Georgia Appellate Practice Handbook - Alston & Bird LLP

GEORGIA APPELLATE 

PRACTICE HANDBOOK 

7 th Edition 

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GEORGIA APPELLATE 

PRACTICE HANDBOOK 

Principal Chapter Editors 

Van A. Anderson 

Debra D. Bernstein 

Nowell D. Berreth 

Adam J. Biegel 

Derin B. Dickerson 

Stephanie B. Driggers 

Christina Hull Eikhoff 

Gregory B. Mauldin 

Wade Pearson Miller 

Daniel C. Norris 

T. C. Spencer Pryor 

Christopher A. Riley 

Samuel R. Rutherford 

Douglas G. Scribner 

Brian R. Stimson 

Cover photograph: 

Doors to Georgia Judicial Building (detail) 

Photography by Louis M. Lindic 

CONTRIBUTORS 

Chief Editors 

Daniel F. Diffl ey 

Jeffrey J. Swart 

Associate Editors 

M. Scott Orrell 

L. Boone Park 

Melissa Mahurin Whitehead 

7th edition • 2012 

Judicial Contributors 

Justice David E. Nahmias 

Judge Christopher J. McFadden 

Co-Chapter Editors 

Angela Adams 

Lisa K. Bojko 

Bennett D. Bryan 

Meredith Jones 

Kacy McCaffrey 

Kimyatta E. McClary 

Ellen H. Persons 

Jason D. Popp 

Allison S. Thompson 

Andrew J. Tuck 

©2012 Alston & Bird LLP 

All rights reserved

FOREWORD 

Alston & Bird LLP is pleased to provide this Seventh Edition of the Georgia Appellate 

Practice Handbook to the Institute of Continuing Legal Education in Georgia. 

The Handbook was fi rst published in 1985 under the leadership of Alston & Bird partner 

Terry Walsh, with the invaluable assistance of Supreme Court Justices Harold Clarke and George 

Carley (then a Court of Appeals Judge). The lawyers and judges who have contributed to updated 

editions of the Handbook during the intervening decades are too numerous to name, but we remain 

thankful for their contributions, leadership, and guidance in connection with this work. 

For this Seventh Edition, we are particularly grateful to Justice David E. Nahmias of the 

Supreme Court and Judge Christopher J. McFadden of the Court of Appeals, each of whom authored 

chapters for this edition of the Handbook. Their comments and insights will undoubtedly be of 

great interest to all appellate practitioners in Georgia. We are also deeply appreciative of the time 

and effort spent by Therese “Tee” Barnes, Clerk of the Supreme Court, and Holly K.O. Sparrow, 

Clerk of the Court of Appeals, in reviewing and commenting on relevant portions of this edition. 

The names of the Alston & Bird lawyers who contributed to this edition are found on the 

preceding page. We thank each of them for their outstanding effort to make the Seventh Edition of 

the Handbook both user-friendly and accurate. 

We hope that the Handbook will continue to be a valuable resource for all who practice in 

the Georgia appellate courts. 

Daniel F. Diffl ey 

Jeffrey J. Swart 

Chief Editors

TABLE OF CONTENTS 

Chapter One Appeal Timetable Summary 

Chapter Two Jurisdiction, Availability, and Dismissals of Appeals 

Chapter Three Post-Trial Motions as Part of the Appeals Process 

Chapter Four Commencing the Appeal: Notice of Appeal, Transcript, and 

Record 

Chapter Five Stays of Proceedings to Enforce a Judgment 

Chapter Six Briefs and Enumerations of Error 

Chapter Seven Oral Argument 

Chapter Eight Extraordinary Writs 

Chapter Nine Internal Procedures of the Appellate Courts 

Chapter Ten Proceedings Subsequent to Decisions 

Chapter Eleven An Overview of the Criminal Appellate Process and Procedure 

Chapter Twelve Civil Appeals Involving Pro Se Parties 

Chapter Thirteen Frivolous Appeals 

Chapter Fourteen Tips on Effective Oral Argument 

Chapter Fifteen Professionalism in Appellate Practice: The Importance of 

Selectivity 

Chapter Sixteen Forms 

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CHAPTER ONE: 

APPEAL TIMETABLE SUMMARY 

§ 1.1 Introduction .................................................................................................... 1 

§ 1.1.1 General Information ........................................................................ 2 

§ 1.2 Direct Appeals ................................................................................................ 4 

§ 1.2.1 Notice of Appeal and Cross-Appeal ................................................ 4 

§ 1.2.1.1 Time for Filing .............................................................. 4 

§ 1.2.1.2 Extensions of Time for Filing Notice............................ 4 

§ 1.2.2 Filing of Transcript .......................................................................... 5 

§ 1.2.3 Record ............................................................................................. 5 

§ 1.2.4 Docketing ........................................................................................ 6 

§ 1.2.4.1 Closing of the Docket ................................................... 7 

§ 1.2.5 Supersedeas ..................................................................................... 7 

§ 1.2.6 Payment of Costs ............................................................................. 7 

§ 1.2.7 Oral Argument ................................................................................. 8 

§ 1.2.8 Briefs and Enumerations of Error ................................................... 9 

§ 1.2.8.1 Briefs, Generally ........................................................... 9 

§ 1.2.8.2 Supplemental Briefs ...................................................... 9 

§ 1.2.8.3 Amicus Curiae Briefs .................................................... 9 

§ 1.3 Discretionary Appeals of Final Order or Judgment ....................................... 10 

§ 1.3.1 Application for Leave, Response, and Decision on Application ..... 10 

§ 1.3.1.1 Application .................................................................... 10 

§ 1.3.1.2 Costs .............................................................................. 10 

§ 1.3.1.3 Response ....................................................................... 10 

§ 1.3.1.4 Decision by Court on Application ................................. 11 

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§ 1.3.2 Notice of Appeal .............................................................................. 11 

§ 1.4 Interlocutory Appeals ..................................................................................... 11 

§ 1.4.1 Automatic Stay ................................................................................ 11 

§ 1.4.2 Certifi cate of Immediate Review ..................................................... 11 

§ 1.4.3 Application for Interlocutory Appeal, Response, and Decision ...... 12 

§ 1.4.3.1 Application .................................................................... 12 

§ 1.4.3.2 Costs .............................................................................. 12 

§ 1.4.3.3 Response ....................................................................... 12 

§ 1.4.3.4 Decision by Court on Application ................................. 12 

§ 1.4.4 Notice of Appeal .............................................................................. 12 

§ 1.5 Motion For Reconsideration .......................................................................... 13 

§ 1.5.1 Motion in Supreme Court ................................................................ 13 

§ 1.5.2 Motion in Court of Appeals ............................................................. 13 

§ 1.5.3 Responding to a Motion for Reconsideration ................................. 14 

§ 1.6 Certiorari Petitions ........................................................................................ 14 

§ 1.6.1 Petition for Certiorari to Georgia Supreme Court ........................... 14 

§ 1.6.1.1 Record ........................................................................... 14 

§ 1.6.1.2 Response ....................................................................... 15 

§ 1.6.1.3 Briefs ............................................................................. 15 

§ 1.6.2 Petition for Certiorari to United States Supreme Court .................. 15 

§ 1.7 Stay of Remittitur Pending Petition for Certiorari to the United States 

Supreme Court ............................................................................................... 15 

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CHAPTER TWO: 

JURISDICTION, AVAILABILITY, AND DISMISSALS OF APPEALS 

§ 2.1 Introduction .................................................................................................... 17 

§ 2.2 Right of Appeal Generally ............................................................................. 18 

§ 2.2.1 Appeals from Superior and State Courts Generally ........................ 18 

§ 2.2.2 Appeals from Magistrate, Probate, and Juvenile 

Courts Generally ............................................................................. 19 

§ 2.3 Jurisdiction of the Georgia Appellate Courts ................................................. 19 

§ 2.3.1 Jurisdiction of the Georgia Supreme Court ..................................... 19 

§ 2.3.2 Jurisdiction of the Georgia Court of Appeals .................................. 21 

§ 2.4 Appealability of Judgments and Orders ......................................................... 22 

§ 2.4.1 Direct Appeals Generally ................................................................ 22 

§ 2.4.2 Direct Appeals from Final Judgments ............................................. 23 

§ 2.4.3 Direct Appeals from Non-Final Orders and Judgments .................. 24 

§ 2.4.4 Motions for Summary Judgment ..................................................... 25 

§ 2.4.5 Final Orders Appealable Only by Application ................................ 26 

§ 2.4.6 Orders Requiring Interlocutory Application for Appeal ................. 29 

§ 2.4.7 Basis for Granting Interlocutory Appeal ......................................... 29 

§ 2.4.8 Orders Requiring Interlocutory Appeal ........................................... 30 

§ 2.5 Procedure for Filing Appeal ........................................................................... 32 

§ 2.5.1 Procedure for Direct Appeal ............................................................ 32 

§ 2.5.2 Procedure for Appeal by Application .............................................. 33 

§ 2.5.2.1 Appeal of Final Order by Application .......................... 33 

§ 2.5.2.2 Appeal of Non-Final Order by Application .................. 34 

§ 2.6 Nature of Review on Appeal .......................................................................... 35 

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§ 2.6.1 Appeals Generally Limited to Corrections of Errors of Law .......... 35 

§ 2.6.2 Issue Must Have Been Raised In and Ruled Upon 

by Trial Court .................................................................................. 36 

§ 2.6.3 Scope of Review of Jury Verdicts ................................................... 36 

§ 2.7 Dismissal of Appeals ...................................................................................... 37 

§ 2.7.1 Statutory Grounds for Dismissal ..................................................... 37 

§ 2.7.2 Failure to File a Timely Notice of Appeal ....................................... 38 

§ 2.7.3 Appealability of Non-Final Orders or Judgments; 

Issues That Are Moot ...................................................................... 38 

§ 2.7.4 Dismissals for Delays in Transmitting the Transcript or Record .... 38 

§ 2.7.5 Non-Statutory Grounds for Dismissal ............................................. 39 

CHAPTER THREE: 

POST-TRIAL MOTIONS AS PART OF THE APPEALS PROCESS 

§ 3.1 Introduction .................................................................................................... 41 

§ 3.1.1 Post-Judgment Motions for New Trial or JNOV Are Not 

Ordinarily a Prerequisite to Appeal ................................................. 42 

§ 3.1.2 Tolling of Time for Appeal .............................................................. 43 

§ 3.1.3 To Warrant Post-Judgment Relief, Any Error Must Be Harmful .... 43 

§ 3.1.4 Filing of Post-Trial Motions as Supersedeas .................................. 44 

§ 3.1.5 Trial Court Jurisdiction When Both a Motion for New Trial 

and Notice of Appeal Are Filed ...................................................... 44 

§ 3.2 Methods for Attacking Civil Judgments ........................................................ 45 

§ 3.3 New Trial ....................................................................................................... 46 

§ 3.3.1 General Nature ................................................................................ 46 

§ 3.3.2 Grounds for New Trial .................................................................... 46 

§ 3.3.3 Insuffi cient Grounds for New Trial ................................................. 49 

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§ 3.3.4 Procedure for Filing a Motion for New Trial .................................. 49 

