Transfers Supreme Court to COA 9/04 -3/28/05

S03H0138 Burke, pro se v. State 9/28/04

Appeal denial of motion to set aside void sentence in non-murder case

271 Ga. 686, 688 (1) (1999), 236 Ga. App. 442 (1999)

A05A0370

S04A1978 Alverson v. Employee's Retirement System of Georgia 9/13/04

NT appeal suit for equitable relief , EE rule calculating retirement benefits were breach of contract, violation of retirement statutes,, 42 USC 1983 and constitutional principles of due process, equal protection, separation of powers, non-impairment of contracts.

Equitable relief dependent on resolution of underlying legal issues 272 ga. 107 (2000) & 271 Ga. 745 (1999)

Not involve constitutional construction or attack on statute 266 Ga 657 (1) (1996), 223 Ga. App. 603, 604 (1996)

42 USC 1983 action within COA jurisdiction 262 Ga. 451 (1992)

A05A0216

S05A0038 Hardrick, pro se v. Smith, pro se 9/27/04

Appeal denial of motion to set aside judgment granting writ of possession

Purely dispossessory action not title to land 251 Ga. 37 (1983)

A05A0371

S05A0040 Vickers v. Meeks 9/27/04

Appeal boundary line and granting of writ of possession to EE. NT allege title to land.

Supr Ct no juris of boundary line dispute or dispossessory 251 Ga. 37 (1983); 261 Ga. 608 (1991)

A05A0369

*S05A0059 Ga. Lien Srvc, Inc. v. Barrett 9/27/04 Involves money rule case with mandamus claim.

Not equity cases 271 Ga. 745 or title to land 235 Ga. 47 (1975)

A05A0372 motion to dismiss.

S05A0060 Tew v. Hinkle 9/27/04

Appeal dismissal of complaint for injunctive relief based on NT's easement was extinguished when NT and co-tenants conveyed full title to EE with no reservation of easement. Equitable issue routine after legal issue resolved 263 Ga. 66 (1993), 271 Ga. 745. Easement not fall within title to land, not a quiet title action, NT not assert legal title vs possession of defendant to recover land. 256 Ga. 43 (1986) 238 Ga. 643 (1977), 235 Ga. 47

A05A0373

S05A0068 Verlangieri v. State 10/12/04

Appeal denial of motion for new trial on conviction of vehicular homicide and DUI ,etc charges

Assert issue of constitutionality of OCGA 40-5-55 Record- shows constitutional question not raised until amended motion for new trial 271 ga. 597 (1) (1999) 217 Ga. 593 (1962)

Court has already decided this constitutional question 277 Ga. 282, 291 (2003) 277 Ga. 530 (2003) application only then of law to facts 229 ga. 313 (1972) 225 Ga. 191 (1969)

A05A0447

S05A0091 In RE KDM 10/12/04

NT appeal order awarding custody of NT's and EE's child to EE asserting as post-divorce child custody issue . 243 Ga. 863 (1979)

Could not find COA case.

S05A0121 Ray, Adminrx v. Lakes 10/12/04

Appeal denial of JNOV of order awarding fee simple title to real property to EE. Court found payment of mortgage, taking possession, making repairs , with NT's consent and to benefit, show partial performance of oral agreement for sale of property to take transaction out of statute of frauds and allow enforcement of agreement

Issue - Was oral contract enforceable?

Not a quiet title action, not action at law in which NT assert legal title vs EE possession for recovery of land. 235 Ga. 47

denial of specific performance ancillary to legal issue 272 Ga. 107 (2000)

A05A0461

S05A0147 Travis v. Travis 10/12/2004

Appeal denial of citation for contempt for executor fail to assent to devise of property required under the will. Validity or meaning of will 251 Ga. 461 (1983) not issue, construction of will incidental to proceeding 208 Ga. 23 (1951).

?A05A0448 Transferred back to Supr Ct 3/24/05?

