 S.E.2d 844, 845 (1989) (�Exhibits attached to an appellate brief butnot appearing in the record transmitted by the trial court cannot be considered by this courtand afford no basis for reversal.�) (citation and internal quotation omitted).


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(3) Enumeration of errors.129 An enumeration of errors must be stated asa separate part of, and shall be incorporated in, the brief.130

As required by Georgia statute, an enumeration of errors must set forthseparately each error relied upon on appeal.131 It must be concise, and need notset out or refer to portions of the record on appeal.132 The enumeration of errorsis deemed to include and present for review all judgments necessary for adetermination of the errors specified.133 The purpose of this rule is to eliminate alitigant�s inadvertent forfeiture of substantial rights through technical error.134

The enumeration of errors must be served on the appellee pursuant toO.C.G.A. § 5-6-32,135 need not have approval of the trial court, and when filedshall become part of the record on appeal.136 The enumeration of errors mustalso contain a statement of jurisdiction as to why the Supreme Court � and notthe Court of Appeals � has jurisdiction.137

Errors not set forth in the enumeration of errors will not be considered bythe Court, even if subsequently argued to the Court.138 The enumeration of 129 Ga. S. Ct. R. 19 n.1.

130 Ga. S. Ct. R. 19; Brooks v. State, 265 Ga. 548, 551-52, 458 S.E.2d 349, 353-54 (1995).

131 O.C.G.A. § 5-6-40.

132 Id.

133 Ga. S. Ct. R. 22.

134 Sims v. American Cas. Co., 131 Ga. App. 461, 484-85, 206 S.E.2d 121, 136 (interpreting priorversion of identical Court of Appeals rule), aff�d sub nom., Providence Wash. Ins. Co. v. Sims.,232 Ga. 787, 209 S.E.2d 61 (1974). In 1999, the Supreme Court clarified that enumerations oferror are adequately �set out separately� as long as they enable the appellate court to identifythe errors of law to be reviewed, as discussed supra in § 6.1.2.2.1(2). See Felix v. State, 271 Ga.534, 534-40, 523 S.E.2d 1, 2-6 (1999) (interpreting O.C.G.A. § 5-6-40); see also O.C.G.A. § 5-6-48(f) (requiring appellate consideration if it is �apparent� from filings and record what errorsare sought to be asserted on appeal).

135 O.C.G.A. § 5-6-40. O.C.G.A § 5-6-32 allows for service on counsel, in person or by mail, withproof shown by acknowledgment or certificate. See also Ga. S. Ct. R. 14.

136 O.C.G.A. § 5-6-40.

137 Ga. S. Ct. R. 19.

138 Felix v. State, 271 Ga. 534, 539, 523 S.E.2d 1, 6 (1999). (�The appellate court is precluded fromreviewing the propriety of a lower court�s ruling if the ruling is not contained in theenumeration of errors.�).


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errors generally may not be amended after the original time for filing theenumeration has expired.139 An additional brief filed after that date also may notbe used to argue an enumerated error not argued in the original brief.140

(4) Argument. This section should include additional facts, whereessential, and citation of authorities.141 An appealing party may not use thissection of the brief to expand its enumeration of errors by arguing theincorrectness of a trial court ruling not mentioned in the enumeration of theerrors.142

(5) Certificate of service143

§ 6.2.2.2.2 Sequence of Argument

It is suggested that arguments in briefs be in sequence with theenumeration of errors.144

§ 6.2.2.2.3 Unsupported Enumerated Error

Each enumerated error must be supported in the brief by argument orcitation of authority. In the absence of such support, the enumeration of errorwill be deemed abandoned.145

139 Harrison v. State, 268 Ga. 574, 492 S.E.2d 218 (1997); but see Pittman v. State, 273 Ga. 849, 850-

51, 546 S.E.2d 277, 279 (2001) (permitting motion to supplement enumeration of error becauseit �raise[d] an issue which could materially affect the fair trial rights of the appellant andcause[d] no delay in the disposition of this case� and noting �plain error� exception in certaincriminal cases).

140 Hullender v. State, 256 Ga. 86, 92, 344 S.E.2d 207, 211 (1986).

141 Ga. S. Ct. R. 19 n.1.

142 Felix, 271 Ga. at 539 n.6, 523 S.E.2d at 5 n.6.

143 Ga. S. Ct. R. 19 n.1; see also Ga. S. Ct. R. 14.

144 Ga. S. Ct. R. 19 n.1.

145 Ga. S. Ct. R. 22; see also Sharpe v. State, 272 Ga. 684, 691, 531 S.E.2d 84, 90-91 (2000).


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§ 6.2.2.3 Appellee�s Brief

§ 6.2.2.3.1 Parts

The Court suggests that the elements of the appellee�s brief should be inthe same order of presentation as the appellant�s brief.146

§ 6.2.2.3.2 Sequence of Argument

It is suggested that arguments in briefs be in sequence with theenumeration of errors.147


Supplemental briefs may be filed at any time before decision. The Courtwill not consider any supplemental brief that serves only to circumvent the pagelimitations on briefs in civil cases.148 Supplemental briefs generally may notexpand the issues beyond the scope of the original enumeration of errors.149

§ 6.2.2.5 Supplemental Record

If a record is supplemented pursuant to O.C.G.A. § 5-6-41(f) or § 5-6-48(d),a party wishing to present an issue to the Court relating to the trial courtproceeding wherein the record was supplemented must: (1) raise the issuebefore the trial court; and (2) then file additional enumerations of error and abrief within 10 days after docketing of the supplemental record with the Court orafter the trial court rules on the issue raised, whichever is later. Opposing partiesmay file a supplemental brief within 20 days after docketing or after the trialcourt rules on the issue raised, whichever is later.150

146 Ga. S. Ct. R. 19 n.1.

147 Id.

148 Ga. S. Ct. R. 24.

149 Trenor v. State, 252 Ga. 264, 267, 313 S.E.2d 482, 486 (1984) (decided under Rule 39 of 1971Rules); but see Pittman v. State, 273 Ga. at 850-51, 546 S.E.2d at 279.

150 Ga. S. Ct. R. 25.


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Amicus curiae briefs may be filed without prior permission of the Court,but must disclose the identity and interest of the persons on whose behalf theyare filed.151

151 Ga. S. Ct. R. 23.

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7 ORAL ARGUMENTDouglas G. Scribner*

§ 7.1 Court of Appeals Rules

§ 7.1.1 Oral Argument is Not Granted as a Matter of Right

Oral argument is not mandatory. Oral argument may be granted uponrequest of either party, or sua sponte by the Court.1

§ 7.1.2 Request for Oral Argument

A case may be placed on the calendar for oral argument only upon atimely filed request of either party, or upon a sua sponte order of the Court. Anyrequest must be made within 20 days from the date the case is docketed in theCourt of Appeals. A request for oral argument must:

(1) be filed as a separate document;

* Doug Scribner is an attorney with the law firm of Alston & Bird LLP. His practice is

primarily devoted to trials, complex commercial litigation, and insurance coverage litigation.He received a B.B.A. from the University of Toledo in 1992 and a J.D. from the University ofToledo in 1995.

1 Ga. Ct. App. R. 28(a)(1).


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(2) be directed to the Clerk;

(3) certify that the opposite party or attorney has been notified of therequest to argue the case orally, and that inquiry has been made asto whether the opponent requests also to argue orally;

(4) certify that opposing counsel does or does not desire to argue thecase orally;

(5) identify the counsel scheduled to argue;

(6) contain a brief, specific statement demonstrating that the decisionalprocess will be significantly aided by oral argument; and

(7) show service of the opposing counsel or party.

Any change as to the attorney or party who will argue must be communicated inwriting to the Clerk as soon as practicable.2

Court of Appeals Rule 28(a) requires that the Request for Oral Argumentdescribe why oral argument will aid the decision-making process. The Court hasalso issued an �Important Notice� to clarify what is expected under this rule.According to the Notice, counsel should start from the premise that in most casesoral argument will not help the decision-making process beyond the assistanceprovided by the written briefs.3 Counsel should explain, with brief but specificreferences to the case, why the case requires oral as well as written presentation.4In other words, counsel should explain what distinguishes this case from thenormal one in which oral argument is not helpful. Statements that oral argumentis warranted �because the case is an important one� or that oral argument �isnecessary to clarify the issues� are not adequate.5

The Request for Oral Argument should be self-contained, and counselshould not assume the appellate brief will be considered in ruling on theRequest. The Request should convey succinctly everything the Court needs todecide whether to grant the Request.6 The Court has indicated the Request will

2 Id.

3 Important Notice for Requesting Oral Argument.

4 Id.

5 Id.

6 Id.

CHAPTER 7: ORAL ARGUMENT

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be granted if any of the three judges on the panel to which the case is assignedbelieves argument is warranted. The Request should not be another brief, butshould state specifically and succinctly why the case should be argued orally.

§ 7.1.3 Time Limitations

Argument is limited to 30 minutes for each case; 15 minutes per side,unless by special leave of Court an extension of time is granted. A request for anextension of time must be made in writing at least five days prior to the date setfor oral argument. Upon the granting of such a request, the appeal normally willbe placed at the end of the argument calendar for that day.7

§ 7.1.4 Number of Arguments

Ordinarily, when both sides of an appeal are argued, only two counsel oneach side will be heard. When only one side of an appeal is argued, or whenarguments are to be made on behalf of more than two parties, no more than onecounsel per party may be heard.8 Where there are third parties, or additionalparties of divergent interests, additional time may be requested.9

§ 7.1.5 Opening and Closing

The appellant has the right to open and conclude the argument. Theappellant�s conclusion shall be confined to matters covered in opposing counsel�sargument.10

§ 7.1.6 Courtroom Decorum

Counsel appearing for oral argument must check in with the Clerk in thecourtroom at 9:30 a.m. on the date of oral argument, specifying who will argueand for how long. Talking, reading newspapers or other material, audiblystudying briefs and arranging papers are prohibited in the courtroom, as thismay be done in the lawyers� lounge.11

7 Ga. Ct. App. R. 28(a)(2).

8 Ga. Ct. App. R. 28(b).

9 Ga. Ct. App. R. 28(a)(2).

10 Ga. Ct. App. R. 28(c).

11 Ga. Ct. App. R. 28(d).


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§ 7.1.7 Presence of Counsel

Oral argument is waived if counsel is not actually inside the courtroomwhen the case is called for argument.12

§ 7.1.8 Order of Argument

The Court of Appeals diverges from the order listed on the calendar whenall counsel appearing for argument in a given case inform the Clerk that the timeof argument will be limited to five or ten minutes for each side. Ordinarily, fiveminute arguments will be heard first, ten minute arguments will be heard next,and fifteen minute arguments will be heard last.13

§ 7.1.9 Miscellaneous

(1) Personal remarks that are discourteous or disparaging to opposingcounsel or to any judge are strictly forbidden.14

(2) The calendar fixing the days for oral argument shall be mailed tocounsel at least 14 days prior to the day the call is to begin.15

(3) Postponement of oral argument will occur only for good reasonshown.16

§ 7.2 Supreme Court Rules

§ 7.2.1 Oral Argument Is Granted as a Matter of Right Only in DeathPenalty Cases

Oral argument is mandatory on direct appeals from judgments imposingthe death penalty. Otherwise, unless expressly ordered by the Court, oralargument is never mandatory and argument may be submitted on briefs only.17

12 Ga. Ct. App. R. 28(e).

13 Ga. Ct. App. R. 28(f).

14 Ga. Ct. App. R. 10; see also Ga. S. Ct. R. 29 (applying same rule in the Supreme Court).

15 Ga. Ct. App. R. 14(a).

16 Ga. Ct. App. R. 28(a)(3).

17 Ga. S. Ct. R. 50.

CHAPTER 7: ORAL ARGUMENT

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§ 7.2.2 Calendaring of Oral Argument

Oral argument will be scheduled by the Court as follows:

(1) Direct appeals from judgments imposing the death penalty areplaced on the calendar automatically;

(2) All granted writs of certiorari are placed on the calendarautomatically unless disposed of summarily by the Court; and

(3) Other cases will be placed on the calendar upon the request ofeither party within 20 days from the date the case is docketed bythe Supreme Court.18

Oral argument will not be granted to parties or attorneys whose briefs have notbeen timely filed. The Court may deny or limit oral argument whereappropriate.19

§ 7.2.3 Request for Oral Argument

Requests for oral argument must be filed by letter directed to the Clerk,and must certify that the opposing parties or their attorneys have been notified ofthe intention to argue the case orally and that an inquiry has been made as towhether they intend also to present oral argument. The request must furthercertify that the opponents do or do not desire to argue orally. Finally, the requestmust show service on the opposing parties or counsel.20

A request for oral argument must be renewed upon transfer of an appealto the Supreme Court from the Court of Appeals.21

§ 7.2.4 Appearance

Attorneys appearing for argument are to notify the Clerk of their presenceupon arrival in the courtroom.22 Argument is deemed to be waived unless theattorneys are prepared to argue in the sequence presented on the calendar.23

18 Id.

19 Id.

20 Ga. S. Ct. R. 51.

21 Id.

22 Ga. S. Ct. R. 52.

23 Id.


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§ 7.2.5 Order of Argument

Opening argument is made by the appellant. The appellee or cross-appellant has the right to respond. Rebuttal is limited to one attorney on behalfof the appellant.24

§ 7.2.6 Time Limitations

Oral argument is limited to 20 minutes for each side, except by leave ofCourt or in direct appeals from death penalty cases, wherein the parties arelimited to 30 minutes per side. Appeals, cross appeals and companion cases areconsidered one case for purposes of oral argument, and the parties must dividethe allotted time by agreement among themselves. The yellow light on thepodium indicates five minutes remain in the argument; the red light indicatestime has expired.25

§ 7.3 Professionalism in Oral Argument

In arguing before the courts, counsel are not only advocates for theirclients, but also officers of the courts. In discussing the facts of the case andapplicable law, counsel must be consistent with the record and true to theauthorities upon which they rely. In addition, counsel must be respectful of theappellate process and must refrain from personal remarks that are discourteousand disparaging of opposing counsel or any member of the court.

24 Ga. S. Ct. R. 53.

25 Ga. S. Ct. R. 54.

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8 EXTRAORDINARY WRITSDavid S. Givelber*

§ 8.1 Petitions for Certiorari

See Chapter Ten.

§ 8.2 Petitions for Writ of Habeas Corpus

A petition for a writ of habeas corpus is the procedural vehicle forchallenging the legality of a person�s restraint or the right of custody overanother.1 The writ is not meant to challenge anything but the legality of thedetention.2 A petition for writ of habeas corpus is a civil, not criminal,proceeding.3 Two distinct categories of individuals may utilize it.4

* Mr. Givelber is a partner at Alston & Bird LLP, practicing in commercial litigation and trial

work. He received his A.B. from Duke University in 1987 and his J.D. from the University ofPennsylvania Law School in 1994.

1 For a general discussion of the definition, history, and operation of the writ of habeas corpus,see 14 Encyclopedia of Georgia Law Habeas Corpus §§ 1-79 (1988).

2 Faughnan v. Ross, 197 Ga. 21, 28 S.E.2d 119 (1943).

3 Nolley v. Caldwell, 229 Ga. 441, 192 S.E.2d 151 (1972); Ward v. Smith, 228 Ga. 137, 184 S.E.2d 592(1971). When a prisoner files a standard civil complaint against prosecutors for a violation ofhis constitutional rights and false imprisonment, it will be dismissed, because habeas is the


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The first category is comprised of persons who are restrained of theirliberty and seek to challenge the legality of such restraint. Included in this classare persons sentenced by a state court, although O.C.G.A. § 9-14-40 et seq.provides the exclusive procedure for seeking the writ in such cases.5 Habeascorpus is available when a prisoner is unlawfully confined beyond the term ofhis sentence6 or when a prisoner is confined under a sentence longer than thatpermitted by state statute7. Habeas corpus is also available for cases involvingexorbitantly high bail.8 It is not available, however, as a vehicle for protestingconditions of incarceration.9

The second category of persons who may seek habeas relief is comprisedof those claiming a right of custody over one who is in the custody of another.This circumstance might arise, for example, when a person is denied physicalcustody of a person for whom he or she has legal custody.10

Georgia Code Section 9-14-1 specifically lists those who may seek a writ ofhabeas corpus:

(a) Any person restrained of his liberty under anypretext whatsoever, except under sentence of a state court ofrecord, may seek a writ of habeas corpus to inquire into thelegality of the restraint.

(b) Any person alleging that another person in whom forany cause he is interested is kept illegally from the custody ofthe applicant may seek a writ of habeas corpus to inquire intothe legality of the restraint.

____________________________________________________

appropriate procedure for challenging such conduct. Battle v. Sparks, 211 Ga. App. 106, 438S.E.2d 185 (1993).

4 Hall v. Hall, 222 Ga. 820, 152 S.E.2d 737 (1966); Faughnan, 197 Ga. 21, 228 S.E.2d 119.

5 The scope of available habeas relief is expanded in such cases. See O.C.G.A. §§ 9-14-40, -41.

6 Lillard v. Head, 267 Ga. 291, 476 S.E.2d 736 (1996).

7 Manville v. Hampton, 266 Ga. 857, 858, 471 S.E.2d 872, 874 (1996).

8 Jones v. Grimes, 219 Ga. 585, 134 S.E.2d 790 (1964).

9 Brown v. Caldwell, 231 Ga. 795, 204 S.E.2d 137 (1974).

10 O.C.G.A. § 9-14-1.

CHAPTER 8: EXTRAORDINARY WRITS

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(c) Any person restrained of his liberty as a result of asentence imposed by any state court of record may seek a writof habeas corpus to inquire into the legality of the restraint.

The four issues for a court in considering a writ of habeas corpus are:(1) the origin of petitioner�s right, i.e., whether that right arises under state orfederal law; (2) whether that right has been waived; (3) whether a violation ofthat right occurred; and (4) whether the violation was harmless.11

Despite the broad language of O.C.G.A. § 9-14-1(b), a writ of habeascorpus may not be used to effect a change of legal custody over a child. Instead,O.C.G.A. § 19-9-23 provides the exclusive remedy for seeking a change ofcustody in that context, and child custody case law prior to the enactment of thatstatute in 1981 should be relied upon with caution. The current standard to beused with respect to a change of legal custody is the best interests of the child.12

A petition for a writ of habeas corpus remains the appropriate procedure,however, when an individual with legal custody of a child seeks to obtain thechild from wrongful custody.13 Thus, such a petition is appropriate when thepetitioner has permanent legal custody and seeks the return of a child from onewho has temporary custody,14 or when the petitioner has prima facie custodyunder the law and seeks to obtain actual, physical custody from a third party.15

In short, one must have a legal custodial right to a detained child in order to seekhabeas corpus relief with respect to that child.16

Any person may petition for a writ of habeas corpus on behalf of oneimprisoned or wrongfully detained.17 Although a writ of habeas corpus is a�writ of right,� it does not issue as a matter of course. Instead, it is to be grantedonly when the application for the writ contains allegations that, if accepted as

11 McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled, 272 Ga. 591, 533 S.E.2d 88

(2000).

12 Stills v. Johnson, 272 Ga. 645, 533 S.E.2d 695 (2000), cert. denied, 531 U.S. 1087 (2001).

13 Johnson v. Smith, 251 Ga. 1, 302 S.E.2d 542 (1983).

14 Alvarez v. Sills, 258 Ga. 18, 365 S.E.2d 107 (1988).

15 Columbus v. Gaines, 253 Ga. 518, 322 S.E.2d 259 (1984).

16 Bennett v. Schaffer, 228 Ga. 59, 183 S.E.2d 760 (1971).

17 Hall v. Hall, 222 Ga. 820, 152 S.E.2d 737 (1966); Broomhead v. Chisolm, 47 Ga. 390 (1872).


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true, would authorize the release of the person held in custody.18 Theseallegations must be specific, not conclusory; facts substantiating a violation ofrights are required.19 An individual need not be presently confined to seekhabeas corpus, if he can prove adverse collateral consequences from a previousconfinement.20

A writ of habeas corpus is not proper where another adequate remedyexists.21 For example, a writ will not issue when proceedings under which thepetitioner is detained are still pending, or when other procedural remedies haveyet to be exhausted. The only exception to this rule arises in the case ofcommitted mental patients, who have a statutory right to seek habeas corpusrelief �at any time.�22 A writ of habeas corpus cannot be used as a substitute forappeal, motion for new trial, writ of error, or other remedial procedures for thecorrection of errors or irregularities alleged to have been committed by a trialcourt.23 Failure to exhaust available administrative remedies precludes habeascorpus relief.24 Further, absent a change in either facts or law, issues decided onappeal cannot be relitigated in habeas proceedings.25 All grounds for habeasrelief must be raised in the first petition unless the grounds are constitutionallynonwaivable or the grounds could not reasonably have been raised in the first

18 Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 43 S.E. 780 (1903); O.C.G.A. § 9-14-5

(specifying what writ is to be granted �[w]hen upon examination of the petition . . . it appearsto the judge that the restraint of liberty is illegal�).

19 Salisbury v. Grimes, 223 Ga. 776, 158 S.E.2d 412 (1967).

20 Tharpe v. Head, 272 Ga. 596, 533 S.E.2d 368 (2000).

21 Kearse v. Paulk, 264 Ga. 509, 448 S.E.2d 369 (1994); Jackson v. Lowry, 170 Ga. 755, 154 S.E.2d 228(1930).

22 Hogan v. Nagel, 273 Ga. 577, 577, 543 S.E.2d 705, 705 (2001); O.C.G.A. § 37-3-148(a).

23 Head v. Carr, 273 Ga. 613, 544 S.E.2d 409 (2001), cert. denied, 122 S. Ct. 238 (2001); Archer v.Grimes, 222 Ga. 8, 148 S.E.2d 395 (1966).

24 Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 255, 564 S.E.2d 715 (2002); Forbesv. Ricketts, 234 Ga. 316, 216 S.E.2d 82 (1975).

25 Roulain v. Martin, 266 Ga. 353, 466 S.E.2d 837 (1996); Tucker v. Kemp, 256 Ga. 571, 351 S.E.2d196 (1987) (change in law); Zant v. Campbell, 245 Ga. 368, 265 S.E.2d 22 (1980); Gibson v.Ricketts, 244 Ga. 482, 260 S.E.2d 877 (1979).


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petition.26 Habeas corpus relief is not available for denial of a nonconstitutionalright secured by Georgia law.27

The mandatory contents of a habeas petition for persons under sentence ofa state court of record are set forth in O.C.G.A. § 9-14-44. These include anidentification of the proceeding in which the petitioner was convicted, the date ofthe judgment complained of, the manner in which the petitioner�s rights wereviolated, and a specific statement of which claims were raised at trial or on directappeal, with appropriate citations to the trial or appellate record. Affidavits,records, or other evidence supporting the petition must be attached, or thepetition must state why they are not attached. The petition must also identifyany previous proceedings that the petitioner may have undertaken to obtainrelief from the conviction, and if the petitioner has filed prior habeas petitions,the claims raised previously must be identified. The petition itself cannot containargument and citations of authority, but those may be set forth in a brief insupport of the petition. Finally, the applicant (or someone on his or her behalf)must verify the petition.28

The failure to comply with procedural rules does not always precludeconsideration of a habeas petition.29 If a petitioner can demonstrate adequatecause for failing to assert the claim and resulting prejudice, an otherwise validprocedural bar will not preclude habeas review.30 Similarly, a claim for habeasrelief will not be procedurally barred or defaulted if a miscarriage of justicewould result, such as when there has been a substantial denial of constitutionalrights,31 including ineffective assistance of counsel.32 Miscarriage of justice,however, is a high standard to meet.33

26 Stevens v. Kemp, 254 Ga. 228, 327 S.E.2d 185 (1985); Dix v. Zant, 249 Ga. 810, 294 S.E.2d 527

(1982).

27 Green v. Dunn, 257 Ga. 66, 355 S.E.2d 61 (1987).

28 A court will not dismiss a habeas petition if the petitioner completes a form provided by theAdministrative Office of the Courts in filing his petition, even though the verificationstatement in the form does not comply with the traditional format. Heaton v. Lemacks, 266 Ga.189, 466 S.E.2d 7 (1996).

29 Valenzuela v. Newsome, 253 Ga. 793, 325 S.E.2d 370 (1985).

30 Head v. Ferrell, 274 Ga. 399, 554 S.E.2d 155 (2001); White v. Kelso, 261 Ga. 32, 401 S.E.2d 733(1991); Cox v. Ballard, 259 Ga. 176, 377 S.E.2d 842 (1989).

31 Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985); see also O.C.G.A. § 9-14-48(d).

32 Turpin v. Todd, 268 Ga. 820, 493 S.E.2d 900 (1997).

33 Valenzuela, 253 Ga. at 793, 325 S.E.2d at 370.


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In all habeas cases except those involving initial challenges of state courtproceedings resulting in death sentences, the respondent has 20 days from thefiling and docketing of a petition to answer or move to dismiss, though the courtmay allow more time. The court must set the case for a hearing on the issueswithin �a reasonable time� after the filing of defensive pleadings.34 The conductof that hearing, and specific rules governing discovery and the entry of swornaffidavits into evidence, are governed by O.C.G.A. § 9-14-48. Because habeascorpus is a civil proceeding,35 there is no guaranteed right to counsel.36 GeorgiaCode Section 9-14-47.1 and Uniform Superior Court Rules 44.1 to 44.13 governthe initial challenges of state court proceedings that result in death sentences.These authorities contain specific rules for the assignment of such cases, thefiling of pleadings, the conduct of evidentiary hearings, and other matters.

Appeals in habeas cases are subject to the general provisions of Title 5 ofthe Georgia Code. An unsuccessful petitioner who desires to appeal must file:(1) a written application for a certificate of probable cause to appeal with theClerk of the Georgia Supreme Court; and (2) a notice of appeal with the clerk ofthe superior court. Both of these documents must be filed within 30 days fromthe entry of the trial court order denying relief to the petitioner.37 If, however,the petitioner prevails in the trial court, the respondent need only file a notice ofappeal.38

§ 8.3 Other Extraordinary Writs

Title 9, Chapter 6 of the Georgia Code provides for three other types ofextraordinary writs: mandamus, prohibition, and quo warranto. The superiorcourts and appellate courts are vested with exclusive jurisdiction overextraordinary writs.39 Although the Supreme Court has appellate jurisdiction

34 O.C.G.A. § 9-14-47.

35 See, e.g., Gibson v. Turpin, 270 Ga. 855, 513 S.E.2d 186 (1999).

36 Ex parte Tom Tong, 108 U.S. 556 (1883).

37 O.C.G.A. § 9-14-52(a)-(b).

38 O.C.G.A. § 9-14-52(c).

39 Ga. Const. art. VI, § 1, ¶ 4.


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over cases involving extraordinary writs,40 no appeal may be taken until the trialcourt has rendered a final judgment.41

§ 8.3.1 Writ of Mandamus

A writ of mandamus commands an inferior officer or judge to perform aspecific duty. The Georgia Constitution, as well as the Code, vests the SupremeCourt with the power to �grant any writ necessary to carry out any purpose of itsorganization or to compel any inferior tribunal or officers thereof to obey itsorder.�42 Thus, the Supreme Court has the specific power to issue a writ ofmandamus to compel a lower court to obey its order.43 As with otherextraordinary writs, mandamus is not meant to replace an appeal, but is anextraordinary remedy used to correct an injustice when other options are notavailable.44

The procedure to be followed before invoking the Supreme Court�sjurisdiction over this type of mandamus is set forth in Brown v. Johnson.45 InBrown, the Georgia Supreme Court held that a petition for writ of mandamus (orquo warranto or prohibition) must be filed in the appropriate superior court,rather than the Supreme Court, even when a superior court judge is named asthe respondent.46 The respondent judge would then be disqualified, and anothersuperior court judge would be appointed to hear and determine the matter. Thissecond judge�s decision would be directly appealable to the Supreme Court.47

A writ of mandamus may also be used to compel a public official toperform a duty of his or her office. Georgia Code Section 9-6-20 provides:

40 Ga. Const. art. VI, § 6, ¶ 3(5). The Court of Appeals may also entertain a petition for a writ of

mandamus, prohibition, or quo warranto in order to enforce its judgments. Raybestos-Manhattan, Inc. v. Moran, 248 Ga. 461, 284 S.E.2d 256 (1981) (per curiam).

41 O.C.G.A. § 9-6-1.

42 O.C.G.A. § 15-2-8; see generally Ga. Const. art. VI, § 1, ¶ 4.

43 For a general discussion of the definition, nature and history of the writ of mandamus, see 20Encyclopedia of Georgia Law Mandamus §§ 1-17 (1991).

44 Smith & Wesson Corp. v. City of Atlanta, 273 Ga. 431, 543 S.E.2d 16 (2001).

45 251 Ga. 436, 306 S.E.2d 655 (1983).