§ 3.3.5 Extraordinary Motions for New Trial .............................................. 51 

§ 3.3.6 Effect of a Motion for New Trial Upon the Time for Filing 

a Notice of Appeal .......................................................................... 53 

§ 3.4 Motions to Set Aside a Judgment................................................................... 53 

§ 3.4.1 Statutory Grounds ........................................................................... 53 

§ 3.4.2 Procedure ......................................................................................... 55 

§ 3.4.3 Relationship to Appeals ................................................................... 55 

§ 3.5 Motions for Judgment Notwithstanding the Verdict ...................................... 55 

§ 3.5.1 General Nature ................................................................................ 55 

§ 3.5.2 Procedure for Filing a Motion for JNOV ........................................ 57 

§ 3.5.3 Combining a Motion for New Trial with a Motion for JNOV ........ 57 

§ 3.5.4 Effect of Motion for JNOV on Time for Appeal ............................. 59 

§ 3.6 Motions to Amend or Modify a Judgment ..................................................... 59 

§ 3.6.1 General Provisions .......................................................................... 59 

§ 3.6.2 Form of the Order ............................................................................ 59 

§ 3.6.3 Effect of Motion to Amend or Modify on Running of Time 

Limitations ...................................................................................... 61 

§ 3.7 The Inherent Power of the Court Over Its Own Orders During the Term 

of Court .......................................................................................................... 61 

§ 3.8 Motions for Supersedeas Bond ...................................................................... 62 

§ 3.8.1 General Provisions .......................................................................... 62 

§ 3.8.2 Time for Filing ................................................................................ 62 

§ 3.8.3 Penalties for Failure to Post a Supersedeas Bond ........................... 63 

§ 3.9 Motions for Attorneys’ Fees Under O.C.G.A. § 9-15-14 ............................... 63 

§ 3.10 Pauper’s Affi davit .......................................................................................... 64 

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CHAPTER FOUR: 

COMMENCING THE APPEAL: 

NOTICE OF APPEAL, TRANSCRIPT, AND RECORD 

§ 4.1 Notice of Appeal ............................................................................................ 65 

§ 4.1.1 Time to File ..................................................................................... 65 

§ 4.1.2 Extensions of Time to File .............................................................. 66 

§ 4.1.2.1 Automatic Extensions ................................................... 66 

§ 4.1.2.2 Extensions by Motion ................................................... 67 

§ 4.1.3 Contents ........................................................................................... 68 

§ 4.1.4 Cross-Appeal: Time to File and Contents ...................................... 69 

§ 4.2 Transcript and Record .................................................................................... 70 

§ 4.2.1 Preparing the Transcript .................................................................. 70 

§ 4.2.2 Stipulation in Lieu of Transcript ..................................................... 71 

§ 4.2.3 Physical Evidence ........................................................................... 71 

§ 4.2.4 Transmitting the Transcript and Record to the Appellate Court ..... 72 

§ 4.2.5 Record Appendix Procedure in the Supreme Court ........................ 73 

§ 4.2.6 Costs ................................................................................................ 74 

§ 4.2.7 Delays in Preparing the Transcript or Record ................................. 75 

§ 4.2.8 Amending and Supplementing the Record ...................................... 76 

CHAPTER FIVE: 

STAYS OF PROCEEDINGS TO ENFORCE A JUDGMENT 

§ 5.1 Introduction .................................................................................................... 79 

§ 5.2 Limited Automatic Stay ................................................................................. 80 

§ 5.3 Mandatory Stay .............................................................................................. 81 

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§ 5.3.1 Stay Pending the Resolution of Post-Trial Motions ........................ 81 

§ 5.3.2 Stay Upon Filing Notice of Appeal in Civil Cases .......................... 82 

§ 5.3.2.1 Timing of Notice of Appeal .......................................... 82 

§ 5.3.2.2 Payment of Costs .......................................................... 83 

§ 5.4 Special Mandatory Stays ................................................................................ 84 

§ 5.4.1 Interlocutory Judgments .................................................................. 84 

§ 5.4.2 Divorce, Child Custody, and Alimony Judgments .......................... 85 

§ 5.4.3 Injunctions ....................................................................................... 86 

§ 5.4.4 Contempt Cases ............................................................................... 87 

§ 5.5 Discretionary Stays ........................................................................................ 88 

§ 5.6 Jurisdictional Consequences of Supersedeas ................................................. 88 

§ 5.7 Supersedeas Bond .......................................................................................... 90 

§ 5.7.1 Bond Required Upon Motion of Appellee ...................................... 90 

§ 5.7.2 Failure to Comply Order to Post Bond ............................................ 91 

§ 5.7.3 No Bond Required for State or Local Governments ....................... 91 

§ 5.7.4 Jurisdiction Over Surety .................................................................. 91 

CHAPTER SIX: 

BRIEFS AND ENUMERATIONS OF ERROR 

§ 6.1 Briefs in the Georgia Court of Appeals .......................................................... 94 

§ 6.1.1 Rules Governing Procedure ............................................................ 94 

§ 6.1.1.1 Docketing and Deadlines .............................................. 94 

§ 6.1.1.2 Extensions of Time ....................................................... 95 

§ 6.1.1.3 Physical Preparation/Formatting ................................... 95 

§ 6.1.1.4 Page Limitations ........................................................... 96 

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§ 6.1.1.5 Copies ........................................................................... 96 

§ 6.1.1.6 Filing Procedure ............................................................ 97 

§ 6.1.1.7 Clerk’s Offi ce Hours and Contact Information ............. 98 

§ 6.1.1.8 Costs .............................................................................. 98 

§ 6.1.1.9 Sealed Filings ................................................................ 99 

§ 6.1.2 Rules Governing Structure and Content of Briefs .......................... 99 

§ 6.1.2.1 In General ...................................................................... 99 

§ 6.1.2.1.1 Record and Transcript References ........... 99 

§ 6.1.2.1.2 Citations ................................................... 100 

§ 6.1.2.1.3 Signature .................................................. 100 

§ 6.1.2.1.4 Certifi cate of Service ................................ 101 

§ 6.1.2.1.5 Attachments and Exhibits ........................ 101 

§ 6.1.2.1.6 Inappropriate Remarks ............................. 101 

§ 6.1.2.1.7 Motions and Responses............................ 101 

§ 6.1.2.2 Appellant’s Brief ........................................................... 102 

§ 6.1.2.2.1 Parts.......................................................... 102 

§ 6.1.2.2.2 Sequence Of Argument ............................ 105 

§ 6.1.2.2.3 Unsupported Enumerated Error ............... 105 

§ 6.1.2.3 Appellee’s Brief ............................................................ 106 

§ 6.1.2.3.1 Parts.......................................................... 106 

§ 6.1.2.3.2 Sequence of Argument ............................. 106 

§ 6.1.2.3.3 Defending Against Claims of 

Unsupported Matters ................................ 106 



§ 6.2 Briefs in the Supreme Court of Georgia ........................................................ 108 

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§ 6.2.1 Rules Governing Procedure ............................................................ 108 

§ 6.2.1.1 Docketing and Deadlines .............................................. 108 

§ 6.2.1.2 Extensions of Time ....................................................... 109 

§ 6.2.1.3 Physical Preparation/Formatting ................................... 109 

§ 6.2.1.4 Page Limitations ........................................................... 109 

§ 6.2.1.5 Copies ........................................................................... 110 

§ 6.2.1.6 Filing Procedure ............................................................ 110 

§ 6.2.1.7 Clerk’s Offi ce Hours and Contact Information ............. 111 

§ 6.2.1.8 Costs .............................................................................. 111 

§ 6.2.2 Rules Governing Structure and Content of Briefs .......................... 112 

§ 6.2.2.1 In General ...................................................................... 112 

§ 6.2.2.1.1 Record and Transcript References ........... 112 

§ 6.2.2.1.2 Citations ................................................... 112 

§ 6.2.2.1.3 Certifi cate of Service ................................ 112 

§ 6.2.2.1.4 Inappropriate Remarks ............................ 113 

§ 6.2.2.2 Appellant’s Brief ........................................................... 113 

§ 6.2.2.2.1 Parts.......................................................... 113 


§ 6.2.2.2.3 Unsupported Enumerated Error ............... 115 

§ 6.2.2.3 Appellee’s Brief ............................................................ 115 

§ 6.2.2.3.1 Parts.......................................................... 115 



§ 6.2.2.5 Supplemental Record .................................................... 116 


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CHAPTER SEVEN: 

ORAL ARGUMENT 

§ 7.1 Court of Appeals Rules .................................................................................. 117 

§ 7.1.1 Oral Argument Is Not Granted as a Matter of Right ....................... 117 

§ 7.1.2 Request for Oral Argument ............................................................. 118 

§ 7.1.3 Time Limitations ............................................................................. 119 

§ 7.1.4 Number of Arguments ..................................................................... 119 

§ 7.1.5 Opening and Closing ....................................................................... 119 

§ 7.1.6 Courtroom Decorum ....................................................................... 119 

§ 7.1.7 Order of Argument .......................................................................... 120 

§ 7.1.8 Waiver of Argument ........................................................................ 120 

§ 7.1.9 Miscellaneous .................................................................................. 120 

§ 7.2 Supreme Court Rules ..................................................................................... 121 

§ 7.2.1 Oral Argument Is Granted as a Matter of Right Only in 

Certain Cases .................................................................................. 121 

§ 7.2.2 Calendaring of Oral Argument ........................................................ 121 

§ 7.2.3 Request for Oral Argument ............................................................. 122 

§ 7.2.4 Appearance and Waiver ................................................................... 122 

§ 7.2.5 Order of Argument .......................................................................... 122 

§ 7.2.6 Time Limitations ............................................................................. 122 

§ 7.2.7 Media Rules ..................................................................................... 123 

§ 7.3 Use of Visual Aids.......................................................................................... 123 

§ 7.3.1 Court of Appeals .............................................................................. 123 

§ 7.3.2 Supreme Court ................................................................................. 123 

§ 7.4 Professionalism in Oral Argument ................................................................. 124 

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CHAPTER EIGHT: 

EXTRAORDINARY WRITS 

§ 8.1 Petitions for Certiorari ................................................................................... 125 

§ 8.2 Petitions for Writ of Habeas Corpus .............................................................. 126 

§ 8.2.1 Individuals Who May File a Habeas Corpus Petition ..................... 126 

§ 8.2.2 Whether a Court Will Issue a Writ of Habeas Corpus ..................... 127 

§ 8.2.3 Filing a Petition for Writ of Habeas Corpus .................................... 129 

§ 8.2.4 Appeals of Habeas Corpus Rulings ................................................. 130 

§ 8.3 Other Extraordinary Writs .............................................................................. 131 

§ 8.3.1 Writ of Mandamus ........................................................................... 131 

§ 8.3.2 Writ of Prohibition .......................................................................... 135 

§ 8.3.3 Writ of Quo Warranto ...................................................................... 136 

CHAPTER NINE: 

INTERNAL PROCEDURES OF THE APPELLATE COURTS 

§ 9.1 Introduction .................................................................................................... 139 

§ 9.2 Composition and Organization of the Appellate Courts ................................ 140 

§ 9.2.1 Composition of the Courts .............................................................. 140 

