Appellate Practice and Procedure - Roland F. L. Hall

• Publication year: 2006

Appellate Practice and Procedureby Roland F. L. Hall^*

I. Introduction

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia appellate courts between June 1, 2005 and May 31, 2006. The cases discussed fall within three categories: (1) appellate jurisdiction; (2) preserving the record; and (3) miscellaneous cases of interest.

II. Appellate Jurisdiction

A. Discretionary v. Direct Appeals

Several cases during the survey period dealt with the sometimes difficult determination of whether discretionary or direct appeal procedures should be used. In Ladzinske v. Allen,¹ the plaintiff—the owner of property across the street from a school—brought suit against the defendants—the school, DeKalb county, and related entities—for mandamus, injunctive and declaratory relief, and damages after the school obtained a building permit from DeKalb county for construction of a new building on its property. After the trial court dismissed the plaintiff's claims for mandamus and declaratory relief on the basis of failure to exhaust administrative remedies, the plaintiff filed a notice of direct appeal to the Georgia Supreme court.² The defendants moved to dismiss the appeal, contending that the plaintiff was required to follow the discretionary appeal procedures pursuant to section 5-6-35(a)(1) of the Official Code of Georgia Annotated ("O.C.G.A."),³ which provides that all appeals from decisions of the superior courts reviewing decisions of state and local agencies must be brought to the supreme court using the discretionary appeal procedures.⁴ The supreme court noted that because the intent of O.C.G.A. section 5-6-35(a)(1) was to give the appellate courts discretion not to accept an appeal where two tribunals had already adjudicated the case (typically the superior court and the agency), if a plaintiff was not entitled to become a party to the administrative proceeding, and thus did not have the opportunity to obtain review from both tribunals, the plaintiff would not be required to follow the discretionary appeal procedures.⁵ The plaintiff argued, and the supreme court agreed, that the plaintiff was not entitled to become a party to the administrative proceeding at which the building permit was granted.⁶ However, because the plaintiff did have the right to appeal the issuance of the permit but had failed to do so, the supreme court held that the plaintiff was required to use the discretionary appeal procedure and was not entitled to file a direct appeal.⁷ The supreme court reached this decision even though the superior court dismissed the plaintiff's appeal on the basis of failure to exhaust administrative remedies, rather than ruling on the merits of the plaintiff's claims.⁸ The supreme court noted that even though it could be argued that two tribunals had not adjudicated the case, the absence of the second review on the merits resulted from the plaintiff's decision not to engage in the administrative process.⁹ Because the plaintiff failed to use the discretionary appeal procedure, the supreme court dismissed the appeal.¹⁰

Using both the discretionary and the direct appeal procedures does not necessarily ensure success. In Walker v. Estate of Mays,¹¹ the appellants, a former wife and her children, brought suit against the estate of the former husband, seeking damages for the former husband's alleged failure to comply with the requirement in the divorce settlement agreement that he maintain a life insurance policy naming the wife and children as beneficiaries. After the trial court granted summary judgment to the estate, the appellants filed an application for discretionary appeal and a notice of direct appeal with the Georgia Court of Appeals. The court of appeals denied the application for discretionary appeal and granted the estate's motion to dismiss the direct appeal on the basis that the denial of the application for discretionary appeal was res judicata.¹² The Georgia Supreme Court granted the appellants' petitions for certiorari as to the denial of the application and dismissal of the direct appeal and stated that the primary issue on appeal was whether the appellants were required to comply with the discretionary appeal requirements.¹³ The supreme court initially noted that although the appellants had characterized their claim as an action for breach of contract, the settlement agreement at issue was incorporated into the final divorce decree, and thus, whatever claim the appellants had was founded on the final decree and not on the agreement.¹⁴ On the basis of O.C.G.A. section 5-6-35(a)(2),¹⁵ which provides that appeals in "domestic relations cases" must be brought by application for discretionary appeal, the supreme court held that the case concerned domestic relations and that any appeal had to comply with the discretionary appeal procedures.¹⁶