46 Id. at 436-37.

47 Id.


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All official duties should be faithfully performed; andwhenever, from any cause, a defect of legal justicewould ensue from a failure to perform or fromimproper performance, the writ of mandamus mayissue to compel a due performance, if there is no otherspecific legal remedy for the legal rights.

Jurisdiction over this second type of mandamus remedy lies exclusively with thesuperior court and not with the state courts.48

A writ of mandamus will be issued only in very limited circumstances.Petitions must satisfy a two-pronged test: (1) the applicant must demonstrate aclear legal right to the relief sought;49 and (2) there must be no other adequateremedy.50 That is, there must be a duty imposed on the defendant and apecuniary loss to the plaintiff that cannot be remedied by an award ofdamages.51 It should be noted, however, that an alternative remedy is notadequate if it is not equally convenient, complete, and beneficial.52 A petitionermust also establish that a demand (preferably written) has been made upon theofficial to perform the duty and that the demand has been refused.53

The duty to be enforced must exist at the time of the application for thewrit of mandamus.54 The writ will be denied if the time for the discharge of theduty has passed.55 Thus, the writ of mandamus is not an appropriate vehicle forthe �undoing of acts already done or the correction of wrongs already

48 Wofford Oil Co. v. City of Calhoun, 183 Ga. 511, 189 S.E. 5 (1936).

49 Willis v. Dep�t of Revenue, 255 Ga. 649, 340 S.E.2d 591 (1986); McClure v. Hightower, 237 Ga. 157,227 S.E.2d 47 (1976).

50 Tamaroff v. Cowen, 270 Ga. 415, 511 S.E.2d 159 (1999); Hunstein v. McDade, 267 Ga. 515, 480S.E.2d 192 (1997); Byrd v. City of Atlanta, 266 Ga. 800, 471 S.E.2d 852 (1996); Brown v. Bowers,266 Ga. 136, 464 S.E.2d 820 (1996); Carnes v. Crawford, 246 Ga. 677, 272 S.E.2d 690 (1980).

51 O.C.G.A. § 9-6-25; Poole v. Duncan, 202 Ga. 255, 42 S.E.2d 731 (1947); Carroll v. American Agric.Chem. Co., 175 Ga. 855, 167 S.E. 597 (1932).

52 North Fulton Med. Ctr. v. Roach, 265 Ga. 125, 453 S.E.2d 463 (1995); Adams v. Town of Weston,181 Ga. 503, 183 S.E. 69 (1935).

53 McDonald v. Schofield, 216 Ga. 589, 118 S.E.2d 479 (1961).

54 Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff�d, 657 F.2d 691 (5th Cir. 1981).

55 Skrine v. Kim, 242 Ga. 185, 249 S.E.2d 534 (1978).


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perpetrated.�56 The writ of mandamus will not be granted if its issuance wouldbe �nugatory or fruitless,� or if it is based on mere suspicion.57

Generally, the writ of mandamus is limited to actions taken against agovernment official in his or her official capacity.58 A writ of mandamus actsdirectly on the officer or person; it is a personal action against the officer and notan action against the office itself.59 Although the writ of mandamus is notlimited to the enforcement of ministerial duties, it is not available to enforce aduty that is discretionary unless there has been a gross abuse of discretion.60

The General Assembly has specifically provided that the writ ofmandamus will issue to compel the repair of public roads;61 to compel theperformance of a duty within Title 5 by a sheriff, clerk, or other officer;62 and tocompel the performance by a corporation of a public duty.63 Further, a privateperson may procure the enforcement of a public duty,64 a city rule,65 or a privateright66 by seeking a writ of mandamus.

The procedure for a hearing on a mandamus application is set forth inO.C.G.A. § 9-6-27. If an application for mandamus nisi is granted by the trial

56 Ianicelli v. McNeely, 272 Ga. 234, 527 S.E.2d 189 (2000); Brissey v. Ellison, 272 Ga. 38, 40, 526

S.E.2d 851, 853 (2000) (quoting Hilton Constr. Co. v. Rockdale County Bd. of Educ., 245 Ga. 533,266 S.E.2d 157 (1980)); Coastal Serv., Inc. v. Jackson, 223 Ga. 238, 154 S.E.2d 365 (1967); Wilson v.Sanders, 222 Ga. 681, 685, 151 S.E.2d 703, 705 (1966).

57 Halpern Props., Inc. v. Newton City Bd. of Equalization, 245 Ga. 728, 267 S.E.2d 26 (1980).

58 Duncan v. Poythress, 515 F. Supp. at 327, aff�d, 657 F.2d 691 (5th Cir. 1981); City of Dalton v.Smith, 158 Ga. App. 356, 280 S.E.2d 138 (1981); see generally O.C.G.A. § 9-6-21(a) (�Mandamusshall not lie as a private remedy between individuals to enforce private rights . . . .�).

59 Harper v. State Bd. of Pardons and Paroles, 260 Ga. 132, 390 S.E.2d 592 (1990); Crow v. McCallum,215 Ga. 692, 113 S.E.2d 203 (1960).

60 O.C.G.A. § 9-6-21; Cotton v. Jackson, 216 F.3d 1328 (11th Cir. 2000); Nalley v. Howell, 268 Ga. 63,487 S.E.2d 600 (1997); Touchton v. Echols County, 211 Ga. 85, 84 S.E.2d 81 (1954); Cox v. Little,178 Ga. 750, 174 S.E. 332 (1934).

61 O.C.G.A. § 9-6-21(b).

62 O.C.G.A. § 9-6-22.

63 O.C.G.A. § 9-6-23.

64 O.C.G.A. § 9-6-24.

65 Morton v. Bell, 264 Ga. 832, 452 S.E.2d 103 (1995).

66 Poole v. Duncan, 202 Ga. 255, 42 S.E.2d 731 (1947).


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court, a trial will be set for not less than 10 but not more than 30 days later.67 Thedefendant must be served at least five days prior to the date of the hearing.68 Ifthere is no substantial issue of fact, the case will be tried without a jury.69 If anissue of fact exists, a jury will try the case unless the parties agree otherwise.70

The Civil Practice Act applies to mandamus proceedings.71 Therefore, justas in ordinary civil proceedings, summary judgment is available in mandamuscases.72 Appeals may be made to the Supreme Court upon the denial of apetition for mandamus or upon final judgment after hearing of the mandamusnisi.73

§ 8.3.2 Writ of Prohibition

The writ of prohibition is the complement to the writ of mandamus.Rather than compelling action by a lower court, it restrains a lower court fromexceeding its jurisdiction.74 The same principles of right, necessity, and justicethat govern the consideration of a writ of mandamus also govern the grant ordenial of a writ of prohibition.75 Thus, a court will not grant a writ of prohibitionif any other adequate remedy exists.76 A writ of prohibition is available onlywhen there is a lack of subject matter jurisdiction, or when the act complained of

67 O.C.G.A. § 9-6-27(a).

68 O.C.G.A. § 9-11-4(j) permits ordinary service of process to be used in mandamus cases as analternative to the issuance of mandamus nisi. DeKalb County v. Chapel Hill, Inc., 232 Ga. 238,205 S.E.2d 864 (1974).

69 O.C.G.A. § 9-6-27(b).

70 O.C.G.A. § 9-6-27(c).

71 Thompson v. Hornsby, 235 Ga. 561, 221 S.E.2d 192 (1975).

72 Harrison v. Weiner, 226 Ga. 93, 172 S.E.2d 840 (1970).

73 O.C.G.A. § 9-6-28.

74 See, e.g., City of Macon v. Anderson, 155 Ga. 607, 117 S.E. 753 (1923). For a general discussion ofthe definition, nature, and history of the writ of prohibition, see 24A Encyclopedia of GeorgiaLaw Prohibition §§ 1-19 (1994).

75 O.C.G.A. § 9-6-40.

76 Jersawitz v. Bodiford, 258 Ga. 829, 377 S.E.2d 502 (1989); Buie v. Buie, 175 Ga. 27, 165 S.E. 15(1932). If, however, considerations of judicial economy urge the granting of a writ ofprohibition despite a defendant�s failure to seek a direct appeal on an issue, a court maygrant the writ to preclude a trial infected by reversible error. Patterson v. Faircloth, 256 Ga.489, 350 S.E.2d 243 (1986).


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is outside the jurisdiction of the lower court.77 A writ of prohibition does notserve as a means to review discretionary application of the law, as an appealdoes.78 The petition must be filed in the appropriate superior court rather thanin an appellate court, although the superior court�s final decision can be appealedto the Supreme Court.79

The writ of prohibition is available against executive or military officersfunctioning as a judicial or quasi-judicial tribunal.80 The writ will lie against amagistrate,81 but not against a probate court,82 tax collector,83 countycommissioner,84 or the governor.85

Although the statute provides that a writ of prohibition may be granted atany time,86 two prerequisites must nonetheless be met: (1) the action to whichthe writ is addressed must be pending;87 and (2) judgment must not have beenissued.88 Although a writ of prohibition may be granted at any time, the writmust be returned �in term.�89

77 Stokes v. Edwards, 272 Ga. 98, 526 S.E.2d 853 (2000); Henry v. James, 264 Ga. 527, 449 S.E.2d 79

(1994); Almand v. Brock, 227 Ga. 586, 182 S.E.2d 97 (1971).

78 Smith & Wesson Corp. v. City of Atlanta, 273 Ga. 431, 543 S.E.2d 16 (2001).

79 Carey Canada, Inc. v. Head, 252 Ga. 23, 310 S.E.2d 895 (1984); Westberry v. Saunders, 250 Ga. 240,296 S.E.2d 596 (1982); see also Ga. Const. art. VI, § 1, ¶ 4.

80 O.C.G.A. § 9-6-42; see also Shirley v. Gardner, 160 Ga. 338, 127 S.E. 855 (1925).

81 Mills v. Bell, 136 Ga. 687, 71 S.E. 1120 (1911).

82 Shirley, 160 Ga. at 338, 127 S.E. at 855.

83 Cody v. Lennard, 45 Ga. 85 (1872).

84 Pinkston v. Garrason, 178 Ga. 814, 174 S.E. 626 (1934).

85 O.C.G.A. § 9-6-42.

86 O.C.G.A. § 9-6-41.

87 Jersawitz v. Eldridge, 262 Ga. 19, 413 S.E.2d 725 (1992); Martin v. Crawford, 199 Ga. 497, 34S.E.2d 699 (1945).

88 Almand v. Brock, 227 Ga. 586, 182 S.E.2d 97 (1971).

89 O.C.G.A. § 9-6-41.


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§ 8.3.3 Writ of Quo Warranto

A private person may challenge the right of another to occupy a publicoffice by the writ of quo warranto.90 This writ is available only when no otheradequate remedy exists.91 It is meant solely to challenge title to the office.92 Theremedy of a writ of quo warranto applies to all civil offices of the state except theGovernor, who is exempt from such a challenge.93 It is not, however, a properremedy for questioning the qualifications of a General Assembly member.94

The petitioner may either be one claiming the office or otherwise havingsome interest in the office.95 Any citizen or taxpayer of a community has asufficient interest to challenge the qualifications of a public official by writ of quowarranto.96

The writ of quo warranto also can be used to challenge the title of acorporate officer or the existence of the corporation itself.97

A writ of quo warranto may be granted at any time.98 A writ of quowarranto will not issue, however, if: (1) the public officer against whom the writis directed is no longer exercising the duties of the office or claiming titlethereto;99 (2) if another adequate remedy exists at law or in equity; or (3) the

90 For a general discussion of the definition, nature, and history of the writ of quo warranto, see

25 Encyclopedia of Georgia Law Quo Warranto §§ 1-21 (1994).

91 Stone v. Wetmore, 42 Ga. 601 (1871).

92 Bruce v. Maxwell, 270 Ga. 883, 515 S.E.2d 149 (1999).

93 O.C.G.A. § 9-6-61; see, e.g., McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933). A juvenilecourt intake officer is a public officer for the purposes of a quo warranto proceeding. Brownv. Scott, 266 Ga. 44, 464 S.E.2d 607 (1995). College professors and grand jurors, however, arenot. MacDougald v. Phillips, 262 Ga. 778, 425 S.E.2d 652 (1993).

94 Rainey v. Taylor, 166 Ga. 476, 143 S.E. 383 (1928) (holding that such question is for a legislativebody).

95 O.C.G.A. § 9-6-60.

96 Highsmith v. Clark, 245 Ga. 158, 264 S.E.2d 1 (1980); Thompson v. Stone, 205 Ga. 243, 53 S.E.2d458 (1949).

97 Lillard v. Lonergan, 72 F.2d 865 (10th Cir. 1934); Morris v. Peters, 203 Ga. 350, 46 S.E.2d 729(1948); Amer. Coop. Serum Ass�n v. Anchor Serum Co., 153 F.2d 907 (7th Cir. 1946).

98 O.C.G.A. § 9-6-62.

99 Bowling v. Doyal, 206 Ga. 641, 58 S.E.2d 173 (1950); Holmes v. Sikes, 113 Ga. 580, 38 S.E. 978(1901).


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Georgia Constitution or a statute provides a superseding remedy.100 Althoughan injunction is the appropriate remedy for restraining public officers fromillegal acts, a plaintiff may seek a writ of quo warranto if she alleges irreparableinjury and presents a clear case, with a basic and underlying purpose of her suitbeing to declare the public office vacant or to test the title to an office or thevalidity of an election to office.101

All quo warranto proceedings must be brought in the county of thedefendant�s residence or the county in which the duties of the office are beingperformed.102 If the defendant is within the state, the writ of quo warranto andprocess must be personally served upon the defendant.103 Otherwise, service ofthe writ and process may be perfected by publication as provided in O.C.G.A.§ 9-11-4(1)(e), or by personal service outside the state as provided in O.C.G.A.§ 9-11-4(2)(e).104

The Civil Practice Act applies to quo warranto proceedings.105 When thewrit of quo warranto involves questions of law, the judge of the superior courtwill hear and determine the issues within ten days of the commencement of theaction.106 The final judgment may be appealed as in other cases.107 When anissue of fact exists, a jury of twelve will try the case beginning not less than tennor more than thirty days from the date of the order.108 Once the right to anoffice is decided, the judgment fixing that right must provide for the delivery ofall books and papers belonging to the office to the person held to be entitled to

100 Alexander v. Ryan, 202 Ga. 578, 43 S.E.2d 654 (1947); Casey v. McElreath, 177 Ga. 35, 169 S.E. 342

(1933).

101 See, e.g., McDonough v. Bacon, 143 Ga. 283, 84 S.E. 88 (1915); Hagood v. Hamrick, 223 Ga. 600,157 S.E.2d 429 (1967); Boatright v. Brown, 222 Ga. 497, 150 S.E.2d 680 (1966).

102 Ga. Const. art VI, § 2, ¶ 6; Smith v. Upshaw, 217 Ga. 703, 124 S.E.2d 751 (1962).

103 O.C.G.A. § 9-6-63(a).

104 O.C.G.A. § 9-6-63(c).

105 Anderson v. Flake, 267 Ga. 498, 480 S.E.2d 10 (1997) (holding that petitioner is not required toverify her pleadings).

106 O.C.G.A. § 9-6-64.

107 Walker v. Hamilton, 209 Ga. 735, 76 S.E.2d 12 (1953).

108 O.C.G.A. § 9-6-65.


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the office.109 The Georgia Supreme Court has jurisdiction over an appeal fromthe trial court�s judgment in quo warranto cases.110

109 O.C.G.A. § 9-6-66.

110 Casey v. McElreath, 177 Ga. 35, 169 S.E. 342 (1933).

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9 INTERNAL PROCEDURESOF THE APPELLATE COURTSJeffrey J. Swart*

§ 9.1 Introduction

This chapter will outline the composition and organization of Georgia�stwo Appellate Courts, the assignment of cases for determination by those Courts,the procedure by which cases, motions and petitions are heard and decided, andthe power of the Supreme Court to discipline judges.

The following materials could not have been completed without theguidance and efforts of William L. Martin, III, Clerk of the Court of Appeals, andSherie M. Welch, Clerk of the Supreme Court, both of whom have reviewedthese materials prior to publication.

* Mr. Swart is an associate in the law firm of Alston & Bird LLP. His practice is primarily

devoted to trial and appellate matters. He received his J.D. from Emory University in 1995and served from 1995 to 1997 as law clerk for Judge Ed Carnes of the United States Court ofAppeals for the Eleventh Circuit.


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§ 9.2 Composition and Organization of the Appellate Courts

§ 9.2.1 Composition of the Courts

Although the Georgia Constitution provides that as many as nine Justicesmay sit on the Supreme Court,1 by statute the Supreme Court of Georgia hasbeen limited to seven Justices.2 While the Constitution provides that the Court ofAppeals shall consist of not less than nine judges,3 twelve judges currently sit onthe Court of Appeals of Georgia.4

§ 9.2.2 Election and Appointment to the Courts

The Judges and Justices of the Appellate Courts are elected on anonpartisan basis for six-year terms which commence the January 1 followingtheir election.5 When a seat on either Court becomes vacant between elections,the Governor appoints a replacement. The replacement serves the remainder ofthe term until January 1 of the year following the next general election which ismore than six months after the appointment.6 In other words, if there are fewerthan six months of the unexpired term remaining before the election, thereplacement appointee will serve for both the limited unexpired term to whichthe justice or judge was appointed initally and until January 1 following the nextgeneral election (two years later).

An eighteen-member Judicial Nominating Commission helps theGovernor identify suitable candidates for vacant seats on the Appellate Courts,as well as other courts of record which involve executive appointment.7Generally, the members of the Commission are appointed by the Governor, butthe Chair of the Commission is authorized to appoint additional members as he

1 Ga. Const. art. VI, § 6, ¶ 1.

2 O.C.G.A. § 15-2-1.1.

3 Ga. Const. art. VI, § 5, ¶ 1.

4 O.C.G.A. § 15-3-1(a).

5 Ga. Const. art. VI, § 7, ¶ 1; O.C.G.A. § 15-3-4.

6 Ga. Const. art. VI, § 7, ¶¶ 3 & 4.

7 Executive Order of the Governor of the State of Georgia, dated April 19, 1999.

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deems appropriate.8 All members of the Commission serve at the pleasure of theGovernor.9

Appellate Judges and Justices are encouraged by statute to resign oncethey reach the age of seventy-five.10 The members of the Appellate Courts forfeitcertain retirement benefits unless they agree to retire on or before attaining ageseventy-five, or upon completing the term of office in which age seventy isattained, whichever is later.11 Any Judge or Justice may be retired involuntarily�for disability which constitutes a serious and likely permanent interference withthe performance of the duties of office.�12

§ 9.2.3 Internal Governance

The Supreme Court of Georgia is headed by a Chief Justice,13 who iselected by members of the Supreme Court to a two-year term and is subject to re-election for a second two-year term. The Supreme Court traditionally has electedthe most senior member of the Court to serve as Chief Justice. The members ofthe Supreme Court also elect a Presiding Justice,14 who is traditionally the secondmost senior Justice.

The members of the Court of Appeals elect a Chief Judge,15 who serves atwo-year term. The Chief Judge, in turn, designates four Presiding Judges, each

8 Id.

9 Id.

10 O.C.G.A. § 47-2-244(l) provides: �Any appellate court judge who elects to receive the benefitsprovided for by this Code section and who fails to resign his office as appellate court judgeon or before the day such judge attains age 75 or on the last day of the term in which suchappellate court judge is serving when he or she attains age 70, whichever is later � shall notbe entitled to receive any benefits under this Code section and shall forfeit all contributionsmade under it.�

11 Id. See Smith v. Miller, 261 Ga. 560, 407 S.E.2d 727 (1991).

12 Ga. Const. art. VI, § 7, ¶ 7. The specific rules governing removal, suspension and disciplineof judges are implemented by the Supreme Court. See Rules of the Judicial QualificationsCommission, as adopted and amended by the Supreme Court, reproduced in Georgia CourtRules & Procedure (State) (West 2002). Georgia Court & Bar Rules (William M. Darby�sPrinting Cost Analysis & Consulting, Inc. 1998); Georgia Rules of Court Annotated (Michie2003).

13 Ga. Const. art. VI, § 6, ¶ 1.

14 Id.

15 Ga. Const. art. VI, § 5, ¶ 1; O.C.G.A. § 15-3-1(a).


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of whom presides over one of the four three-judge divisions of the Court.16 TheChief Judge traditionally is elected on the basis of seniority, with the next-mostsenior judge who has not served as Chief Judge customarily being elected eachtime a two-year term expires. The Presiding Judges are traditionally the fourmost senior judges who are not serving as Chief Judge. At the end of the two-year term, the Chief Judge resumes service as a Presiding Judge, if entitled to doso on the basis of seniority.

§ 9.3 Determination of Which Judges or Justices Will Participate in theDecision of a Case

§9.3.1 Supreme Court

Every Justice of the Supreme Court who has not been disqualified orrecused participates in the decision of every matter before the Court, whether itbe an appeal, certified question, application, petition for certiorari, or motion.When one or more Justices are disqualified, the Constitution allows cases to beheard and determined by a majority of the remaining Justices.17 Nonetheless, ifthe parties desire a hearing by a full court, or upon the Court�s own motion, oneor more judges from the Superior Court will be appointed to substitute for theabsent Justice or Justices.18

A concurrence of a majority of the Justices is essential to a judgment ofreversal.19 If the number of justices is reduced, no judgment may be renderedunless at least four justices concur therein.20 If an even number of Justices hear acase and they become equally divided on its outcome, the judgment below willstand.21

§ 9.3.2 Court of Appeals

The Court of Appeals is divided into �rotating� three-judge �panels� or�divisions.� These three-judge panels ordinarily render the decisions of theCourt of Appeals. Each division is headed by a Presiding Judge, who is selected

16 O.C.G.A. § 15-3-1(b).

17 Ga. Const. art. VI, § 6, ¶ 1.

18 O.C.G.A. § 15-2-2.

19 O.C.G.A. § 15-2-16.

20 Id.

21 Id.


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by the Chief Judge under the process described in Section 9.2.3 above.Assignments of Judges to each division are made by the Chief Judge, and thepersonnel of the divisions is changed from time to time in accordance with rulesprescribed by the Court.22 The divisional assignments are for the duration of thedocket year, and are altered during the year only for extraordinary circumstancessuch as death or retirement. Divisional changes may also be made for particularcases, when one or more judges on a panel are disqualified or recused.

The Court of Appeals decides cases with panels of more than three Judgesonly in limited circumstances. A case will be heard by a seven-judge panelconsisting of the division to which the case was assigned, the next division in linein rotation, and an additional seventh judge in the event a dissent arises in thedivision to which the case was originally assigned.23

Further, there are two situations in which a case will be decided by alltwelve judges sitting en banc. First, if a majority of the judges of a single divisionor a majority of the judges of a seven-judge panel determines that a case shouldbe heard by all twelve judges, this determination will be presented to all thejudges of the Court for a vote as to whether a twelve-judge review of the case iswarranted.24 If a majority of the judges concur that review by all twelve judgesis warranted, the case will be decided by all the judges sitting en banc.25 Thesecond situation in which all twelve judges will decide the case arises when adivision or seven-judge panel is considering the issuance of an opinion thatwould overrule a prior decision of the Court.26

Pursuant to O.C.G.A. § 15-3-1(d), decisions rendered by panels consistingof more than three judges have several important characteristics, as follows:

It being among the purposes of this Code section to avoidand reconcile conflicts among the decisions made by less than all ofthe Judges on the court and to secure more authoritative decisions,it is provided that when two divisions plus a seventh Judge sit asone court the court may, by the concurrence of a majority, overruleany previous decision in the same manner as prescribed for the

22 O.C.G.A. § 15-3-1(b).

23 O.C.G.A. § 15-3-1(c)(1).

24 O.C.G.A. § 15-3-1(c)(2).

25 Id.

26 O.C.G.A. § 15-3-1(d).


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Supreme Court. As precedent, a decision by such court with amajority concurring shall take precedence over a decision by anydivision or two divisions plus a seventh Judge. A decisionconcurred in by all the Judges shall not be overruled or materiallymodified except with the concurrence of all the Judges.

When a judge on a division or seven-judge panel is disqualified orrecused, that judge is replaced by another member of the Court. In the event thatthe whole Court considers a case and is evenly divided, the case is transferred tothe Georgia Supreme Court.27 The Court of Appeals may also certify questionsto the Supreme Court to aid it in deciding the cases before it.28

After a judgment has been rendered by the Court, a losinig party may filea motion for reconsideration, requesting the Court to reconsider its decision.29

No oral argument is permitted on such a motion. Initially, a motion forreconsideration is reviewed by the judge who wrote the original opinion. Afterstudying the motion, this judge makes a recommendation to the other judgeswho participated in the decision of the case. Upon receiving therecommendation, these judges vote on the disposition. If the case was originallydecided by a division, the motion for reconsideration will also be decided by thedivision, unless a new dissent is generated which requires consideration of aseven-judge panel. If the case originally was decided by the whole Court, thenthe whole Court also votes on the motion for reconsideration.

§ 9.4 Scheduling of Arguments

§ 9.4.1 Supreme Court

With the exception of criminal cases imposing the death penalty andgranted writs of certiorari not disposed of summarily, hearings are notconducted in the Supreme Court unless one of the parties requests oralargument.30 Oral argument in death penalty appeals is mandatory and suchcases automatically will be placed on the oral argument calendar.31 All grantedwrits of certiorari will be placed on the oral argument calendar unless disposed

27 Ga. Const. art. VI, § 5, ¶ 5.

28 Ga. Const. art. VI, § 5, ¶ 4.

29 Ga. Ct. App. R. 37.

30 Ga. S. Ct. R. 50(3).

31 Ga. S. Ct. R. 50(1).


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of summarily by the Court.32 Oral argument in all other cases normally will beplaced on the calendar upon request of either party made within twenty daysfrom the date of docketing.33 Oral argument is never mandatory except in deathpenalty appeals, and the Court may deny or limit oral argument whereappropriate.34 Oral argument, except in death penalty appeals, is limited totwenty minutes per side.35 Each side in a death penalty appeal is given thirtyminutes to argue.36

The oral argument calendar in the Supreme Court ordinarily commenceson the second Monday of each month (excluding August and December), andlasts for as many days as are necessary to hear the cases assigned for that month.The Supreme Court�s monthly argument calendar is ordinarily two to four days.Cases are heard in the order listed on the calendar.

The Clerk of the Supreme Court arranges the cases for argument andprovides notice by publication of scheduled arguments at least 20 days prior toeach session. With reasonable notice, the Supreme Court may hear oralargument at places other than its courtroom in Atlanta.37


The hearings calendar for the Court of Appeals is coordinated by theClerk�s office. The Presiding Judges, however, choose in order of seniority thedays on which their divisions will hear argument. The Court of Appealsordinarily schedules oral argument for six to eight days during each month(excluding December and August), with each panel hearing arguments on one totwo days.

Due to the growing number of cases which are appealed and the limitednumber of judges to hear them, the Court of Appeals does not automaticallygrant oral argument.38 Accordingly, a party seeking oral argument must specify

32 Ga. S. Ct. R. 50(2).

33 Ga. S. Ct. R. 50(3).

34 Id.

35 Ga. S. Ct. R. 54.

36 Id.

37 O.C.G.A. § 15-2-5. The Supreme Court has heard oral argument at the state�s law schools andin other cities throughout the state, including New Echota, Cassville, Louisville, Talbotton,Augusta, Tifton, Westville, Savannah, Millidgeville, Statesboro, Covington, and Griffin.

38 Ga. Ct. App. R. 28(a)(1).


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why the case is appropriate for oral argument and why oral argument will assistthe Court in reaching a decision. The party requesting oral argument mustconvince at least one judge on the panel that �the decisional process will besignificantly aided by oral argument.�39 The judge to whom the case is assignedinitially will consider the plea in favor of oral argument. If the judge concludesthat oral argument will help, then the request will be granted. If the judge thinksotherwise, the remaining judges on the panel will consider the merits of therequest for oral argument seriatim. If, however, the request for oral argument isnot made timely, i.e., within 20 days from the date the case is docketed, then theuntimely request will be considered only by the judge to whom the case isassigned initially.

The docketing notice sent by the Clerk when the case is docketed informscounsel that, if requested and granted, oral argument will be calendared on oneof two specified dates. If a request for oral argument is granted, the Clerknotifies counsel by mail, at least fourteen (14) days before the hearing, of theexact date the case will be heard. Additionally, the docketing notice directscounsel to call the Clerk�s Office if counsel does not receive a copy of the Court�scalendar at least ten days before the tentative oral argument dates.