§ 9.2.2 Election and Appointment to the Courts ......................................... 140 

§ 9.2.3 Internal Governance ........................................................................ 141 

§ 9.3 Determination of Which Justices or Judges Will Participate in the 

Decision of a Case ......................................................................................... 142 

§ 9.3.1 Supreme Court ................................................................................. 142 


§ 9.4 Scheduling of Arguments ............................................................................... 144 

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§ 9.4.1 Supreme Court ................................................................................. 144 


§ 9.5 Procedure for Decision After Argument, Including Assignment 

of Cases and Issuance of Opinions ................................................................ 146 

§ 9.5.1 Supreme Court ................................................................................. 146 


§ 9.5.3 Time Limitations for Decisions ....................................................... 148 

§ 9.6 Discipline of Judges ....................................................................................... 149 

CHAPTER TEN: 

PROCEEDINGS SUBSEQUENT TO DECISIONS 

§ 10.1 Decisions of the Georgia Supreme Court and the Georgia Court 

of Appeals ...................................................................................................... 151 

§ 10.1.1 Entry and Transmittal of Decision .................................................. 151 

§ 10.1.2 Transmittal of Remittitur to Lower Court ....................................... 152 

§ 10.1.3 Effect of Transmittal of Remittitur When Decision Below Is 

Affi rmed .......................................................................................... 152 


Reversed .......................................................................................... 153 

§ 10.2 Motions for Reconsideration in the Georgia Court of Appeals ..................... 153 

§ 10.2.1 Time for Filing Motion .................................................................... 153 

§ 10.2.2 Form, Filing, and Service of Motion ............................................... 154 

§ 10.2.3 Response to a Motion for Reconsideration and Oral 

Argument ........................................................................................ 154 

§ 10.2.4 Grounds for Granting Motion ......................................................... 154 

§ 10.2.5 Subsequent Motions for Reconsideration ....................................... 155 

§ 10.3 Motions for Reconsideration in the Georgia Supreme Court ........................ 155 

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§ 10.3.1 Time for Filing Motion .................................................................... 155 

§ 10.3.2 Form, Filing, and Service of Motion ............................................... 155 

§ 10.3.3 Subsequent Motions for Reconsideration ....................................... 156 

§ 10.4 Writs of Certiorari from the Georgia Supreme Court to the Georgia 

Court of Appeals ............................................................................................ 156 

§ 10.4.1 Introduction ..................................................................................... 156 

§ 10.4.2 Motion for Reconsideration Not Required for Petition for 

Writ of Certiorari ............................................................................ 156 

§ 10.4.3 Time for Filing Petition for Writ of Certiorari ................................ 156 

§ 10.4.4 Filing and Service of Petition for Writ of Certiorari ....................... 157 

§ 10.4.5 Transmittal of Record to the Georgia Supreme Court ..................... 157 

§ 10.4.6 Grounds for Granting Writ of Certiorari ......................................... 157 

§ 10.4.7 Motion for Reconsideration ............................................................ 158 

CHAPTER ELEVEN: 

AN OVERVIEW OF THE CRIMINAL 

APPELLATE PROCESS AND PROCEDURE 

§ 11.1 Introduction .................................................................................................... 159 

§ 11.2 Post-Trial Motions ......................................................................................... 160 

§ 11.2.1 Motion for New Trial ...................................................................... 160 

§ 11.2.2 Motion in Arrest of Judgment ......................................................... 163 

§ 11.2.3 Writ of Coram Nobis ....................................................................... 164 

§ 11.3 Appeals .......................................................................................................... 164 

§ 11.3.1 Standing to Appeal .......................................................................... 164 

§ 11.3.2 Appealable Decisions ...................................................................... 167 

§ 11.3.3 Appellate Jurisdiction ...................................................................... 168 

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§ 11.3.4 Motion to Stay Execution of Sentence ............................................ 169 

§ 11.3.5 Appeals by Indigent Defendants ..................................................... 170 

§ 11.3.6 Mechanics of the Appeal ................................................................. 174 

§ 11.3.7 Perfecting the Record for Appeal .................................................... 178 

§ 11.3.8 Appeal Waivers in Plea Agreements ............................................... 179 

§ 11.4 State Habeas Corpus ...................................................................................... 180 

§ 11.4.1 State Habeas Corpus for Non-Sentenced Detainees ....................... 181 

§ 11.4.2 State Habeas Corpus for Sentenced Detainees ................................ 182 

§ 11.5 Federal Habeas Corpus ................................................................................. 185 

§ 11.6 Unifi ed Appeal Procedure .............................................................................. 186 

§ 11.6.1 Review Proceedings in the Superior Court ..................................... 187 

§ 11.6.2 Appeal Proceedings in the Supreme Court ..................................... 188 

§ 11.6.3 The Unifi ed Appeal Procedure Checklist ........................................ 188 

§ 11.7 Overview of Appellate Options ..................................................................... 189 

CHAPTER TWELVE: 

CIVIL APPEALS INVOLVING PRO SE PARTIES 

§ 12.1 Introduction .................................................................................................... 193 

§ 12.2 Pro Se Parties Generally ................................................................................ 194 

§ 12.2.1 No Constitutional Right to Be Represented by an Attorney in 

a Civil Case ..................................................................................... 194 

§ 12.2.2 Pro Se Parties Are Not Permitted to Violate Georgia Rules 

Regarding the Unauthorized Practice of Law ................................. 195 

§ 12.3 Failure to Follow Procedural Rules Can Be Fatal ......................................... 196 

§ 12.3.1 Failure to Pay Costs......................................................................... 197 

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§ 12.3.2 Failure to Appeal to Proper Court or Seek Certifi cate of 

Immediate Review .......................................................................... 197 

§ 12.3.3 Failure to File Notice of Appeal in Timely Manner ........................ 198 

§ 12.3.4 Defi ciencies in or Lack of Record on Appeal ................................ 199 

§ 12.3.5 Unreasonable Delay in Transmitting Record or Failure to Pay 

Transcription Costs ......................................................................... 200 

§ 12.3.6 Defi ciencies in or Lack of Enumeration of Errors, Citation of 

Authority ......................................................................................... 201 

§ 12.3.6.1 Failure to Properly Enumerate Error ............................ 201 

§ 12.3.6.2 Abandonment of Enumerated Errors ............................ 202 

§ 12.3.6.3 Citation of Authorities ................................................... 203 

§ 12.4 Frivolous Appeal ............................................................................................ 204 

§ 12.4.1 The Appellate Courts May Impose Monetary Sanctions Against 

Pro Se Appellants for Frivolous Appeals ........................................ 204 

§ 12.4.2 Sanctions Are Generally Limited to Egregious Cases .................... 204 

CHAPTER THIRTEEN: 

FRIVOLOUS APPEALS 

§ 13.1 Introduction .................................................................................................... 208 

§ 13.2 Statutory Damages for Frivolous Appeals ..................................................... 208 

§ 13.2.1 Requirement of Judgment for a Sum Certain .................................. 209 

§ 13.2.2 “Solely for Delay”: What Makes an Appeal Frivolous .................. 209 

§ 13.2.2.1 “Colorable” Issues: Distinguishing the Frivolous 

Appeal ........................................................................... 211 

§ 13.2.2.2 Badges of Delay ............................................................ 212 

§ 13.3 Court Rules .................................................................................................... 214 

§ 13.3.1 Supreme Court Rule 6 ..................................................................... 214 

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§ 13.3.2 Court of Appeals Rule 15 ................................................................ 214 

§ 13.4 Unavailability of Other Provisions ................................................................ 215 

CHAPTER FOURTEEN: 

TIPS ON EFFECTIVE ORAL ARGUMENT 

§ 14.1 Introduction .................................................................................................... 217 

§ 14.2 Oral Argument Matters, Especially for My Court—But It Doesn’t 

Matter that Much ............................................................................................ 218 

§ 14.3 Your Argument Starts, and Often Ends, with Your Brief ............................... 218 

§ 14.4 Oral Argument Is for the Judges, Not the Lawyers (or Your Clients)............ 219 

§ 14.5 It Is an Appellate Argument to Judges, Not a Trial Argument to 

a Jury .............................................................................................................. 219 

§ 14.6 Answer the Questions .................................................................................... 220 

§ 14.7 Know How Your Case Fits into the Law as a Whole and How the Result 

You Seek Will Affect the Next Case .............................................................. 220 

§ 14.8 Know the Standards of Review and How They Affect Your Arguments— 

and Make Sure the Case and the Issues Are Properly Before the Appellate 

Court .............................................................................................................. 221 

§ 14.9 Always Be Accurate and Forthcoming About the Facts and the Law 

and Be Prepared to Discuss Them in Detail .................................................. 221 

§ 14.10 It’s Worth Repeating One More Time: Be Accurate and Forthcoming ........ 222 

§ 14.11 Moot Your Case at Least Once .................................................................... 222 

§ 14.12 During Oral Argument, Use the ELMO Device .......................................... 222 

§ 14.13 Be Professional ............................................................................................ 223 

§ 14.14 Spread the Word ........................................................................................... 223 

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CHAPTER FIFTEEN: 

PROFESSIONALISM IN APPELLATE PRACTICE: 

THE IMPORTANCE OF SELECTIVITY 

Professionalism In Appellate Practice: The Importance Of Selectivity .................... 225 

CHAPTER SIXTEEN: 

FORMS 

FORM 1: Notice of Appeal: Civil .......................................................................... 230 

FORM 2: Notice of Cross-Appeal: Civil .............................................................. 232 

FORM 3: Notice of Appeal: Criminal ................................................................... 234 

FORM 4: Appellee’s Designation of Record ......................................................... 236 

FORM 5: Appellant’s/Appellee’s Brief: Cover Page (Supreme Court) ................ 237 

FORM 6: Appellant’s/Appellee’s Brief: Body (Supreme Court) .......................... 238 

FORM 7: Appellant’s Brief: Body (Court of Appeals) .......................................... 240 

FORM 8: Appellee’s Brief: Body (Court of Appeals) .......................................... 242 

FORM 9: Motion for New Trial: Civil................................................................... 244 

FORM 10: Motion for New Trial: Criminal ............................................................ 246 

FORM 11: Request for Oral Argument (Court of Appeals) ..................................... 248 

FORM 12: Request for Oral Argument (Supreme Court) ....................................... 250 

FORM 13: Petition for Leave to Appeal ................................................................. 251 

FORM 14: Application for Leave to Appeal Interlocutory Orde ............................. 253 

FORM 15: Application for Discretionary Appeal .................................................... 255 

FORM 16: Application for Leave to Appeal an Interlocutory Order ...................... 257 

FORM 17: Notice of Intention to Apply for Certiorari ........................................... 259 

FORM 18: Application for Writ of Habeas Corpus ................................................ 261 

- xviii -

FORM 19: Motion for Reconsideration .................................................................. 263 

FORM 20: Application for Certifi cate of Probable Cause to Appeal from 

Order Denying Writ of Habeas Corpus ................................................ 264 

FORM 21: Notice of Appeal When Using Record Appendix .................................. 265 

- xix -

1 

APPEAL TIMETABLE SUMMARY 

Derin B. Dickerson* 

Kacy McCaffrey** 

§ 1.1 Introduction 

This chapter discusses generally the timetables for appeals in the Court of Appeals and the 

Supreme Court. As this chapter provides only a summary of the timetables applicable to appeals, it 

is in no way intended as a substitute for a careful review of the appropriate rules and statutes. Thus, 

all attorneys are cautioned to consult the pertinent chapters of this Handbook, as well as the relevant 

statutes and rules, for more detailed information. 