S05A0159 Calvin Terrell, pro se v. State 10/12/04

Appeal denial of extra. motion for new trial and out of time appeal due to ineffective assistance of counsel and new discovered evid. Charges (aggrav. sodomy) not subject possible death penalty.

A05A0460

S05A0206 Apostolic Overcoming Holy Church of God v. Taylor 10/25/04

NT claim of church property implying a trust or other claim v real and personal property of EEs.

Not equity or title to land since EEs in possession and seek only to prevent NT from interfering with possession 271 Ga. 745, 235 Ga. 47

A05A0573

S05A0207 Deloriouse Morgan v. Micky Johns 12/15/04

Not equity only issues were whether EEs had standing and jurisdiction of superior court. Once decided granting of interlocutory injunction was matter of course to prevent proceeds from being dissipated. 271 Ga. 745.

A05A0810

S05A0255 Richard Lancaster v. Effingham Co. 10/25/2004

Appeal denial of motion for temporary and permanent restraining order vs co to sell part of property purchased to build waster water treatment plant to developer and re-zoned it. Summary judgment to EE, acts not ultra vires, complied with OCGA 36-81-1, not violate open Meeting act or service delivery strategies act, NTs no standing to challenge re-zoning and EE protected by qualified immunity. Legal rulings based on facts, underlying issues legal, equitable relief merely ancillary to those determinations. 271 ga. 745

A05A0572

S05A0299, S05A0300 Michael Shelnutt v. DOT; Tamathia Turner v. DOT 11/23/04

NT appeal dismissal of negligence action. Court not have jurisdiction over negligence actions and no other basis presented for Supr Ct juris.

A05A0718

S05A0324 Robert Harkins v. Cliff Channell 11/23/04

Appeal summary judgment to EE seeking contract reformation, declaratory judgment to resolve ambiguities and damages to cover repairs to property. Not equity since ancillary to legal issues of whether enforceable modified contract exists that contains terms promoted by NTs and whether EEs committed fraud by concealing condition of the property. 271 Ga. 745; 224 Ga .796 (1968), 215 Ga. App. 786 (1994)

A05A0717

S05A0361 Ronald Evans v. State 2/18/05

NT not invoke consti. questions juris. No statement of what appeal is about and no citation.

A05A1225 financial transaction card fraud

S05A0364 Ryan Barnwell v. State 1/10/05

Only issues: Appeal on basis conviction of child molestation violates right to equal protection. Issue not raised below and thus precluded on appeal.

A05A0919

S05A0366 Southside Planning & Develop. v. Commercial Casualty Insur. Co. 11/23/04

Appeal summary judgment . Only issue considered below was whether NTs engaged in fraud in transferring bulk of assets into a irrevocable trust; fraud is a legal issue not equity. 272 Ga. 107 (2000) 271 ga. 745, 215 Ga. app. 786.

A05A0716

S05A0437 Jermaine Curry, pro se v. State 1/10/05

Appeal denial of motion to withdraw negotiated plea of guilty to theft by receiving stolen property and robbery by intimidation

A05A0920

S05A0447 Chhina Family Partnership v. S-K Group of Motels 1/10/05

EE sought to reform deed on ground NT's record ownership was result of fraud. Reformation, therefore not title to land since not an action at law in which NT asserts a presently enforceable legal title vs EE's possession. 235 ga. 47 Not equity, equitable reformation was ancillary to issue of fraud. 271 ga. 745; 240 Ga. App. 647, 648 fn. 2 (1999)

A05A0926

S05A0453 Pitts Properties, INc. v. Auburn Bank 1/10/05

Appeal dismissal, because based on principles of res judicata, no issues Supr Ct jurisdiction

A05A0918 foreclosure

S05A0477 Tucker & Tucker Realty v. Macon Outreach at Mulberry 1/10/05

appeal two orders: 1) affirm Zoning Commission issuance of conditional use permit to move outreach ministry of a church to a downtown neighborhood. Appeal based on decision of Zoning Comm outside authority, abused its discretion and violated Zoning Law, denied due process by refusing to hold public hearing 2) denied temporary injunction on basis of anticipated nuisance

