Appellate Practice and Procedure - Roland F. L. Hall

• Jurisdiction: United States,Federal
• Citation: Vol. 59 No. 1
• Publication year: 2007

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, 2006 and May 31, 2007. The cases discussed fall into the following categories: (1) appellate jurisdiction, (2) preserving the record, (3) timeliness of appeal, and (4) miscellaneous cases of interest.

II. Appellate Jurisdiction

A. Selecting the Correct Appeal Procedure

As can be seen from the two cases discussed below, it is not always easy to decide which appeal procedure should be used. In Gelfand v. Gelfand,¹ the plaintiff ex-wife brought a complaint against the defendant ex-husband for upward modification of child support, sought a ruling holding the defendant ex-husband in contempt, and later amended her complaint to request a declaration regarding the meaning of certain provisions in the divorce settlement agreement. Although the trial court entered an order interpreting the language in the settlement agreement, the trial court did not rule on the request for a finding of contempt or on the request for modification of child support.²

After the Georgia Supreme Court granted the plaintiff's application for discretionary appeal, the defendant argued that the supreme court lacked jurisdiction because the plaintiff's declaratory action did not resolve all the issues of the case. The plaintiff contended that the trial court's ruling was a declaratory judgment and constituted a final, appealable order.³ However, the supreme court concluded that the plaintiff's request for declaratory relief was not actually an action for declaratory judgment because, the court noted, "'[t]he distinctive characteristic of a declaratory judgment is that the declaration stands by itself and does not seek execution or performance by the defendant,'" and the plaintiff sought an interpretation of language in the settlement agreement that would enable her to obtain more money from the defendant ex-husband.⁴ Because the trial court's order was not a declaratory judgment and did not resolve all pending issues, the supreme court held that the plaintiff's appeal was from a non-final judgment and should have been brought pursuant to the interlocutory appeal procedures of section 5-6-34(b) of the Official Code of Georgia Annotated ("O.C.G.A.").⁵ Because the plaintiff had not done so, the supreme court dismissed her appeal.⁶

In Cox v. Academy of Lithonia, Inc.,⁷ the plaintiff, a charter school, brought suit against the defendants, including the Superintendent of Schools, the Georgia State Department of Education, and the Georgia Board of Education, for declaratory reliefand mandamus after the board of education reduced the plaintiff's charter application term from two years to one year. The plaintiff sought a declaration that the term of its renewal was at least two years and, in the alternative, sought issuance of a writ of mandamus requiring the issuance of a revised charter. The trial court granted declaratory relief to the plaintiff, and the defendants filed a direct appeal to the court of appeals.⁸

The plaintiff moved to dismiss the appeal and alleged that the defendants did not comply with the discretionary appeal procedures of O.C.G.A. section 5-6-35(a)(1),⁹ which states that appeals from decisions of the superior courts reviewing decisions of state and local agencies must comply with the discretionary appeal procedures.¹⁰ The plaintiff argued that its declaratory judgment action was essentially an appeal of the defendants' administrative decision, and even though a declarato- ry judgment could normally be reviewed by direct appeal, the discretionary appeal procedures were required.¹¹

The court of appeals agreed with the plaintiff and dismissed the appeal.¹² The court of appeals first distinguished Department of Transportation v. Peach Hill Properties, Inc.,¹³ in which the plaintiff filed a petition seeking mandamus and declaratory judgment after a change in one of the defendant agency's policies adversely affected the plaintiff. The supreme court in Peach Hill Properties held that the defendant agency, which had filed a direct appeal, was not required to use the discretionary appeal procedures.¹⁴ The court of appeals stated that the discretionary appeal procedures in O.C.G.A. section 5-6-35(a)(1) were not required in Peach Hill Properties because the plaintiff in that case had challenged a general policy of the agency rather than a specific administrative decision.¹⁵ The court of appeals held that in contrast to the plaintiff in Peach Hill Properties, the plaintiff charter school in Cox had sought review of an administrative decision, and thus the discretionary appeal procedures were applicable.¹⁶