§ 9.5 Procedure for Decision After Argument, Including Assignment of Casesand Issuance of Opinions

§ 9.5.1 Supreme Court

The Supreme Court customarily takes an informal, preliminary voteimmediately after the conclusion of each day�s oral arguments. In general,decisional �bancs� are then held bi-weekly, usually on Thursdays. At the bancs,the Justices consider proposals for editorial or substantive changes in opinions,present concurring or dissenting opinions and take a final vote by show of handson those cases which all the Justices are prepared to decide. The opinion, asagreed upon by all of the concurring Justices, then issues from the Clerk�s office.Time permitting, a courtesy copy of the opinion or order is sent to the trial courtjudge and the parties on the Friday following the decisional banc. The opinion isofficially issued and released to the public and the media on Monday. If thenumber of sitting Justices has been reduced by disqualification or recusal to aneven number, and the remaining Justices are evenly divided on a case, thejudgment of the court below stands affirmed. 40 Moreover, no judgment can be

39 Id.

40 O.C.G.A. § 15-2-16.


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rendered without the concurrence of at least four Justices.41 The Justices decideapplications, other than habeas corpus, by a written vote form including amemorandum and recommendation, which the assigned justice circulates to theother justices for their votes.

Petitions for certiorari, motions for reconsideration, non-unanimousapplications, habeas corpus applications, disciplinary decisions, and other likematters are also discussed during the decisional bancs. Each petition forcertiorari is assigned to a Justice, who is provided with the record in the case. Allthe Justices review the petition, with the Justice to whom the petition wasassigned taking responsibility for answering any questions which require areview of the record. A hand vote is then taken at the weekly decisional banc. Ifthe vote is not unanimous, the matter is brought back to a second banc at a latertime for a re-vote. If a discretionary application or certiorari is granted, the orderwill indicate which issues the Court wants addressed.

To assure equal and impartial assignment among the seven Justices, casesin the Supreme Court are assigned through the use of twelve �wheels.� Withineach wheel, cases are assigned to the Justices consecutively, so that each Justice isassigned every seventh case. The wheels are organized according to subjectmatter as follows: (1) direct appeals including granted applications and certifiedquestions; (2) appeals of death sentences; (3) petitions for certiorari; (4) cases inwhich petitions for certiorari have been granted; (5) original matters (motions forsupersedeas or other extraordinary motions which relate to appeals, and originalpetitions for mandamus); (6) applications for appeal; (7) interim reviewapplications involving the death penalty; (8) habeas corpus applications;(9) habeas corpus applications involving the death penalty; (10) lawyerdisciplinary cases; (11) bar admissions matters and Judicial Qualifications cases;and (12) matters related to pending or imminent executions.


Cases are assigned to the judges of the Court of Appeals through the useof four �wheels,� one each for (1) direct appeals for criminal cases, (2) directappeals for civil cases; (3) interlocutory appeals, and (4) discretionary applicationappeals. The Clerk uses the wheels to assign cases as they are docketed to thefour divisions of the Court. The first four cases are assigned to the PresidingJudges, the next four cases are assigned to the second-most senior judges on eachpanel, and the next cases are assigned to the least senior judges on each panel.The cycle then repeats itself.

41 Id.


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The judge to whom the case is assigned is responsible for drafting andsubmitting a proposed opinion and, ordinarily, the same judge will write thefinal opinion. When a case is considered by the full Court or a seven-judgepanel, however, the judge who garners a majority of votes for his or her viewauthors the majority opinion.

Unlike the Supreme Court, the Court of Appeals does not hold regulardecisional bancs. Informal bancs do occur, however.

The precedential value of decisions of the Court of Appeals depends uponhow they are decided and reported. Reported decisions, insofar as they are notin conflict with decisions of the Supreme Court of Georgia, are binding precedentin all Georgia courts except the Supreme Court.42 By contrast, cases which areaffirmed without opinion in accordance with Rule 36 have no precedentialvalue.43 Written but unreported opinions establish only the law of the case.44

Furthermore, where one member of a division concurs specially or in judgmentonly, or where fewer than a majority of the judges sitting as a seven-judge ortwelve-judge Court concur with all that is said in the decision, the decisionconstitutes a nonbinding �physical� precedent only.45 In all cases, the Court ofAppeals has no authority to overrule or modify a decision of the Supreme Courtof Georgia.46

§ 9.5.3 Time Limitations for Decisions

The Supreme Court and the Court of Appeals consider cases during threeannual �terms,� commencing on the first Monday in January, the third Mondayin April, and the first Monday in September.47 A Constitutional �two term�limitation requires each Court to �dispose of every case at the term for which it isentered on the court�s docket for hearing or at the next term.�48 In the vernacular 42 Ga. Const. art. VI, § 5, ¶ 3; Ga. Ct. App. R. 33.

43 Ga. Ct. App. R. 36.

44 Ga. Ct. App. R. 33(b).

45 Ga. Ct. App. R. 33(a). The continuing viability of this rule may be affected, however, by theSupreme Court�s grant of certiorari to review the decision of the Court of Appeals in CottonStates Mut. Ins. Co. v. Brightman, 256 Ga. App. 451, 568 S.E.2d 498 (2002), cert. granted (Oct. 28,2002).

46 Adams v. State, 174 Ga. App. 558, 331 S.E.2d 29 (1985).

47 O.C.G.A. §§ 15-2-4(b), 15-3-2; Ga. S. Ct. R. 3.

48 Ga. Const. art. VI, § 9, ¶ 2. It should be noted that the key date relates to the term to whichthe case is docketed for hearing, not the term in which the case appeared initially on thecourt�s docket. Practicioners seeking to determine the opinion due date for a case pending in

[Footnote Continued On Next Page]


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of the Appellate Courts, �distress� cases are those cases which have reached thesecond term without being decided, and �distress day� is the last day on whichopinions can be issued.

The time required for a decision depends upon the circumstances of eachcase and, beyond the �two-term� limitation, the Courts follow no specificschedule. However, statutorily, the Courts must expedite civil cases in which theState of Georgia is a plaintiff,49 criminal cases in which the defendant isincarcerated,50 and cases involving the Parental Notification Act.51 Also, bypolicy, the Court of Appeals expedites cases involving child custody, appealbonds, and emergency motions filed under Court of Appeals Rule 40(b).Judgments are issued on a continuing basis by the Court of Appeals. However,counsel should not expect to receive decisions from either court during the lastfifteen days of a term. As a general rule, the Courts issue only rulings onmotions for reconsideration during that period.52

§ 9.6 Discipline of Judges

The Supreme Court has inherent authority to regulate the conduct ofjudges, including the promulgation and enforcement of the Code of JudicialConduct.53 A Georgia judge may be removed, suspended or otherwisedisciplined for willful misconduct in office, willful or persistent failure toperform the duties of office, habitual intemperance, conviction of a crime ofmoral turpitude, or conduct prejudicial to the administration of justice whichbrings the judicial office into disrepute.54 As a practical matter, the power to

[Footnote Continued From Previous Page]

the Court of Appeals should look to the docketing notice received from the Clerk�s office,calculating the due date based upon the term in which oral argument is to be held in theevent that oral argument is granted. See Superb Carpet Mills, Inc. v. Thomason, 183 Ga. App.554, 556, 359 S.E.2d 370, 372 (1987) (�The relevant date is . . . the date the case was docketedfor hearing.�).

49 O.C.G.A. § 9-10-1.

50 O.C.G.A. § 5-6-43(c).

51 O.C.G.A. § 15-11-114(e).

52 See O.C.G.A. § 15-2-4(c). This general rule may be disregarded in extraordinarycircumstances. See Shore v. Shore, 253 Ga. 183, 318 S.E.2d 57 (1984); Stuckey v. Richardson, 188Ga. App. 147, 372 S.E.2d 458 (1988).

53 Judicial Qualifications Comm�n v. Lowenstein, 252 Ga. 432, 314 S.E.2d 107 (1984).

54 Ga. Const. art. VI, § 7, ¶ 7.


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investigate and recommend the discipline of judges is delegated to the JudicialQualifications Commission, a seven-member body comprised of two judges,three members of the State Bar, and two non-lawyer citizens.55 The SupremeCourt reviews the recommendations of the Judicial Qualifications Commission,and exercises its power to discipline or remove judges by order or opinion. 56

Opinions are then published.57

55 Ga. Const. art. VI, § 7, ¶ 6.

56 Ga. Const. art. VI, § 7, ¶ 8.

57 See, e.g., In re Inquiry Concerning a Judge, 265 Ga. 843, 462 S.E.2d 728 (1995).

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10 PROCEEDINGS SUBSEQUENT TO DECISIONSRobb E. Hellwig*

§ 10.1 Decisions of the Georgia Supreme Court and the Georgia Courtof Appeals

§ 10.1.1 Entry and Transmittal of Decision

In rendering a decision, an appellate court may make an order or give anydirections to the lower court concerning the final disposition of the case that areconsistent with the law and justice.1 A decision by an appellate court usuallyeither affirms or reverses the judgment below, and may also include furtherdirections to the lower court.

When its decision requires a further hearing in a lower court, the SupremeCourt or the Court of Appeals will instruct its clerk to transmit immediately acopy of the Court�s opinion to the clerk of the lower court. The clerk will

* Mr. Hellwig is a partner with the law firm of Alston & Bird LLP focusing on trial and

appellate practice with an emphasis on commercial litigation and products liability defense.He received a B.A. from Duke University in 1991 and a J.D. from The University of TexasSchool of Law in 1994.

1 O.C.G.A. § 5-6-8.


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transmit the opinion as soon as it is available, and a copy of the opinion willremain on file for the information of the Court and the parties.2

§ 10.1.2 Transmittal of Remittitur to Lower Court

The remittitur of a case decided by an appellate court shall be transmittedto the clerk of the trial court as soon as practicable after the expiration of ten daysfrom the date the judgment is entered or a motion for reconsideration is denied,unless otherwise ordered by the court.3 The remittitur of a case contains thedecision of the court, any direction made in the case, and an accounting of thecosts paid in the appellate court.4 The remittitur instructs the lower court tocarry to full effect the appellate court�s decision and direction.

The filing of a motion for reconsideration stays the remittitur, as does thefiling of a notice of intention to apply to the Supreme Court of Georgia for a writof certiorari. The filing of a notice of intent to apply to the Supreme Court of theUnited States for writ of certiorari, however, does not automatically stay theremittitur.5

§ 10.1.3 Effect of Transmittal of Remittitur When Judgment Below isAffirmed

If an appellate court affirms the judgment of the lower court, thetransmittal of the remittitur to the clerk of the court terminates the supersedeasearlier imposed by the notice of appeal and instructs the lower court to issueimmediately execution for the amount of the original judgment.6 If an appellatecourt determines that an appeal was filed only for delay, the court may awardadditional damages to the appellee in the amount of ten percent of the judgmentaffirmed.7 Such damages, if awarded, are entered in the remittitur andtransmitted to the lower court. Damages for delay will be awarded only when

2 O.C.G.A. § 5-6-9(a).

3 Ga. S. Ct. R. 60(2); Ga. Ct. App. R. 39(a).

4 O.C.G.A. § 5-6-10.

5 Ga. Ct. App. R. 39(b).

6 O.C.G.A. § 5-6-12.

7 O.C.G.A. § 5-6-6. For a more complete discussion of issues related to frivolous appeals, seeinfra Chapter 13.

CHAPTER 10: PROCEEDINGS SUBSEQUENT TO DECISIONS

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no reasonable ground existed upon which the appellant might have anticipatedreversal of the trial court�s judgment.8

§ 10.1.4 Effect of Transmittal of Remittitur When Decision Below isReversed

When an appellate court reverses the judgment below, the appellant isentitled, as soon as the remittitur is returned to the lower court, to a judgmentagainst the appellee for the costs incurred in the appellate court.9

§ 10.2 Motions for Reconsideration in the Georgia Court of Appeals

§ 10.2.1 Time for Filing Motion

If a party wishes the Court of Appeals to reconsider its decision, a motionfor reconsideration must be filed: (1) no later than the tenth day after the Courtrenders its decision; and (2) during the term that the judgment or order sought tobe reviewed was rendered.10 A motion for reconsideration must also be filedbefore the remittitur has been forwarded to the clerk of the trial court.11 TheCourt may shorten the foregoing time limitation by issuing a special order.12

Importantly, a motion for reconsideration must be physically received and filedby the clerk within ten days of the order of judgment for which reconsiderationis sought.13 Court of Appeals Rule 4, providing that properly addressedregistered or certified mail packets are deemed filed on the official postmarkdate, does not apply to motions for reconsideration.14

An extension of time for filing a motion for reconsideration will begranted only when the requesting party submits a written application and shows

8 See Crawford v. Holt, 172 Ga. App. 326, 327, 323 S.E.2d 245, 246 (1984). See also Ray v. Standard

Fire Ins. Co., 168 Ga. App. 116, 118, 308 S.E.2d 221, 223 (1983); Stringer v. Harkleroad &Hermance, 218 Ga. App. 701, 704, 463 S.E.2d 152, 154 (1995).

9 O.C.G.A. § 5-6-5.

10 Ga. Ct. App. R. 37(b).

11 Id.

12 Ga. Ct. App. R. 37(c).

13 Ga. Ct. App. R. 37(b).

14 Id.


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�providential cause� for the delay in filing.15 This written application forextension of time must be made to the Court within ten days of the decision.16

§ 10.2.2 Form, Filing, and Service of Motion

Motions for reconsideration must comply with the requirements of Courtof Appeals Rule 23, concerning length, paper quality, spacing, margins, citations,and page numbering. An original and two clearly legible copies of the motionmust be filed with the Court.17

§ 10.2.3 Grounds for Granting Motion

The Court of Appeals will grant a motion for reconsideration �only whenit appears that the Court overlooked a material fact in the record, a statute or adecision which is controlling as authority and which would require a differentjudgment from that rendered, or has erroneously construed or misapplied aprovision of law or a controlling authority.�18

A motion for reconsideration may be denied even when the movantshows that a material fact or provision of law was overlooked or misconstrued.The Court may simply revise its opinion without granting reconsideration. 19

The Court may also sua sponte reconsider and revise its opinion at any time priorto the printing of the opinion in the official reports.

The decision of whether to reconsider a case is made by the judges whovoted on the original opinion. If there is a dissent on the motion forreconsideration, the motion is voted on by seven judges, or, if the Court deems itappropriate, twelve judges.20

15 Id.

16 Id.

17 Ga. Ct. App. R. 6 & 41(a).

18 Ga. Ct. App. R. 37(e).

19 Ga. Ct. App. R. 37(f).

20 Ga. Ct. App. R. 37(g).


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§ 10.2.4 Subsequent Motions for Reconsideration

If a party�s motion for reconsideration is denied, that party may not file asecond motion for reconsideration unless granted permission by order of theCourt.21

§ 10.3 Motions for Reconsideration in the Georgia Supreme Court

§ 10.3.1 Time for Filing Motion

Motions for reconsideration regarding any matter on which the SupremeCourt has ruled must be filed within ten days of the date of the Court�sdecision.22

§ 10.3.2 Form, Filing, and Service of Motion

Requirements and suggestions concerning physical form of motions arecontained in Supreme Court Rules 17 through 21. An original and seven copiesof the motion must be filed,23 and a copy of the opinion or disposition to bereconsidered must be attached to the motion.24

§ 10.3.3 Subsequent Motions for Reconsideration

As in the Court of Appeals, a party may not file a second or subsequentmotion for reconsideration with the Supreme Court without express permissionof the Court.25

§ 10.4 Writs of Certiorari from the Supreme Court to the Georgia Court ofAppeals

§ 10.4.1 Introduction

The Georgia Constitution vests the Supreme Court with authority toreview by certiorari Court of Appeals decisions that are of �gravity or great

21 Ga. Ct. App. R. 37(d).

22 Ga. S. Ct. R. 27.

23 Ga. S. Ct. R. 15.

24 Ga. S. Ct. R. 27.

25 Ga. S. Ct. R. 28.


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public importance.�26 The procedure for obtaining a writ of certiorari from theSupreme Court is governed by Supreme Court Rules 38 through 45.

§ 10.4.2 Motion for Reconsideration Not Required for Petition for Writof Certiorari

The filing and denial of a motion for reconsideration in the Court ofAppeals is no longer a prerequisite for filing a petition for certiorari to theGeorgia Supreme Court.27 Any question

that was not raised initially before the Court of Appeals or in the motion forreconsideration, however, will not be considered by the Supreme Court on a writof certiorari.28

§ 10.4.3 Time for Filing Petition for Writ of Certiorari

A notice of intention to petition for certiorari must be filed with the Clerkof the Court of Appeals within ten days of the judgment or the order denyingreconsideration.29 The petition for certiorari itself must then be filed with theclerk of the Supreme Court within twenty days of judgment or the ruling on amotion for reconsideration, if one has been filed.30 Simultaneously with thefiling of the petition for certiorari in the Supreme Court, counsel must file in theCourt of Appeals a notice stating that a petition for certiorari has been filed in theSupreme Court.31

§ 10.4.4 Filing and Service of Petition

An original and seven copies of the petition for certiorari must be filed inthe Supreme Court, and the opposing attorney or pro se party must be served

26 Ga. Const. art. VI, § 6, ¶ 5.

27 Ga. S. Ct. R. 38; Ga. Ct. App. R. 38(a)(1).

28 Orkin v. State , 239 Ga. 334, 334 n.1, 236 S.E.2d 576 (1977). It should be noted that Georgia S.Ct. R. 36(h), cited by the Court in Orkin, has been rescinded.


30 Ga. S. Ct. R. 38(2).

31 Ga. Ct. App. R. 38(a)(2).


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with a copy of the petition.32 A copy of the Court of Appeals opinion must beattached to each copy of the petition for certiorari.33

§ 10.4.5 Transmittal of Record to Supreme Court

The Clerk of the Court of Appeals is responsible for transmitting therecord and a certified copy of the Court of Appeals opinion and judgment to theSupreme Court.34

§ 10.4.6 Grounds for Granting Writ of Certiorari

The review of a case on certiorari is not a matter of right, but a matter ofjudicial discretion. The Supreme Court will grant writs of certiorari �only incases of great concern, gravity, or importance to the public.�35 The SupremeCourt will not ordinarily grant certiorari:

(1) To review the sufficiency of evidence;

(2) Where the Court of Appeals has affirmed the denial of a motion todismiss, denial of a motion for judgment on the pleadings, or a denial of amotion for summary judgment.36

§ 10.4.7 Motion for Reconsideration

If a petition for writ of certiorari is denied, and reconsideration is desired,a motion for reconsideration must be filed in the Supreme Court within ten daysof the date of denial. A copy of the opinion or other disposition must be attachedto the motion for reconsideration.37 If the motion for reconsideration is denied,no subsequent motion for reconsideration may be filed by the same party exceptby permission of the Court.38

32 Ga. S. Ct. R. 14 & 15.

33 Ga. S. Ct. R. 39.

34 Ga. S. Ct. R. 43.

35 Ga. S. Ct. R. 40.

36 Id.; but see Country Club Apartments, Inc. v. Scott, 246 Ga. 443, 271 S.E.2d 841 (1980).

37 Ga. S. Ct. R. 26.

38 Ga. S. Ct. R. 27.


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11 SPECIAL PROBLEMS IN CRIMINAL APPEALSMarc N. Garber,* Keith R. Blackwell,** and Stewart F. Alford***

§ 11.1 Introduction

This Chapter provides an overview of the various mechanisms availableunder Georgia law for challenging a criminal conviction or sentence. Althoughreversals of criminal convictions are the exception to the rule, Georgia lawprovides a number of opportunities for post-conviction relief, whereby adefendant who is wrongly convicted or sentenced may seek relief. This Chapteraddresses three avenues for challenging a criminal conviction or sentence:(i) post-trial motions in the trial court; (ii) direct appeals; and (iii) state petitionsfor habeas corpus.1

* Mr. Garber is a former federal prosecutor and an attorney in The Garber Law Firm, P.C.,

practicing in criminal, malpractice, wrongful death, personal injury and employmentlitigation and appeals. He received his B.A. in 1982 from the University of PennsylvaniaWharton School of Business and his J.D. in 1985 from the University of Buffalo.

** Mr. Blackwell is an attorney in the law firm of Alston & Bird LLP, focusing on white-collarcriminal litigation, appellate practice, and complex litigation. He received his B.A. in 1996and his J.D. in 1999 from the University of Georgia.

*** Mr. Alford is an attorney in the law firm of Alston & Bird LLP, practicing in complexlitigation and white-collar criminal litigation. He received his B.A. in 1999 from RhodesCollege and his J.D. in 2002 from Northwestern University.


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§ 11.2 Post-Trial Motions

§ 11.2.1 Motion for New Trial

A motion for new trial is the most commonly utilized means of seekingpost-conviction relief. The superior, state, and juvenile courts are empowered bystatute to grant new trials,2 and whether to grant a motion for new trial iscommitted to the discretion of the trial court.3 A motion for new trial ordinarilymust be filed within 30 days of the entry of a judgment of conviction.4 Wherethe motion for new trial would require the court to consider trial transcripts �except in cases where a sentence of death has been imposed � the trial court maygrant an extension of time for the preparation and filing of the transcript.5

Georgia law enumerates several grounds upon which a trial court mayorder a new trial, including:

• That the jury verdict is �contrary to evidence and the principles ofjustice and equity�;6

• That the jury verdict is �decidedly and strongly against the weight ofthe evidence even though there may appear to be some slight evidencein favor of the finding�;7

• That material evidence was illegally admitted or withheld from thejury;8

• That material evidence was discovered by the movant after the verdictand timely brought to the attention of the trial court;9 and

1 For a more thorough discussion of Georgia habeas corpus, see 10 Georgia Procedure: Criminal

Procedure § 35.1 et seq., at 655 (1995); Donald E. Wilkes, Jr., Postconviction Habeas Corpus Reliefin Georgia: A Decade After the Habeas Corpus Act, 12 Ga. L. Rev. 249 (1978); 14 Thomas K.McWhorter, Encyclopedia of Georgia Law Habeas Corpus (1988); and for federal habeascorpus, see Ronald P. Sokol, Federal Habeas Corpus (2d ed. 1969).

2 O.C.G.A. § 5-5-1.

3 O.C.G.A. §§ 5-5-20, 5-5-21.

4 O.C.G.A. § 5-5-40(a).

5 O.C.G.A. § 5-5-40(c).

6 O.C.G.A. § 5-5-20.

7 O.C.G.A. § 5-5-21.

8 O.C.G.A. § 5-5-22.

9 O.C.G.A. § 5-5-23.

CHAPTER 11: SPECIAL PROBLEMS IN CRIMINAL APPEALS

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• That the jury instructions were erroneous.10

In addition, Georgia courts are empowered, in the exercise of �a soundlegal discretion,� to grant new trials upon other grounds �according to theprovisions of the common law and practice of the courts.�11 Although he maydo so, a defendant need not file a motion for new trial before taking an appeal,12

and, even when a motion for new trial is filed, a defendant may raise any trialerror on appeal, regardless of whether it was raised in the motion for new trial,so long as the error was preserved at trial.13

In extraordinary cases, a motion for new trial may be filed outside the 30-day limit. In such cases, however, the defendant must show a good reason whythe motion was not timely filed.14 Perhaps the most common reason for filing anuntimely motion for new trial is the late discovery of new evidence. A motionfor new trial based upon newly discovered evidence may be filed outside the 30-day limit only when the defendant shows:

10 O.C.G.A. § 5-5-24.

11 O.C.G.A. § 5-5-25.

12 O.C.G.A. § 5-6-36. It bears noting, however, that a claim that the verdict is against the weightof the evidence may be asserted only in the trial court. Appellate courts are not vested withthe discretion to overturn a conviction because it is against the weight of the evidence, andthey cannot resolve conflicts in trial testimony or re-weigh the evidence on appeal. Rather,an appellate court may overturn a conviction for insufficiency of the evidence only where noreasonable jury could conclude beyond a reasonable doubt, based on the evidence viewed inthe light most favorable to the State, that the defendant committed the crime of which he wasconvicted. Mosley v. State, 157 Ga. App. 578, 278 S.E.2d 154 (1981).

13 Smith v. State, 244 Ga. App. 165, 534 S.E.2d 903 (2000). Claims that a defendant�s trial counselrendered ineffective assistance, however, sometimes are an exception to this rule. When theoriginal trial counsel continues to represent a defendant on post-trial motions and directappeal, ineffective assistance need not be raised in a motion for new trial, �[b]ecause anattorney cannot reasonably be expected to assert or argue his or her own ineffectiveness.�White v. Kelso, 261 Ga. 32, 32, 401 S.E.2d 733, 734 (1991). But when new counsel is appointedor retained for post-trial proceedings, �[n]ew counsel must raise the ineffectiveness ofprevious counsel at the first possible stage of post-conviction review.� Id. Accordingly, ifnew counsel first appears on a motion for new trial, or an amended motion for new trial, anyclaim of ineffective assistance of trial counsel must be raised in the motion (or amendedmotion) for new trial. Id.; see also Thompson v. State, 257 Ga. 386, 359 S.E.2d 664 (1987). If newcounsel�s first appearance is on direct appeal, a claim of ineffective assistance can then beraised for the first time, but the appeals court will remand the case to allow the trial court thefirst opportunity to address the ineffective assistance claim. McCulley v. State, 273 Ga. 40, 537S.E.2d 340 (2000).

14 Van Scoik v. State, 142 Ga. App. 341, 235 S.E.2d 765 (1977).


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• That the evidence has come to his knowledge since trial;

• That his failure to discover the evidence at an earlier time is notattributable to a lack of due diligence;

• That the evidence is admissible;

• That the evidence is so material that it likely would produce a differentverdict;

• That the evidence is not merely cumulative; and

• That the evidence is not admissible merely to impeach the credibility ofa witness that testified at trial.15

§ 11.2.2 Motion In Arrest of Judgment

Motions in arrest of judgment can be used to obtain relief from anonamendable defect appearing on the face of the record or pleadings.16 In acriminal case, a motion in arrest of judgment is allowable only to challenge anindictment, plea, verdict, or judgment.17 Either party may move to arrest thejudgment during the term in which the judgment was obtained.18 A judgmentmay not be arrested for any defect in the pleading or in the record that isamendable as a matter of form19 or for any deficiency that does not affect �thereal merits of the offense charged in the indictment or accusation.�20 Granting acriminal defendant�s motion in arrest of judgment vacates the judgment but doesnot prevent the defendant from being re-indicted and retried.21

15 Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980); Davis v. State, 221 Ga. App. 375, 471

S.E.2d 307 (1996).

16 Boyd v. State, 267 Ga. 453, 479 S.E.2d 724 (1997); Hall v. State, 202 Ga. 42, 42 S.E.2d 130 (1947).

17 Id.

18 Bowen v. State, 144 Ga. App. 329, 241 S.E.2d 431 (1977). A motion in arrest of judgment filedafter the term in which the judgment was obtained is untimely. Orr v. State, 275 Ga. 141, 562S.E.2d 498 (2002).

19 O.C.G.A. § 17-9-61. There is some question with regard to whether the 1933 Codepredecessor of O.C.G.A. § 17-9-61 had been repealed by Georgia Code Ann. § 81A-201(jj).However, Code Ann. § 81A-201(jj) was not incorporated into Code of 1981 and O.C.G.A. § 17-9-61, previous Code Ann. §§ 110-702 and 110-703 survived and carried forward intosubsequent editions of the Code.

20 O.C.G.A. § 17-9-63.

21 Hill v. Nelms, 122 Ga. 572, 50 S.E. 344 (1905).


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§ 11.2.3 Writ of Coram Nobis

The writ of coram nobis, though once one of the most significant common-law writs, largely has fallen out of use because of the availability of otherremedies. The Georgia Supreme Court has recognized that coram nobis isavailable to correct errors of fact not apparent on the face of the record, notattributable to the negligence of the accused, and which, if before the court,would have prevented entry of the judgment.22 To provide a basis for coramnobis relief, a factual error must be of sufficient magnitude to undermineconfidence in the trier of fact�s verdict.23 The writ is not available, however,when the defendant has an adequate statutory remedy such as habeas corpus.24

The Georgia Supreme Court has expressed its disfavor with the writ�s continueduse and has suggested that a petition for coram nobis is more properly labeled anextraordinary motion for new trial based on newly discovered evidence.25

Coram nobis relief also is available in federal court, although its usefulnesslargely has been supplanted by habeas corpus.26

§ 11.3 Appeals

§ 11.3.1 Standing to Appeal

The United States and Georgia Constitutions afford no right, to the Stateor to defendants, to appellate review in criminal cases. Rather, the right toappeal in a criminal case exists only to the extent afforded by statute.27 AlthoughGeorgia law permits both the State and defendants to appeal in criminal cases, adefendant�s authority to appeal is much broader than that of the State.