Equitable relief wholly dependent on resolution of legal issue of whether neighbors established nuisance as matter of law. 271 ga. 745

Due Process appeal not invoke constitution question juris since it does not involve treaty constitution , law, or ordinance and any questions would merely require application of well settled consti principles 255 Ga. 449 (1986)

A05A0922

A04D0078 denied by COA 10/20/03

S05A0495 Hanford Marks, pro se v. Enterprise Leasing Co. 1/10/05

Appeal grant of sum jud to EE in claims for breach of contract (of bailment) and negligence (motor vehicle accident). No basis for juris.

A05A0917

S05A0539 Bernard Mitchell v. Cambridge Property Owners Assn 1/10/05

Appeal order granting EE's application for mandatory injunction and denial of NT's motion for new trial and trial by jury. Equitable relief merely ancillary to determination of legal question of whether NT violated subdivision covenants. 271 Ga. 745; 263 Ga. 66. Not a quiet title action 235 Ga. 47.

A05A0924

S05A0540 George Heck v. Summit Oaks Owners Assn 1/10/05

Appeal denial of mot for sum jud and partial grant to EEs in suit claiming violation of subdivision protective covenants concerning construction of a pool and seeking to enjoin continued maintenance of the pool. Equitable relief was ancillary to legal issue of whether subdivision covenants were violated. 271 ga. 745; 263 Ga. 66 (1993) Also not a quiet title action. 235 Ga. 47.

A05A0925

S05A 0607 Ga. Farm Bureau Mutual Insur. Co. v. William Noegel 1/4/05

NT contended State Reg (120-2-52.06) was unconstitutionally vague. Regulations are not laws within meaning of constitutional jurisdiction 220 Ga. 239 (1964) 261 Ga. App. 393 (2003) 223 Ga. App. 603 (1996)

A05A0892 negli/wrongful death

A05I0031 Transferred by Supr Ct dism 9/22/04

S05A0608 Justin Newby v. State 1/10/05

Appeal denial of amended mot for new trial of conviction for reckless driving claiming court failed to ascertain if waiver of right to testify in his defense was voluntary thereby violating due process clause of 14th Ad. Appears attempt to assert Consti juris; requires only application of unquestioned constit provisions to facts of case. 255 ga. 449.

A05A0921

S05A0658 Darryl Seals, pro se v. Gladys Platt, pro se 1/10/05

Appeal from State Ct review of Mag Ct order to NT to refund money paid for electrical work done by NT on EE's home. Assert no basis for juris.

A05A0916

S05A0653 Lisa Wright, pro se v. State 1/10/05

Appeal denial of motion for out of time appeal of guilty plea to theft by shoplifting charge following

probation revocation. No juris of theft by shoplifting convictions and no other basis asserted.

A05A0923

S05A0710 Kenneth Smith, pro se v. Dept of Labor 1/24/05

Appeal trial ct order affirm Dept of Labor denial of unemployment compensation. NT not assert juris, but cite statutes discussing extraord. remedies. None apply here 176 ga. 96 (1933)

A05A1017

S05A0713 Kevin Badura, pro se v. Ga Real Estate Commission 1/24/05

Appeal trial ct order affirming EEs denial of applications for license as broker and sole proprietorship. No basis asserted for juris and none appear in record.

A05A1018

S05A0718; S05X0719; Streetside Developers v. HI 92 II; HI 92 II v. Streetside Developers 1/24/05

Appeal grant of partial summary jud to EEs on specific performance claim. EE cross appeal on denial of sum jud on fraud and negligent misrepresentation. Assert equity juris , presumably on basis of specific performance. Equitable relief dependent on resolution of underlying legal or factual issues. 271 Ga. 745; 272 Ga. 107 (2000).