* Mr. Dickerson is a partner with the law fi rm of Alston & Bird LLP and focuses on civil litigation. He 

received his undergraduate degree from the University of Alabama at Birmingham in 2000 and his J.D. 

from the University of Alabama in 2003. 

** Ms. McCaffrey is an associate with the law fi rm of Alston & Bird LLP and focuses on civil litigation. 

She received her undergraduate degree from the University of Notre Dame in 2004 and her J.D. from the 

University of Mississippi in 2009. 

- 1 -

GEORGIA APPELLATE PRACTICE HANDBOOK 

§ 1.1.1 General Information 

Except for the notice of appeal and where otherwise indicated, all fi lings should be made 

with the clerk of the appellate court to which the appeal is being taken. 1 With respect to the Court 

of Appeals, a document is deemed fi led when it is physically delivered to the clerk’s offi ce, 2 with 

suffi cient costs, if applicable, and clocked in by the clerk’s offi ce staff. 3 A document sent via the 

United States Postal Service or commercial delivery service is deemed fi led in the clerk’s offi ce 

on the date listed on the offi cial postmark appearing on the document’s transmittal envelope or 

container, with the exception of a motion for reconsideration in the Court of Appeals, which is 

deemed fi led only on the date it is physically received in the clerk’s offi ce. 4 

Alternatively, select motions, briefs, notices and responses are eligible for electronic fi ling 

in the Court of Appeals—with the list of approved documents being periodically updated by the 

court. 5 Any document submitted to the court’s electronic fi ling system will be deemed fi led on the 

date and time received if the document meets all other requirements for fi ling under the relevant 

rules of the court. Counsel will be sent an email that a document has been submitted. After the 

court’s review, a second email will be sent confi rming the acceptance of the document or rejecting 

the document. An acceptance confi rmation email will be proof of the date and time a document is 

fi led with the court. If after review the court rejects a document submitted to the e-fi ling system, 

the counsel submitting the document will be sent an email with the rejected document attached that 

explains the reason for rejection. Counsel may then correct and resubmit the fi ling. 6 

The fi ling requirements in the Supreme Court are similar to those of the Court of Appeals. 

Properly addressed mail sent by priority, express or fi rst-class mail is deemed fi led as of the date 

such mail is postmarked by the U.S. Postal Service. 7 A document sent via a commercial delivery 

service, and marked for delivery within three days, is deemed fi led in the clerk’s offi ce on the date 

listed on the offi cial postmark appearing on the document’s transmittal envelope or container. 8 

1 The offi ces of the clerk of both the Supreme Court and the Court of Appeals are open Monday through 

Friday from 8:30 a.m. to 4:30 p.m. GA. S. CT. R. 1; GA. CT. APP. R. 2(a). 

2 The Court of Appeals’ clerk’s offi ce has provided a drop box for fi ling documents after hours. GA. CT. 

APP. R. 4(a). Any items placed in the drop box after 4:30 p.m., Monday through Friday, will be docketed 

to the date the documents were placed in the drop box. Id. The Judicial Building is open from 7:00 a.m. 

until 5:00 p.m. Id. 

3 GA. CT. APP. R. 4(c). 

4 GA. S. CT. R. 13; GA. CT. APP. R. 4(b)-(c). 

5 The electronic fi ling system for the Court of Appeals can be accessed at: http://efast.gaappeals.us. 

6 See Court of Appeals of Georgia, EFAST Registration and E-Filing Instructions (Nov. 7, 2011), http:// 

www.gaappeals.us/eFile2/instructions.pdf. 

7 GA. S. CT. R. 13. 

8 Id. 

- 2 -

- 3 - 

CHAPTER 1: APPEAL TIMETABLE SUMMARY 

However, if there is no clear postmark date, the fi ling date is the date on which the document is 

received. 9 Alternatively, a document will be deemed fi led as of the date upon which it is delivered 

to the U.S. Postal Service or commercial delivery company for overnight delivery as evidenced 

by the receipt provided by the same. 10 The exception is for a motion for reconsideration, which 

is deemed fi led as of the date such mail is physically received in the clerk’s offi ce. 11 Unless the 

court determines otherwise in a particular case, counsel are permitted to fi le electronically with the 

Supreme Court and shall follow all governing policies and procedures. 12 Electronic fi lings received 

before midnight will be deemed fi led that same day. 

A letter requesting an extension of time must reach the Supreme Court before the last day 

for fi ling. 13 In the Supreme Court, a document may be fi led by facsimile with prior permission 

of the court. 14 A fi ling received by facsimile will be deemed fi led as of the date the facsimile is 

received, so long as the original has been received by mail. 15 In both the Supreme Court and the 

Court of Appeals, when an expiration date falls on a Saturday, Sunday, or offi cial state or national 

holiday, the time for fi ling is extended to the next business day. 16 

9 Id. 

10 Id. 

11 GA. S. CT. R. 27. 

12 GA. S. CT. R. 13. 

13 GA. S. CT. R. 12. A request for extension of time for fi ling a brief should be by letter directed to the clerk 

of the Supreme Court and should be sent suffi ciently in advance of the request so that if the request is 

denied the briefs can still be fi led within the time fi xed by applicable rules. Id. 

14 GA. S. CT. R. 2. 

15 Id. 

16 GA. S. CT. R. 11; GA. CT. APP. R. 3.


§ 1.2 Direct Appeals 

§ 1.2.1 Notice of Appeal and Cross-Appeal 

§ 1.2.1.1 Time for Filing 

To initiate an appeal, a notice of appeal must be fi led with the trial court within 30 days 

after entry of an appealable decision or judgment. 17 When a motion for new trial, in arrest of 

judgment, or for judgment notwithstanding the verdict has been fi led, the notice of appeal must be 

fi led within 30 days after the entry of the order granting, overruling, or otherwise fi nally disposing 

of the motion. 18 In civil cases, the appellee may institute a cross-appeal by fi ling a notice of crossappeal 

within 15 days after service of the appellant’s notice of appeal. 19 

§ 1.2.1.2 Extensions of Time for Filing Notice 

The granting of an extension of time for fi ling a notice of appeal or notice of cross-appeal 

rests in the discretion of the trial judge. 20 The trial court may grant only one extension of time, and 

the extension cannot exceed the time otherwise allowed for the initial fi ling of the notice. Thus, an 

extension of time for fi ling a notice of appeal may not exceed 30 days, and an extension of time for 

fi ling a notice of cross-appeal may not exceed 15 days. 21 

17 O.C.G.A. § 5-6-38(a). Generally, a trial court judgment is automatically stayed for 10 days after its entry 

and, during this 10-day period, execution or commencement of proceedings to enforce the judgment is 

prohibited. O.C.G.A. § 9-11-62(a). A trial court judgment will not be automatically stayed: (i) when 

the parties have made such an agreement in a writing fi led with the court; (ii) in the case of a default 

judgment; or (iii) when the judgment is interlocutory or fi nal in an action for an injunction or receivership. 

Id. When an appeal is taken from a judgment granting, dissolving, or denying an injunction, the trial 

court, in its discretion, may suspend, modify, restore, or grant an injunction upon such terms as to bond 

or otherwise as it considers proper to secure the rights of the appellee. O.C.G.A. § 9-11-62(c). The 

appellate court, too, has the power to stay proceedings and to suspend, modify, restore, or grant an 

injunction during the pendency of an appeal and to make any order appropriate to preserve the status quo 

or the effectiveness of the judgment subsequently to be entered. O.C.G.A. § 9-11-62(e). 

18 Id. 

19 Id. 

20 O.C.G.A. § 5-6-39(a). 

21 O.C.G.A. § 5-6-39(c). 

- 4 -

§ 1.2.2 Filing of Transcript 

- 5 - 


Where there is a transcript of evidence or proceedings to be included in the record on 

appeal, it is the appellant’s duty to cause the transcript to be prepared and fi led. 22 However, when 

the appellant has not designated that the transcript be made a part of the record on appeal and it is 

included by designation of the appellee, then the appellee must cause the transcript to be prepared 

and fi led at the appellee’s expense. 23 Unless extended as provided for by O.C.G.A. § 5-6-39, the 

party responsible for fi ling the transcript must cause it to be fi led within 30 days after the fi ling 

of: (i) the notice of appeal; or (ii) designation by appellee. 24 If the party responsible for fi ling 

fails timely to fi le the transcript and the trial court determines that the delay was inexcusable, 

unreasonable, and caused by that party, the trial court may, in its discretion, order that the appeal 

be dismissed. 25 An appellant’s appeal is not to be dismissed for failure to pay costs if the costs for 

preparing the record are paid within 20 days (excluding Saturdays, Sundays, and legal holidays) of 

the appellant’s receipt of the notice of the amount of costs. 26 

§ 1.2.3 Record 

If the appellant designates any matter to be omitted from the record on appeal, the appellee 

may, within 15 days after the appellant has served his notice of appeal, fi le a designation of record, 

designating that all or part of the omitted matters be included in the record on appeal. 27 The clerk 

of the trial court is required to prepare a complete copy of the entire record of the case within fi ve 

days after the transcript is fi led, omitting only those things designated for omission by the appellant 

that were not designated for inclusion by the appellee. 28 Where no transcript of evidence and 

proceedings is to be sent to the appellate court or where the transcript is already on fi le, the clerk 

is required to prepare and transmit the record within 20 days after the date the notice of appeal is 

fi led. 29 

Any objection regarding a party’s failure to comply with the provisions of the Appellate 

Practice Act relating to the fi ling of a transcript of the evidence and proceedings or transmittal of 

22 O.C.G.A. § 5-6-42. 

23 Id. 

24 Id. 

25 O.C.G.A. § 5-6-48(c). 

26 Id. 

27 O.C.G.A. § 5-6-42. 

28 O.C.G.A. § 5-6-43(a). 

29 O.C.G.A. § 5-6-43(a), (d). For a discussion of the effect of and remedies for a delay in fi ling the record 

or transcript, see Chapter 4 of this Handbook.


the record to the appellate court is waived unless the objection is made and ruled upon in the trial 

court prior to the transmittal of the record, and such order is properly appealed. 30 

§ 1.2.4 Docketing 

Upon the docketing of every appeal and application for appeal to the Court of Appeals, the 

clerk mails notice of the docketing date and schedule for briefi ng to all counsel. 31 Failure of counsel 

to receive a docketing notice does not relieve counsel of the responsibility to fi le briefs timely. 32 

No appeal to the Court of Appeals is docketed until the notice of appeal and a record, and 

transcript if requested, are fi led in the clerk’s offi ce. 33 Appeals or applications transferred to the 

Court of Appeals from the Supreme Court will be docketed as of the date they are received in the 

Court of Appeals. 34 Any Court of Appeals case docketed before the entire record is received by the 

Court of Appeals may, at the parties’ request, be remanded to the trial court until such time as the 

record is so prepared and delivered to the Court of Appeals. 35 

In the Supreme Court, if a record is supplemented pursuant to O.C.G.A. § 5-6-41(f) or 

§ 5-6-48(d), a party wanting to present an issue in the Supreme Court relating to the trial court 

proceeding in which the record was supplemented must fi rst raise the issue before the trial court and 

then fi le additional enumerations of error and a brief. 36 The additional enumerations of error and 

brief must be fi led within 10 days after: (i) docketing of the supplemental record in Supreme Court; 

or (ii) the trial court rules on the issue raised, whichever date is later. 37 Opposing parties may fi le 

a supplemental brief within 20 days after docketing or after the trial court rules on the issue raised, 

whichever date is later. 38 

30 GA. S. CT. R. 74; GA. CT. APP. R. 20. 

31 GA. CT. APP. R. 13. 

32 Id.; see also GA. S. CT. R. 4 (failure of counsel to receive notice of court action shall not be grounds to 

reinstate or reconsider any matter adverse to counsel or parties if counsel failed to properly notify the 

court of any change of address or telephone number). 