The appellants contended that on at least one prior occasion the supreme court had transferred a similar case to the court of appeals and required the court of appeals to adjudicate the case on the merits, even though the appellants in that case had filed a direct appeal rather than a discretionary appeal.¹⁷ The supreme court held that although the court of appeals, in the decision cited by the appellants, did in fact indicate that it had been instructed to adjudicate the case on the merits, the observation of the court of appeals was in error because the transfer order would not have precluded the court of appeals from dismissing the case if it was a discretionary appeal subject to O.C.G.A. section 5-6-35(a)(2).¹⁸ Instead, the case had been transferred simply because the supreme court had determined that it did not have jurisdiction over the particular case.¹⁹ As the supreme court noted, although all domestic relations cases fall within the scope of O.C.G.A. section 5-6-35(a)(2), the supreme court only has jurisdiction over domestic relations cases concerning divorce and alimony.²⁰ Because the appellants' case was a domestic relations case and the subject matter of the appellants' case did not concern divorce or alimony, the appeal was subject to the discretionary appeal requirements and did not fall within the supreme court's jurisdiction.²¹ The supreme court expressly disapproved any prior appellate decisions authorizing a direct appeal in such circumstances.²²

B. Standing

Several decisions during the survey period dealt with complex issues of standing and the right to appellate review. In In the Interest of L.W.,²³ the juvenile court terminated the mother's parental rights and declined to place the children with their maternal grandmother. During the termination proceedings, the grandmother filed a petition requesting that the children be placed with her. The grandmother sought and was refused an opportunity to participate in the termination hearing and was ultimately found to be an unsuitable placement for the children.²⁴ The grandmother appealed, based in part upon the juvenile court's termination of the parental rights of the mother.²⁵ As noted by the Georgia Court of Appeals, although O.C.G.A. section 15-11-103(a)(1)²⁶ requires the juvenile court to attempt to place the child with the grandmother after the mother's rights are terminated, placement with a relative is not automatic.²⁷ Further, before placing the child, the juvenile court is required to find that the grandmother meets certain qualifications and that placement with the grandmother is in the best interest of the child.²⁸ On the basis of the limited nature of the grandmother's rights, the court of appeals held that because the grandmother did not have sufficient rights with regard to the child to be considered a party "aggrieved" by the orders terminating parental rights,²⁹ the grandmother had no right to appeal from those orders.³⁰

In Couch v. Parker,³¹ the appellees owned residential property adjoining a disposal facility owned by the appellants.³² The appellant, Carol Couch, the Director of the Environmental Protection Division ("EPD") of the Department of Resources, acting under the authority of the Georgia Hazardous Site Response Act,³³ caused the EPD to enter into discussions with the owners of the facility and subsequently issue consent orders that gave the facility's owners the opportunity to perform voluntary corrective action.³⁴ The appellees, claiming that they were adversely affected by the consent orders, requested a hearing before an administrative law judge ("ALJ") who concluded that the appellees lacked standing to challenge the adequacy of the consent order.³⁵ The ALJ based this conclusion on O.C.G.A. section 12-2-2(c)(3)(B),³⁶ which provides that persons are not considered adversely affected by an order of the Director of the EPD until the Director seeks to enforce the order.³⁷ Under the ALJ's ruling, the appellees were limited to challenging the enforceability ofthe orders as entered (at such time as the orders were enforced by the EPD) and could not challenge the adequacy of the orders.³⁸

The appellees sought judicial review of the ALJ's ruling from the superior court, which concluded that O.C.G.A. section 12-2-2(c)(3)(B) unconstitutionally violated both the appellees' right of access to the court and their due process rights.³⁹ The supreme court granted the separate applications for discretionary appeal filed by the Director of the EPD and the facility owners and consolidated the two cases for decision.⁴⁰ After quickly disposing of the appellees' arguments regarding the constitutional right of access to the courts,⁴¹ the supreme court went on to address the appellees' argument that the limitations on standing imposed by O.C.G.A. section 12-2-2(c)(3)(B) deprived them of the opportunity to compel the EPD to consider requiring the facility owners to take additional remedial measures to remedy the contamination of the appellees' property.⁴² Although the appellees were entitled to comment on the proposed terms of the consent orders and suggest...