A05A1019;1020

S05A0743 William Croft, pro se v. Fairfield Plantation Property Owners Assn 1/24/05

Appeal grant of summary judgment to EE in dispute over uniform annual assessment charges for upkeep of common areas for 6 properties bought at a tax sale. No juris basis asserted and none appears from the record.

A05A1029

S05A0746 Rose Cottrell, pro se v. Hulett Askew 3/10/05

NT appeals order dismissing her appeal for failure to pay cost of the trial court's denial of mandamus relief. Issue on appeal is not mandamus Transferred to COA for just consideration of order dismissing her appeal for failure to pay costs, not merits of denial of mandamus relief.

A05A1331

S05A0749 City of Atlanta v. Southern States Police Benevolent Assn 2/7/05

Appeal grant partial sum jud to EE, denial of NT motion, find EE have right to seek declaratory & injunctive relief; declare Bd of Trustees have authority to hire administrator and decide to obtain legal counsel, and enjoin NTs from interfering with Bd or reasonable use of pension funds

Assert Supr Ct has juris because order grants injunction. Supr Ct state not equity, remedy was

ancillary to legal issues primarily interpretation of state statutes, constit and city charter . 271 Ga. 745; 224 Ga. 796 (1968)

A05A1131

S05A0757 Tom Scott v. Prime Sales & Leasing 2/7/05

Appeal order granting a interlocutory injunction preventing two counties from seizing or levying on vehicles or assets of EE in dispute over payment of ad valorem taxes on vehicles. NT asserts equity juris. Unclear from order TC's rationale for order, so unclear if balancing of equities. Trial Ct stated goal was to maintain status quo pending review. So appeal not appear court weighed harm to each party or likelihood of success on merits.

A05A1130

S05A0790 Aames Funding Corp v. Daniel Henderson 2/18/05

Appeal grant of summary jud to EE and denial of NT's motion in suit to reform deed to property (alleging mutual mistake) to include additional lots in description of security deed which if reformed would result in its superiority to a second security interest of EEs mother. Not a title to land case 235 Ga. 47 Not equity - ancillary to issues of whether deed mistakenly failed to embody intent of parties and whether deed survived foreclosure as to allow reformation.

A05A1224

S05A0802; 803 Scott v. Vesta Holdings, I; Vesta Holdings I v. Scott 2/18/05

Vesta filed petition for Money Rule to require Tax Comm remit sums demanded as tax executions plus 20% per annum and petition for a writ of mandamus and/or a permanent injunction to prohibit Tax Comm with proceeding with levies and sales for delinquent tax executions. NT's appeal asserts equity and extraord remdy juris. Relies on 277 ga. 41 (2003). Supr Ct say not apply here since it concerned a quiet title action falling within title to land juris.

Instead S03D1753 transferred 9/5/03 applies. Supr Ct say money rule case not within Court's juris even tho complaint also contained prayer for mandamus relief. 209 Ga. 496 (1953)

A05A1226, A05A1227

S05A0814 Andre Alexander v. State 3/7/05

NT appeals convictions for aggravated sodomy, aggravated assault with intent to commit rape and burglary. Asserts challenge to constit. of rape statute OCGA 16-6-1 Altho challenge raised below, not distinctly ruled upon by trial ct. 273 Ga 106, 108 (3) (2000)

A05A1311

S05A0868 Auden Grumet v. Rita Pulgin 3/7/05

Not equity under principles of 271 Ga. 745 and no other basis for Supr Ct juris.

A05A1310

S05A0875 Household Finance Corp. v. Vesta Holdings I 3/7/05

NT is Def. Interpleader in a petition for money rule case. Even when includes a prayer for mandamus relief, is included not in Court's juris. S03D1753 transferred 9/5/03. 209 Ga. 496 (1953). See also S05A0802 (Scott v. Vesta Holdings, I also transferred to COA 2/21/05

A05A1337

S05A0928 Jimmy Lawal, pro se v. Dept of Labor 3/7/05

Appeal Superior Ct order reviewing decision of Dept of Labor's Bd of Review denying unemployment benefits. Previously, this appeal to COA was dismissed for failure to follow discretionary appeal procedures. Filed amended notice of appeal directed to Supreme Court.