33 GA. CT. APP. R. 11(a). 

34 GA. CT. APP. R. 11(c). 

35 GA. CT. APP. R. 11(d). 

36 GA. S. CT. R. 25. 

37 Id. 

38 Id. 

- 6 -

§ 1.2.4.1 Closing of the Docket 

- 7 - 


The docket for the January, April, and September terms of the Court of Appeals closes at 

noon on the 15th day of December, April, and August respectively. 39 By order, a closed docket may 

be opened when expedient for the docketing of a case, so that judgment may be rendered by the 

Court of Appeals at the earliest practicable date. 40 

§ 1.2.5 Supersedeas 

The appellant’s fi ling of a notice of appeal and payment of all costs in the trial court serves 

as automatic supersedeas in all civil cases, except for injunction cases. 41 An appellant is not required 

to give a supersedeas bond unless the trial court, upon motion by an appellee, moves for such bond 

to be given. 42 When an appeal is taken by the state or by any county, city, or town or an offi cer or 

agency thereof, no bond or other security is required. 43 

§ 1.2.6 Payment of Costs 44 

Costs in the appellate courts are incurred upon docketing and must be paid upon the fi ling 

of an application for interlocutory or discretionary appeal, 45 or, on direct appeals, with the fi ling of 

appellant’s brief. 46 

39 GA. CT. APP. R. 12. 

40 Id. 

41 O.C.G.A. § 5-6-46(a). 

42 Id. 

43 O.C.G.A. § 9-11-62(d). 

44 As a general matter, costs in all Supreme Court cases and criminal cases in the Court of Appeals are $80, 

and costs in civil cases in the Court of Appeals are $300, unless a pauper’s affi davit is fi led. GA. S. CT. 

R. 5; GA. CT. APP. R. 5. In the Supreme Court, costs are waived if pauper status has been granted by the 

trial court and the record so refl ects. GA. S. CT. R. 5. In the Court of Appeals, costs will be waived if a 

pauper’s affi davit is fi led with that court or if such an affi davit is contained in the record on appeal. GA. 

CT. APP. R. 5. The clerk shall not fi le any matter unless the costs have been paid or a suffi cient pauper’s 

affi davit has been fi led. Id. Costs in the Supreme Court are not required for certifi ed questions or in 

disciplinary cases. Id. 


46 GA. S. CT. R. 5; GA. CT. APP. R. 5.


§ 1.2.7 Oral Argument 

In the Court of Appeals, unless expressly ordered by the court, oral argument is never 

mandatory. 47 The Court of Appeals will place a case on the calendar for oral argument only upon 

the granting of a request for oral argument made by one of the parties. 48 The clerk of the Court of 

Appeals mails the calendar to counsel in each appeal to be orally argued at the addresses shown on 

the notice of appeal, unless the court is otherwise advised under Rule 9(e), at least 14 days prior 

to the date set for oral argument. 49 Counsel not receiving a calendar at least 10 days prior to the 

tentative oral argument dates should contact the clerk’s offi ce to inquire about oral argument dates. 50 

In the Supreme Court, no request is necessary when there is a direct appeal from a judgment 

imposing the death penalty; in such cases, oral argument is mandatory. 51 Cases in which certiorari 

has been granted are also placed on the Supreme Court’s oral argument calendar automatically, 

unless disposed of summarily by the court. 52 A written request for oral argument must be made 

in all other appeals to the Supreme Court. 53 Except in death penalty cases, oral argument is not 

mandatory. 54 

In both the Court of Appeals and the Supreme Court, when a case is not scheduled for oral 

argument automatically, a request for oral argument must be fi led within 20 days from the date the 

case is docketed. 55 As a general matter, argument will not be permitted to parties whose briefs have 

not been timely fi led. 56 

Court of Appeals arguments are limited to 30 minutes per case or 15 minutes per side. 57 

Unless otherwise provided by the court, Supreme Court arguments are limited to 30 minutes per 

side in direct appeals of death penalty judgments and 20 minutes per side in all other cases. 58 In the 

47 GA. CT. APP. R. 28(a)(1). 

48 Id. 

49 GA. CT. APP. R. 14(a). 

50 GA. CT. APP. R. 14(b). 

51 GA. S. CT. R. 50(1). 

52 GA. S. CT. R. 50(2). 

53 GA. S. CT. R. 51. 

54 GA. S. CT. R. 50(1), (3). 

55 GA. S. CT. R. 50(3); GA. CT. APP. R. 28(a)(2). 

56 GA. S. CT. R. 50(3). 

57 GA. CT. APP. R. 28(d). 

58 GA. S. CT. R. 54. 

- 8 -

- 9 - 


Court of Appeals, a request for additional time for argument may be made; however, the request 

must be made in writing at least fi ve days before the date set for hearing. 59 

§ 1.2.8 Briefs and Enumerations of Error 

§ 1.2.8.1 Briefs, Generally 

In both the Supreme Court and Court of Appeals, the appellant’s and cross-appellant’s 

briefs and enumerations of error must be fi led and served within 20 days after the appeal or crossappeal 

is docketed. 60 The appellee’s and cross-appellee’s briefs must be fi led within 40 days after 

the case is docketed or 20 days after fi ling of the appellant’s or cross-appellant’s brief, whichever is 

later. 61 In the Court of Appeals, the appellant may fi le a reply brief within 20 days from the fi ling 

of the appellee’s brief. 62 There is no express provision for reply briefs in the Supreme Court rules. 

However, parties may fi le supplemental briefs as described below. 

§ 1.2.8.2 Supplemental Briefs 

In the Supreme Court, supplemental briefs may be fi led at any time before decision. 63 In 

the Court of Appeals, however, supplemental briefs may be fi led only by leave of the court. 64 A 

party may inform the Court of Appeals of recent authorities that come to the attention of a party 

after the fi ling of that party’s brief or after oral argument, but before a decision, only after seeking 

permission to fi le a supplemental brief. 65 Any response to a supplemental brief must be made 

promptly and must conform to Rule 24. 66 

§ 1.2.8.3 Amicus Curiae Briefs 

In both the Supreme Court and the Court of Appeals, amicus curiae briefs may be fi led 

without leave of court, must include the identity and interest of the person(s) on whose behalf the 

brief is fi led, and must be limited to those issues properly raised by the parties. 67 The published 

59 GA. CT. APP. R. 28(d). 

60 GA. S. CT. R. 10; GA. CT. APP. R. 23(a). 

61 GA. S. CT. R. 10; GA. CT. APP. R. 23(b). 

62 GA. CT. APP. R. 23(c). 

63 GA. S. CT. R. 24. 

64 GA. CT. APP. R. 27(a) 

65 GA. CT. APP. R. 27(b). 

66 Id. 

67 GA. S. CT. R. 23; GA. CT. APP. R. 26.


rules of the appellate courts do not impose any particular time constraints on the fi ling of amicus 

curiae briefs. 

§ 1.3 Discretionary Appeals of Final Order or Judgment 

For a listing of the fi nal orders or judgments that require an application for appeal, see 

O.C.G.A. § 5-6-35(a). 

§ 1.3.1 Application for Leave, Response, and Decision on Application 

§ 1.3.1.1 Application 

When required, an application for leave to appeal must be fi led within 30 days of the entry 

of the order, decision, or judgment. 68 When a motion for new trial, in arrest of judgment, or for 

judgment notwithstanding the verdict has been fi led, the application must be fi led within 30 days 

after the entry of the order granting, overruling, or otherwise fi nally disposing of the motion. 69 

§ 1.3.1.2 Costs 

The appellate court’s fi ling fee must be paid at the time the application for leave is fi led. 70 

§ 1.3.1.3 Response 

The response to an application for leave to appeal must be fi led and served within 10 days 

of the fi ling of the application. 71 No response is required unless ordered by the court; 72 however, 

the Supreme Court encourages that responses be fi led. 73 

68 O.C.G.A. § 5-6-35(d). 

69 Id. 


71 O.C.G.A. § 5-6-35(e). With respect to discretionary appeal applications, the date of fi ling and the date 

of docketing are the same. GA. S. CT. R. 33; GA. CT. APP. R. 31(h). 

72 GA. S. CT. R. 33; GA. CT. APP. R. 31(h). 

73 GA. S. CT. R. 33. 

- 10 -

§ 1.3.1.4 Decision by Court on Application 

- 11 - 


The Supreme Court or Court of Appeals will issue an order granting or denying an 

application for leave to appeal within 30 days of the date upon which the application was fi led. 74 

§ 1.3.2 Notice of Appeal 

If the appellate court issues an order granting leave to appeal, the applicant must fi le a notice 

of appeal in the trial court within 10 days of the fi ling of the order. 75 The procedure thereafter is the 

same as in other appeals. 76 The fi ling of an application for leave to appeal acts as a supersedeas to 

the extent that a notice of appeal acts as a supersedeas. 77 

If the court issues an order denying leave to appeal, the applicant may make a motion for 

reconsideration or, if the denial is by the Court of Appeals, fi le a petition for certiorari. 