22 Parris v. State, 232 Ga. 687, 208 S.E.2d 493 (1974).

23 Stephen A. Saltzburg, American Criminal Procedure 112 (1980).

24 Riley v. State, 107 Ga. App. 639, 131 S.E.2d 124 (1963).

25 Waye v. State, 239 Ga. 871, 238 S.E.2d 923 (1977); see also Moss v. State, 255 Ga. App. 107, 564S.E.2d 516 (2002).

26 The United States Supreme Court has held that the writ is authorized by the All WritsStatute, 28 U.S.C. § 1651(a), as a means for federal defendants to correct errors of afundamental nature. United States v. Morgan, 346 U.S. 502 (1954); see also United States v.Swindall, 107 F.3d 831 (11th Cir. 1997). The availability of habeas review in federal courts has,however, largely supplanted coram nobis and made it �difficult to conceive of a situation in afederal criminal case today where [coram nobis relief] would be necessary or appropriate.�United States v. Smith, 331 U.S. 469, 476 n.4 (1947); see also Lowery v. United States, 956 F.2d 227(11th Cir. 1992).

27 Fullwood v. Sivley, 271 Ga. 248, 517 S.E.2d (1999); see also Bradford v. Southern Ry. Co., 195 U.S.243 (1904).


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Georgia statutory law authorizes the State to appeal in a criminal caseonly from an order, decision or judgment:

• Dismissing an indictment, accusation, or petition of delinquency;

• Arresting a judgment of conviction or adjudication of delinquencyupon legal grounds;

• Sustaining a plea or motion in bar, when the defendant has not beenput into jeopardy;

• Suppressing evidence illegally seized or the results of any alcohol ordrug test, when no jury has been impaneled and the defendant has notbeen put into jeopardy;

• Beyond the jurisdiction of the court that issued the order, or otherwisevoid under the state constitution or statutory law; or

• Transferring a case to juvenile court pursuant to O.C.G.A. § 15-11-28(b)(2)(B).28

The courts have interpreted this express statutory authorization to appealfrom certain orders as an implicit limitation upon the State�s authority,precluding appeals by the State in criminal cases from any order or judgment notenumerated in the statute.29 The Georgia courts, however, typically construe theenumeration of orders appealable by the State liberally.30

Defendants in criminal cases, on the other hand, have a much broaderstatutory right to appeal. Indeed, O.C.G.A. § 5-6-33 provides:

[T]he defendant in any criminal proceeding in the superior, state,or city courts may appeal from any sentence, judgment, decision, ordecree of the court, or of the judge thereof in any matter heard atchambers.

28 O.C.G.A. § 5-7-1. The State has a right to interlocutory appeals in instances in which the trial

court has granted a motion to suppress or a motion in limine not involving a search andseizure. Strickman v. State, 253 Ga. 287, 319 S.E.2d 864 (1984); State v. Vansant, 208 Ga. App.772, 431 S.E.2d 708 (1993), aff�d in part, rev�d in part, 264 Ga. 319, 443 S.E.2d 474 (1994).

29 State v. Thurmond, 195 Ga. App. 369, 393 S.E.2d 518 (1990); State v. Hollomon, 132 Ga. App. 304,208 S.E.2d 167 (1974).

30 State v. Greenwood , 206 Ga. App. 188, 424 S.E.2d 870 (1992) (citing Strickman); but see In reInterest of D.Q.H., 212 Ga. App. 271, 271, 441 S.E.2d 411, 411 (1994) (stating that § 5-7-1 is �tobe construed narrowly, against the State. . . .�).


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The courts similarly construe this statutory right to appeal liberally to avoid thedismissal of any appeal and to afford defendants a decision on the merits.31

Notwithstanding the broad statutory right of defendants to appeal, acriminal defendant may forfeit voluntarily his right to appeal.32 He may do soexpressly, in return for the state�s agreement not to seek the death penalty,33 orby his own conduct, either alone or in concert with his attorney.34 Forfeituremay occur, for example, when the defendant and his attorney have intentionallyabused or attempted to delay the appellate process,35 such as failing to file thetrial transcript on time or pay the reporter�s costs.36

Whether to appeal from a criminal conviction is a decision committed tothe defendant himself. Counsel ordinarily must inform the defendant of his rightto appeal, regardless of whether counsel is appointed or retained by thedefendant.37 The defendant alone determines whether a criminal convictionshould be appealed, and he cannot be deprived of that right because his counselhas determined independently that the appeal is unlikely to succeed.38 When adefendant is denied his right of appeal through the negligence or ignorance ofhis counsel, or because he was not adequately informed of his right to appeal,Georgia courts ordinarily will permit the defendant to bring an out-of-timeappeal.39

31 O.C.G.A. § 5-6-30; Grantham v. State, 244 Ga. 775, 262 S.E.2d 777 (1979).

32 State v. Denson, 236 Ga. 239, 223 S.E.2d 640 (1976).

33 Thomas v. State, 260 Ga. 262, 392 S.E.2d 520 (1990).

34 Denson, 236 Ga. 239, 223 S.E.2d 640.

35 Id.

36 Langston v. State, 206 Ga. App. 874, 426 S.E.2d 609 (1992); Denson, 236 Ga. 239, 223 S.E.2d 640.

37 Id. More specifically, the United States Supreme Court has held that counsel must consultwith a defendant about an appeal if counsel has reason to believe that a rational defendantwould want to appeal or that this particular defendant is interested in an appeal. Roe v.Flores-Ortega, 528 U.S. 470 (2000).

38 Lee v. State, 139 Ga. App. 65, 227 S.E.2d 878 (1976).

39 Harrell v. State , 257 Ga. App. 525, 571 S.E.2d 502 (2002); see also Glass v. State, 248 Ga. App. 91,545 S.E.2d 360 (2001). A motion for an out-of-time appeal is committed to the discretion ofthe trial court. Butts v. State, 244 Ga. App. 366, 536 S.E.2d 154 (2000).


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§ 11.3.2 Appealable Decisions

A party to a criminal case that has standing to appeal an order of the trialcourt ordinarily must await a final judgment before taking its appeal.40 Thereare some occasions, however, when an interlocutory appeal may be taken in acriminal case. First, the State has a statutory right to bring an interlocutoryappeal of any order suppressing evidence seized illegally.41 Second, in all casesin which the State seeks to impose the death penalty, the trial court is obliged toreview all pretrial matters and determine whether immediate appellate review ofsuch pretrial matters is warranted, considering the delay caused by interlocutoryreview and the need for such review.42 If the trial court concludes thatinterlocutory review is warranted in a capital case, the Supreme Court mayconduct an interlocutory review. Finally, in any criminal case, either the State orthe defendant may seek a certification from the trial court, within 10 days of theentry of an order, �that the order, decision, or judgment is of such importance tothe case that immediate review should be had.�43 If the certificate is issued bythe trial court, the party seeking interlocutory review must also file anapplication with the appropriate appellate court.44 As provided in SupremeCourt Rule 25, the Supreme Court will grant an application for leave to appeal aninterlocutory order only when:

• The issue to be decided appears to be dispositive of the case;

• The order appears erroneous and will cause a substantial error at trial;or

• The establishment of a precedent is desirable.45

Court of Appeals Rule 30 sets out a similar standard for the Court of Appeals.46

40 See O.C.G.A. § 5-6-34(a).

41 O.C.G.A. § 5-7-2.

42 O.C.G.A. §§ 17-10-35.1, 17-10-35.2.

43 O.C.G.A. § 5-6-34(b).

44 Id.

45 Ga. S. Ct. R. 25.

46 Ga. Ct. App. R. 30.


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§ 11.3.3 Appellate Jurisdiction

The state constitution vests the Georgia Supreme Court with appellatejurisdiction over certain kinds of cases, and a party may bypass the Court ofAppeals and appeal directly to the Supreme Court in these kinds of cases.47

Among the cases in which the Supreme Court has original appellate jurisdictionare all cases in which the constitutionality of a federal or state statute is calledinto question, habeas corpus cases, and all cases in which the death penalty isimposed or could be imposed.48 The death penalty need not be imposed for theSupreme Court to have jurisdiction, but the case must be one in which the trialcourt could impose a penalty of death.49 Although Georgia statutes authorizeimposing the death penalty for rape, kidnapping, and armed robbery, theGeorgia Supreme Court has concluded that such cases are beyond its originalappellate jurisdiction, insofar as the death penalty ordinarily cannot be imposedin such cases consistent with the Eighth Amendment.50

For those classes of cases in which the Supreme Court lacks originalappellate jurisdiction, the Court of Appeals has original appellate jurisdiction.The Supreme Court, of course, may review any decision of the Court of Appealsby writ of certiorari.51

§ 11.3.4 Motion to Stay Execution of Sentence

A motion to stay execution of a sentence is closely connected with theright of the defendant to be released on bond pending appeal. Whether thedefendant can be released pending appeal depends initially on whether theunderlying offense was a misdemeanor or felony. Appeals of a misdemeanor 47 Ga. Const., art. VI, § 6, ¶¶ 1, 2. The Supreme Court has exclusive appellate jurisdiction over

constitutional challenges to statutes and general appellate jurisdiction in habeas and capitalcases.

48 Id.

49 See Ga. Const., art. VI, § 6, ¶ 3. In State v. Thornton, the Supreme Court allowed appellatejurisdiction in a case where the death penalty could not be imposed because the districtattorney did not give the defense timely notice of the state�s intention to seek the deathpenalty. 253 Ga. 524, 524, 322 S.E.2d 711, 711 (1984). The Court went on to state, �as a matterof policy, however, we deem it appropriate, at the present time, that all murder cases bereviewed by this court.� Id. This holding seems contrary to the express intention of thechanges adopted by the 1983 Constitution. While the statement is apparently still good law,it has recently come under criticism by members of the Supreme Court. Weathbed v. State, 271Ga. 736, 524 S.E.2d 452 (1999) (Benham, J., concurring).

50 Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).

51 Ga. Const., art. VI, § 6, ¶ 5.


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case automatically entitle the defendant to be released on bond.52 On the otherhand, a motion to stay execution of a felony sentence is committed to thediscretion of the judge,53 and such a motion should be granted �only after carefulconsideration.�54 Indeed, the release of a felony defendant should not be grantedunless the court finds that: (1) there is no substantial risk of the appellant fleeingto avoid judgment at the conclusion of the appellate proceedings; (2) theappellant is not likely to commit a serious crime, intimidate witnesses, orotherwise obstruct the administration of justice; and (3) the appeal is notfrivolous or taken for delay.55

In White v. State,56 the Court of Appeals established a procedure for a trialcourt�s consideration of these factors. After a sentence of imprisonment has beenimposed, the trial court should review the request for bail and make a �freshdetermination� that includes: (1) giving notice to the applicant of the hearingand the chance to appear and be heard; (2) requiring at such hearing that thedefendant bear the burden of seeking a stay of execution and a release on bond;and (3) considering all evidence introduced at the trial and all other oral anddocumentary evidence that the court considers appropriate. After the hearing,the court must answer the questions set out in Birge. If any of the answers is�yes,� the court must set out its findings in support of the affirmative answer(s)and deny defendant�s request. White was subsequently overruled to the extentthat it required courts to �set forth findings of fact to support the affirmativeanswer,� but the other requirements remain57 and require the court to point tothe appropriate basis to justify the denial of release.58 Failure to set forth thebasis of the decision according to the Birge criteria will force the appellate courtsto vacate the decision below.59

52 In re Inquiry Concerning a Judge, 265 Ga. 843, 462 S.E.2d 728 (1995).

53 Watts v. Grimes, 224 Ga. 227, 161 S.E.2d 286 (1968).

54 Mulligan v. Zant, 531 F. Supp. 458, 460 (M.D. Ga. 1982).

55 O.C.G.A. § 17-6-1(e); Birge v. State, 238 Ga. 88, 230 S.E.2d 895 (1976); Prayor v. State, 214 Ga.App. 132, 447 S.E.2d 155 (1994).

56 146 Ga. App. 147, 245 S.E.2d 870 (1978), overruled in part by Moore v. State, 151 Ga. App. 413,260 S.E.2d 350 (1979).

57 Moore v. State, 151 Ga. App. 413, 413, 260 S.E.2d 350, 350 (1979).

58 McCormick v. State, 161 Ga. App. 573, 289 S.E.2d 23 (1982).

59 Leath v. State, 200 Ga. App. 539, 408 S.E.2d 835 (1991).


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The Birge criteria do not apply, however, to applications for bond pendingappeal of a murder conviction.60 In murder cases, the trial court has solediscretion in considering the bond motions, and �need not give any reasons fordenying an appeal bond to a convicted murderer.�61 Additionally, O.C.G.A.§ 17-6-1(g) prohibits the granting of release on bond of any person who has beenconvicted of �murder, rape, aggravated sodomy, armed robbery, aggravatedchild molestation, kidnapping, trafficking in cocaine or marijuana, aggravatedstalking, or aircraft hijacking and who has been sentenced to serve a period ofincarceration of seven years or more.�62

Either the State or the defendant can appeal the trial court�s decision ongranting bail.63 On appeal, the appellant carries the burden of proving anegative by establishing the nonexistence of the Birge criteria.64

§ 11.3.5 Appeals by Indigent Defendants

Historically, indigent defendants were those persons found by the court to�lack funds to hire a lawyer.�65 The Georgia legislature provided a moredefinitive statement when it passed the Criminal Justice Act of 1968, whichdefined the term �indigent person� as one who is �unable, without unduehardship, to employ the legal services of an attorney or to defray the necessaryexpenses of legal representation. . . .�66 While providing some assistance, thestatute leaves considerable opportunity for fact finding in defining �unduehardship.� Courts should consider the defendant�s income, property owned,expenses, outstanding obligations, and the number and ages of dependents.67

60 Hardin v. State, 251 Ga. 533, 307 S.E.2d 669 (1983).

61 Ayala v. State, 262 Ga. 704, 707, 425 S.E.2d 282, 285 (1993).

62 O.C.G.A. § 17-6-1(g) (emphasis added); see also Browning v. State, 254 Ga. 478, 330 S.E.2d 879(1985).

63 Owens v. State, 141 Ga. App. 154, 232 S.E.2d 646 (1977).

64 Pressel v. State, 161 Ga. App. 488, 287 S.E.2d 780 (1982); Jarrett v. State, 222 Ga. App. 521, 474S.E.2d 702 (1996).

65 Jerold H. Israel & Wayne R. Lafave, Criminal Procedure 329 (1975).

66 O.C.G.A. § 17-12-2.

67 O.C.G.A. § 17-12-10. Determination of a defendant�s status as an indigent during the trial orpretrial stage is governed in some jurisdictions by Uniform Superior Court Rule 29.Although this provision does not specifically apply to appointment or continuation ofcounsel for appeal, it may also serve useful in those contexts.


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Denial of a motion to proceed in forma pauperis is �final and not subject toreview.�68

As a matter of federal constitutional law, an indigent defendant is entitledto have legal counsel appointed to provide representation through the first levelof appellate review.69 However, the defendant�s federal constitutional right toappellate counsel does not extend to discretionary appeals and petitions forcertiorari, including petitions for certiorari from the United States SupremeCourt.70

Similarly, the Georgia Supreme Court has ruled that, even in the absenceof a constitutional right to appeal, once the State has established a right toappellate review, it must assure access to this criminal process for all criminaldefendants on equal terms and conditions.71 The Georgia Supreme Court alsohas found that an indigent defendant does not have a constitutional right toappointed counsel for discretionary appeals or to apply for a writ of certiorarifrom the Georgia Supreme Court.72

Once counsel has been appointed to provide representation during anindigent�s first appeal from his conviction, the court-appointed counsel mustpursue the appeal to the best of his ability. Indeed, appellate counsel�s conduct,like the conduct of trial counsel, may form the basis for a claim of ineffectiveassistance of counsel if the appellate counsel fails to raise an error or argumentthat any competent attorney would raise.73 However, appointed counsel has no�constitutional duty to raise every nonfrivolous issue� at the request of thedefendant or otherwise.74 The Supreme Court has recognized the strategic

68 Harris v. State, 170 Ga. App. 726, 726, 318 S.E.2d 315, 316 (1984); see also Morris v. Dep�t of

Transp., 209 Ga. App. 40, 432 S.E.2d 638 (1993).

69 Douglas v. California, 372 U.S. 353 (1963); Weber v. State, 203 Ga. App. 356, 416 S.E.2d 868(1992).

70 Ross v. Moffitt, 417 U.S. 600 (1974); Strozier v. Hopper, 234 Ga. 597, 216 S.E.2d 847 (1975).

71 Cunningham v. State, 232 Ga. 416, 207 S.E.2d 48 (1974), vacated, 133 Ga. App. 305, 211 S.E.2d150 (1974).

72 Wooten v. State, 245 Ga. 724, 266 S.E.2d 927 (1980).

73 See Shorter v. Waters, 275 Ga. 581, 571 S.E.2d 373 (2002); Battles v. Chapman, 269 Ga. 702, 506S.E.2d 838 (1998). To prevail upon a claim of ineffective assistance of appellate counsel, ofcourse, a defendant ordinarily must show not only that appellate counsel did not renderreasonable assistance, but also that appellate counsel�s unreasonable performance prejudicedthe defendant.

74 Jones v. Barnes, 463 U.S. 745, 746 (1983).


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significance of counsel�s determination to delete weaker arguments and focus onone or a few key issues on appeal.75

The Georgia Supreme Court apparently has eliminated defense counsel�sability to withdraw from the appeal of a case, at least to the Supreme Court, ongrounds that the appeal is frivolous. Formerly, defense counsel could seek towithdraw by complying with the requirements set forth in Anders v. California.76

Anders prohibited appointed counsel from withdrawing from a �whollyfrivolous� case simply by stating that the appeal is without merit. The Andersdecision instead required counsel�s statement that, after fair review, counsel hasfound the appeal to be �wholly frivolous,� accompanied by a brief, submitted toboth the court and the defendant, discussing all points of record that mightarguably support the appeal. The appellate court then would conduct its ownexamination of the record and transcript in order to reach a determination withregard to the basis for the appeal. If the court found that the appeal was in fact�wholly frivolous,� it could dismiss the appeal or affirm the conviction.77

In 1985 the Georgia Supreme Court abandoned the Anders procedure,stating that, although it �provides a mechanism for withdrawal of appointedcounsel at the appellate level in the event that the appeal would be frivolous, . . .it does not require such withdrawal.�78 As a result, and because the reviewrequired of the court by Anders is burdensome, the Supreme Court no longerentertains Anders motions.79 The Court of Appeals has followed suit.80 Huguleythus has eliminated the entire concept of frivolous criminal appeals, at leastbefore the Supreme Court; defendants are �entitled to review of any claim whichmight afford [them] relief.�81 The courts have not yet reconciled thisdevelopment with counsel�s well-settled discretion to omit weaker arguments onappeal.82

75 Id.; Davis v. Williams, 258 Ga. 552, 372 S.E.2d 228 (1988).

76 386 U.S. 738 (1967).

77 See Bethay v. State, 237 Ga. 625, 626, 229 S.E.2d 406, 406 (1976); Fegan v. State, 154 Ga. App. 791,270 S.E.2d 211 (1980).

78 Huguley v. State, 253 Ga. 709, 710, 324 S.E.2d 729, 731 (1985).

79 Id.; Saunders v. State, 254 Ga. 262, 328 S.E.2d 544 (1985).

80 Fields v. State, 189 Ga. App. 532, 376 S.E.2d 912 (1988).

81 Huguley, 253 Ga. at 710, 324 S.E.2d at 731; see also Saunders, 254 Ga. 262, 328 S.E.2d 544.

82 See n.74, supra.


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The indigent appellant has a federal constitutional right to a trialtranscript or adequate substitute, free of cost, when challenging trial errors on anappeal as of right.83 This right does not necessarily give the defendant a right tothe entire verbatim transcript, but it does guarantee a record of sufficientcompleteness to permit consideration of all points raised on appeal.84 In cases ofpartial or limited transcripts, the State must insure that the record is of sufficientcompleteness to consider the indigent appellant�s contentions.85

To assure that indigent defendants receive proper appellaterepresentation, the Criminal Justice Act of 1968 sets forth a method whereby thecourt �shall prescribe the compensation of the defending attorneys whom itassigns . . . and approve the expenses necessarily incurred by them in the defenseof indigents. . . .�86 Although the Act does not deal specifically withappointment of appellate counsel, it has been extended to this area.87

The representation of indigent appellants in capital cases is specificallygoverned by O.C.G.A. § 17-12-60 et seq.88 In a capital felony case, the presidingjudge must determine if the defendant is indigent, and, if so, the court shallauthorize the defendant�s previously appointed attorneys to prosecute theappeal. In the absence of previously appointed counsel, the court will appoint anattorney or attorneys to prosecute the appeal.89 When the appeal is made to theGeorgia Supreme Court, the Court shall determine what reasonablecompensation shall be allowed to the attorneys for the services rendered in theappeal. However, fees paid to the appointed counsel shall not exceed $250 plusall reasonable and necessary expenses incurred in the prosecution of the appeal,

83 Griffin v. Illinois, 351 U.S. 12 (1956); Stalling v. State, 231 Ga. 37, 200 S.E.2d 121 (1973).

84 Bailey v. State, 232 Ga. 873, 209 S.E.2d 204 (1974).

85 Sales v. State, 152 Ga. App. 635, 263 S.E.2d 519 (1979).

86 O.C.G.A. § 17-12-5. Although the Superior Court is charged with setting fees, the countygoverning authority in which the Superior Court sits shall recommend the limits forattorney�s fees and pay those fees from public funds available for operation of the courts.O.C.G.A. §§ 17-12-5(a) & (c). The Superior Court judge, however, is not bound by therecommendation of the county governing authority in prescribing a fee or in approvingexpenses for an attorney appointed to represent an indigent defendant. O.C.G.A. § 17-12-5(b); see also 1977 Ga. Op. Att�y Gen. U77-27.

87 See, e.g., 1971 Ga. Op. Att�y Gen. U71-96.

88 Attorneys who are appointed to represent an indigent defendant in a capital case underO.C.G.A. § 17-12-60 may still seek compensation under O.C.G.A. § 17-12-5(b). In re Whatley,256 Ga. 289, 347 S.E.2d 602 (1986).

89 O.C.G.A. § 17-12-61(a)(1) & (2).


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provided that expenses shall not exceed $500.90 If it finds that the appeal wasmade in good faith and upon reasonable grounds, the Court must certify theamount due to the State auditor.91 Following the appeal, the attorney orattorneys appointed must file an affidavit containing a statement of all servicesrendered and expenses paid or incurred in the prosecution of the appeal.92 TheCourt or the Chief or Presiding Justice of the Court examines this affidavit ofservices and approves it before awarding compensation and expenses.93 Theaffidavit must also state that the attorney has not received, directly or indirectly,compensation for his services in the prosecution of the appeal from any othersource.94

§ 11.3.6 Mechanics of the Appeal

To perfect an appeal to either the Georgia Supreme Court or Court ofAppeals, the defendant generally must file a notice of appeal with the clerk of thetrial court within 30 days of the entry of the decision or judgment.95 The noticemust set forth:

• The title and docket number of the case;

• The appellant�s name and his or her attorney�s name and address;

• A concise statement of the judgment, ruling or order that forms thebasis for the appeal;

• The court appealed to;

• A concise statement of the appellate court�s jurisdiction; and

• A brief statement of the offense and punishment prescribed.96

If, however, the defendant filed a motion for new trial or a motion inarrest of judgment, the notice of appeal must be filed within 30 days after the

90 O.C.G.A. § 17-12-61(b).

91 Id.

92 O.C.G.A. § 17-12-61(c).

93 Id.

94 O.C.G.A. § 17-12-62.

95 O.C.G.A. §§ 5-6-37, 5-6-38; Ga. Ct. App. R. 11(a).

96 O.C.G.A. § 5-6-37.


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entry of the order granting, overruling, or otherwise disposing of the motion.97

A notice of appeal should not be filed during the time in which a motion for newtrial is pending before the court,98 but if it is, courts typically will look past theprocedural irregularity to consider the appeal on its merits.99 The filing of anotice of appeal will divest the trial court of jurisdiction in a criminal case to heara motion for new trial.100 In the past, the filing of a motion for new trial ormotion in arrest of judgment had been held to void the previously filed notice ofappeal,101 but that rule has changed, and courts will not dismiss an appeal onthat basis.102 Defense counsel nevertheless should refile the notice of appealfollowing the court�s decision on the motion for new trial or motion in arrest ofjudgment. Motions for reconsideration or extraordinary motions for new trial,however, do not extend the time for filing a notice of appeal.103

Failure to file a notice of appeal within the specified time terminates thedefendant�s right to appeal.104 However, the court to which the appeal isdirected may, without motion or notice to the other party, grant a singleextension of not more than 30 days for filing a notice of appeal.105 In addition, adefendant who is deprived of his right to appeal through no fault of his own mayseek leave from a trial court to file an out-of-time appeal.106

For most felony criminal cases, it is the duty of the appellant to cause thetranscript to be filed within 30 days after the filing of the notice of appeal, whichis the same rule that applies in civil cases.107 If necessary for the court reporter to

97 O.C.G.A. § 5-6-38(a).

98 State v. Rimes, 177 Ga. App. 872, 341 S.E.2d 710 (1986), abrogated by State v. Chambers, 194 Ga.App. 609, 391 S.E.2d 657 (1990).

99 Livingston v. State, 221 Ga. App. 563, 472 S.E.2d 317 (1996).

100 Elrod v. State, 222 Ga. App. 704, 475 S.E.2d 710 (1996).

101 See Ponder v. State, 164 Ga. App. 574, 298 S.E.2d 561 (1982).

102 Hendrick v. State, 257 Ga. 514, 361 S.E.2d 169 (1987); McCants v. State, 222 Ga. App. 75, 473S.E.2d 514 (1996).

103 Campbell v. State, 192 Ga. App. 316, 385 S.E.2d 14 (1989); Knox v. State , 180 Ga. App. 564, 349S.E.2d 753 (1986).

104 Mitchell v. State, 157 Ga. App. 181, 276 S.E.2d 864 (1981).

105 Id.; O.C.G.A. § 5-6-39(a), (c).

106 See note 39, supra, and accompanying text.

107 O.C.G.A. § 5-6-42.


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complete the transcript, extensions of time may be obtained.108 For deathpenalty appeals under the Unified Appeal Procedure Act, different timeconstraints and extension rules apply.109

In misdemeanor cases, the trial judge decides whether a case will bereported or transcribed at the expense of the state.110 However, the defendantalways remains free to have the case transcribed at his or her own expense.111

All felony trials must be reported, or taken down, by a court reporter.112

At the conclusion of a felony trial, if the defendant is convicted, the courtreporter must prepare a transcript of the trial.113 This transcript must include�all motions, colloquies, objections, rulings, evidence, whether admitted orstricken on objection or otherwise, copies or summaries of all documentaryevidence, the charge of the court, and all other proceedings which may be calledin question on appeal or other posttrial procedure�.�114 An original and onecopy of the transcript must be filed with the clerk of the trial court, along with acertificate attesting to the accuracy of the transcript.115 If the defendant wasconvicted of a capital felony, an additional copy of the transcript must beprepared for the Attorney General.116 On appeal, the trial court transmits theoriginal transcript to the appellate court as part of the record on appeal andretains one copy.117 Non-indigent petitioners must pay for a copy of thetranscript; indigent petitioners do not.118 In lieu of a transcript, the parties may

108 Id.

109 See infra Section 11.5.1.

110 O.C.G.A. § 5-6-41(b); Ward v. State, 188 Ga. App. 372, 373 S.E.2d 65 (1988). The GeorgiaSupreme Court recently has ruled, however, that a misdemeanor guilty plea must betranscribed if the defendant is sentenced to a term of imprisonment. King v. State, 270 Ga.367, 509 S.E.2d 32 (1998).