A05A1308 Dism. 3/14/05

S05A0965 Gregory Davis, pro se v. State 3/28/05

Appeal denial of motion to withdraw Alford plea to marijuana possession, DUI, etc. Court not have juris over crimes and no other basis for juris.

A05A1443

S05A0966 Stewart Rackoff v. State 3/28/05

Appeal denial of motion for acquittal in DUI case based on violation of rights to speedy trial. Also enumerate as error earlier order denying motion in limine to exclude Intoxilizer results on grounds OCGA 40-6-392 (F) violates confrontation clause. Argues altho Supr Ct rules adversely in 268 Ga. 76 (1997) must be revised in light of 541 U.S. 36 (2004) Still merely requires application of plain provisions of Consti. 255 ga. 449

A05A1454

S05A0975 James Newton, pro se v. State 3/28/05

After NT's conviction for child molestation, aggrav. child molestation, and aggravated sexual battery was affirmed by COA, filed notice of appeal for Supreme Court . appears attempt to ask Supreme Court to review COA affirmation, should have come by cert so return to COA.

A05A1439

S05A1003 Colony Bank Southeast v. Gary Brown 3/28/05

NT sought cancellation of a lis pendens of EE on property of another person for which NT held first priority security deed. Altho directly appealable under 250 Ga. 430 (1982) not a quiet title action 235 Ga. 47 Not equity underlying issues are questions of law whether EEs entitled to any remedy as they

do not have an interest in the property and whether notice of lis pendens satisfied statutory requirements 273 ga. 474 (2001), 271 Ga. 745

A05A1440

S05A1004 James Bass v. State 3/28/05

Appeal denial of motion to dismiss in case NT charged with DUI, open container, failure to maintain lane, etc. on basis record not reveal denial of NT's 6th Amendment right to speedy trial.

Appeal not involve construction of treaty, not draw into question constitutionality of law, requires only application of unquestioned provisions of consti to facts 255 ga. 449

A05A1453

S05A1007 Hendon Properties v. Cinema Develop. 3/28/05

Appeal grant of motion to dismiss NT action seeking specific performance of real estate contract. Not equity 272 ga. 107 (2000)

A05A1452

S05A1008 William Peacock, pro se v. J. Spivey 3/28/05

Action alleging RICO violations, trespass, intentional infliction of emotional distress and violations of Open Records Act by EE allegedly spilling diesel fuel on and cause other damage to NT's Property. Suit settled by agreement . NT Appeal trial court order denying NT motion to enforce agreement arguing clean-up efforts not properly performed and appeal other earlier orders. Assert constit. issues . Trial court did not rule on any consti issues and if any would only require apply well settled principles. 264 Ga. 841(1995) ; 255 ga. 449 (1986) Also settlement was relinquishment of earlier claims. Also seek review of trial ct order denying "writ of quo mandamus" in which want court to direct attorney to give files to NT, not an extraord. remedy as not arise from mandamus action

A05A1467

S05A1012 Chirinos Velazques v. State 3/28/05

Raises issue of constitutionality of OCGA 16-9-2 for vagueness. Issue not raised at trial and not ruled on by trial court

A05A1444

S05A1018 Juan Lopez-Morales v. Brinton Crawford 3/28/05

Appeal from award of funds from court registry to satisfy attorney liens resulting from verdict in NT's personal injury action. Asserts appeal involves construction of US Const. and Const of GA. No such issue appears from record.

