6. Discretionary Applications: Details

A. CASES THAT REQUIRE A DISCRETIONARY APPLICATION

A discretionary application asks the Court of Appeals to allow an appellant to file an appeal. Some cases can be directly appealed without an application, but under OCGA § 5-6-35 (a) (see Attachment G), an appeal must be brought by discretionary application in the following types of cases:

1. Appeals from decisions of the superior courts reviewing decisions of the State Board of Workers’ Compensation, the State Board of Education, auditors, state and local administrative agencies, and lower courts by certiorari or de novo proceedings. This provision does not apply to decisions of the Public Service Commission and probate courts, or to cases involving ad valorem taxes and condemnations;
2. Appeals from judgments or orders in divorce, alimony, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony, or holding or declining to hold parties in contempt of an alimony judgment or order;
3. Appeals from cases involving distress or dispossessory warrants in which the only issue to be resolved is the amount of rent due and that amount is $2,500.00 or less;
4. Appeals from cases involving garnishment or attachment, except as provided in paragraph of subsection (a) of Code Section 5-6-34 [judgments or orders granting or refusing applications for attachment against fraudulent debtors];
5. Appeals from orders revoking probation;
   1. Appeals from decisions of superior courts reviewing decisions of the Sexual Offender Registration Review Board;
   2. Appeals from decisions of superior courts granting or denying petitions for release pursuant to Code Section 42-1-19 [petitions for release from sexual offender registration requirements];
6. Appeals in all actions for damages in which the judgment is $10,000.00 or less;
7. Appeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial;
8. Appeals from orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment or under subsection (e) of Code Section 9-11-60 denying relief upon a complaint in equity to set aside a judgment;
9. Appeals from orders granting or denying temporary restraining orders;
10. Appeals from awards of attorney’s fees or expenses of litigation under Code Section 9- 15-14;
11. Appeals from decisions of the state courts reviewing decisions of the magistrate courts by de novo proceedings so long as the subject matter is not otherwise subject to a right of direct appeal;
12. Appeals from orders terminating parental rights; and
13. (13) Appeals from civil actions filed by prisoners under Code Section 42-12-8.

If a party files a direct appeal but should have filed an application, the direct appeal will be dismissed for lack of jurisdiction.

B. FILING THE DISCRETIONARY APPLICATION

Unlike the notice of appeal filed in the trial court in a direct appeal, discretionary applications are filed directly with the Court of Appeals. A discretionary application must be filed within 30 days (or 7 days in a dispossessory action) from the stamped “filed” date of the trial court’s signed order or judgment being appealed. See OCGA § 5-6-35 (d). The application must contain a copy of the signed order or judgment being appealed that was stamped “filed” in the trial court. See Rule 31 (c). If the application does not contain this order, it will be returned, and the time limit for filing will continue to run. An improper filing does not toll (delay or extend) the time for filing.

Applications and responses to applications are limited to 30 pages in civil cases and 50 pages in criminal cases if paper-filed, and 8,400 words in civil cases and 14,000 words in criminal cases if e-filed. Exhibits, which include documents filed with the trial court and portions of the record, do not count toward these limits. See Rule 31 (g). The application must include a proper certificate of service showing that the applicant served the application materials on the opposing counsel or party either by U.S. mail, in person, or by electronic service with permission, and listing the full address of the opposing party or attorney. See Rule 6; example on Form 2.

A discretionary application should include as exhibits whatever portions of the record the applicant thinks the Court of Appeals should review to decide whether the trial court likely made a legal mistake. The application must contain an index of the exhibits, which must be tabbed if paper-filed. See Rule 31 (g) (2) (ii).

The respondent (opposing party) has 10 days from the date a discretionary application is filed to file a response, but one is not required. See Rule 31 (j).

The following items must be included in a discretionary application (see OCGA § 5-6-35 and Rules 2, 6, and 31):

C. RULING ON THE APPLICATION

Under Rule 31 (b), discretionary applications are only granted when:

1. Reversible error appears to exist in the lower court;
2. The establishment of a precedent (a rule to be used in future similar cases) is desirable;
3. Further development of the common law, particularly in divorce cases, is desirable; or
4. The application is for leave to appeal a judgment and decree of divorce that is final under OCGA § 5-6-34 (a) (1), is timely under OCGA § 5-6-35 (d), and has possible merit.

The Court of Appeals is required to issue an order within 30 days of the docketing of a discretionary application. The Court may grant, deny, dismiss, or transfer the application.

If the Court grants the application, the appellant has 10 days from the date of the order granting the application to file a notice of appeal in the trial court. The case will then proceed as a direct appeal.