111 O.C.G.A. § 5-6-41(j).

112 O.C.G.A. § 17-8-5(a).

113 Id. This transcript is prepared at the expense of the State. Ivory v. State, 199 Ga. App. 283, 405S.E.2d 90 (1991).

114 O.C.G.A. § 5-6-41(d).

115 O.C.G.A. § 5-6-41(e).

116 Id.

117 Id.

118 Carter v. State, 231 Ga. App. 42, 497 S.E.2d 812 (1998); Hall v. State, 162 Ga. App. 713, 293S.E.2d 862 (1982).


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enter into a stipulation of facts of the case that forms the basis for the appropriatelegal questions to be presented to the appellate court.119

Within five days after the transcript is filed with the clerk of the trial court,the clerk must prepare a complete copy of the entire record of the case andtransmit it to the appellate court.120 In the appeal of a criminal case in which thedefendant is confined to jail pending appeal, the trial court clerk must notify theappellate court of the defendant�s incarceration, and the appellate court mustexpedite disposition of the case.121

Although the text of O.C.G.A. § 17-8-5 provides for the transcript in anoncapital felony case to be filed without a request by the defendant, it imposesno corresponding time constraint on the state.122 Moreover, there is authorityfor the proposition that if the defendant fails to order and file the transcriptwithin reasonable time after the notice of appeal is filed, the trial judge mayorder the appeal dismissed after notice and opportunity for hearing.123 The timefor filing a transcript, however, is not jurisdictional; it is merely a means ofavoiding unreasonable delay, and simple failure to file the transcript cannot, inand of itself, support dismissal of the appeal.124

The appellant and, in the event of a cross-appeal, the cross-appellant, arerequired to file with the clerk of the appellate court an enumeration of errors,incorporated as Part 2 of the appellant�s brief,125 and serve a copy on theopposing party.126 The enumeration of errors must concisely describe each errorrelied upon in the appeal, be thorough and complete, and may not be amendedafter the time for filing has expired.127 Each enumeration must contain only one

119 O.C.G.A. § 5-6-41(i).

120 O.C.G.A. § 5-6-43(a).

121 O.C.G.A. § 5-6-43(c).

122 See O.C.G.A. § 17-8-5; State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980).

123 Hart, 246 Ga. 212, 271 S.E.2d 133.

124 See Buffalo Holding Co. v. Shores, 124 Ga. App. 868, 186 S.E.2d 339 (1971), appeal dismissed, 228Ga. 854, 188 S.E.2d 790 (1972).

125 O.C.G.A. §§ 5-6-40, 5-6-48(f); Ga. Ct. App. R. 22.

126 O.C.G.A. § 5-6-40.

127 See MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980); Burke v. State, 153 Ga.App. 769, 266 S.E.2d 549 (1980).


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alleged error.128 Appellate courts will not consider alleged error raised only bybrief,129 although courts have relaxed the rule for pro se criminal appellants.130

The appellant must file a brief, and failure to do so or to appear at oral argumentof the case could result in abandonment or dismissal of the appeal.131 Failure ofthe State to file a brief does not relieve the defendant of his burden, but simplyresults in the statement of facts as alleged in the appellant�s brief being admitted.

§ 11.4 State Habeas Corpus

The Latin term �habeas corpus� translates literally as �you have thebody.�132 The writ of habeas corpus is a judicial order directing the appropriategovernmental official to deliver an individual within his custody before thecourt.133 For this reason, writs of habeas corpus are normally directed to thewarden of prisons or sheriffs in charge of jails, because they are responsible formaintaining custody. When a writ of habeas corpus is granted, the person towhom it is directed must produce the individual detained to inquire into thelawfulness of the detention. Thus, a court that grants the writ will notnecessarily grant the relief requested. If the detention is found to beunconstitutional, the habeas court will grant the relief requested by the petition,usually vacating the judgment, and remand the defendant to the court in whichhe or she was convicted.

The Habeas Corpus Act makes the writ of habeas corpus available tocriminal defendants under the following circumstances: (a) when any person isrestrained of his liberty under any pretext whatsoever, except under sentence ofa state court of record; (b) when a person alleges that another, in whom for anycause he is interested, is kept illegally from the custody of the applicant; or(c) when any person is restrained of his liberty as a result of a sentence imposedby any state court of record.134 Special provisions govern writs by or on behalf of

128 MacDonald, 156 Ga. App. 565, 275 S.E.2d 142; Pirkle v. Hawley, 199 Ga. App. 371, 405 S.E.2d 71

(1991). This does not mean, however, that each legal argument pertaining to a single errormust be separately enumerated. See Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

129 MacDonald, 156 Ga. App. 565, 275 S.E.2d 142; Slater v. State, 209 Ga. App. 723, 434 S.E.2d 547(1993).

130 Welch v. State, 207 Ga. App. 27, 427 S.E.2d 22 (1992).

131 Ga. Ct. App. R. 18(b)(1).

132 Black�s Law Dictionary at 491 (6th ed., abridged 1991).

133 Id.

134 O.C.G.A. § 9-14-1.


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those sentenced by any state court.135 These special provisions are discussedbelow at Section 11.4.2.

§ 11.4.1 State Habeas Corpus for Non-Sentenced Detainees

For persons detained for reasons other than the imposition of a sentence,an application for a writ of habeas corpus must be by petition signed by theapplicant, his attorney, or some other person on his behalf, and must contain thefollowing: (1) the name or description of the person whose liberty is restrained;(2) the person restraining, the mode of restraint, and the place of detention;(3) the cause or pretense of restraint; (4) the alleged illegality in the restraint,distinctly set forth, or any other reason why the writ is sought; and (5) a prayerfor the writ of habeas corpus.136 A suggested form of the writ appears in theCode.137

The petitioner or some other person acting on his behalf must verify thewrit and present it to the judge of the superior court in the circuit where thedefendant is being detained or to the judge of the probate court of that county.138

Service of a writ of habeas corpus on the detaining party must be made by anofficer authorized to make a return of any process or by any other citizen bydelivering a copy of the writ.139 If personal service cannot be effected, theapplicant may leave the writ at the jail or other place at which the defendant isdetained.140

The return must be made under oath and at the time and place specifiedby the court.141 If it admits the custody or detention of the party, the respondenthas two days from the time of service for every 20 miles which the party has totravel from the place of detention to the place appointed for hearing, and mustproduce the individual unless prevented by �providential cause or prohibited bylaw.�142 If the return denies custody of the defendant, it must distinctly state thelatest date of custody and when and to whom custody of the individual was

135 O.C.G.A. § 9-14-40 et seq.

136 O.C.G.A. § 9-14-3(1) - (5).

137 O.C.G.A. § 9-14-6.

138 O.C.G.A. § 9-14-4; Dyer v. Allen, 238 Ga. 516, 233 S.E.2d 772 (1977).

139 O.C.G.A. § 9-14-8.

140 Id.

141 O.C.G.A. §§ 9-14-10, 9-14-11.

142 O.C.G.A. § 9-14-11


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transferred.143 Failure to do so may subject the respondent to punishment forcontempt, but does not require release of the petitioner.144

The court may dismiss the petition without a hearing if �the petition andexhibits attached thereto disclose without contradiction that the petition iswithout merit.�145 If, however, the judge determines that the detention might beillegal, the judge must grant the writ and order the person restraining thedefendant to deliver the defendant to the court at a specified time to determinethe cause of the detention.146 The court must notify the district attorney, if he isin the county.147 The court may not discharge the petitioner if �it appears thatthe detention is authorized by law,� or if the irregularity is minor.148 Where �theprinciples of law and justice� require, the court shall discharge the petitioner oradmit him to bail.149

Appeals in pre-conviction habeas corpus proceedings fall under the lawsgoverning all appeals as they relate to the time and manner of signing, filing,serving, transmitting, and hearing.150 The Supreme Court must �give a speedyhearing and determination� under the applicable appellate rules.151

§ 11.4.2 State Habeas Corpus for Sentenced Detainees

The Habeas Corpus Act also provides an exclusive procedure for seekinga writ of habeas corpus for individuals in custody by virtue of a sentenceimposed by a state court.152 An individual so imprisoned may institute a habeascorpus proceeding by filing a petition with �the superior court of the county in

143 O.C.G.A. § 9-14-12.

144 Bailey v. Baker, 232 Ga. 84, 205 S.E.2d 278 (1974).

145 Marshall v. Hutson, 245 Ga. 849, 850, 268 S.E.2d 338, 339 (1980).

146 O.C.G.A. § 9-14-5.

147 O.C.G.A. § 9-14-15.

148 O.C.G.A. § 9-14-16; see also O.C.G.A. § 9-14-17.

149 O.C.G.A. § 9-14-19.

150 See O.C.G.A. § 9-14-22.

151 Id.

152 O.C.G.A. § 9-14-40 et seq.; Battle v. Sparks, 211 Ga. App. 106, 438 S.E.2d 185 (1993).


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which the petitioner is being detained�153 that asserts a �substantial denial� ofhis rights under the United States Constitution or the Georgia Constitution.154

The petition must identify the proceeding in which the petitioner wasconvicted, provide the date of final judgment, set forth the aspect of theproceeding violating the petitioner�s rights, and state with specificity whichclaims were raised at trial or on direct appeal and provide appropriate citationsto the record.155 The applicant should attach all necessary affidavits and otherevidence, but omit argument and citations of authorities.156 He or she, however,may file a brief in support of the petition.157 The applicant should serve thepetition on the person having custody of him or her.158 If custody is with theDepartment of Corrections, the applicant should serve an additional copy on theAttorney General by mailing a copy of the petition and a proper certificate ofservice.159 The respondent must answer or move to dismiss the petition within20 days from its filing or docketing.160

If a petition for the first time challenges a state court proceeding thatresulted in a death sentence, that procedure is governed by O.C.G.A. § 9-14-47.1.Within 10 days from the receipt of the petition, the superior court clerk mustnotify the Council of Superior Court Judges.161 The Council then has 30 days toassign the case to a judge in the circuit where the conviction was imposed forfurther proceedings pursuant to Uniform Superior Court Rules 44.1-44.13.162

153 O.C.G.A. § 9-14-43.

154 O.C.G.A. § 9-14-42. Although a mere statutory violation once could provide a predicate for ahabeas petition, see McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981) (Jordan, J.,concurring), overruled by West v. Waters, 272 Ga. 591, 533 S.E. 2d 88 (2000), habeas now isavailable only to vindicate constitutional rights. Britt v. Smith, 274 Ga. 611, 556 S.E.2d 435(2001), cert. denied, 123 S. Ct. 150 (2002).

155 O.C.G.A. § 9-14-44.

156 Id.

157 Id.

158 O.C.G.A. § 9-14-45.

159 Id.

160 O.C.G.A. § 9-14-47.

161 O.C.G.A. § 9-14-47.1(b).

162 Id.


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For all other petitions, the court is required to set a hearing on the petitionwithin a reasonable time after the filing of the defensive pleadings.163 Because ahabeas corpus proceeding is a civil and not criminal action, the burden of prooflies on the defendant to establish his claim by a preponderance of theevidence,164 which can include depositions, oral testimony, sworn affidavits, orother evidence in consideration of the petition.165 Additionally, the court shallreview the trial record and transcript and consider whether the petitionercomplied with Georgia procedural rules at trial and on appeal regarding thetimeliness of his motions or objections.166 If the court determines that thedefendant has not properly complied with Georgia procedural rules at trial andon appeal, it will not grant habeas corpus relief, absent a showing of cause fornon-compliance and of actual prejudice.167 However, the Code specifically statesthat habeas corpus relief shall be granted in all cases to avoid a �miscarriage ofjustice.�168 After a review of all evidence introduced in the habeas corpusproceeding and of the trial record and transcript, the court must make writtenfindings of fact and conclusions of law upon which its judgment is based.169

Appeals in habeas corpus proceedings regarding sentenced detainees aregoverned by Title 5, Chapter 6 of the Georgia Code, except that orders adverse tothe petitioner may not form the basis of an appeal unless the Georgia SupremeCourt certifies probable cause for the appeal.170 The appellant must apply for acertificate of probable cause to the Clerk of the Georgia Supreme Court within 30days from the entry of the order denying relief, and a notice of appeal must also

163 O.C.G.A. § 9-14-47.

164 Stynchcombe v. Rhodes, 238 Ga. 74, 231 S.E.2d 63 (1976). One exception to this rule is that theState bears the burden � even on habeas review � of establishing that a guilty plea wasvoluntarily entered. Roberts v. Greenway, 233 Ga. 473, 211 S.E.2d 764 (1975)

165 O.C.G.A. § 9-14-48(a) - (c).

166 O.C.G.A. § 9-14-48(d).

167 Id.

168 O.C.G.A. § 9-14-48(c). Although the courts have not offered a precise definition of�miscarriage of justice,� the Georgia Supreme Court has explained that �the term is by nomeans to be deemed synonymous with procedural irregularity, or even with reversible error.To the contrary, it demands a much greater substance, approaching perhaps theimprisonment of one who, not only is not guilty of the specific offense for which he isconvicted, but, further, is not even culpable in the circumstances under inquiry.� Valenzuelav. Newsome, 253 Ga. 793, 796, 325 S.E.2d 370, 374 (1985) (emphasis in original).

169 O.C.G.A. §§ 9-14-48, 9-14-49.

170 O.C.G.A. § 9-14-52.


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be filed within that time.171 Under the Supreme Court Rules, a certificate ofprobable cause to appeal will be granted where there is �arguable merit,provided there has been compliance with Fulwood v. Sivley, 271 Ga. 248 (517 SE2d511) (1999); Hicks v. Scott, Warder, 273 Ga. 358 (541 SE2d 27) (2001).�172 Fulwoodand Hicks emphasize that the Supreme Court has jurisdiction to consider anapplication only if the prisoner timely files both an application for a certificate ofprobable cause and a notice of appeal as required by O.C.G.A. § 9-14-52(b).173

As in any other case, the clerk of the superior court from which the case isbeing appealed must provide the court with a copy of the record and transcriptwhen the notice of appeal is filed174 and may not refuse to do so on the groundsthat the indigent petitioner has not paid previously assessed costs.175

§ 11.5 Unified Appeal Procedure

The Unified Appeal Procedure Act (�UAP Act�) requires the SupremeCourt to establish a unified review procedure for the presentation of all possiblechallenges to the conviction, sentence, and detention of defendants sentenced todeath.176 The UAP Act further requires the Supreme Court to establish a series ofchecklists to be utilized by the Court and parties in cases where the death penaltyis sought or imposed.177 The UAP Act is to �make certain that all possiblematters which could be raised in defense have been considered . . . and eitherasserted in a timely and correct manner or waived in accordance with applicablelegal requirements. . . .�178 Significantly, the UAP Act does not limit or restrictthe defendant�s customary grounds of review, including a writ of habeas corpus.

171 Id.

172 Ga. S. Ct. R. 36.

173 Fulwood, 271 Ga. at 250-51, 517 S.E.2d at 514 (holding that jurisdiction depends on fullcompliance with O.C.G.A. § 9-14-52(b)); Hicks, 273 Ga. at 359, 541 S.E.2d at 28 (suggestingthat habeas court must inform pro se petitioner of proper procedure to obtain appellatereview).

174 O.C.G.A. § 9-14-52(b).

175 Brand v. Szabo, 263 Ga. 119, 428 S.E.2d 325 (1993).

176 O.C.G.A. § 17-10-36(a).

177 Id.

178 O.C.G.A. § 17-10-36(b).


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The title �Unified Appeal Procedure� is somewhat of a misnomer, becausethe vast majority of it pertains to pretrial proceedings and the trial.179 The Actdoes, however, establish some significant procedures for death penalty appeals,which are set out below.

§ 11.5.1 Review Proceedings in the Superior Court

The Unified Appeal Procedure recognizes the absence of any requirementfor a death penalty defendant to file a motion for a new trial as a prerequisite forappellate review; if the superior court does not conduct a post-trial review of thecase, it must transmit the case to the Supreme Court for review, regardless ofwhether a motion for new trial or direct appeal has been filed.180 No provision ofthe Code or the Supreme Court Rules in any way limits a death penaltydefendant�s right also to proceed by writ of habeas corpus.181 The criminal deathpenalty defendant may now choose to pursue review by way of a motion fornew trial or by direct appeal, or he may just allow the case to be presenteddirectly to the Supreme Court for review.182 However, the Supreme Court mustreview all death penalty cases under the Unified Appeal Procedure,notwithstanding a death penalty defendant�s request that all appeal efforts behalted.183 The Unified Appeal Procedure also does not limit the grounds ofreview available to a defendant.184

The trial court reporter must file a complete transcript of all phases of thecase within 45 days from the jury verdict.185 The trial judge may grant oneextension for an additional 15 days.186 A �complete transcript� includes: (1) allpretrial hearings; (2) the selection of jurors, including challenges for cause; (3) thevoir dire examination and the striking of the jury; (4) the opening statement andclosing arguments of counsel; (5) the examination of all witnesses; (6) all

179 The pretrial and trial procedures set forth under the Unified Appeal Procedure rules have

been scrutinized and ultimately upheld on numerous constitutional grounds. Sliger v. State,248 Ga. 316, 282 S.E.2d 291 (1981); Meders v. State, 260 Ga. 49, 389 S.E.2d 320 (1990).

180 Unified App. P. R. IV.A.1.

181 O.C.G.A. § 17-10-36(c).

182 Id.

183 Patillo v. State, 258 Ga. 255, 368 S.E.2d 493 (1988).

184 Unified App. P. R. IV.A.1.b.

185 Unified App. P. R. IV.A.1; but see O.C.G.A. § 17-8-5(a) (providing for 90 days).

186 Unified App. P. R. IV.A.1; but see O.C.G.A. § 17-8-5(a) (authorizing Chief Justice to grantextension of up to 60 days).


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documentary evidence, including photography; (7) all oral motions and allhearings on oral and written motions; (8) all oral objections and all hearings onoral and written objections; (9) all conferences and hearings of every descriptionand for every purpose conducted between court and counsel, including all benchand chamber conferences; (10) all oral stipulations of counsel; (11) the charges ofthe court to the jury during the guilt/innocence and sentencing phases of theproceedings; (12) the publication of the verdict and the polling of the jury;(13) the pronouncement of sentence; and (14) all oral comments, instructions,directions, admonitions, rulings, and orders of the Court.187

If the defendant files a motion for new trial, the transcript of the motionfor new trial must be taken down, transcribed by the court reporter, and filedwithin 20 days of the hearing.188 The Judge who imposed the death sentencemay grant an extension in writing, not to exceed 15 days.189

§ 11.5.2 Appeal Proceedings in the Supreme Court

Once a death penalty case is docketed in the Supreme Court, the SupremeCourt may direct the superior court to conduct additional hearings orconferences or to make additional finding of facts or conclusions of lawregarding issues raised by the parties on appeal or by the Supreme Court suasponte.190 However, the Supreme Court retains jurisdiction over the case,notwithstanding any matter referred to the superior court for further review.191

The Supreme Court determines whether the evidence at trial supports theverdict.192 The Court must review each assertion of error timely raised by thedefendant during trial proceedings. If necessary, the Supreme Court may directdefense counsel and counsel for the State to brief and argue any and alladditional grounds not previously briefed or argued.

187 Id.

188 Unified App. P. R. IV.A.2.e.

189 Id.

190 Unified App. P. R. IV.B.1.

191 Id.

192 Unified App. P. R. IV.B.2.


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§ 11.5.3 The Unified Appeal Procedure Checklist

The checklist for the Unified Appeal Procedure193 provides an extensivelist of categories of possible errors at the pretrial, trial, and post-trial stages. Itrepresents a significant and useful tool for counsel involved in the conduct of adeath penalty case.

193 Unified App. Checklist (2000).


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12 CIVIL CASES INVOLVING PRO SE PARTIESIN THE APPELLATE CONTEXTA. Annette Teichert*


The Georgia Constitution1 states: �No person shall be deprived of theright to prosecute or defend, either in person or by an attorney, that person�sown cause in any of the courts of this state.� This provision has been interpretedto guarantee the right of self-representation to a pro se plaintiff.2

The number of pro se cases both at the trial and appellate level continuesto rise.3 Cases involving at least one pro se party take place in a myriad ofdifferent contexts, including disputes regarding divorce, child custody, adoption,employment, estate matters, breach of contract, slander, libel, and professional

* Ms. Teichert is a partner in the law firm of Alston & Bird LLP. Her practice is primarily

devoted to complex commercial litigation, including products liability, business torts,partnership and joint venture disputes, ERISA litigation, and appellate matters. She receivedher J.D. from the University of Georgia School of Law in 1994.

1 Ga. Const. art. I, § 1, ¶ 12.

2 Johnston v. Aderhold, 216 Ga. App. 487, 487, 455 S.E.2d 84, 86 (1995).

3 Michele Bertran, Judiciary Ombudsman: Solving Problems in the Courts, 29 FORDHAM URB. L.J.2099, 2106 (June 2002).


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malpractice.4 This Chapter provides an outline of appellate procedure as itrelates to the pro se plaintiff or defendant in the civil appellate context.

§ 12.2 Pro Se Parties Generally

§ 12.2.1 No Constitutional Right to be Represented by an Attorneyin a Civil Case

A civil litigant has no constitutional right to effective representation bycounsel or to appointment of counsel when the party is indigent. �The SixthAmendment to the federal Constitution and Art. I, Sec. I, Par. XIV of the GeorgiaConstitution provide for effective assistance of counsel for one charged with acriminal offense, not participants in a civil dispute.�5 Georgia courts haveinterpreted this explicit constitutional guarantee of counsel in criminal actions asan implicit denial of a right to effective counsel in civil cases. Accordingly, pro seappellants who challenge the actions of their chosen trial counsel in civil actionsby contending they were denied the right of effective assistance of counsel havebeen unsuccessful.6 Moreover, Georgia courts hold that an indigent�sconstitutional right to appointed counsel in criminal actions does not extend tocivil actions.7

While rejecting any claim of a constitutional right to counsel in a civil case,Georgia courts repeatedly have recognized the strength of the constitutionalright to self-representation.8 Georgia courts have limited this right in only a veryfew cases. For example, in cases in which a client disagrees with his or her trialcounsel, the client�s own pleadings to the court are not considered filings by a

4 �[S]ome reports indicate that eighty percent or more of family law cases involve at least one

pro se litigant.� Nancy Biro, Meeting the Challenge of Pro Se Litigation: An Update of Legal andEthical Issue, at <http://www.ajs.org/prose/pro_legal_ethical.asp> (2002).

5 Bergmann v. McCullough, 218 Ga. App. 353, 356, 461 S.E.2d 544, 548 (1995) (quoting Calhoun v.Maynard, 196 Ga. App. 219, 220, 395 S.E.2d 645, 646 (1990)).

6 See generally Finch v. Brown, 216 Ga. App. 451, 452, 454 S.E.2d 807, 809 (1995) (holding indeclaratory judgment action involving real estate dispute that pro se appellant had not beendenied effective assistance of trial counsel because the Federal and State constitutions onlyprovide such guarantees with respect to defense of criminal offenses).

7 See, e.g., Alexander v. Guthrie, 216 Ga. App. 460, 461, 454 S.E.2d 805, 806 (1995) (ruling that�even if [appellant] was indigent, he was not entitled to have an attorney appointed torepresent him at public expense in the legitimation proceedings�); Mingledorff v. Stokely, 223Ga. App. 183, 184, 477 S.E.2d 374, 375 (1996) (noting that pro se indigent prisoner was notentitled to appointed counsel in civil proceedings).

8 See Johnston, 216 Ga. App. at 487-88, 455 S.E.2d at 85-86 (permitting attorney to representhimself as plaintiff in action involving promissory note despite defendant�s allegations ofattorney-client privilege and violation of bar rules).

CHAPTER 12: CIVIL CASES INVOLVING PRO SE PARTIES

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pro se party if the client is at the same time represented by counsel of record.9Some courts also have attempted to place restrictions upon a particular pro selitigant�s ability to file future lawsuits, in cases in which the court has foundrepeated filings to be without merit.10 Generally, however, Georgia courts firmlyhave upheld a party�s right to self-representation in a civil case. �[M]eaningfulaccess to the courts must be scrupulously guarded as it is a constitutional rightuniversally respected where the rule of law governs.�11

§ 12.2.2 Pro Se Parties Are Not Permitted to Violate Georgia Law Regarding the Unauthorized Practice of Law

Under Georgia law, it is unlawful for a non-attorney to �practice or appearas an attorney at law for any person other than himself in any court of this state orbefore any judicial body. . . .�12 Despite attempts by pro se parties to circumventthis prohibition, Georgia courts construe the statute strictly and do not allow alayperson to represent another individual in a judicial proceeding.13

Non-attorneys likewise are prohibited from representing corporations inGeorgia�s courts of record. Although Georgia courts formerly held that acorporation could appear pro se in a lawsuit if an individual such as thecorporation�s chairman or president filed pro se pleadings on behalf of thecorporation,14 Georgia courts now hold that �only a licensed attorney is

9 See Jacobsen v. Haldi , 210 Ga. App. 817, 819, 437 S.E.2d 819, 821 (1993) (refusing to accept pro

se filings by litigant represented by counsel because �the court is not required to acceptrandom appearance and filings by both the client and his attorneys�).

10 See, e.g., Smith v. Adamson, 226 Ga. App. 698, 699-700, 487 S.E.2d 386, 388 (1997) (affirmingorder which required pro se litigant�s future suits to be approved by a judge andaccompanied by two affidavits and noting that limitation placed on ability to file pro seactions does not deprive litigant of meaningful access to the courts). Cf. In re Lawsuits ofCarter, 235 Ga. App. 551, 554, 510 S.E.2d 91, 94 (1998) (vacating order which required pro separty to hire an attorney to gain access to the court).

11 In re Lawsuits of Carter, 235 Ga. App. at 554, 510 S.E.2d at 94.

12 O.C.G.A. § 15-19-51(a)(1) (emphasis supplied).

13 See Keith v. Alexander Underwriters Gen. Agency, Inc., 219 Ga. App. 36, 38, 463 S.E.2d 732, 733-34 (1995) (holding that father, a non-lawyer, could not file pro se answer in suit involvingcommercial account for defendant daughter and defendant business, despite �power ofattorney� daughter had previously granted to father to operate business); see also O�Kelley v.Skinner, Wilson & Beals, 132 Ga. App. 792, 793, 209 S.E.2d 242, 243 (1974) (holding trial courtcorrectly refused to allow a non-lawyer to represent the plaintiffs during motion hearing).

14 Universal Scientific, Inc. v. Wolf , 165 Ga. App. 752, 752, 302 S.E.2d 616, 616 (1983), overruled byEckles v. Atlanta Tech. Group, Inc., 267 Ga. 801, 485 S.E.2d 22 (1997); Knickerbocker Tax Sys., Inc.v. Texaco, Inc., 130 Ga. App. 383, 383-84, 203 S.E.2d 290, 291 (1973), overruled by Eckles v.Atlanta Tech. Group, Inc., 267 Ga. 801, 485 S.E.2d 22 (1997).


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authorized to represent a corporation in a proceeding in a court of record,including any proceeding that may be transferred to a court of record from acourt not of record.�15 This holding is in accordance with the majority of otherjurisdictions that have held non-lawyer representation of a corporation contraryto the public interest.16

§ 12.3 Despite Liberality Typically Afforded Pro Se Parties, Their Failure toAdhere to Court of Appeals Rules or Appellate Procedure is OftenFatal to Their Appeals

An appellate document is deemed filed �when it is physically delivered tothe Clerk�s office, with sufficient costs, if applicable, and clocked in by the Clerk�soffice staff.�17 Under O.C.G.A. § 9-15-2, a party to a civil action may, whenunable to pay for a deposit or other normally required court fee, file an affidavitof indigence, attesting that he or she is financially unable to pay such fee or cost.�Costs in all cases are $80.00 unless a sufficient pauper�s affidavit is filed with theCourt or contained in the record.�18 Absent payment or submission of apauper�s affidavit, the Clerk cannot file any matter.19

§ 12.3.1 Failure to Appeal to Proper Court or Seek Certificate ofImmediate Review

Georgia courts frequently dismiss pro se appeals where the court lacksjurisdiction over the appeal or the appeal otherwise is not justiciable. Forexample, the Georgia Court of Appeals will dismiss a pro se party�s notice ofappeal if the appellate court does not have jurisdiction over another court�schallenged actions.20 Likewise, a pro se appeal will be dismissed if the appellantwas not a party to the lower court�s proceedings.21 Additionally, a pro se appeal

15 Eckles v. Atlanta Tech. Group, Inc., 267 Ga. 801, 805-06, 485 S.E.2d 22, 26 (1997).

16 Id.

17 Ga. Ct. App. R. 4.

18 Ga. Ct. App. R. 5.

19 Id.

20 See Denson v. Chase Manhattan Mortgage Corp., 219 Ga. App. 320, 320, 464 S.E.2d 906, 906(1995) (dismissing challenge to actions taken by U.S. Bankruptcy Court because stateappellate court did not have jurisdiction over the federal bankruptcy court).

21 See Gates v. Rutledge, 151 Ga. App. 844, 844, 261 S.E.2d 757, 757 (1979) (dismissing appeal fromchild custody award by juvenile court, because pro se appellant/father was not a party to thejuvenile court proceeding and did not have standing to appeal that court�s decision).