A05A1451

S05A1038 Horace Jackson v. Brenda Neese 3/28/05

Underlying issues are legal whether an oral contract existed and whether a gift of property was made Not title to land, not validity or construction of will, not equity 235 ga. 47 271 ga. 745

A05A1441

Transfers from Supreme Court of Georgia to COA

2005 Cases Docketed Sept. 2004 - March 2005

Number per Month:

Sept 2004 6

Oct 2004 7

Nov 2004 3

Dec 2004 1

Jan 2005 15

Feb 2005 5

Mar 2005 15

Total Number 7 Months: 52

Number of Pro Se Litigants:

Looking at the transfers to determine whether the cases were filed in the wrong court because they were filed by pro se litigants unfamiliar with the different jurisdictions of the two appellate courts, I found the following:

In 6 of 14 criminal cases, the NT was pro se. In 5 of the 6 pro se cases, the crime did not involve a crime for which the death penalty could or was imposed, and, therefore, were properly transferred to the COA. In most of the represented cases, the NT asserted the case involved constitutional questions.

In 8 of 38 civil cases, NT was pro se. In 4 of the pro se cases, evidently no jurisdictional basis was stated and based on the case category, the case was transferred to the COA. 11 NTs were businesses that were probably incorporated, and, therefore, required to be represented by counsel.

For Cases Transferred, the Category of Supreme Court Jurisdiction Alleged by NT:

Equity - 21

Constitutionality - 13

Title to Land - 10

Crime (but not Murder)-6

Extraordinary Remedy - 5

Divorce - 1

No Jurisdictional Grounds Asserted - 7

Note: More than one category may be asserted in a single case.

The Supreme Court's narrow interpretation of each category of jurisdiction makes it almost impossible to dispute whether a case should not have been transferred to COA.

Examples:

If legal or factual issue can be found, an equitable remedy or extraordinary remedy will be considered ancillary. For example, the Supreme Court held that a Money Rule case (application of excess funds in real property tax sales) is transferred to COA even if the case includes a request for mandamus. If there are any allegations of fraud, these are considered legal issues removing the case from the equity category.

If issues of Constitutionality are asserted, the Supreme Court will often find the case requires only application of unambiguous sections to facts. This often occurs when the constitutional challenge is based on due process, equal protection, or speedy trial rights.

Title to land jurisdiction is strictly defined as a suit for recovery of title to realty from defendant in record possession.

Based only on a review of the orders and my limited experience of appellate procedure, despite the narrow interpretation of Supreme Court jurisdiction, the transfers in the following cases might have been considered unnecessary.

A05A0448 This case was transferred from Supreme Court 10/12/04. The order indicated that construction of a will was only incidental to the appeal which involved a citation for contempt of an executor. From our docket, it appears the COA transferred the case back to Supreme Court 3/24/05 and the COA order stated the reason that the appeal requires construction of a will.

A051439 Appeal of conviction for child molestation and other charges was affirmed by COA. NT filed new NOA which appears to ask Supreme Court to review COA decision instead of apply for Cert. Supreme Court transferred back to COA. Why not dismiss appeal with instruction should have been application for writ of certiorari or accept as a writ?

A05A0928 Appeal Superior Court order affirming Dept of Labor Bd denial of unemployment benefits. COA had dismissed appeal for failure to follow discretionary appeal procedures. NT filed amended NOA directed to Supreme Court. Instead of transfer, Court could have dismissed for fail to follow certiorari procedures. COA dismissed this appeal within 7 days of date transferred to it.

S05A0757 Tom Scott v. Prime Sales & Leasing 2/7/05

Supreme Court Order states that this is an appeal of an order granting a interlocutory injunction preventing two counties from seizing or levying on vehicles or assets of EE in dispute over payment of ad valorem taxes on vehicles. NT asserts equity jurisdiction. Supreme Court order states that it is unclear from trial court's order what its rationale in the case was, so it is unclear if there was a balancing of equities. Supreme Court noted that trial court's stated goal was to maintain status quo pending review so it appeared that the trial court did not weigh harm to each party or likelihood of success on merits. This almost looks like the Supreme Court was trying to keep all cases dealing with ad valorem disputes in COA.

A05A1130