§ 1.4 Interlocutory Appeals 

§ 1.4.1 Automatic Stay 

As stated in § 1.2, unless otherwise ordered by the court, an interlocutory judgment in an 

action for injunction or receivership is not stayed during the period after its entry. 78 

§ 1.4.2 Certifi cate of Immediate Review 

For an applicant to seek leave to appeal an interlocutory order, a certifi cate of immediate 

review must be issued by the trial court within 10 days of the entry of the order, decision, or 

judgment at issue. 79 

74 O.C.G.A. § 5-6-35(f). 

75 O.C.G.A. § 5-6-35(g); GA. CT. APP. R. 31(i). 

76 O.C.G.A. § 5-6-35(g). 

77 O.C.G.A. § 5-6-35(h). 

78 O.C.G.A. § 9-11-62(a). 

79 O.C.G.A. § 5-6-34(b).


§ 1.4.3 Application for Interlocutory Appeal, Response, and Decision 

§ 1.4.3.1 Application 

An application for interlocutory appeal must be fi led within 10 days after a certifi cate 

of immediate review is fi led by the trial court clerk. 80 The application must be fi led with the 

clerk of the court to which the appeal will be taken, 81 and simultaneously therewith, a copy of the 

application, together with a list of those parts of the record included with the application, must be 

served upon all opposing parties. 82 

§ 1.4.3.2 Costs 

The appellate court’s fi ling fee must be paid at the time the application is fi led. 83 


The response to an application for interlocutory appeal must be fi led and served within 10 

days of the fi ling of the application. 84 

§ 1.4.3.4 Decision by Court on Application 

The appellate court will issue an order granting or denying the application within 45 days 

of the date upon which the application was fi led. 85 

§ 1.4.4 Notice of Appeal 

If the court issues an order granting the application, the applicant must fi le a notice of 

appeal within 10 days of the fi ling of the order. 86 The notice of appeal acts as supersedeas as 

80 Id.; GA. CT. APP. R. 32(a). 

81 The materials from the record included in an application to the Court of Appeals must be tabbed and 

indexed. GA. CT. APP. R. 30(e). All applications for interlocutory appeal must include a stamp-fi led 

copy of the order to be appealed and a stamp-fi led copy of the certifi cate of immediate review. GA. S. 

CT. R. 30; GA. CT. APP. R. 30(b). 

82 O.C.G.A. § 5-6-34(b). 

83 GA. S. CT. R. 5; GA. CT. APP. R. 5; GA. CT. APP. R. 30(c). 

84 O.C.G.A. § 5-6-34(b); GA. S. CT. R. 30; GA. CT. APP. R. 30(h). 

85 O.C.G.A. § 5-6-34(b). 

86 Id. 

- 12 -

- 13 - 


provided by O.C.G.A. § 5-6-46, and the procedure thereafter is the same as in an appeal from a 

fi nal judgment. 87 

If the court issues an order denying the application, the applicant may make a motion for 

reconsideration or, if the denial is by the Court of Appeals, fi le a petition for certiorari. 

§ 1.5 Motion For Reconsideration 

§ 1.5.1 Motion in Supreme Court 

A motion for reconsideration may be fi led in any matter on which the Supreme Court has 

ruled, and must be physically received at the court within 10 days from the date of the decision to 

be considered timely. 88 No second or subsequent motion for reconsideration may be fi led by a party 

after its fi rst motion has been denied, except by permission of the court. 89 

§ 1.5.2 Motion in Court of Appeals 

A motion for reconsideration fi led in the Court of Appeals must be fi led and served during 

the term in which the judgment or dismissal sought to be reviewed was rendered 90 and before the 

remittitur has been forwarded to the clerk of the trial court; in any event, it must be fi led within 

10 days from the rendering of the judgment or dismissal. 91 The rule for fi ling by registered or 

certifi ed mail does not apply to motions for reconsideration. 92 No extension of time will be granted 

for fi ling, except when the party seeking an extension has made a written application before the 

expiration of the 10 days, which application must demonstrate “providential cause.” 93 

By special order, the Court of Appeals may limit the time within which a motion for 

reconsideration may be fi led to a period less than 10 days. 94 No party may fi le a second motion for 

87 Id. 

88 GA. S. CT. R. 27. A copy of the opinion or disposition must be attached thereto. Id. 

89 GA. S. CT. R. 27. 

90 The Supreme Court has three terms: (i) the January term beginning the fi rst Monday in January; (ii) the 

April term beginning the third Monday in April; and (iii) the September term beginning the fi rst Monday 

in September. O.C.G.A. § 15-2-4. The Court of Appeals has the same terms as the Supreme Court. 

O.C.G.A. § 15-3-2. 

91 GA. CT. APP. R. 37(b). 

92 GA. CT. APP. R. 4, 37(b). 

93 GA. CT. APP. R. 37(b). 

94 GA. CT. APP. R. 37(c).


reconsideration unless permitted by order of the court. 95 The fi ling of a motion for permission to 

fi le a second motion for reconsideration does not toll the 10 days for fi ling a notice of intention to 

apply for certiorari to the Supreme Court. 96 

§ 1.5.3 Responding to a Motion for Reconsideration 

There is no specifi c time limit for responding to a motion for reconsideration. In the Supreme 

Court, responses to motions for reconsideration may be fi led at any time. 97 In the Court of Appeals, 

any party that wishes to respond to a motion for reconsideration “must do so expeditiously.” 98 

§ 1.6 Certiorari Petitions 

§ 1.6.1 Petition for Certiorari to Georgia Supreme Court 

Notice of the intention to apply for certiorari must be given to the clerk of the Court of 

Appeals within 10 days after judgment or the order denying a motion for reconsideration, if one is 

fi led. 99 The petition for certiorari must be fi led with the clerk of the Supreme Court within 20 days 

after the judgment or the order overruling a motion for reconsideration, if one is fi led. 100 If applicable, 

the petitioner must make payment of costs to the clerk of the Supreme Court simultaneously with 

his fi ling of his application for certiorari. 101 

§ 1.6.1.1 Record 

Upon receiving from the clerk of the Supreme Court a copy of the notice of docketing of the 

petition for certiorari, the clerk of the Court of Appeals prepares and transmits to the Supreme Court 

the record of the case, including a certifi ed copy of the Court of Appeals opinion and judgment. 102 

95 GA. CT. APP. R. 37(d). 

96 Id. 

97 GA. S. CT. R. 26. 

98 GA. CT. APP. R. 37(b). 


100 GA. S. CT. R. 38(2). 

101 GA. S. CT. R. 5 & 38(2). 

102 GA. S. CT. R. 43. 

- 14 -


- 15 - 


A response to a petition for certiorari must be served within 20 days of the fi ling of the 

petition. 103 Failure to fi le a response will be deemed an acknowledgment by the respondent that the 

requirements of the rules for the granting of the petition for certiorari have been met. 104 However, 

such an acknowledgement is not binding on the Supreme Court. 105 

§ 1.6.1.3 Briefs 

When a petition for certiorari is granted, the appellant and appellee must fi le briefs in 

response to the questions posed by the Supreme Court in its order granting certiorari. 106 The 

briefi ng schedule set forth in Supreme Court Rule 10 must be followed, dating from the order 

granting certiorari. 107 

§ 1.6.2 Petition for Certiorari to United States Supreme Court 

A notice of intention to petition the United States Supreme Court for certiorari shall be 

fi led in the Court of Appeals no later than 20 days following the denial of a petition for certiorari 

by the Georgia Supreme Court. 108 Simultaneously with the fi ling of the petition for certiorari in 

the United States Supreme Court, the petitioner must fi le a copy of the same with the Court of 

Appeals. 109 The petitioner is not required, however, to fi le a copy of the petition with the Georgia 

Supreme Court. There is no provision to seek certiorari from the United States Supreme Court to 

the Georgia Supreme Court 

§ 1.7 Stay of Remittitur Pending Petition for Certiorari to the United States 

Supreme Court 

A party desiring to have the remittitur stayed in the Georgia Supreme Court in order to seek 

a writ of certiorari from the United States Supreme Court must fi le a motion to stay the remittitur 

in the Georgia Supreme Court. 110 This motion must include a concise statement of the issues to 

103 GA. S. CT. R. 42. 

104 Id. 

105 Id. 

106 GA. S. CT. R. 45. 

107 Id. 

108 GA. CT. APP. R. 38(b)(1). 

109 GA. CT. APP. R. 38(b)(2). 

110 GA. S. CT. R. 61.


be raised in the petition for certiorari and must be fi led at the time of the fi ling of a motion for 

reconsideration, or if no motion for reconsideration is fi led, within the time allowed for the same. 111 

111 Id.; see also GA. S. CT. R. 27. 

- 16 -

2 

JURISDICTION, AVAILABILITY, AND DISMISSALS OF APPEALS 

Nowell D. Berreth* 


Although the 1965 enactment of the Appellate Practice Act considerably simplifi ed 

appellate procedure in Georgia, 1 the law relating to appellate jurisdiction, availability, and dismissal 

of appeals remains complex. Noncompliance can result in harsh consequences. This chapter is 

intended to assist the bench and bar in these matters. 

* Mr. Berreth is a partner at Alston & Bird LLP and focuses his practice on complex agribusiness, 

transportation, and estate litigation. Before joining Alston & Bird, he served two years as a law clerk to 

the Honorable Willis B. Hunt, Jr., United States District Court for the Northern District of Georgia. Mr. 

Berreth received a B.A. in journalism from the University of Georgia in 1991 and a J.D. from Georgia 

State University in 1998. 

1 The Appellate Practice Act was enacted “‘to simplify the procedure for bringing a case to the appellate 

court[s]’ and to secure ‘speedy and uniform justice in a uniform and well-ordered manner; . . . not . . . 

to set traps and pitfalls . . . for unwary litigants.’” Felix v. State, 271 Ga. 534, 534-35, 523 S.E.2d 1, 3 

(1999) (citation omitted). 

- 17 -


§ 2.2 Right of Appeal Generally 

Although the United States Constitution does not provide a right to appeal court decisions, 

states may permit appeals and prescribe conditions and procedures regarding their availability. 2 

The Georgia Constitution and various statutes create and condition the right to appeal in Georgia. 

The Georgia Constitution creates the Supreme Court and the Court of Appeals, along with 

superior, state, probate, magistrate, juvenile and several additional lower courts, and vests them 

with judicial power: 

The judicial power of the state shall be vested exclusively in the following classes 

of courts: magistrate courts, probate courts, juvenile courts, state courts, superior 

courts, Court of Appeals, and Supreme Court. Magistrate courts, probate courts, 

juvenile courts, and state courts shall be courts of limited jurisdiction. In addition, 

the General Assembly may establish or authorize the establishment of municipal 

courts and may authorize administrative agencies to exercise quasi-judicial 

powers. Municipal courts shall have jurisdiction over ordinance violations and 

such other jurisdiction as provided by law. Except as provided in this paragraph 

and in Section X, municipal courts, county recorder’s courts and civil courts in 

existence on June 30, 1983, and administrative agencies shall not be subject to the 

provisions of this article. The General Assembly shall have the authority to confer 

“by law” jurisdiction upon municipal courts to try state offenses. 3 

§ 2.2.1 Appeals from Superior and State Courts Generally 

Appeals from superior and state courts are provided for in O.C.G.A. § 5-6-33(a)(1): 

Either party in any civil case and the defendant in any criminal proceeding in the 

superior, state, or city courts may appeal from any sentence, judgment, decision, or 

decree of the court, or of the judge thereof in any matter heard at chambers. 

The same laws of appellate practice govern all such appeals, regardless of whether they are taken 

from superior or state courts. 4 

2 Nat’l Union of Marine Cooks v. Arnold, 348 U.S. 37, 43 (1954); Lott v. Pittman, 243 U.S. 588, 591 

(1917); accord Ex parte McCardle, 74 U.S. 506 (1868). 

3 GA. CONST. art. VI, § 1, 1; see also Wickham v. State, 273 Ga. 563, 565, 544 S.E.2d 439, 442 (2001) 

(holding that the city court of Atlanta is constitutional). 