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is subject to dismissal if �the decision or judgment is not then appealable,�22 or ifthe issue has been rendered moot or specifically reserved by the trial judge forlater ruling.23

The most common reasons for dismissals in the pro se context, however,involve a pro se party�s failure to seek a certificate of immediate review whenrequired under O.C.G.A. § 5-6-34(b) or properly to set forth an application forappeal in special cases pursuant to O.C.G.A. § 5-6-35. Failure to follow suchprocedural requirements has resulted in the dismissal of pro se appeals in a widerange of proceedings.24 Likewise, under the Prison Litigation Reform Act,25

Georgia courts will dismiss prisoners� appeals in civil actions when thoseprisoners do not adhere to discretionary appeal procedures set forth in O.C.G.A.§ 5-6-35.26 As noted in Jarallah v. Pickett Suite Hotel, while pro se litigants areentitled to avail themselves of the courts in civil matters to the same degree aslitigants represented by counsel, �where one elects to use the court system, courtorders and rules may not be totally ignored with impunity.�27 Accordingly, anappellate court may dismiss a pro se appeal if the party fails to comply with theprerequisites for filing an appeal.

22 O.C.G.A. § 5-6-48(b)(2)-(3).

23 Id.; see also St. Clair v. Robert A. McNeil Corp., 151 Ga. App. 876, 877, 261 S.E.2d 782, 783 (1979)(holding appeal from grant of writ of possession moot because appellant was no longer inpossession of premises).

24 Kappelmeier v. Homer, 226 Ga. App. 379, 380, 486 S.E.2d 612, 613 (1997) (dismissing pro separty�s appeal of trial court�s refusal to set aside judgment in libel action because appellantdid not obtain order allowing discretionary appeal); Ware v. Handy Storage, 222 Ga. App. 339,339, 474 S.E.2d 240, 240 (1996) (dismissing appeal in conversion action due to appellant�sfailure to comply with interlocutory appeal procedures); Brown v. Dep�t of Human Res., 204Ga. App. 27, 28, 418 S.E.2d 404, 404 (1992) (dismissing appeal from paternity petition becausepro se appellant did not follow discretionary appeal procedures set forth in O.C.G.A. § 5-6-35(a)(2)); Jarallah v. Pickett Suite Hotel, 193 Ga. App. 325, 326-27, 388 S.E.2d 333, 335 (1989)(dismissing appeal in employment dispute because pro se appellant did not adhere todiscretionary appellate procedures); Calloway v. Calloway, 161 Ga. App. 752, 753, 289 S.E.2d559, 559 (1982) (dismissing appeal of denial of a recusal motion because pro se appellantfailed to obtain a certificate of immediate review and grant of permission to appeal fromCourt of Appeals).

25 O.C.G.A. § 42-12-8

26 Syms v. West, 234 Ga. App. 674, 674, 507 S.E.2d 530, 530 (1998) (dismissing pro se appealbecause inmate failed to comply with discretionary appeal procedure); Gates v. Yeager, 232Ga. App. 91, 91, 498 S.E.2d 372, 372 (1998) (same).

27 Jarallah, 193 Ga. App. at 327, 388 S.E.2d at 335.


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§ 12.3.2 Failure to File Notice of Appeal In Timely Manner

The requirements for timely filing of appeal pose another frequent pitfallfor pro se litigants. Under Georgia law, a party must file a notice of appealwithin 30 days of the entry of an appealable decision or judgment or within 30days following entry of an order disposing of a motion for new trial, a motion inarrest of judgment, or a motion for judgment notwithstanding the verdict.28

Although pro se parties� pleadings are construed liberally, the GeorgiaCourt of Appeals consistently has dismissed appeals by pro se parties if thoseappellants do not timely file a notice of appeal or seek an extension of time forfiling, even when those filings were only one day late.29 Moreover, the courtshave denied motions to extend the deadline to file the notice of appeal where theappellant did not file the motion to extend in a timely manner.30 Motions forreconsideration of the grant or denial of a motion for summary judgment ormotion for new trial do not operate to extend the deadline for filing the notice ofappeal.31

§ 12.3.3 Deficiencies in or Lack of Record on Appeal

The failure to hire a court reporter at the trial court level often causesadditional difficulty in litigation involving pro se parties. Although Georgiastatutory law allows the parties to prepare a transcript in narrative form that isbased on the collective recollection of the parties, in cases where the evidence isnot reported by a court reporter, this substitute for a transcript is rarely used andrequires mutual agreement.32 Accordingly, when a pro se appellant � even one

28 O.C.G.A. §§ 5-6-38, 5-6-48(b)(1).

29 See Jones v. Perkins, 192 Ga. App. 343, 343, 384 S.E.2d 927, 927 (1989) (dismissing pro se party�snotice of appeal when filed one day late, reasoning that party had not requested an extensionof time pursuant to O.C.G.A. § 5-6-39); see also In re Doe, 188 Ga. App. 255, 255-256, 372 S.E.2d822, 823 (1988) (upholding dismissal of appeal because notice of appeal was filed 33 daysafter entry of judgment).

30 Grovnor v. Bd. of Regents of the Univ. Sys. of Ga., 231 Ga. App. 120, 121, 497 S.E.2d 652, 653(1998) (affirming denial of motion for extension of time within which to file notice of appealwhere motion for extension was filed three months after order dismissing lawsuit);Stonecypher v. White, 161 Ga. App. 473, 473, 289 S.E.2d 829, 829 (1982) (dismissing appeal oftrial judge�s refusal to grant new trial, because pro se appellant filed notice of appeal almostfour months after trial judge�s order and record did not reflect that appellant sought anyextension of time).

31 See Telephone Adver. Corp. of Am. v. Aaron Rents, Inc., 206 Ga. App. 493, 494, 426 S.E.2d 54, 54(1992) (finding that pro se party�s motion for reconsideration did not operate to extend the30-day period for filing the notice of appeal).

32 O.C.G.A. § 5-6-41(c), (d), (g), and (i).


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proceeding pursuant to an affidavit of indigence � fails to have a transcript or itsstatutorily-authorized substitute, the court must dismiss the action.33

Even if the trial is reported, a pro se appellant�s failure to transmitproperly any or all of the needed transcripts to the Court of Appeals maypreclude appellate review. �Where no transcript is provided, it is presumed thatthe findings of the trial court were supported by the evidence.�34 Georgia courtsdo not allow a pro se appellant to rely on factual allegations in a brief instead oftransmitting and relying on the transcript on appeal.35 Even in cases in whichappellants have attached specially-prepared affidavits to the brief, the Court ofAppeals has held that it could not consider the merits of the appeal.36

§ 12.3.4 Unreasonable Delay in Transmitting Record or Failureto Pay Costs

The procedural requirements for transmitting the record to the appellatecourt apply equally to pro se parties and those represented by counsel.37 Afternotice and an opportunity for hearing, the trial court may order an appeal

33 See McKinney v. Alexander Props. Group, Inc., 228 Ga. App. 77, 77-78, 491 S.E.2d 131, 132 (1997)

(affirming grant of writ of possession and noting that court could not consider merits of prose party�s claims without transcript of proceedings or attempt to recreate the record througha statutorily-authorized substitute for a transcript).

34 Butler v. First Family Mortgage Corp., 191 Ga. App. 360, 361, 381 S.E.2d 551, 552 (1989)(dismissing pro se appeal because failure to provide Court of Appeals with a transcriptprovides no basis to reverse trial court�s judgment); see also Thomas v. RGL Assocs., 200 Ga.App. 283, 283, 407 S.E.2d 420, 421 (1991) (affirming dismissal of pro se appeal where factsalleged by appellant in her brief as errors did not appear in any record transmitted on appealdespite fact that court is �conscious of [its] responsibility to ensure access to the courts,particularly to pro se litigants�).

35 See Ga. Ct. App. R. 27(c)(3)(i); see also Williams v. Lemon, 194 Ga. App. 249, 253, 390 S.E.2d 89,92 (1990) (affirming trial court�s grant of a directed verdict against pro se party becausecontested �off the record remarks� by judge were not reflected in the record on appeal andcould not be established by appellant�s brief alone).

36 Leathers v. Timex Corp., 174 Ga. App. 430, 431, 330 S.E.2d 102, 103 (1985) (holding that Courtof Appeals must take its evidence from the record and could not consider brief and attachedaffidavits specifically prepared by the pro se appellant as part of the appeal); Jones v. Powell,190 Ga. App. 619, 620, 379 S.E.2d 529, 530 (1989) (affirming trial court�s grant of summaryjudgment to defendant because pro se appellant�s brief, along with attached documents andaffidavits, cannot supplement the record on appeal).

37 See Ware v. Vaughn, 225 Ga. App. 303, 305-06, 483 S.E.2d 698, 700 (1997) (dismissing appealdue to pro se appellant�s unreasonable and deliberate multiple delays in filing transcript);Gerdes v. Dziewinski, 189 Ga. App. 802, 803-04, 377 S.E.2d 550, 551-52 (1989) (dismissingappeal due to pro se appellant�s unreasonable delay in forwarding transcript despiteappellant�s contention of communication problems with court reporter).


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dismissed �where there has been an unreasonable delay in the transmission ofthe record to the appellate court, and it is seen that the delay was inexcusableand was caused by the failure of [the appellant] to pay costs in the trial court orfile an affidavit of indigence. . . .�38 A pro se appellant�s failure to paytranscription costs or communicate with the court reporter charged withtranscribing and transmitting the record to the appellate court will not beexcused.39

§ 12.3.5 Deficiencies in or Lack of Enumeration of Errors, Citation ofAuthority

A pro se appellant�s complete failure to file any form of a brief orenumeration of errors may cause the appeal to be dismissed.40 Even when anenumeration of errors and/or a brief are filed, the failure to accurately or clearlyenumerate errors on appeal or provide citations to support arguments on appealprovides grounds for dismissal of an appeal. The Georgia Court of Appeals hasshown a willingness, however, to be more lenient with pro se appellants�attempts to enumerate error and support arguments with legal authority.41

§ 12.3.5.1 Failure to Properly Enumerate Error

All appellants have the burden of showing error affirmatively by therecord.42 In the case of pro se appellants, however, the Georgia courts lookbeyond the appellant�s enumeration of errors (or lack thereof) and examine theentire record on appeal to determine whether the pro se appellant has met his orher burden.43

38 O.C.G.A. § 5-6-48(c).

39 Gerdes, 189 Ga. App. at 803-04, 377 S.E.2d at 551-552.

40 Ga. S. Ct. R. 10; Ga. Ct. App. R. 26(a). See also Florence v. Green Acres Mobile Home Estates, Inc.,230 Ga. App. 91, 92, 495 S.E.2d 346, 347 (1998) (dismissing appeal in possession action wherepro se appellant failed to comply with order directing her to file an enumeration of errorsand brief); Trimble v. Colonial Fin. Servs., Inc., 163 Ga. App. 193, 193, 293 S.E.2d 404, 404 (1982)(dismissing pro se appeal for failure to file brief or enumeration of errors by deadline orderedby court even though appellant filed a request for a continuance on date of deadline).

41 See, e.g., Cotton v. Bank South, 212 Ga. App. 1, 3, 440 S.E.2d 704, 706 (1994) (noting that as ageneral matter �[p]ro se pleadings are held to less stringent standards than pleadings that aredrafted by lawyers�).

42 Collier v. South Carolina Ins. Co., 205 Ga. App. 323, 324, 422 S.E.2d 52, 53 (1992).

43 See McHaffie v. Decatur Fed. Sav. & Loan Ass�n, 214 Ga. App. 368, 369, 448 S.E.2d 36, 36-37(1994) (noting that although pro se appellant�s �brief� and �enumeration of errors� did notassert alleged errors by judge, but instead consisted wholly of factual allegations, deferenceto appellant�s pro se status required Court of Appeals to examine the record to ascertainwhether the evidence generally supported the judgment).


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Under O.C.G.A. § 5-6-48(f),

�[w]here it is apparent from the notice of appeal, the record, theenumeration of errors, or any combination of the foregoing . . .what errors are sought to be asserted upon appeal, the appeal shallbe considered in accordance therewith notwithstanding . . . that theenumeration of errors fails to enumerate clearly the errors soughtto be reviewed.�44

The Georgia courts frequently have interpreted this provision moreliberally in the case of pro se appellants out of deference to their status and aconcern for due process. However, when review of the record in its entiretyshows the pro se appellant�s allegations �to be so deficient in specificity, clarity,and substance as not to present any colorable issue upon which reversal of thejudgment below might be predicated,� the court will dismiss the appeal despitethe appellant�s pro se status.45

§ 12.3.5.2 Abandonment of Enumerated Errors

On the other hand, when a pro se appellant does enumerate error, and theenumeration is not argued or addressed in the appellant�s brief, the matter willbe deemed abandoned.46 As noted by the court in Sujelman v. Marinello,�[a]ppellate judges should not be expected to take pilgrimages into records insearch of error without the compass of citation and argument.�47 Attempts bypro se appellants to file supplemental briefs or other documents to rectify failurein the initial brief to address an enumerated error have been rejected.48

As for the preservation or abandonment of error in the trial courtproceeding, the courts have not accorded pro se litigants a high degree oflatitude. If a pro se party fails to object at trial or fails to preserve an alleged

44 O.C.G.A. § 5-6-48(f); see also Hopkinson v. Labovitz, 231 Ga. App. 557, 558, 499 S.E.2d 338, 339

(1998) aff�d, 271 Ga. 330, 519 S.E.2d 672 (1999) (noting that pro se appellant�s misnomers inenumerations of error did not require dismissal).

45 Seligman v. Milam Builders, Inc., 191 Ga. App. 224, 224-25, 381 S.E.2d 401, 402 (1989).

46 Ga. S. Ct. R. 22; Ga. Ct. App. R. 27(c)(2).

47 Sulejman v. Marinello, 217 Ga. App. 319, 320, 457 S.E. 2d 251, 252 (1995).

48 Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898, 328 S.E.2d 564, 565 (1985) (finding thatpro se appellant�s supplemental brief did not �resurrect from enumerations not addressed inthe initial brief�).


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error by perfecting the record for appeal, the courts will find a subsequentenumeration of error as to that ground to be without merit.49 On the other hand,if a pro se party objects to a matter in the proceeding below, but does not arguethe matter on appeal, the courts consider the matter abandoned.50

§ 12.3.5.3 Citation of Authorities

Georgia courts have held enumerations of errors not supported bycitations of authority abandoned even if such omissions are committed by pro seappellants.51 �Any enumeration of error which is not supported in the brief bycitation of authority or argument shall be deemed abandoned.�52 Citations ofauthority that are unrelated to the enumerations of error set forth by an appellantor irrelevant to matters at issue in the trial below are insufficient to defeatdismissal of the appeal, even when filed by a pro se litigant.53

§ 12.4 In Addition to Dismissal of a Civil Case, the Appellate Courts MayImpose Monetary Sanctions Upon a Pro Se Appellant as a Result of aFrivolous Appeal

§ 12.4.1 The Appellate Courts May Impose Monetary Sanctions AgainstPro Se Appellants for Frivolous Appeals

Pursuant to both Georgia statute and appellate court rules, litigants filingfrivolous appeals are subject to imposition of monetary penalties or sanctions.54

49 See e.g., In re Interest of J.E.L., 189 Ga. App. 203, 205, 375 S.E.2d 490, 492 (1988) (holding that

pro se appellant/father could not challenge on appeal the trial court�s admission of adeposition in a juvenile court proceeding where the deposition was admitted withoutobjection); Williams v. Lemon, 194 Ga. App. 249, 252, 390 S.E.2d 89, 92 (1990) (affirming trialcourt�s grant of directed verdict and finding no error in trial court�s exclusion of a certifiedcopy of the defendant�s prior conviction when pro se party failed to tender the document intoevidence in order to perfect the record for appeal).

50 Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550, 340 S.E.2d 207, 210 (1986).

51 Sulejman, 217 Ga. App. at 320, 457 S.E.2d at 252; Ehlers, 177 Ga. App. at 550, 340 S.E.2d at 210(noting that �[i]t is basic appellate practice that . . . error enumerated but neither argued inthe brief nor supported by citation of authority is considered abandoned�).

52 Ga. S. Ct. R. 22; Ga. Ct. App. R. 27(c)(2).

53 See McHaffie v. Decatur Fed. Sav. & Loan Ass�n, 214 Ga. App. 368, 369, 448 S.E.2d 36, 36 (1994)(dismissing appeal in which pro se appellant supported his �statement of the issues� withcitations of authority completely irrelevant to the enumerations of error or the issues at trial);Leroy v. Atlanta Protective Assocs., 255 Ga. App. 849, 849, 567 S.E.2d 93, 93-94 (2002)(dismissing appeal in which brief was comprised of less than three pages and contained onlya single citation of authority to a Code section of general application).

54 For a more complete discussion of frivolous appeal issues, see Chapter Thirteen.


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In cases in which a judgment for a sum certain has been affirmed, Georgiastatutory law permits the appellate court to assess a penalty of 10 percent of thedamages against appellants who assert appeals solely for the purpose of delay.55

This statutory provision has been applied to appeals by pro se appellants in casesin which the court determines that there was �no valid reason to anticipatereversal of the trial court�s judgment.�56

In addition to the statutory penalty provided in O.C.G.A. § 5-6-6, the rulesof the Georgia Court of Appeals also provide for imposition of monetarysanctions against appellants for frivolous appeals. Under Rule 15(b) of the Courtof Appeal Rules, the panel of the court ruling on a case may impose a penalty notto exceed $1,000 against any party in a civil case in which the appeal isdetermined to be frivolous.57 This penalty may be imposed with or withoutmotion, but must be imposed pursuant to a majority vote of the panel.58

§ 12.4.2 Georgia Courts Have Been Hesitant, at Times, to AssessMonetary Penalties Against Pro Se Appellants forQuestionable or Somewhat Frivolous Appeals

Georgia courts typically have limited monetary penalties and sanctionsagainst pro se appellants to cases in which appellants have acted egregiously inpursuing frivolous appeals. For example, the Court of Appeals has assessedmonetary penalties against pro se appellants when appellants have filed multiplefrivolous pro se lawsuits and appeals,59 proceeded with an appeal despiteassessment of costs and attorney�s fees by the trial court on grounds that theoriginal action constituted frivolous litigation,60 or intentionally delayed

55 See O.C.G.A. § 5-6-6.

56 See, e.g., Holland v. Tri-City Hosp. Auth., 162 Ga. App. 256, 256, 291 S.E.2d 107, 107 (1982)(awarding hospital defendant 10% damages due to pro se appellant�s frivolous appeal whereappellant had no reason to anticipate reversal of the trial court�s decision because appellanthad not filed any response to hospital�s motion for summary judgment).

57 Ga. Ct. App. R. 15(b).

58 Id.

59 Dean v. NationsBank, 226 Ga. App. 370, 372-73, 486 S.E.2d 647, 648 (1997) (assessing $1,000penalty to discourage pro se party from filing further frivolous appeals); King v. Gilman PaperCo., 184 Ga. App. 228, 229-30, 361 S.E.2d 390, 391-92 (1987) (assessing $500 frivolous appealpenalty against pro se appellant in second suit against same employer, asserting sameallegations; the court noted that the appellant �apparently has impressed no one but himselfwith the logic of his arguments�).

60 Hightower v. Kendall Co., 225 Ga. App. 71, 73, 483 S.E.2d 294, 297 (1997) (ruling that �[pro seappellant�s] pursuit of the claim after having been apprised of the law constituted frivolouslitigation� and imposing monetary penalty).


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appellate proceedings by failing to include a transcript from the lower courtruling.61

Notwithstanding these instances, the Court of Appeals often has declinedto impose monetary penalties against pro se parties when the circumstanceswere less egregious. For example, in cases in which a pro se appellant has failedto present enumerations of error clearly or has presented arguments withoutproper legal citations or support, the Court of Appeals has acknowledged areluctance to impose monetary penalties.62 Likewise, where an appeal by a prose appellant lacks merit, but the appellate court cannot rule that the appeal wasundertaken solely for purposes of delay or harassment, the Court of Appeals hasdismissed the appeal but declined to impose monetary sanctions.63

61 Trevino v. Flanders, 231 Ga. App. 782, 783, 501 S.E.2d 13, 14 (1998) (imposing $500 penalty for

frivolous appeal in dispossessory proceeding where appellant intentionally failed to includehearing transcript or statutorily authorized substitute); Kulkov v. Botvinik, 230 Ga. App. 204,205, 495 S.E.2d 662, 663 (1998) (assessing $500 penalty for frivolous appeal in suit betweenfather and son where appellant intentionally failed to include hearing transcript or statutorilyauthorized substitute); McBride v. Knight, 205 Ga. App. 549, 550, 422 S.E.2d 675, 675 (1992)(imposing $500 penalty for frivolous appeal against pro se plaintiff in action against courtreporter for �malicious failure to transmit a copy of the transcript�).

62 See Antonone v. Atl. Mut. Fire Ins. Co., 191 Ga. App. 457, 458, 382 S.E.2d 126, 128 (1989)(refusing to impose monetary penalty against pro se appellant for frivolous appeal wherecourt determined that appellant asserted �arguable error� and noting that Court was�reluctant to penalize a pro se litigant for what may have been a deficiency in his brief ratherthan a deficiency in the merits of his case in the court below . . . .�).

63 Seligman v. Milam Builders, 191 Ga. App. 224, 381 S.E.2d 401 (1989) (declining to impose 10%penalty on pro se appellant under O.C.G.A. § 5-6-6 when court did not find that appeal wasundertaken solely for purposes of delay or harassment).

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13 FRIVOLOUS APPEALSRichard B. Holcomb*

We must remember that a frivolous appeal is a grave injustice, not only tothe opposite party to the case but to the state itself; for every case broughtto this court entails an expense upon the state greater than the sum whichit receives from the maximum costs collectible.1


Georgia appellate courts police the filing of frivolous appeals with threeprovisions. One is statutory; the other two are rules of court.2 Although someoverlap exists, particularly in the central determination of when an appeal hasbeen taken solely for delay, these three provisions differ in several respects.Most significantly, O.C.G.A. § 5-6-6 applies only to cases in which there has

* Mr. Holcomb is an associate with the law firm of Alston & Bird LLP, focusing on trial and

appellate practice and commercial litigation. He received a B.A. from Wake ForestUniversity in 1989, an M.A. from Georgia State University in 1997, and a J.D. from theWashington and Lee School of Law in 2000. Prior to joining Alston & Bird, Mr. Holcombserved from 2000 to 2001 as law clerk for Judge Emmett Ripley Cox of the United StatesCourt of Appeals for the Eleventh Circuit.

1 Moore & Jester v. Smith Mach. Co., 4 Ga. App. 151, 154, 60 S.E. 1035, 1036 (1908).

2 See O.C.G.A. § 5-6-6; Ga. Ct. App. R. 15(b); Ga. S. Ct. R. 6.


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been a money judgment.3 In contrast, Supreme Court Rule 6 and Court ofAppeals Rule 15(b) may be invoked regardless of whether there has been amoney judgment.4 Additionally, when a sum certain has been awarded, Rule15(b) may be invoked simultaneously with O.C.G.A. § 5-6-6.5 These and otherdistinctions are discussed in the sections that follow.

Aside from the potential pecuniary losses the offending party may incur,there are ethical considerations an attorney contemplating filing an appealshould keep in mind. The Rules and Regulations of the State Bar of Georgiaprovide guidelines for ethical considerations associated with filing an appeal.Notably, effective January 1, 2001, the Supreme Court adopted the Georgia Rulesof Professional Conduct, which replace the prior Standards of Conduct. Allprofessional conduct before January 1, 2001, will continue to be governed by theStandards of Conduct.6

§ 13.2 Statutory Damages for Frivolous Appeals

Section 5-6-6 of the Georgia Code provides as follows:

When in the opinion of the court the case was taken up for delayonly, 10 percent damages may be awarded by the appellate courtupon any judgment for a sum certain which has been affirmed.The award shall be entered in the remittitur.7

Section 5-6-6 penalizes appellants that bring baseless appeals to delaypaying money judgments. For this provision to apply, the judgment must beaffirmed; a dismissal of the appeal cannot serve as a basis for an award under

3 Shepherd v. Epps, 242 Ga. 322, 323, 249 S.E.2d 33, 33 (1978).

4 See Ga. S. Ct. R. 6 (permitting imposition of penalty �in any civil case�); Ga. Ct. App. R. 15(b)(same). The Supreme Court amended its Rule 6 on February 5, 2003 by deleting languagethat previously restricted its scope to non-money judgments. See Ga. S. Ct. R. 6 (amended byOrder, February 5, 2003, deleting the following: �[t]his rule applies only to those cases inwhich there has been no money judgment, as money judgments are subject to the penaltiesoutlined in O.C.G.A. § 5-6-6.�). The February 5, 2003 amendment also increased themaximum possible penalty from $1,000.00 to $2,500.00. See id.

5 See, e.g., Kent v. David G. Brown, P.E., Inc., 248 Ga. App. 447, 450, 545 S.E.2d 598, 600 (2001),aff�d, 247 Ga. 849, 561 S.E. 2d 89 (2002).

6 The new Rules appear in the current State Bar of Georgia Directory & Handbook. TheStandards of Conduct can be found at the State Bar of Georgia�s website. Seehttp://www.gabar.org.

7 O.C.G.A. § 5-6-6.

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the statute.8 Once a decision is affirmed by the appellate court, the case isremitted and the damages award is increased by ten percent. To impose thissanction, the appellate court must find that there is a judgment for a sum certainand that the appeal was filed only for delay.9

This last requirement, the intent to delay, is at the core of the frivolousappeal statute: it determines whether the appeal is in fact frivolous. Likewise,courts determining whether penalties are appropriate under Court of AppealsRule 15 or Supreme Court Rule 6 will also consider whether the appeal has beenbrought �solely for delay� and frequently rely on case law applying O.C.G.A. §5-6-6 when imposing penalties under these rules.10

Below, the sum certain requirement is discussed first, followed byconsideration of the �solely for delay� element.

§ 13.2.1 Requirement of Judgment for a Sum Certain

A money judgment for a sum certain is an essential element of O.C.G.A.§ 5-6-6.11 Thus, even where the court concludes that the appeal was taken onlyfor delay, if there is no definite money judgment, a motion for statutory sanctionsmust be denied.12 Without a money judgment, the aggrieved appellee turns tocourt rules. In the Court of Appeals, one looks to Rule 15; in the Supreme Court,to Rule 6.

In certain situations, only part of a judgment can be determined as a sumcertain. For instance, in Refrigerated Transport Company v. Kennelly,13 thedefendant-employer took a frivolous appeal of the trial court�s affirmance of anaward of damages by the Workers Compensation Board.14 Because the award

8 Scott v. McLaughlin, 192 Ga. App. 230, 230, 384 S.E.2d 212, 213 (1989).

9 Hatchett v. Hatchett, 240 Ga. 103, 103, 239 S.E. 2d 512, 513 (1977).

10 See, e.g., Powell v. Bank South, N.A., 202 Ga. App. 852, 854, 415 S.E.2d 543, 544 (1992).

11 Shepherd v. Epps, 242 Ga. 322, 323, 249 S.E.2d 33, 34 (1978) (denying motion to assess damagesunder predecessor statute in appeal from summary judgment for defendants because appealwas not taken from a judgment for a sum certain).

12 See Fawcett v. Fawcett Contracting, Inc., 252 Ga. 242, 243, 312 S.E.2d 790, 791 (1984) (holdingthat even if defendants� appeal of trial court decision finding an implied trust was broughtonly for delay, award of ten percent damages under O.C.G.A. § 5-6-6 would not lie withoutjudgment for sum certain).

13 144 Ga. App. 713, 242 S.E.2d 352 (1978).

14 Id. at 714-15.


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was for continuing payments for partial disability and a period of total disability,the appellate court instructed that ten-percent damages be computed againstonly the compensation that was definitely ascertainable at the date ofjudgment.15

§ 13.2.2 �Solely for Delay�: What Makes an Appeal Frivolous

Determining whether an appeal is frivolous and therefore subject topenalties under any of the three provisions requires an assessment of theappellant�s motive in seeking review. The hallmark of the frivolous appeal isthat it is brought merely to stave off the inevitable, with the attendant waste ofjudicial resources and frustration of the process for the appellee and the court.Such an appeal is brought �solely for delay.�

The relevant language for the determination appears in O.C.G.A. § 5-6-6,which requires a court to determine that �the case was taken up for delay only�before awarding ten-percent damages to the judgment below.16 Thedetermination that an appeal was �solely for delay� is frequently applied in thecontext of Court of Appeals Rule 15 and Supreme Court Rule 6 as well.17 Tomake an award under the statute, however, the court must be completelysatisfied that the appeal was initiated for no other purpose than delay.18

In the often-quoted case of Moore & Jester v. Smith Machine Company,19 theCourt of Appeals provides a framework for determining whether an appeal hasbeen brought solely for delay:

[W]hen a motion for damages is filed, [the Court] will carefullyexamine the record and will pass upon the motion in the light ofthe entire history of the case as there presented. If, after reviewingthe whole matter, [the Court] believe[s] that the plaintiff in error ispresenting a bona fide contest over a colorable matter, though hisview of the law may not in fact be well founded, or that he isseeking a ruling upon an open or doubtful question, damages willbe refused. But, when the record discloses

15 Id.

16 O.C.G.A. § 5-6-6.

17 See, e.g., Powell v. Bank South, N.A., 202 Ga. App. 852, 854, 415 S.E.2d 543, 544 (1992).

18 Stone v. Cook, 190 Ga. App. 11, 14, 378 S.E.2d 142, 145 (1989); Rackard v. Merritt, 114 Ga. App.743, 744, 152 S.E.2d 701, 702 (1966).