The court of appeals also addressed the defendants' argument that O.C.G.A. section 5-6-35(a)(1) did not apply because the case had not been adjudicated by two tribunals.¹⁷ As the supreme court has noted, the legislative intent behind O.C.G.A. section 5-6-35(a)(1) was to give the appellate courts discretion not to accept an appeal when two tribunals (the agency and the superior court in its appellate capacity) have already adjudicated the case.¹⁸ The court of appeals held that because the underlying subject matter was a review of the board of education's decision, the appellants were required to follow the discretionary appeal procedure.¹⁹ The court of appeals relied upon its decision in Best Tobacco, Inc. v. Department of Revenue,²⁰ even though that case was decided on the basis of a different fact pattern and concerned an appeal by the applicant rather than the agency or its representatives.²¹

B. Standing

In In re J.L.B.,²² the juvenile court adjudicated J.L.B. delinquent and ordered him to be evaluated for drug and alcohol use. J.L.B.'s parents filed a pro se appeal on their own behalf rather than on J.L.B.'s behalf, which presented the court of appeals with an issue of first impression: whether parents have standing to appeal from their minor child's delinquency adjudication on their own behalfas parties to the delinquency action.²³

The court of appeals held that the parents did have standing.²⁴ The court of appeals observed that (1) the parents were necessary parties to all legal proceedings concerning their minor child, including a delinquency action; (2) a delinquency order could impose requirements on the parents, such as participating in counseling or paying supervision fees; and (3) parents could face consequences, such as an order of contempt, for failing to attend a delinquency proceeding.²⁵ Further, under O.C.G.A. sections 15-11-6(b) and 15-11-7(a),²⁶ parents receive procedural protections in delinquency actions, including representation by counsel and the ability to present evidence.²⁷ Thus, the court of appeals held, "It follows that, as parties to the delinquency action, parents have the right to appeal the juvenile court's judgment and to participate in the appellate process."²⁸

In Mosely v. Sentence Review Panel,²⁹ the plaintiff, a district attorney, entered into a plea agreement with a defendant under which the defendant received a fifteen-year sentence. The defendant subsequently filed a petition with the Georgia Sentence Review Panel (the "Panel") and obtained a reduction in her sentence. The plaintiff brought an action seeking mandamus and injunctive relief against the Panel and other defendants concerning the constitutionality of certain aspects of the Panel's authority to review and reduce sentences. The trial court concluded that the plaintiff lacked standing, and it dismissed the action.³⁰

On appeal, the supreme court first held that the plaintiff lacked standing to seek a writ of mandamus.³¹ Although the plaintiff could have sought to compel the Panel to perform its duties, the supreme court held that the plaintiff's objective was to prevent the Panel from performing its duties on the basis that it was acting pursuant to unconstitutional legislation.³² The supreme court concluded that a challenge to the validity of the Panel's public duties could not be attacked by means of mandamus.³³

As to the plaintiff's claim for injunctive relief, the supreme court held that the plaintiff essentially sought an injunction against the enforcement of an allegedly unconstitutional statute.³⁴ The plaintiff claimed that the statute interfered with his authority as a district attorney to negotiate binding plea agreements and that it authorized the imposition of void and improper sentences.³⁵ The supreme court held that because the plaintiff's official responsibilities included an obligation to challenge statutes interfering with his authority, the plaintiff had standing to challenge the statute's constitutionality and to seek injunctive relief against its enforcement.³⁶

C. Miscellaneous Jurisdictional Issues

In Forest City Gun Club v. Chatham County,³⁷ a case which arose from an eminent domain proceeding, a landowner contended that Chatham County (the "County") used an improper method of calculating the market value of the property taken by the County. The landowner proposed its own method of valuation, and the County moved for summary judgment to exclude certain evidence supporting the landowner's valuation method.³⁸ The trial court denied in part and granted in part the County's motion, and the landowner appealed pursuant to O.C.G.A. section 9-11-56(h),³⁹ which provides that a losing party has the right to a direct appeal from an order granting partial summary judgment.⁴⁰ The County cross-appealed.⁴¹

Strictly based on the trial court's and the parties' understanding that a motion for partial summary judgment had been decided, the court of appeals would have had jurisdiction over the appeal and cross-appeal pursuant to O.C.G.A. section 9-11-56(h).⁴² Upon examination, however, the court of appeals held that the trial court's rulings did not pertain to any element of damages but addressed only the method of calculating fair...