4 O.C.G.A. § 15-7-43. 

- 18 -

CHAPTER 2: JURISDICTION, AVAILABILITY, AND DISMISSALS OF APPEALS 

§ 2.2.2 Appeals from Magistrate, Probate, and Juvenile 

Courts Generally 

Appeals from magistrate, probate, and juvenile courts also are permitted by statute. 

Judgments and orders from magistrate court are appealable to the superior or state courts; 5 fi nal 

judgments and orders of the juvenile courts are appealable to the Court of Appeals or the Supreme 

Court; 6 and, with some signifi cant exceptions, decisions of the probate courts are appealable to 

superior court. 7 

§ 2.3 Jurisdiction of the Georgia Appellate Courts 

Various provisions of the Georgia Constitution and Georgia statutes create and condition 

the jurisdiction of the Supreme Court and the Court of Appeals. 

§ 2.3.1 Jurisdiction of the Georgia Supreme Court 

Pursuant to Article VI, Section 6, Paragraph 2 of the Georgia Constitution, the Supreme 

Court has exclusive appellate jurisdiction over: 

• All cases involving the construction of a treaty or the construction of the Constitution 

of the State of Georgia or of the United States; 8 

• All cases in which the constitutionality of a law, ordinance, or constitutional provision 

is drawn into question; 9 and 

• All cases of election contest. 10 

As provided in Article VI, Section 6, Paragraph 3 of the Georgia Constitution, the Supreme 

Court has appellate jurisdiction over: 

• Cases involving title to land; 11 

5 O.C.G.A. § 15-10-41(b)(1). 

6 O.C.G.A. § 15-11-3. 

7 O.C.G.A. §§ 5-3-1, 5-3-2, 5-6-33 & 15-9-120 et seq. 

8 GA. CONST. art. VI, § 6, 2(1). 

9 Id.; Williams v. State, 273 Ga. 848, 848, 546 S.E.2d 522, 523 (2001). 

10 GA. CONST. art. VI, § 6, 2(2). 

11 GA. CONST. art. VI, § 6, 3(1). 

- 19 -


• Equity cases; 12 

• Cases involving wills; 13 

• Habeas corpus cases; 14 

• Cases involving extraordinary remedies; 15 

• Divorce and alimony cases; 16 

• Cases certifi ed to it by the Court of Appeals; 17 and 

• Cases in which a sentence of death was imposed or could have been imposed. 18 

The Supreme Court also has exclusive jurisdiction over questions certifi ed to it from any 

state or federal appellate court, or from the United States Supreme Court. 19 

12 GA. CONST. art. VI, § 6, 3(2). The precise nature of the Supreme Court’s equity jurisdiction continues 

to be refi ned. As former Chief Justice Fletcher has observed: 

We acknowledge that the meaning of equity jurisdiction remains subject to confusion and 

frustration. This, however, is not a recent occurrence. Equity jurisdiction was problematic 

for the courts even at a time when the distinction between law and equity was more relevant 

than it is today. Unfortunately, so long as “equity” continues to be a basis of this court’s 

jurisdiction, these diffi culties will remain and will require this court to continue to defi ne 

equity jurisdiction. 

Elec. Data Sys. Corp. v. Heinemann, 268 Ga. 755, 756, 493 S.E.2d 132, 134 (1997) (footnotes omitted). 

For a selection of cases defi ning the court’s equity jurisdiction in various contexts, see Reeves v. Newman, 

287 Ga. 317, 695 S.E.2d 626 (2010); Tunison v. Harper, 286 Ga. 687, 690 S.E.2d 819 (2010); Arrington 

v. Reynolds, 274 Ga. 114, 115, 549 S.E.2d 401, 401 (2001); Warren v. Bd. of Regents of the Univ. Sys., 

272 Ga. 142, 144, 527 S.E.2d 563, 565 (2000); Lee v. Green Land Co., 272 Ga. 107, 108, 527 S.E.2d 204, 

205 (2000); Redfearn v. Huntcliff Homes Ass’n, 271 Ga. 745, 750, 524 S.E.2d 464, 469 (1999); Pittman 

v. Harbin Clinic Prof’l Ass’n, 263 Ga. 66, 67, 428 S.E.2d 328, 328-29 (1993); Allen v. Hub Cap Heaven, 

Inc., 225 Ga. App. 533, 535, 484 S.E.2d 259, 263 (1997); Sysco Food Servs. of Atlanta, Inc. v. Chupp, 

225 Ga. App. 584, 584, 484 S.E.2d 323, 324 (1997). 

13 GA. CONST. art. VI, § 6, 3(3). 

14 Id. 

15 GA. CONST. art. VI, § 6, 3(5). 

16 GA. CONST. art. VI, § 6, 3(6). 

17 GA. CONST. art. VI, § 6, 3(7). 

18 GA. CONST. art. VI, § 6, 3(8). 

19 GA. CONST. art. VI, § 6, 4; O.C.G.A. § 15-2-9. 

- 20 -


The introductory language of Article VI, Section 6, Paragraph 3 of the Georgia Constitution 

allows the General Assembly to modify the Supreme Court’s jurisdiction by statute. Unless this 

jurisdiction is modifi ed, however, the types of cases listed in Article VI, Section 6, Paragraph 3 

must be appealed directly to the Supreme Court. The Supreme Court may also review by certiorari 

cases from the Court of Appeals that are of gravity or great public importance. 20 The court may 

also review by certiorari decisions by the Court of Appeals in criminal cases that are adverse to the 

state. 21 

§ 2.3.2 Jurisdiction of the Georgia Court of Appeals 

The Court of Appeals has broad jurisdiction over “all cases not reserved to the Supreme 

Court or conferred on other courts by law.” 22 The Georgia Constitution provides: 

The Court of Appeals shall be a court of review and shall exercise appellate and 

certiorari jurisdiction in all cases not reserved to the Supreme Court or conferred 

on other courts by law. The decisions of the Court of Appeals insofar as not in 

confl ict with those of the Supreme Court shall bind all courts except the Supreme 

Court as precedents. 23 

The Court of Appeals has jurisdiction over criminal appeals unless a death sentence was 

imposed or could have been imposed in the case. 24 The Court of Appeals has jurisdiction over all 

armed robbery, rape, and kidnapping cases unless the death penalty was imposed. 25 The Court of 

Appeals also has jurisdiction to review trial court orders clarifying judgments under O.C.G.A. § 

9-11-60(9). 26 

As noted above, the Supreme Court has exclusive appellate jurisdiction over cases involving 

the construction of the Georgia or United States Constitutions, as well as any case involving the 

constitutionality of a law. 27 Nevertheless, if a constitutional provision is unambiguous, the Court 

20 GA. CONST. art. VI, § 6, 5. 

21 State v. Tyson, 273 Ga. 690, 690, 544 S.E.2d 444, 445 (2001). 

22 GA. CONST. art. VI, § 5, 3. 

23 Id. 

24 GA. CONST. art. VI, § 6, 3(8). 

25 O.C.G.A. § 15-3-3. 

26 Floyd v. Springfi eld Plantation Prop. Owners’ Ass’n, 245 Ga. App. 535, 536 n.2, 538 S.E.2d 455, 457 n.2 

(2000). 

27 GA. CONST. art. VI, § 6, 2. 

- 21 -


of Appeals may apply it without a prior Supreme Court interpretation. 28 In addition, the Court of 

Appeals has jurisdiction over appeals involving constitutional issues if the issue in question has 

already been decided by the Supreme Court. 29 

The Court of Appeals may hear appeals contending that the conduct of a trial deprived the 

appellant of his constitutional rights, and it may hear cases involving constitutional issues if the 

resolution of those issues is not necessary to decide the appeal, 30 or if the issues were not properly 

raised in the trial court. 31 However, the Court of Appeals may not determine the constitutionality 

of a state statute. 32 

§ 2.4 Appealability of Judgments and Orders 

There are two categories of appeals from fi nal judgments: (i) direct (provided for in 

O.C.G.A. § 5-6-34(a)); and (ii) discretionary (provided for in O.C.G.A. § 5-6-35). Appeals from 

non-fi nal judgments, termed interlocutory appeals, are provided for in O.C.G.A. § 5-6-34(b) and 

are discussed in Sections 2.4.6 through 2.4.8. As the names imply, the appellate courts must hear 

a direct appeal, while they may decline to hear discretionary appeals. Vastly different procedures 

apply to the commencement of each appeal. 

§ 2.4.1 Direct Appeals Generally 

Direct appeals are initiated by fi ling a notice of appeal with the trial court. The appellant 

need not obtain the trial court’s or the appellate court’s permission to pursue a direct appeal. Direct 

appeals are permitted from most fi nal judgments (except those excluded by O.C.G.A. § 5-6-35(a), 

which are discussed in Section 2.4.5) and from a limited number of statutorily-enumerated nonfi 

nal judgments. 33 In a direct appeal, any other judgment, ruling, or order in the case that may affect 

28 City of Decatur v. DeKalb Cnty., 284 Ga. 434, 437, 668 S.E.2d 247, 250 (2008); White v. Bd. of Comm’rs, 

252 Ga. App. 120, 122 n.10, 555 S.E.2d 45, 48 n.10 (2001); Scott v. State, 157 Ga. App. 608, 608-09, 278 

S.E.2d 49, 49-50 (1981). 

29 Williams v. State, 273 Ga. 848, 848-49, 546 S.E.2d 522, 523 (2001). 

30 Oswell v. State, 181 Ga. App. 35, 36, 351 S.E.2d 221, 222 (1986); Brown v. State, 16 Ga. App. 268, 268, 

85 S.E. 262, 262 (1915). 

31 Walker v. Hall, 226 Ga. 68, 69, 172 S.E.2d 411, 411-12 (1970). 

32 GA. CONST. art. IV, § 6, 11(1); Burson v. State, 183 Ga. App. 647, 648, 359 S.E.2d 731, 732 (1987). 

33 O.C.G.A. § 5-6-34(a). 

- 22 -


the proceedings below, even if not otherwise directly appealable, may be raised and ruled on by the 

appellate court. 34 

§ 2.4.2 Direct Appeals from Final Judgments 

O.C.G.A. § 5-6-34(a)(1) provides for direct appeals to the Supreme Court or the Court of 

Appeals from all fi nal judgments (except those fi nal judgments enumerated in O.C.G.A. § 5-6-35 

that must be pursued as discretionary appeals by application). A judgment or order is “fi nal” when 

there is no aspect of the case pending in the lower court. 35 In other words, a judgment or order is 

“fi nal” if there is no remaining issue to be resolved by the trial court, a fi nal ruling on the merits 

of the matter has been made, and the parties have no further recourse in the trial court. 36 A good 

practical test for making this determination is whether there will be any further role for the trial 

court, if its decision is affi rmed. If further action will be required, the judgment generally is not 

fi nal. Finality for purposes of an appeal is measured by the same standards as res judicata fi nality. 37 

The following types of rulings, among others, have been deemed directly appealable: 

• Orders denying applications for leave to fi le quo warranto; 38 

• Contempt orders, even where the contemnor is given the opportunity to purge the 

contempt before imposition of punishment; 39 

• Orders denying motions to strike a voluntary dismissal; 40 

34 O.C.G.A. § 5-6-34(d); Martin v. Williams, 263 Ga. 707, 710, 438 S.E.2d 353, 355 (1994); Harrell v. Fed. 

Nat’l Payables, Inc., 284 Ga. App. 395, 397, 643 S.E.2d 875, 876 (2007); Bradford v. State, 283 Ga. 

