Lamb v

Salvation Army, 301 Ga. App. 325, 687 S.E.2d 615 (2009). Appellate jurisdiction to review grant of summary judgment in conversion claims. — Court of appeals had appellate jurisdiction to review the grant of summary judgment in favor of a bank on the bank’s conversion claim against a real estate firm because the grant of summary judgment was directly appealable under O.C.G.A. § 9-11-56(h), and the firm’s cross-appeal of that grant of summary judgment could stand on the firm’s own merits; because the court of appeals had jurisdiction to review the grant of summary judgment in favor of the bank on the bank’s conversion claim, the court also had jurisdiction pursuant to O.C.G.A. § 5-6-34(d) to review the denial of the firm’s motion for summary judgment on that same issue. Trey Inman & Assocs., P.C. v. Bank of Am., N.A., 306 Ga. App. 451, 702 S.E.2d 711 (2010). Denial of semen testing not appealable. — Inmate could not take advantage 568 Page: 569 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-34 Date: 06/14/13 Time: 12:43:35 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS of O.C.G.A. § 5-6-34(d) to appeal the denial of the inmate’s motion for forensic testing of a semen sample because, while the order denying the motion also denied a sentence modification, the inmate had not sought review of that portion of the order. Bradberry v. State, 315 Ga. App. 434, 727 S.E.2d 208 (2012). 2. Certificates of Immediate Review Interlocutory appeals placed on equal footing with appeals from final judgments. — Provision in subsection (b) of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34) that . . . procedure following filing of notice of appeal shall be same as in appeal from final judgment, indicated legislative intent that, after filing notice of appeal, status quo was to be maintained just as it would be if appeal were from a final judgment, and mandated that, once supersedeas attached, interlocutory order shall have same procedural status and dignity as a final judgment; therefore, since Ga. L. 1966, p. 609, § 41 (see O.C.G.A. § 9-11-41(a)) would not permit plaintiff-appellee to dismiss plaintiff-appellee’s case while final judgment in the plaintiff-appellee’s favor was on appeal, thereby robbing the defendant-appellant of an opportunity to seek reversal of judgment; it would neither permit plaintiff-appellee to do so in an interlocutory context. Lawrence v. Whittle, 146 Ga. App. 686, 247 S.E.2d 212 (1978). Trial judge has broad discretion. — Trial judge in determining whether an otherwise interlocutory order might be reviewed prior to final judgment is given carte blanche authority. Lee v. Smith, 119 Ga. App. 808, 168 S.E.2d 880 (1969). When trial judge leaves jurisdiction after rendering order. — When the trial judge, after rendering the order, departs from the jurisdiction so as to make it impossible to request of the judge a timely certificate for immediate appellate review, request, if timely, may be presented for grant or denial to another judge of same court having authority to hear emergency matters. Tingle v. Harvill, 125 Ga. App. 312, 187 S.E.2d 536 (1972); Freemon v. Dubroca, 177 Ga. App. 745, 341 S.E.2d 276 (1986). 5-6-34 Certificate of appealability is not itself a judgment in the cause, but is simply an order allowing judgment or order already entered to be appealed and reviewed. G.M.J. v. State, 130 Ga. App. 420, 203 S.E.2d 608 (1973). Certificate of immediate review to interlocutory order must be followed by petition to appellate court. When this is not done, an appeal is premature and must be dismissed. Home Mart Bldg. Centers, Inc. v. Wallace, 139 Ga. App. 49, 228 S.E.2d 22 (1976). When a party does not file an application for interlocutory appeal within ten days of the granting of the trial court’s certificate for immediate review, the appeal is premature and must be dismissed. Graves v. Dean, 166 Ga. App. 186, 303 S.E.2d 751 (1983). When the defendant obtained a certificate of immediate review but failed to apply to the court for permission to file an interlocutory appeal in accordance with O.C.G.A. § 5-6-34, the appeal was dismissed for lack of jurisdiction. State v. Crapse, 173 Ga. App. 100, 325 S.E.2d 620 (1984), but see Hubbard v. State, 176 Ga. App. 622, 337 S.E.2d 60 (1985). Because it is important to have the defendant’s double jeopardy claim adjudicated before trial in order to prevent harm to the defendant, the appellate court has jurisdiction to hear an appeal from the denial of the defendant’s O.C.G.A. § 17-7-170 motion even though the defendant did not apply for permission to file an interlocutory appeal. Hubbard v. State, 176 Ga. App. 622, 337 S.E.2d 60 (1985). Untimely, invalid applications for immediate review cannot be revived. — Amendments offered as applications for immediate review and tendered approximately three months after expiration of time for filing such applications under subsection (b) do not serve to revive invalid appeals. Summer Tree Club Apts. Assocs. v. Graves Constr. Co., 140 Ga. App. 214, 230 S.E.2d 503 (1976). Unless certificate is filed within time required, party seeking review must await final