19 4 Ga. App. 151, 60 S.E. 1035 (1908).


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that the plaintiff in error has no just case, that no new question oflaw is involved, and the record is full of those things which everyjudge and every lawyer recognizes as indicia of an attempt to fightmerely for time, justice demands that [the Court] overcome anypersonal hesitancy that [it] may have, and that [it] add an award ofdamages to the judgment of affirmance.20

As might be expected, it is difficult to articulate a precise standard forsuch a context-driven inquiry. Instead of a rigid formulation, however, theMoore & Jester passage presents a cogent method for resolving the question.First, the court is to determine, based on the whole record, whether the matterargued on appeal is in fact �colorable.� If it is, the appeal is not frivolous, and nosanction is imposed.

If the first question is answered in the negative, the court looks to whatmight be called �badges of delay�: i.e., those indicators �which every judge andevery lawyer recognize[]� as an attempt by an advocate to �fight merely fortime.�21 In some cases, a particularly baseless appeal issue may alone providesufficient indicia of delay.22 More frequently, though, the reviewing court willfind additional factors that evidence the appellant�s intent to forestallenforcement of the judgment. A few illustrative �badges of delay� are notedbelow, following an examination of what constitutes a �colorable� issue onappeal.

§ 13.2.2.1 �Colorable� Issues: Distinguishing the FrivolousAppeal

A frivolous appeal is not merely an argument that lacks merit; �evenslight grounds for bringing the case up will prevent the award of damages forfrivolous exception.�23 As the Court of Appeals has noted, �[g]enerally there issuch wide room for honest difference of opinion among good attorneys when itcomes to application of particular facts to legal principles which govern, that[this court] is reluctant to assess damages on [the] ground that [the] case was

20 Id.

21 Id. (noting that �[t]his case is full of badges of intention to fight for time only�).

22 See, e.g., Hatchett v. Hatchett, 240 Ga. 103, 103, 239 S.E.2d 512, 513 (1977).

23 Stripling v. Calhoun, 98 Ga. App. 354, 359, 105 S.E.2d 923, 927 (1958) (citing Maxelbaum v.Limberger, 78 Ga. 43, 3 S.E. 257, 259 (1887)).


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brought before it for delay only.�24 Doubtful cases do not support frivolousappeal awards.25

A meritless argument may not be frivolous if it is based on arguablelogic,26 if it is not specious,27 or if appellant�s counsel has made a cogentargument predicated on diligent research efforts.28 Even when the legal issue isitself not in doubt, the argument may be colorable because there is no priordecision on the precise question raised.29 Notably, the merits of an appeal mustbe judged solely on the arguments raised on appeal; the appellee cannot show anappeal is frivolous by pointing to a meritless position the appellant took in thecourt below.30

An argument is not �colorable,� however, if the law is so indisputablyclear that there is simply no room for argument on the subject.31 This isparticularly so when the issues raised on appeal have been settled by previousdecisions in the same case.32 If an appellant knows or should know from acareful reading of the facts and relevant law that the argument advanced onappeal is without foundation, the reviewing court may impose a penalty underone of the three frivolous appeals provisions.33

24 Roach v. Roach, 68 Ga. App. 10, 10, 21 S.E.2d 859, 860 (1942).

25 Almond v. Bentley Gray, Inc., 138 Ga. App. 508, 508, 226 S.E.2d 776, 777 (1976).

26 Benchmark Carpet Mills, Inc. v. Fiber Indus., Inc., 168 Ga. App. 932, 935, 311 S.E.2d 216, 219(1983)

27 Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App 506, 305 S.E.2d 14 (1983).

28 Prattes v. Southeast Ceramics, Inc., 132 Ga. App. 584, 587, 208 S.E.2d 600, 602 (1974).

29 Schnuck v. Riales, 106 Ga. App. 647, 648, 127 S.E.2d 825, 826 (1962).

30 Brown v. Rooks, 139 Ga. App. 770, 770, 229 S.E.2d 548, 549 (1976), overruled on other grounds byMiller Grading Contractors, Inc. v. Georgia Fed. Sav. & Loan Ass�n, 247 Ga. 730, 279 S.E.2d 442(1981). However, as discussed infra, the conduct of the litigation in the lower court may serveas an indicator that the appeal was brought solely for delay. See infra note 36 andaccompanying text.

31 See Hightower v. Kendall, 225 Ga. App. 71, 73, 483 S.E.2d 294, 297 (1997) (assessing $500penalty against pro se appellant pursuant to Court of Appeals Rule 15(b) where, prior toappeal, appellant was apprised of clear Georgia law on at-will employment).

32 Pinkerton & Laws Co. v. Robert & Co. Assocs., 129 Ga. App. 881, 885, 201 S.E.2d 654, 658 (1973).

33 See, e.g., Ray v. Standard Fire Ins. Co., 168 Ga. App. 116, 118, 308 S.E.2d 221, 223-24 (1983).


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§ 13.2.2.2 Badges of Delay

Because the court reviews the whole record to determine whether anappeal has been brought solely for delay,34 dilatory conduct in the proceedingbelow may support a frivolous appeal award.35 Thus, when the trial court hasimposed discovery sanctions36 or awarded attorney�s fees for litigating in badfaith,37 the presentation of a less-than-colorable argument on appeal may resultin sanctions.

Additionally, if the litigant fails to prosecute her case at the appellatestage, the reviewing court may conclude that the case has been taken up solelyfor delay. For example, when a claim is totally dependent on the appellatecourt�s review of a trial court proceeding, and no transcript is forwarded, thecourt may deduce that the appellant is stalling for time.38 A similar conclusionmay be warranted when the appellant fails to appear for oral argument,39 or ifthe submitted brief gives only cursory treatment to the issues.40

§ 13.3 Court Rules

§ 13.3.1 Supreme Court Rule 6

Supreme Court Rule 6 provides as follows:

The Court may, with or without a motion, impose a penalty not toexceed $2,500 against any party and/or party�s counsel in any civilcase in which there is a direct appeal, application for discretionary

34 See Moore & Jester v. Smith Mach. Co., 4 Ga. App. 151, 154, 60 S.E. 1035, 1036 (1908).

35 See Revels v. Wimberly, 223 Ga. App. 407, 409, 477 S.E.2d 672, 674 (1996) (finding indicia ofdelay in conduct of litigation); Suchnick v. Southern Gen. Ins. Co., 196 Ga. App. 687, 688, 396S.E.2d 609, 609 (1990) (granting motion for $500 penalty pursuant to precursor of Rule15(b)).

36 See id.

37 See Thompson Enters., Inc. v. Coskrey, 168 Ga. App. 181, 187, 308 S.E.2d 399, 403-04 (1983).

38 See Malin Trucking, Inc. v. Progressive Cas. Ins. Co., 212 Ga. App. 273, 274, 441 S.E.2d 684, 686(1994) (finding that argument is wholly devoid of support in the record when appellant failsto supply record); see also Webb v. Sheu, 201 Ga. App. 769, 770-71, 412 S.E.2d 289, 291 (1991)(rejecting claim of error in trial court�s finding on alleged ex parte contact when no recordwas forwarded with appeal).

39 See Craton v. Hackney, 91 Ga. 192, 192, 17 S.E. 124, 124 (1893).

40 See Arnold v. Gwinnett County. Bd. of Tax Assessors, 207 Ga. App. 759, 760, 429 S.E.2d 146, 147(1993).


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appeal, application for interlocutory appeal, petition for certiorari,or motion which the Court determines to be frivolous. The party orparty�s counsel may respond to such a motion or, if no motion wasfiled, file a motion for reconsideration within 10 days of receipt ofthe order. The imposition of such penalty shall constitute a moneyjudgment in favor of appellee against appellant or appellant�scounsel or in favor of appellant against appellee or appellee�scounsel, as the Court directs. Upon filing of the remittitur in thetrial court, the penalty may be collected as are other moneyjudgments.

Effective September 1, 2001, former Supreme Court Rule 9 became�Rule 6, Frivolous Appeal.� More recently, the Supreme Court amended Rule 6,extending its scope to encompass the whole panoply of appeals by strikinglanguage that previously limited the rule�s application to cases with no moneyjudgment.41 Rule 6 penalties may be assessed against a party or its counsel. BothRule 6 and O.C.G.A. § 5-6-6 may be raised by motion or by the Court. However,while O.C.G.A. § 5-6-6 imposes a penalty of ten percent of the damages awardedbelow, the maximum penalty under Rule 6 is $2,500.42

§ 13.3.2 Court of Appeals Rule 15

Court of Appeals Rule 15, subparts (b) and (c), provides as follows:

(b) Penalty for Frivolous Appeal or Motion.

The panel of the Court ruling on a case, with or without motion,may by majority vote impose a penalty not to exceed $1000 againstany party and/or party�s counsel in any civil case in which there isa direct appeal, application for discretionary appeal, application forinterlocutory appeal, or motion which is determined to befrivolous.

(c) Money Judgment.

The imposition of such penalty shall constitute a money judgmentin favor of appellee against appellant or appellant�s counsel or infavor of appellant against appellee or appellee�s counsel as the

41 See supra note 4 and accompanying text (noting effect of February 4, 2003 amendment).

42 See supra note 4 and accompanying text (noting increase in maximum penalty pursuant toFebruary 4, 2003 amendment).


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Court directs. Upon filing of the remittitur in the trial court, thepenalty may be collected as are other money judgments.

Court of Appeals Rule 15 provides for a penalty of up to $1,000 againstany party or party�s counsel when there is a direct appeal, application fordiscretionary appeal, application for interlocutory appeal, or motion that isdeemed frivolous. Like new Supreme Court Rule 6, Court of Appeals Rule 15applies to �any civil case,� including appeals from money judgments. Thus, inmoney judgment cases, Rule 15 may be invoked simultaneously with O.C.G.A.§ 5-6-6.43 Due to the $1,000 maximum penalty available under Rule 15, the ten-percent-of-the-damages penalty available under O.C.G.A. § 5-6-6 frequently willbe the stricter measure, and if the court agrees that the appeal is frivolous, it mayin its discretion impose the harsher statutory punishment.44

§ 13.4 Unavailability of Other Provisions

In civil cases, a party may recover attorney�s fees under O.C.G.A. § 9-15-14when the opposing party has asserted frivolous claims, defenses or otherpositions.45 Section 9-15-14, however, is not available in proceedings before anappellate court.46 Furthermore, a trial court may not award attorney�s fees andlitigation expenses under O.C.G.A. § 9-15-14 for conduct that occurred before theappellate court.47

Georgia Code Section 13-6-11 also allows for the award of litigationexpenses when the plaintiff specially pleads and the defendant �has acted in badfaith, has been stubbornly litigious, or has caused the plaintiff unnecessarytrouble and expense.�48 The conduct that authorizes an award under O.C.G.A.§ 13-6-11, however, relates to the transaction underlying the cause of action, not

43 See Kent v. David G. Brown, P.E., Inc., 248 Ga. App. 447, 450, 545 S.E.2d 598, 600 (2001), aff�d,

247 Ga. 849, 561 S.E.2d 89 (2002).

44 See, e.g., Marshall v. SDA., Inc., 234 Ga. App. 312, 313, 506 S.E.2d 661, 663 (1998).

45 See O.C.G.A. § 9-15-14(a).

46 Department of Transp. v. Franco�s Pizza & Delicatessen, Inc., 200 Ga. App. 723, 409 S.E.2d 281(1991), overruled on other grounds by White v. Fulton County, 264 Ga. 393, 444 S.E.2d 734 (1994).

47 See Castro v. Cambridge Square Towne Houses, Inc., 204 Ga. App. 746, 420 S.E.2d 588 (1992).

48 O.C.G.A. § 13-6-11.


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conduct during the litigation itself.49 Necessarily, O.C.G.A. § 13-6-11 is not anavailable remedy for actions on appeal.50

49 David G. Brown, P.E., Inc. v. Kent, 274 Ga. 849, 850, 561 S.E.2d 89, 90 (2002).

50 Id.

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14 THE IMPORTANCE OF CLEAR ARGUMENTJustice Leah Ward Sears*

After 10 years on the Georgia Supreme Court, I�ve seen too many lawyersuse complicated jargon and argument in an attempt to outwit their opponents.This is unfortunate. It is true that a tactic like that can delay an opponent�sability to respond as he or she attempts to untangle a bewildering web oflanguage and obtuse arguments. But some lawyers don�t seem to realize that itcan do the same to judges and law clerks. In appellate practice, you need topersuade judges and justices like me to agree with you. That can only be done ifyour meaning is understood.

In formulating your legal arguments, you should first seek to be clear.This holds true both for written briefs and oral arguments. It applies to thelanguage you use to make your arguments as well as the arguments you use tomake your case. Lack of clarity frustrates judges. Moreover, just as a witness canlose credibility in the eyes of a jury when he attempts to evade a question, alawyer�s case on appeal can lose credibility if he seems unable to provide a clearargument.

* Presiding Justice, 1992-Present, Georgia Supreme Court. B.S., 1976, Cornell University; J.D.,

1980, Emory University School of Law; LL.M, 1995, University of Virginia School of Law.


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Lack of clarity in briefs is one of the biggest problems at the GeorgiaSupreme Court. Hours must be spent deciphering language and filtering outarguments that the writer either should never have made or made poorly. Well-written briefs have the potential to preserve the Court�s time and resources.Badly written briefs, on the other hand, deplete those resources and do a poor jobof advocating a client�s position.

As a lawyer, your skill is in determining the relative merit of arguments.Do not abandon this skill in favor of a brute force policy of hitting your opponentwith as many arguments as possible. Merely including more arguments in abrief will not increase your chance of winning. However, it could decrease yourchances of winning by de-emphasizing your good arguments. By placing yourarguments in order of their persuasiveness, you can grab the Court�s attention.The Court will read your brief from beginning to end. You can earn credibilityby putting your best foot forward and starting off with the most persuasiveargument for reversal or affirmance. From that point, your brief reflects yourjudgment that the remaining arguments hold at least some merit.

Justice Houston of the Alabama Supreme Court suggests that, as appellatecounsel, you should write the best opinion you think your client can get. Thenwrite your brief from that opinion. This will do two things. First, it will weedout arguments that the Court would not accept. Making those arguments stealsattention from the arguments that the Court could accept. Second, it willdemonstrate for the Court the opinion you want it to write � an effectiveadvocacy strategy.

This �do not spread yourself too thin� advice is even more importantwhen applied to oral arguments. You have a limited amount of time to argueyour case to the bench. If you represent the petitioner, give a succinct version ofthe facts. Expect that the justices have thoroughly researched the briefs and therecord, and that they are already familiar with the case. Choose only the bestpoints from your brief to make at oral argument. Take heed of the etiquette oforal argument. Be courteous and honest. Use eye contact. Stay at the podium.Do not attack the motive, intelligence, or integrity of opposing counsel. Prepareto have a dialogue with the justices, not a monologue. And be prepared toanswer questions on any aspect of the case, whether or not argued in your brief.

In writing appellate briefs, you need not chronicle well-established rulesof law. When arguing a point, provide adequate support. Do not make theCourt do your research for you. But by the same token, some points of law are sodeeply rooted that you need not provide more than one supporting citation. Doprovide the standard of review, but do not provide an exhaustive history of howit developed and why trial courts are better positioned to determine factualissues, for example.

CHAPTER 14: THE IMPORTANCE OF CLEAR ARGUMENT

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Do not string-cite several cases that say essentially the same thing. Andwhen you can cite a recent case with the same holding, do so. A few seminalolder cases are useful simply because they are familiar. For instance, �[t]heprovince of the [United States Supreme Court] is, solely, to decide on the rightsof individuals� is a familiar proposition.1 But normally, you should cite the morerecent cases, unless an older case is more directly applicable or moreauthoritative. Do not misquote a case or distort the holding of a case. EachGeorgia Justice has access to a computer on the bench and we often use it tocheck the cases cited. And always cite accurately to the record. Amazingly,incorrect citations to the record, as well as to case law, frequently appear in briefssubmitted to the Court.

Regarding choice of words and punctuation, I say to keep it simple. Usethe active voice whenever possible, avoiding excessive use of �to be� verbs. Theactive voice makes for clearer reading because it forces the writer to create anactor and a subject. You could state �Plaintiff has been injured,� but �Defendantinjured Plaintiff� does a better job of making your point. Using the active voicewill also make your writing seem more interesting, because it will create a morevivid picture in your reader�s mind. You may find it easier to convert yourwriting to the active voice when rewriting, instead of attempting to force itduring the first draft.

Also avoid legalese and other rarely used words. In keeping it simple, usethe simplest language practical. Faced with the choice of using the word�reticent� or the word �shy,� choose the latter. One need not impress the Courtwith an expansive vocabulary. The Court does not decide cases based on whoused the most or the least obscure words. Your use of clear language shows thatyou do not have to obscure the view to win your case. Using simple languagewill lend credibility to yourself and will make your brief seem friendlier to thereader.

Remember Ockham�s Razor: The simple theory is usually the better one.If it isn�t necessary to introduce certain complexities into a situation, then don�tdo it.

The more your arguments are clear and simple, the more you will seemlike a good trial witness who gives clear and concise testimony. And just as awitness�s clear answers give him credibility in the eyes of a jury, your clear andconcise arguments can lend you credibility in the eyes of appellate judges.

1 Marbury v. Madison, 5 U.S. 137, 170 (1803).


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15 PROFESSIONALISM IN THEPRINCIPLE-CENTERED LAW PRACTICEJudge G. Alan Blackburn*

§ 15.1 Whatever Happened to Ethics?

In a recent address, Bernie Marcus, the founder of Home Depot, raised the abovequestion in response to an inquiry about Enron and other corporate business practices. In the context of his address, Bernie was referring to the personal ethics and moralprinciples by which corporate leaders are guided, not those rules and regulations whichgovern commercial practices. Unlike the practice of law, business is generally limitedonly by a determination of what is legal, not what is ethical or moral.

Bernie related that for years he was bombarded by accountants and businessconsultants with Enron-type accounting procedures and schemes which were guaranteedto greatly improve the financial picture of Home Depot. He was assured that the schemeswere perfectly legal, and that they were employed by many major companies. Inanalyzing these proposals, Bernie looked not only to opinions of their legality, but alsolooked to his own moral compass for direction. He did not understand how you couldimprove the financial appearance of Home Depot when your scheme did not increase itsrevenues, reduce its costs, or improve the efficiency of its work force. In his own words,�it didn�t pass the smell test.� Bernie Marcus rejected the suggested schemes based on the

* Judge, 1993-Present, Court of Appeals of Georgia. LLB, 1968, John Marshall Law School; LLM, 2000,

University of Virginia School of Law.


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application of his own principles, not the limited rules that control corporate practices. He is a man of principle, who, before his retirement, ran a principle-centered business.

§ 15.2 Ethics, Professionalism, and the Practice of Law

Unlike big business, the conduct of lawyers is not limited to the statutorily legal. Lawyers also have a code of ethics by which they are bound. Our code of ethics oftenrequires lawyers, within certain bounds, to place a client�s interest above their own. Indeed, these distinctions are what separate the professions from other commercialendeavors.

Ethics are what the law requires of lawyers in the conduct of the practice of law. Lawyers are subject to sanctions, including disbarment, for violations of the GeorgiaRules of Professional Conduct. Unchecked ethical violations, by good and decentlawyers, occur routinely. Have you ever come across controlling case law which isharmful to your case, of which your opponent is clearly unaware? Have you awaited ahearing or trial hoping your opponent does not discover the controlling case? Have youthen argued your position to the court, orally or by brief, while your opponent failed toraise the controlling authority of which you were aware? If so, you have violated Rule3.3, Candor Toward The Tribunal, which provides in paragraph (a) (3), �A lawyer shall notknowingly fail to disclose to the tribunal legal authority in the controlling jurisdictionknown to the lawyer to be directly adverse to the position of the client and not disclosedby opposing counsel[.]� The underlying concept is that legal argument is a discussionseeking to determine the legal premises properly applicable to the case.

Another provision of the Georgia Rules of Professional Conduct that is oftenmisunderstood is Rule 1.2, Scope of Representation. While a lawyer shall generally abideby a client�s decisions concerning the objectives of representation, that Rule is subject toexceptions as outlined in subparagraphs (c), (d) and (e):

(c) A lawyer may limit the objectives of the representation of theclient if the client consents after consultation;

(d) A lawyer shall not counsel a client to engage in conduct thatthe lawyer knows is criminal or fraudulent, nor knowingly assist a clientin such conduct, but a lawyer may discuss the legal consequences of anyproposed course of conduct with a client and may counsel or assist a clientto make a good faith effort to determine the validity, scope, meaning orapplication of the law; and,

(e) When a lawyer knows that a client expects assistance notpermitted by the rules of professional conduct or other law, the lawyershall consult with the client regarding the relevant limitations on thelawyer�s conduct.

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The maximum penalty for a violation of this Rule is disbarment.

Many lawyers do not seem to understand that their obligation to represent theirclient is subject to the Georgia Rules of Professional Conduct. For example, a client is notentitled to advice of counsel in the planning, carrying out, or covering up of any crimeor other illegal activity, including fraud. Any attorney who becomes so involved is notpracticing law, but rather is a co-conspirator in the criminal or fraudulent activity, andis just as guilty of violating the law as is the client. The Georgia Rules of ProfessionalConduct are published in the State Bar of Georgia Directory and Handbook, and arereasonably specific on given issues. I recommend a periodic review of these Rules by alllawyers.

Professionalism, on the other hand, refers to that heightened level of civility,courtesy, accommodation and good faith that lawyers expect from each other in thehandling of legal matters in our adversary system of justice. Professionalism relates tothat standard which we, as lawyers, have set for each other in the conduct of the businessof our clients. In its simplest terms, professionalism is nothing more than businessmorality. My former colleague, Presiding Judge Birdsong, once describedprofessionalism in another way. He said that the Golden Rule says it all. He was right,and it is such a simple rule to follow.

Our Supreme Court has adopted a Lawyers� Creed, an Aspirational Statement onProfessionalism, certain General Aspirational Ideals, and certain Specific Aspirational Ideals. Ihave included these materials as Appendices A, B, C, and D, respectively.

§ 15.3 The Principle-Centered Law Practice

What is the public perception of lawyers? Do you think that we are generallyviewed as Atticus Finch, the lawyer in To Kill a Mockingbird? Or does Samuel TaylorColeridge�s perception more accurately represent the public attitude? Coleridge wroteof the devil, who upon seeing a lawyer killing a viper, smiled, for it put him in mind ofCain and Abel.

We are collectively responsible for our public perception. None of us practice inisolation. We each contribute to the reputation of the other, and we rise or fall as a group,in the collective eye of the public. The presence or absence of professionalism by thoselawyers with whom they come in contact, is, in large measure, determinative of thepublic�s perception of us as lawyers. I encourage lawyers to take the time to consider andadopt underlying principles upon which they will conduct their business. By doing this,they will have a basic foundation to which they can refer in determining their actions. These principles give the lawyer guidance at a time when other pressures may bepresent. The adoption of the attached aspirational goals of professionalism as the basicprinciples of operation of the law practice would be a sound beginning. Those who donot do so are like rudderless ships floating on a sea of self-interest and greed, respondingto those pressures without regard to the morality or correctness of the decision.


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§ 15.4 Helpful Hints for the Principle-Centered Lawyer

§ 15.4.1 Initial Employment

It is during the initial employment discussions that the lawyer should come to acomplete understanding with the client as to all important elements in the handling ofthe case. This agreement should be reduced to writing and signed by the parties. Inaddition to addressing such matters as fees and costs, the agreement should outlinecommunications between attorney and client (and any charges therefore), decisions onroutine matters during the conduct of the litigation (continuances, extensions,stipulations, etc.), a recognition that the lawyer is bound by ethical standards and that thelitigation will be conducted as required by such standards and the highest level ofprofessionalism. The lawyer should explain generally what this means and why it isultimately in the best interest of the client for the litigation to be conducted in thismanner.

§ 15.4.2 Settlement

In evaluating settlement versus trial, trial should generally be the least preferredoption. When a case is tried, that means there has been a failure in the case. Either theplaintiff�s lawyer has failed to convince the defendant of the justness of the claim, theamount of the damages, or that there is a greater risk to defendant in trying the case thanin settling it; or the defendant�s lawyer has failed to either apprise his client of the risksof trial, or convince the client of such potential. If the parties are able to settle the case,then they have kept the decision-making process within the control of the parties. It isgenerally true that parties are far more likely to voluntarily abide by a resolution towhich they have agreed than one which is dictated by a judge or jury.

Someone once said that �a reasonable settlement is one in which each of theparties is equally dissatisfied.� It is a rare case in which a party is totally successful inobtaining all of the relief sought through settlement. There is little benefit to a defendantin such a settlement, as a jury would do no worse at trial and the defendant just mightwin. Plaintiffs� personal injury lawyers should also keep in mind that while they willhave many future trials in the event of a loss, a plaintiff who loses at trial after havingturned down a settlement offer will never have another opportunity to recover for thatclaim.

§ 15.4.3 Counseling the Client

Remember, lawyers are also counselors to their clients and owe to them a duty tobe straight-forward in discussing the strengths and weaknesses of their position. It isunprofessional to exaggerate the potential value of a claim in order to obtainemployment, and such exaggeration likely will come back to haunt you, as it will makea reasonable pre-trial settlement difficult. It also assures an unhappy client even if areasonable verdict is obtained, as the award will generally be far less than you have ledthe client to believe that it would be.


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It is far better to explain to the client that the recovery at trial will be the result ofa number of unknown factors, such as: the makeup of the jury, the testimony andcredibility of the fact and expert witnesses, the jury�s evaluation of any comparativenegligence evidence, the natural sympathies of the case and the jury�s attitude toward theparties, their lawyers, and witnesses. Juries tend not to make meaningful awards toplaintiffs they don�t like, or to award large sums against defendants that they do like andvice versa. It is easy to predict where the natural sympathies would lie if alawyer/plaintiff sued an elderly, gray-haired grandmother in a fender-bender involvingminor damage. The lawyer should anticipate matters unique to the client�srepresentation, and be sure that the client understands and agrees to the manner in whichthe case will be handled. This is the time for the lawyer to prevent futuremisunderstandings and problems.

§ 15.4.4 Communications

A lawyer should counsel with the client at the time of employment concerningcommunications during the handling of the case. The lawyer�s policy concerningtelephone calls and any charges therefore should be fully discussed. The advantage to theclient of communicating through staff should be fully explained. The benefits of suchcommunication could be cost, speed of response, and efficiency. It is a good idea toroutinely copy the client with copies of pleadings and correspondence, with informationand instruction forms attached, i.e., forward a copy of interrogatories received with acover sheet telling the client what to do. It is good policy to review all cases on anappropriate time basis and to communicate with the clients, so they will know they havenot been forgotten.

§ 15.4.5 Controlling the Case and Decision-Making

The client has sought your representation because of your knowledge, experience,and skill�talents the client generally does not possess. It is for this reason that decisionsconcerning the conduct of the case should generally be made by the lawyer. The clientis not familiar with or bound by the lawyer�s canons of ethics or basic standards ofprofessional conduct. Too often, clients are so emotionally involved in their case thatthey seek only to cause misery for the other side. We have all dealt with such clients,who seem to resent their attorney even being civil to the other side.

Clearly, such people are not the ones who should decide those matters whichroutinely arise during the conduct of litigation, such as: the granting of extensions,stipulations of law and fact, and dealing with your opponent�s tardiness at a calendar call. It is for this reason that decisions concerning procedural matters should be made by thelawyer, with the consent of the client. It is you, the lawyer, who can best evaluate whataction is required by professional standards of conduct and what is ultimately in the bestinterest of the client.


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§ 15.4.6 Appeal and Post-Trial Evaluation

The only appropriate legal basis for an appeal is that there has been a reversibleerror committed by the trial court which has harmed your client. It is unprofessional toappeal a case where no such bona fide claim exists.

Attempting to gain leverage for negotiation is not an appropriate basis for appeal. The fact that your client has suffered a major award against it is not a basis for appealabsent reversible error. Neither is the fact that a defendant�s verdict was returned in theplaintiff�s �million-dollar� case a basis for appeal absent reversible error. It is unethicaland unprofessional to appeal an adverse result absent reversible error, and such actionmay expose the appellant to sanctions under the rules of the appellate courts.