judgment. — Certificate for immediate review must be filed with clerk of trial court within ten-day period in order to secure immediate re- 569 Page: 570 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Application (Cont’d) 2. Certificates of Immediate Review (Cont’d) view of nonfinal judgment; if this is not done, party seeking review will merely have to await final judgment in case before he can obtain review of interlocutory judgments entered in trial court. Turner v. Harper, 231 Ga. 175, 200 S.E.2d 748 (1973). Erroneous certification under § 9-11-54(b) may be treated as certification pursuant to this section. — When the trial court erroneously enters certification pursuant to Ga. L. 1976, p. 1047, § 2 (see O.C.G.A. § 9-11-54(b)), the appellate court may treat certification as one entered pursuant to subsection (b) of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34). However, because in cases in which erroneous certification under Ga. L. 1976, p. 1047, § 2 § 9-11-54(b)) was treated as certification pursuant to former Code 1933, § 6-701, the cause will have been treated by the trial court and parties as an appeal from a final judgment, time limitations imposed by subsection (b) on parties and this court were not applicable. Georgia Farm Bureau Mut. Ins. Co. v. Wall, 242 Ga. 176, 249 S.E.2d 588 (1978). Certificate stating review ‘‘may’’ be had. — Certificate ordering new trial, signed by trial judge, stating that immediate review ‘‘may’’ be had rather than ‘‘should’’ be had is in substantial compliance with the law and is not ground for dismissal. State Hwy. Dep’t v. Lord, 123 Ga. App. 178, 179 S.E.2d 780 (1971). Order allowing 30 days to appeal before case shall proceed. — Court order denying motion which states that the movant will be allowed 30 days in which to appeal the order and if no appeal is made within that period case shall proceed, is not certification required by subsection (b) in that there has been no certification of importance of immediate review. Alexander v. State, 122 Ga. App. 331, 176 S.E.2d 633 (1970). Where ten-day period expires on Sunday and Monday is a holiday. — When ten-day limitation for securing certificate certifying denial of summary judgment for review expired on Sunday, Octo- Date: 06/14/13 Time: 12:43:35 5-6-34 ber 11 and Monday, October 12, was Columbus Day, a legal holiday, a certificate for review obtained on October 13 was obtained within time. Allstate Ins. Co. v. Cody, 123 Ga. App. 265, 180 S.E.2d 596 (1971). Denial of superfluous application does not block available avenues of appeal which caused application to be superfluous. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). Appeal from decision of reviewing court regarding administrative decision. — Under O.C.G.A. § 50-13-20) the Court of Appeals has jurisdiction only of a final judgment of a reviewing court regarding an administrative decision. O.C.G.A. § 5-6-34, providing for interlocutory appeal upon certificate of immediate review, does not govern. Hardison v. Booth, 160 Ga. App. 69, 286 S.E.2d 60 (1981). Certification for review by one judge of another’s decision. — When one judge’s order dismissing the defendant’s motion to suppress evidence was not issued pursuant to notice and opportunity for hearing and when the trial judge (another judge) in effect reasserted such dismissal before certifying it for review, the Court of Appeals has jurisdiction to consider the order on appeal because there is no jurisdictional defect in the manner in which the appeal reached that court. Caudill v. State, 157 Ga. App. 415, 277 S.E.2d 773 (1981). Certificate required. — When the defendant’s motion to dismiss the defendant’s indictment for cocaine possession for failure to comply with O.C.G.A. § 42-6-20, Art. III(a), was denied by the trial court, but no certificate was contained in the record, this issue was one for which a certificate of immediate review and petition for interlocutory appeal were required so the appeal must be dismissed under O.C.G.A. § 5-6-34(b); this is not a question involving speedy trial rights under O.C.G.A. § 17-7-170, which would be directly appealable. Miller v. State, 180 Ga. App. 710, 350 S.E.2d 313 (1986). Denial of misnamed motion followed by certificate. — When the trial court’s denial of the appellant’s misnamed motion seeking to dismiss a third-party 570 Page: 571 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-34 Date: 06/14/13 Time: 12:43:35 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS intervenor was timely followed by a certificate of immediate review, and the appellant timely sought appeal of it ‘‘pursuant to O.C.G.A. § 5-6-34(b),’’ jurisdiction was properly lodged in the Court of Appeals by interlocutory appeal. Brooks v. Carson, 194 Ga. App. 365, 390 S.E.2d 859 (1990), overruled on other grounds, Mayor of City 5-6-34 of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 441 S.E.2d 63 (1994). Substantial compliance with requirements adequate. — Certificate which substantially complied with the language of subsection (b) was sufficient to allow appeal. Clayton v. Edwards, 225 Ga. App. 141, 483 S.E.2d 111 (1997).