§ 15.4.7 Handling a Client�s Money

Failure to keep a client�s money in a separate account may result in disciplinaryaction by the state bar, since commingling is a violation of Rule 1.15 of the mandatoryState Bar Standards of Conduct. In addition, keep a complete record of all fundsdisbursed to or received from a client.

§ 15.4.8 Stay Out of Business with Your Client

This is particularly true in situations where your clients are relying on you, astheir lawyer, to protect or oversee their interest, so that you are both business partnerand lawyer. Although the bar standards do not absolutely prohibit this under allcircumstances, it is better to avoid such situations altogether.

§ 15.4.9 Avoid Conflicts of Interest

Rules 1.8 and 1.9 in the State Bar of Georgia Handbook deal directly with definingwhat conflicts of interest to avoid. Generally, if it feels bad, it is bad, and should beavoided. If you are caught in a �gray area,� seek advice from one who is experienced andknowledgeable. And remember, the mere fact that you are concerned that a conflict ofinterest exists may be a sufficient indication that you should stay out of a particularmatter.

§ 15.4.10 Do Not Make False Representations

Even if it is to ease the pain of unpleasant news, the outcome of such dishonestycould be devastating to your career as an attorney. Rule 2.1 strictly prohibits falserepresentations, and the penalty for violating this standard may be disbarment. In fact,a review of recent disbarment cases shows that lying about the progress of a case issurprisingly common cause of disbarments and voluntary surrenders of licenses. See alsoRule 1.3.


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§ 15.4.11 Handle or Limit Your Workload

There is no doubt that case load management is the cause of many clientcomplaints. The lawyer becomes overburdened with work and fails to communicatewith the client. Too often lawyers do not meet their obligation to properly handle thosecases they accept. Organize to handle the cases you accept, or accept fewer cases.


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APPENDIX A :A LAWYER�S CREED

To my clients, I offer faithfulness, competence, diligence, and good judgment. Iwill strive to represent you as I would want to be represented and to be worthy of yourtrust.

To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.

To the courts, and other tribunals, and to those who assist them, I offer respect,candor, and courtesy. I will strive to do honor to the search for justice.

To my colleagues in the practice of law, I offer concern for your welfare. I willstrive to make our association a professional friendship.

To the profession, I offer assistance. I will strive to keep our business a professionand our profession a calling in the spirit of public service.

To the public and our systems of justice, I offer service. I will strive to improvethe law and our legal system, to make the law and our legal system available to all, andto seek the common good through the representation of my clients.


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APPENDIX B:ASPIRATIONAL STATEMENT ON PROFESSIONALISM

The Court believes there are unfortunate trends of commercialization and loss ofprofessional community in the current practice of law. These trends are manifested in anundue emphasis on the financial rewards of practice, a lack of courtesy and civilityamong members of our profession, a lack of respect for the judiciary and for our systemsof justice, and a lack of regard for others and for the common good. As a community ofprofessionals, we should strive to make the internal rewards of service, craft, andcharacter, and not the external reward of financial gain, the primary rewards of thepractice of law. In our practices we should remember that the primary justification forwho we are and what we do is the common good we can achieve through the faithfulrepresentation of people who desire to resolve their disputes in a peaceful manner andto prevent future disputes. We should remember, and we should help our clientsremember, that the way in which our clients resolve their disputes defines part of thecharacter of our society and we would act accordingly.

As professionals, we need aspirational ideals to help bind us together in aprofessional community. Many of the aspirational ideals of our community arecontained within our Ethical Considerations. The Ethical Considerations contain theobjectives towards which every member of the profession should strive. Our EthicalConsiderations, however, also contain specific regulatory provisions, interpretativeguidance for our Directory Rules, and other matters that are not aspirational. Thiscombining of different purposes makes the Ethical Considerations difficult to use as astatement of aspirational ideals. Some of our aspirational ideals are also found in �Dutiesof Attorneys,� OCGA § 15-19-4, but most of those ideals are limited to the role of attorneyas an officer of the court. Our Directory Rules and Standards of Conduct set forthminimum standards. They are not intended as aspiration statements.

Accordingly, the Court issues the following Aspirational Statement setting forthgeneral and specific aspirational ideals of our profession. This statement is a beginninglist of the ideals of our profession. It is primarily illustrative. Our purpose is not toregulate, and certainly not to provide a basis for discipline, but rather to assist the Bar�sefforts to maintain a professionalism that can stand against the negative trends ofcommercialization and loss of community. It is the Court�s hope that Georgia�s lawyers,judges, and legal educators will use the following aspirational ideals to reexamine thejustifications of the practice of law in our society and to consider the implications of thosejustifications for their conduct. The Court feels that enhancement of professionalism canbe best brought about by the cooperative efforts of the organized bar, the courts, and thelaw schools with each group working independently, but also jointly in that effort.


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APPENDIX C:GENERAL ASPIRATIONAL IDEALS

As a lawyer, I will aspire:

(a) To put fidelity to clients and, through clients, to the common good, beforeselfish interests.

(b) To model for others, and particularly for my clients, the respect due to thosewe call upon to resolve our disputes and the regard due to all participants in our disputeresolution processes.

(c) To avoid all forms of wrongful discrimination in all of my activities includingdiscrimination on the basis of race, religion, sex, age, handicap, veteran status, or nationalorigin. The social goals of equality and fairness will be personal goals for me.

(d) To preserve and improve the law, the legal system, and other disputeresolution processes as instruments for the common good.

(e) To make the law, the legal system, and other dispute resolution processesavailable to all.

(f) To practice with a personal commitment to the rules governing our professionand to encourage others to do the same.

(g) To preserve the dignity and the integrity of our profession by my conduct. Thedignity and the integrity of our profession is an inheritance that must be maintained byeach successive generation of lawyers.

(h) To achieve the excellence of our craft, especially those that permit me to be themoral voice of clients to the public in advocacy while being the moral voice of the publicto clients in counseling. Good lawyering should be a moral achievement for both thelawyer and the client.

(i) To practice law not as a business, but as a calling in the spirit of public service.


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APPENDIX D:SPECIFIC ASPIRATIONAL IDEALS

As to clients, I will aspire:

(a) To expeditious and economical achievement of all client objectives.

(b) To fully informed client decision-making. As a professional, I should:

(1) Counsel clients about all forms of dispute resolution;

(2) Counsel clients about the value of cooperation as a means towardsthe productive resolution of disputes;

(3) Maintain the sympathetic detachment that permits objective andindependent advice to clients;

(4) Communicate promptly and clearly with clients; and,

(5) Reach clear agreements with clients concerning the nature of therepresentation.

(c) To fair and equitable fee agreements. As a professional, I should:

(1) Discuss alternative methods of charging fees with all clients;

(2) Offer fee arrangements that reflect the true value of the servicesrendered;

(3) Reach agreements with clients as early in the relationship aspossible;

(4) Determine the amount of fees by consideration of many factors andnot just time spent by the attorney;

(5) Provide written agreements as to all fee arrangements; and

(6) Resolve all fee disputes through the arbitration methods providedby the State Bar of Georgia.

(d) To comply with the obligations of confidentiality and the avoidance ofconflicting loyalties in a manner designed to achieve the fidelity to clientsthat is the purpose of these obligations.

As to opposing parties and their counsel, I will aspire:

(a) To cooperate with opposing counsel in a manner consistent with thecompetent representation of all parties. As a professional, I should:


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(1) Notify opposing counsel in a timely fashion of any canceled appearance;

(2) Grant reasonable requests for extensions or scheduling changes; and,

(3) Consult with opposing counsel in the scheduling of appearances,meeting, and depositions.

(b) To treat opposing counsel in a manner consistent with his or herprofessional obligations and consistent with the dignity of the search forjustice. As a professional, I should:

(1) Not serve motions or pleadings in such a manner or at such a timeas to preclude opportunity for a competent response;

(2) Be courteous and civil in all communications;

(3) Respond promptly to all requests by opposing counsel;

(4) Avoid rudeness and other acts of disrespect in all meetings includingdepositions and negotiations;

(5) Prepare documents that accurately reflect the agreement of allparties; and

(6) Clearly identify all changes made in documents submitted byopposing counsel for review.

As to the courts, other tribunals, and to those who assist them, I will aspire:

(a) To represent my clients in a manner consistent with the proper functioningof a fair, efficient, and humane system of justice. As a professional, Ishould:

(1) Avoid non-essential litigation and non-essential pleading inlitigation;

(2) Explore the possibilities of settlement of all litigated matters;

(3) Seek non-coerced agreement between the parties on procedural anddiscovery matters;

(4) Avoid all delays not dictated by a competent presentation of aclient�s claims;

(5) Prevent misuses of court time by verifying the availability of keyparticipants for scheduled appearances before the court and by beingpunctual; and


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(6) Advise clients about the obligations of civility, courtesy, fairness,cooperation, and other proper behavior expected of those who useour systems of justice.

(b) To model for others the respect due to our courts. As a professional Ishould:

(1) Act with complete honesty;

(2) Know court rules and procedures;

(3) Give appropriate deference to court rulings;

(4) Avoid undue familiarity with members of the judiciary;

(5) Avoid unfounded, unsubstantiated, or unjustified public criticism ofmembers of the judiciary;

(6) Show respect by attire and demeanor;

(7) Assist the judiciary in determining the applicable law; and,

(8) Seek to understand the judiciary�s obligations of informed andimpartial decision-making.

As to my colleagues in the practice of law, I will aspire:

(a) To recognize and to develop our interdependence;

(b) To respect the needs of others, especially the need to develop as a wholeperson; and,

(c) To assist my colleagues become better people in the practice of law and toaccept their assistance offered to me.

As to our profession, I will aspire:

(a) To improve the practice of law. As a professional, I should:

(1) Assist in continuing legal education efforts;

(2) Assist in organized bar activities; and,

(3) Assist law schools in the education of our future lawyers.

(b) To protect the public from incompetent or other wrongful lawyering. Asa professional, I should:

(1) Assist in bar admissions activities;


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(2) Report violations of ethical regulations by fellow lawyers; and,

(3) Assist in the enforcement of the legal and ethical standards imposedupon all lawyers.

As to the pubic and our systems of justice, I will aspire:

(a) To counsel clients about the moral and social consequences of their conduct.

(b) To consider the effect of my conduct on the image of our systems of justiceincluding the social effect of advertising methods.

(c) To provide the pro bono representation that is necessary to make oursystem of justice available to all.

(d) To support organizations that provide pro bono representation to indigentclients.

(e) To improve our laws and legal system by, for example:

(1) Serving as a public official;

(2) Assisting in the education of the public concerning our laws andlegal system;

(3) Commenting publicly upon our laws; and,

(4) Using other appropriate methods of effecting positive change in ourlaws and legal system.

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16 FORMSRichard B. Holcomb*

* Mr. Holcomb is an associate with the law firm of Alston & Bird LLP, focusing on trial and

appellate practice and commercial litigation. He received a B.A. from Wake ForestUniversity in 1989, an M.A. from Georgia State University in 1997, and a J.D. from theWashington and Lee School of Law in 2000. Prior to joining Alston & Bird, Mr. Holcombserved from 2000 to 2001 as law clerk for Judge Emmett Ripley Cox of the United StatesCourt of Appeals for the Eleventh Circuit.


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FORM 1NOTICE OF APPEAL: CIVIL

(O.C.G.A. § 5-6-51(1))

IN THE __________ COURT OF __________ COUNTYSTATE OF GEORGIA

____________________, ))

Plaintiff(s), )) Civil Action

vs. ) File No. ___________)

____________________, ))

Defendant(s). ) )

NOTICE OF APPEAL

Notice is hereby given that ______________ and

_______________, (Plaintiff(s)/Defendant(s)) above-named,

hereby appeal(s) to the _____________ (Court of

Appeals/Supreme Court) from the _____________________

(describe order or judgment) entered in this action on

__________, 20__.

Motion for new trial (or motion for judgment n.o.v.,

etc.) was filed and overruled (or granted, etc.) on

__________, 20____.

The Clerk will please omit the following from the

record on appeal:

1.

2.

3.

CHAPTER 16: FORMS

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Transcript of evidence and proceedings (in its

entirety/certain portion) (will/will not) be filed for

inclusion in the record on appeal.

This Court, rather than the (Court of Appeals/Supreme

Court), has jurisdiction of this case on appeal for the

reason that ________________________________________.

This ____ day of _________, 20___.

______________________________[NAME]Georgia Bar No. _______

[FIRM][Address][City, State, Zip][Telephone]

Attorney(s) for Appellant(s)

[Certificate of Service]


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FORM 2NOTICE OF CROSS-APPEAL: CIVIL

(O.C.G.A. § 5-6-51(3))


____________________, ))


vs. ) File No. ___________)

____________________, ))

Defendant(s). ) )

NOTICE OF CROSS-APPEAL

Notice is hereby given that ______________, one of the

(Plaintiff(s)/Defendant(s)) above-named, hereby

cross-appeal(s) to the _____________ (Court of

Appeals/Supreme Court) from the _____________________

(describe order or judgment) entered in this action on

__________, 20____.

Notice of Appeal was heretofore filed on

________________, 20____.

The Clerk will please include the following from the

record on appeal, all of which were designated for omission

by Appellant:

1.

2.

3.

CHAPTER 16: FORMS

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entirety/certain portion) (will be filed) (will not be

filed) (has already been designated to be filed by

Appellant) for inclusion in the record on appeal.

This ____ day of _________, 20____.



Attorney(s) for Cross-Appellant(s)



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FORM 3NOTICE OF APPEAL: CRIMINAL

(O.C.G.A. § 5-6-51(2))


The State, )) (Indictment)

vs. ) (Accusation)) No. ___________

____________________, ))

Defendant. ) )

NOTICE OF APPEAL

Notice is hereby given that ______________, Defendant

above-named, hereby appeals to the _____________ (Court of

Appeals/Supreme Court) from the judgment of conviction and

sentence entered herein on __________, 20____.

The offense(s) for which Defendant was convicted

(is/are) __________________, and the sentence(s) imposed

(is/are) as follows: ________________________________.

Motion for new trial (or motion in arrest of judgment,

etc.) was filed and overruled on __________, 20____.

The Clerk will please omit the following from the

record on appeal:

1.

2.

3.

CHAPTER 16: FORMS

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entirety/certain portion) (will/will not) be filed for

inclusion in the record on appeal.

This Court, rather than the (Court of Appeals/Supreme

Court), has jurisdiction of this case on appeal for the

reason that ________________________________________.

This ____ day of _________, 20____.






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FORM 4APPELLEE�S DESIGNATION OF RECORD

(O.C.G.A. § 5-6-42)


____________________, ))


vs. ) File No. ___________)

____________________, ))

Defendant(s). ) )

APPELLEE'S DESIGNATION OF RECORD

(Plaintiff(s)/Defendant(s)) hereby designate(s)

(all/part) of the omitted matters in the record on appeal,

(including the transcript of (date, etc.)).

This ____ day of _________, 20____.

____________________________________

[NAME]Georgia Bar No. _______

[FIRM][Address][City, State, Zip][Telephone]Attorney(s) for Appellant(s)


CHAPTER 16: FORMS

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FORM 5APPELLANT�S/APPELLEE�S BRIEF: COVER PAGE

(SUPREME COURT RULE 18)

IN THE SUPREME COURTSTATE OF GEORGIA

____________________, ))

Plaintiff(s), ))

vs. )) Case No. ___________

___________________, ))

Defendant(s). ) )

BRIEF OF (APPELLANT/APPELLEE)



Attorney(s) for _____________


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FORM 6APPELLANT�S/APPELLEE�S BRIEF: BODY

(SUPREME COURT RULES 18-20)


____________________, ))

Plaintiff(s), ))

vs. ) Case No. ___________)

__________________, ))

Defendant(s). ) )

BRIEF OF (APPELLANT/APPELLEE)

I. Type of case showing Supreme Court jurisdiction, the

judgment appealed, and date of entry.

II. Brief statement of facts showing the general nature of

the case.

III. Enumeration of errors. (See Rule 19).

IV. Argument in sequence with the enumeration of errors

(including additional facts where essential), and

citation of authorities.

V. Certificate of service.

CHAPTER 16: FORMS

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This ____ day of _________, 20____.






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FORM 7APPELLANT�S BRIEF: BODY

(COURT OF APPEALS RULE 27(a))

IN THE COURT OF APPEALSSTATE OF GEORGIA

____________________, ))

Plaintiff(s), ))

vs. ) Case No. ___________)

____________________, ))

Defendant(s). ) )

BRIEF OF APPELLANT(S)

I. Part I shall contain a succinct and accurate statement

of the proceedings below and the material facts

relevant to the appeal, and a citation of such parts

of the record or transcript essential to a

consideration of the error complained of, and a

statement of a method by which each enumeration of

error was preserved for consideration.

II. Part II shall consist of enumeration of errors. (Court

of Appeals Rule 22)

III. Part III shall contain the argument and citation of

authorities. It shall also include a concise

statement of the applicable standard of review, with

supporting authority, for each issue presented in the

Brief.

CHAPTER 16: FORMS

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This ____ day of _________, 20____.






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FORM 8APPELLEE�S BRIEF: BODY

(COURT OF APPEALS RULE 27(b))


____________________, ))

Plaintiff(s), ))

vs. ) Case No. ___________)

____________________, ))

Defendant(s). ) )

BRIEF OF APPELLEE(S)

I. Part I shall point out any material inaccuracy or

incompleteness of statement in the Appellant's Brief,

and any additional statement deemed necessary, plus

such additional parts of the record or transcript

deemed material. Failure to do so shall constitute

consent to a decision based upon the Appellant's

statement. Except as controverted, Appellant's

statement of facts may be accepted by this Court as

true.

II. Part II shall contain the Appellee's argument and

citation of authorities as to each enumeration of

error. It shall also include the standard of review

if different from that contended by the Appellant(s).

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This ____ day of _________, 20____.



Attorney(s) for Appellee(s)



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FORM 9MOTION FOR NEW TRIAL: CIVIL

(O.C.G.A § 5-5-42(b))


____________________, ))


vs. ) File No. ___________)

____________________, ))

Defendant(s). ) )

MOTION FOR NEW TRIAL

(Plaintiff(s)/Defendant(s)) move(s) the Court to set

aside the verdict rendered herein on ____________, 20____,

and the judgment entered thereon on ____________, 20____,

and to grant a new trial on the following grounds:

1. The verdict is contrary to law.

2. The verdict is contrary to the evidence.

3. The verdict is strongly against the weight of the

evidence.

4. The Court erred in permitting Witness _________ to

testify as follows:

_____________________________.

5. The Court erred in failing to charge the jury on

____________________ as requested in writing by

____________________.

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6. The Court erred in charging the jury as follows:

_________________________________________________

.

This ____ day of _________, 20____.




[Here set forth Rule Nisi and Certificate of Service]


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FORM 10MOTION FOR NEW TRIAL: CRIMINAL

(O.C.G.A § 5-5-42(d))


____________________, ))

The State, etc. )) (INDICTMENT)

vs. ) (ACCUSATION)) FILE NO. ___________

____________________, ))

Defendant. ) )

MOTION FOR NEW TRIAL

Defendant moves the Court to set aside the verdict

rendered herein on _________, 20____, and the sentence

entered thereon on _________, 20____, and to grant a new

trial on the following grounds:

1. The Defendant should be acquitted and discharged

due to the State's failure to prove guilt beyond

a reasonable doubt.

2. Although the State proved the Defendant's guilt

beyond a reasonable doubt, the evidence was

sufficiently close to warrant the trial judge to

exercise his/her discretion to grant the

Defendant a retrial.

3. The Court committed an error of law, warranting a

new trial.

CHAPTER 16: FORMS

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This ____ day of _________, 20____.




[Here set forth Rule Nisi and Certificate of Service]


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FORM 11REQUEST FOR ORAL ARGUMENT

(COURT OF APPEALS RULE 28)


____________________, ))

Plaintiff(s), ))

vs. ) Case No. ___________)

____________________, ))

Defendant(s). ) )

REQUEST FOR ORAL ARGUMENT

To: ClerkCourt of Appeals, State of Georgia40 Capital Square334 State Judicial BuildingAtlanta, Georgia 30334

(Appellant/Appellee), _______________, hereby requests

oral argument pursuant to Rule 28 of this Court.

The undersigned counsel for (Appellant/Appellee) hereby

certifies that counsel for (Appellee/Appellant) has been

notified of the (Appellant's/Appellee's) request to argue

the case orally, and inquiry has been made of said counsel

of the intent to request oral argument, and counsel for

(Appellee/Appellant) (desires/does not desire) to argue the

case orally. Appellant's counsel, ___________________,

CHAPTER 16: FORMS

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will make oral argument. Appellee's counsel,

________________, will make oral argument.

(Brief specific statement demonstrating that the

decisional process will be significantly aided by oral

argument.)

This ____ day of _________, 20____.



Attorney(s) forAppellant(s)/Appellee(s)



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FORM 12REQUEST FOR ORAL ARGUMENT


Ms. Sheri M. WelchClerk, Supreme Court of Georgia244 Washington Street, S.W.Room 572State Office Annex BuildingAtlanta, Georgia 30334

RE: [Case Name and Number]

Dear Ms. Welch:

(Appellant/Appellee), _______________, requests that

this case be placed on the Court's calendar for oral

argument pursuant to Rule 51 of this Court.

The undersigned counsel for (Appellant(s)/Appellee(s))

certifies that counsel for (Appellee/Appellant) has been

notified of the (Appellant's(s')/Appellee's(s')) intention

to argue the case orally, and inquiry has been made of said

counsel of the intention to argue the case. Counsel for

(Appellee(s)/Appellant(s)) (does/does not) desire to argue

the case orally. Thank you for your assistance in this

matter.

Sincerely,

[NAME]

cc: (opposing counsel)


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FORM 13PETITION FOR LEAVE TO APPEAL

(O.C.G.A. § 5-6-35; COURT OF APPEALS RULE 31)


____________________, ))

Plaintiff(s), ))) Civil Action

vs. ) File No. ___________)

____________________, ))

Defendant(s). ) )

PETITION FOR LEAVE TO APPEAL

I. Enumeration of errors.

II. Statement of jurisdiction.

III. Specification of the order or judgment being appealed.

IV. Included as exhibits to the Petition, a stamped "filed"

copy of the order or judgment being appealed, a copy

of the petition or motion which led directly to the

order or judgment being appealed, and a copy of any

responses to the petition or motion.

V. Copies of other parts of the record or transcript the

Applicant(s) deem(s) appropriate may be attached and

shall be tabbed and indexed.

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This ____ day of _________, 20____.



Attorney(s) for Petitioner(s)



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FORM 14APPLICATION FOR LEAVE TO APPEAL INTERLOCUTORY ORDER

(COURT OF APPEALS RULE 30)


____________________, ))


vs. ) File No. ___________)

____________________, ))

Defendant(s). ) )

APPLICATION FOR LEAVE TO APPEAL INTERLOCUTORY ORDER

I. Statement of jurisdiction.

II. Stamped-filed copies of the lower court's order to be

appealed and certificate of immediate review attached.

III. Basis for granting of application for leave to appeal.

( See Court of Appeals Rule 30).

IV. Copies of all materials from the record to sufficiently

apprise the Court of the appellate issues, in context,

and support the arguments advanced, which copies shall

be tabbed and indexed.

CHAPTER 16: FORMS

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This ____ day of _________, 20____.



Attorney(s) for Applicant(s)



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FORM 15APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY ORDER



____________________, ))


vs. ) File No. ___________)

____________________, ))

Defendant(s). ) )

APPLICATION FOR LEAVE TO APPEAL INTERLOCUTORY ORDER


II. Copies of the trial court's order to be appealed and

stamped copy of certificate for immediate review

showing the date of filing attached.

III. Basis for granting of application for leave to appeal.

( See Supreme Court Rule 31).

IV. Affidavits, exhibits, and relevant parts of the

transcript should be attached to the application to

demonstrate to the Court what the record will show if

the application is granted.

CHAPTER 16: FORMS

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This ____ day of _________, 20____.






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FORM 16APPLICATION FOR DISCRETIONARY APPEAL(O.C.G.A. § 5-6-35; SUPREME COURT RULE 33)


____________________, ))


vs. ) File No. ___________)

____________________, ))

Defendant(s). ) )

APPLICATION FOR DISCRETIONARY APPEAL


II. A stamped copy of trial court's order to be appealed,

showing date of filing, attached.

III. A transcript is not necessary, but affidavits and

exhibits should be attached to the application to

demonstrate to the Court what the record will show if

the application is granted.

IV. Basis for granting application for leave to appeal.

(For applications for leave to appeal a final judgment

in case subject to appeal under O.C.G.A. § 5-6-35, see

Supreme Court Rule 34).

CHAPTER 16: FORMS

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This ____ day of _________, 20____.






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FORM 17NOTICE OF INTENTION TO APPLY FOR CERTIORARI

(SUPREME COURT RULE 38; COURT OF APPEALS RULE 38)


____________________, ))

Plaintiff(s), ))

vs. ) Case No. ___________)

____________________, ))

Defendant(s). ) )

NOTICE OF INTENTION TO APPLY FOR CERTIORARI

To: ClerkCourt of Appeals, State of Georgia40 Capitol Square334 State Judicial BuildingAtlanta, Georgia 30334

Notice is hereby given that (Appellant(s)/Appellee(s)),

_____________________, intend(s) to apply to the Supreme

Court for a writ of certiorari to review the judgment of

the Court of Appeals rendered in the above-styled case on

___________, 20____ (in which case a motion for rehearing

was denied on ____________, 20____).

CHAPTER 16: FORMS

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This ____ day of _________, 20____.






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FORM 18APPLICATION FOR WRIT OF HABEAS CORPUS

(O.C.G.A. § 9-14-44)

IN THE SUPERIOR COURT OF _________ COUNTY*STATE OF GEORGIA

____________________, ))

Petitioner(s), )____________________ )Inmate Number )

) Civil Actionvs. )

) File No. ______________________________, )

)Respondent(s). )

)

APPLICATION FOR WRIT OF HABEAS CORPUS

I. Identify the proceeding in which the Petitioner was

convicted.

II. Date of rendition of the final judgment complained of.

III. Clearly set forth the respects in which the

Petitioner's(s') rights were violated.

IV. State with specificity which claims were raised at

trial or on direct appeal, providing appropriate

citations to the trial or appellate record.

V. Identify any previous proceedings that the Petitioner

may have taken to secure relief from his/her

conviction, and in the case of prior habeas corpus

petitions, state which claims were previously raised.

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VI. Attach to the petition affidavits, records or other

evidence supporting the allegations, or state why the

same are not attached. (Argument and citation of

authorities shall be omitted.)

VII. A brief may be submitted in support of the petition,

setting forth any applicable argument.

WHEREFORE, Petitioner(s) pray(s) that the Court grant

Petitioner(s) relief to which he/she/they may be entitled

in this proceeding.

This ____ day of _________, 20____.



Attorney(s) for Petitioner(s)

I declare (certify, verify or state) under penalty of

perjury that the foregoing is true and correct. Executed

this _____ day of ______________, 20____.

______________________________Signature of Petitioner(s)


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* Some Superior Courts have prepared forms which must be used. This form isbased on the requirements contained in O.C.G.A. § 9-14-44.

NOTE that under O.C.G.A. § 9-14-45, service of a petition of habeascorpus shall be made upon the person having custody of the Petitioner(s). IfPetitioner(s) is being detained under the custody of the Department ofCorrections, an additional copy of the Petition must be served on the AttorneyGeneral. If Petitioner(s) is being detained under the custody of some authorityother than the Department of Corrections, an additional copy of the Petitionmust be served upon the District Attorney of the county in which the Petition isfiled. Service upon the Attorney General or the District Attorney may be had bymailing a copy of the Petition and a proper Certificate of Service.


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FORM 19MOTION FOR RECONSIDERATION

(SUPREME COURT RULE 27; COURT OF APPEALS RULE 37)

IN THE (COURT OF APPEALS/SUPREME COURT)STATE OF GEORGIA

____________________, ))


vs. ) File No. ___________)

____________________, ))

Defendant(s). ) )

MOTION FOR RECONSIDERATION

Pursuant to (Court of Appeals Rule 37/Supreme Court

Rule 27), (Appellee(s)/Appellant(s)) hereby move(s) this

Court to reconsider its Order entered on _____________,

20____ in the above-referenced case. A copy of that Order

is attached hereto as Exhibit "A".

(Brief in support of motion).

This ____ day of _________, 20____.



Attorney(s) for(Appellant(s)/Appellee(s))


PRESERVING ISSUES FOR APPEAL

Paul J. KaplanAlston & Bird LLPAtlanta, Georgia

Albert M. Pearson, IIIMoraitakis Kushel Pearson Gardner LLP

Atlanta, Georgia

GEORGIA APPELLATE PRACTICE

Georgia Appellate PracticeMarch 3, 2005

055959(01)