App. 75, 78 n.4, 640 S.E.2d 630, 633 n.4 (2006); Benedict v. Snead, 253 Ga. App. 749, 751, 560 S.E.2d 

278, 279 (2002); Am. Car Rentals, Inc. v. Walden Leasing, Inc., 220 Ga. App. 314, 317, 469 S.E.2d 431, 

433-34 (1996). 

35 Johnson Real Estate Invs., LLC v. Aqua Indus., Inc., 275 Ga. App. 532, 532, 621 S.E.2d 530, 531 (2005); 

Ltd., Inc. v. Learning Childbirth Ctr., Inc., 255 Ga. App. 688, 689, 566 S.E.2d 411, 412 (2002); In re 

M.B.B., 241 Ga. App. 249, 250, 526 S.E.2d 76, 77 (1999); Forrister v. Manis Lumber Co., 232 Ga. App. 

370, 371, 501 S.E.2d 606, 609 (1998). 

36 Owens v. Green Tree Servicing, LLC, 300 Ga. App. 22, 24-25, 684 S.E.2d 99, 101 (2009); Williams v. 

City of Atlanta, 263 Ga. App. 113, 114, 587 S.E.2d 261, 262 (2003); Vurgess v. State, 187 Ga. App. 700, 

701, 371 S.E.2d 191, 192 (1988). 

37 Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243, 248 S.E.2d 641, 642 (1978). 

38 Westberry v. Saunders, 250 Ga. 240, 242, 296 S.E.2d 596, 598 (1982); Thibadeau v. Henley, 233 Ga. 

884, 884, 213 S.E.2d 657, 658 (1975). 

39 Hamilton Capital Grp., Inc. v. Equifax Credit Info. Servs., Inc., 266 Ga. App. 1, 3, 596 S.E.2d 656, 659 

(2004). 

40 Pizza Ring Enters., Inc. v. Mills Mgmt. Sources, Inc., 154 Ga. App. 45, 46, 267 S.E.2d 487, 487 (1980). 

- 23 -


• Judgments in condemnation proceedings stating that no compensation is to be paid to 

the condemnee; 41 

• Orders granting motions to dismiss unless granted as to less than all defendants; 42 

• Final orders of the director of the Department of Natural Resources entered pursuant 

to O.C.G.A. § 12-5-189; 43 and 

• Other orders that affect the rights of the parties to the litigation and leave no further 

action for the trial court. 44 

§ 2.4.3 Direct Appeals from Non-Final Orders and Judgments 

In addition to fi nal judgments, a limited number of non-fi nal judgments or orders also are 

directly appealable. These orders and judgments, most of which are enumerated in O.C.G.A. § 5-6- 

34(a), include: 

• Orders denying a motion for a speedy trial or denying a motion to dismiss under the 

speedy trial statute; 45 

• Orders overruling motions to dismiss in an election contest; 46 

• Temporary orders issuing an injunction after an adversary hearing, when the plaintiff 

is granted all relief sought; 47 

• Judgments involving applications for discharge in bail, trover and contempt cases; 48 

41 City of Atlanta v. Turner Adver. Co., 234 Ga. 1, 2-3, 214 S.E.2d 501, 502 (1975). 

42 Coley Fertilizer Co. v. Gold Kist, Inc., 174 Ga. App. 471, 472, 330 S.E.2d 597, 598 (1985); Lawler v. 

Ga. Mut. Ins. Co., 156 Ga. App. 265, 266, 276 S.E.2d 646, 647-48 (1980), overruled on other grounds 

by Becker v. Fairman, 167 Ga. App. 708, 307 S.E.2d 520 (1983). 

43 City of Rincon v. Couch, 272 Ga. App. 411, 412, 612 S.E.2d 596, 597 (2005). 

44 Padgett v. Cowart, 232 Ga. 633, 634, 208 S.E.2d 455, 456 (1974). 

45 Callaway v. State, 275 Ga. 332, 332, 567 S.E.2d 13, 14 (2002); Hubbard v. State, 254 Ga. 694, 695, 333 

S.E.2d 827, 828 (1985); Reid v. State, 116 Ga. App. 640, 642-44, 158 S.E.2d 461, 465 (1967). 

46 Blackburn v. Hall, 115 Ga. App. 235, 238-39, 154 S.E.2d 392, 396-97 (1967). 

47 Glynn Cnty. Bd. of Tax Assessors v. Haller, 273 Ga. 649, 649-50, 543 S.E.2d 699, 701 (2001). 

48 Dennis v. Dennis, 302 Ga. App. 791, 793, 692 S.E.2d 47, 49 (2010). 

- 24 -


• Judgments or orders directing an accounting; 49 

• Judgments or orders granting or refusing applications for the appointment of receivers 

or for interlocutory or fi nal injunctions; 

• Judgments or orders granting or refusing applications for attachment against fraudulent 

debtors; 

• Judgments or orders granting or refusing to grant mandamus or any other extraordinary 

remedy, except with respect to temporary restraining orders; 

• Judgments or orders refusing applications for dissolution of corporations created by 

the superior courts; 

• Judgments or orders sustaining motions to dismiss a caveat to the probate of a will; and 

• Orders within a deprivation proceeding deciding temporary custody of the child. 50 

When an appeal in a case listed in O.C.G.A. § 5-6-34(a), but not in § 5-6-35(a), is begun 

by fi ling a timely application for permission to appeal, but without also fi ling a timely notice of 

appeal, the appellate court nevertheless will grant the application, and the case will proceed in 

accordance with O.C.G.A. § 5-6-35(g). 51 There is some support in the case law for the similar 

treatment of directly appealable cases that are not listed in O.C.G.A. § 5-6-34(a), when such cases 

are erroneously begun by application instead of a notice of appeal. 52 

§ 2.4.4 Motions for Summary Judgment 

Section 9-11-56(h) of the Georgia Code allows an immediate direct appeal whenever a 

motion for summary judgment is granted, even in part. 53 The party against whom a motion for 

summary judgment is granted as to fewer than all of the issues or all of the parties in a case has the 

option of seeking an immediate direct appeal pursuant to O.C.G.A. § 9-11-56(h), or of waiting until 

49 While orders directing that an accounting be had are directly appealable, orders “performing the 

accounting” are not directly appealable. Geeslin v. Sheftall, 263 Ga. App. 827, 827, 589 S.E.2d 601, 601 

(2003). 

50 In re A.T., 309 Ga. App. 822, 825 n.3, 711 S.E.2d 382, 385 n.3 (2011); In re S.J., 270 Ga. App. 598, 608, 

607 S.E.2d 225, 233 (2004). 

51 O.C.G.A. § 5-6-35(j); Fulton Cnty. v. Congregation of Anshei Chesed, 275 Ga. 856, 857 n.3, 572 S.E.2d 

530, 531 n.3 (2002); Smith v. State, 257 Ga. App. 468, 469, 571 S.E.2d 446, 448 (2002). 

52 In re Carter, 235 Ga. App. 551, 551, 510 S.E.2d 91, 92 (1998). 

53 Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243, 248 S.E.2d 641, 642 (1978); Benedict v. Snead, 253 

Ga. App. 749, 751, 560 S.E.2d 278, 279 (2002). 

- 25 -


fi nal judgment to directly appeal, 54 but may not do both. “[W]e hold that a losing party on summary 

judgment who puts the machinery of intermediate appellate review under O.C.G.A. § 9-11-56(h) 

into motion, yet commits a procedural default fatal to his appeal, is foreclosed from thereafter 

resubmitting the matter for review on appeal of the fi nal judgment.” 55 

This exception also applies to the granting of motions for partial summary judgment, 56 but 

it does not apply to the denial of summary judgment. Nor does it apply where the appellate court 

concludes that the underlying order, although denominated a summary judgment, in actuality was 

not. 57 An order denying summary judgment may be appealed only on an interlocutory basis in 

accordance with O.C.G.A. § 5-6-34(b). 58 

In a direct appeal of the granting of a summary judgment motion pursuant to O.C.G.A. 

§ 9-11-56(h), any other judgments, rulings, or orders rendered in the case and which may affect the 

proceedings below (including the denial of a summary judgment motion) may be raised on appeal 

and reviewed by the appellate court. 59 

A summary judgment entered by a superior court in a case appealed from magistrate court 

is not directly appealable under O.C.G.A. § 9-11-56(h). Those types of summary judgment rulings 

are discretionary appeals governed by O.C.G.A. § 5-6-35. 60 

§ 2.4.5 Final Orders Appealable Only by Application 

It is crucial for counsel to review the discretionary appeal statute 61 and related case law 

before proceeding with an appeal to confi rm whether the discretionary appeal statute applies. As 

the Supreme Court has admonished: “[B]efore proceeding to this Court, a party should always 

54 Hooks v. Humphries, 303 Ga. App. 264, 266 n.3, 692 S.E.2d 845, 847 n.3 (2010); Benedict, 253 Ga. App. 

at 751, 560 S.E.2d at 279; Perrett v. Sumner, 286 Ga. App. 379, 380, 649 S.E.2d 545, 547 (2007). 

55 Eckerd Corp. v. Alterman Real Estate, Ltd., 266 Ga. App. 860, 862, 598 S.E.2d 510, 513 (2004). 

56 Adv. Contouring, Inc. v. McMillan Div. of States Eng’g Corp., 179 Ga. App. 128, 129, 345 S.E.2d 666, 

667 (1986). 

57 Clark v. Atlanta Indep. Sch. Sys., Nos. A11A0549, A11A0550, A11A0551, 2011 WL 2139006 (Ga. Ct. 

App. June 1, 2011); Forest City Gun Club v. Chatham Cnty., 280 Ga. App. 219, 222, 633 S.E.2d 623, 626 

(2006) (dismissing an appeal of a trial court’s purported grant of partial summary judgment based on the 

appellate court’s conclusion that the motion was not a summary judgment motion, but instead “was more 

akin to a motion in limine”). 

58 O.C.G.A. § 9-11-56(h). 

59 Se. Ceramics, Inc. v. Klem, 246 Ga. 294, 295, 271 S.E.2d 199, 200 (1980); Payless Car Rental Sys., Inc. 

v. Elkik, 306 Ga. App. 389, 393-94, 702 S.E.2d 697, 700-01 (2010). 

60 Bullock v. Sand, 260 Ga. App. 874, 875, 581 S.E.2d 333, 334-35 (2003). 

61 O.C.G.A. § 5-6-35. 

- 26 -


review the discretionary application statute to see if it covers the underlying subject matter of the 

appeal. If it does, then the party must fi le an application for appeal as provided under O.C.G.A. 

§ 5-6-35.” 62 

Pursuant to O.C.G.A. § 5-6-35, the following fi nal judgments are not directly appealable 

and require an application for review: 

• Appeals from judgments of the superior courts reviewing decisions of the State Board 

of Workers’ Compensation, 63 the State Board of Education, auditors, 64 state and local 

administrative agencies, 65 and lower courts by certiorari or de novo proceedings; 66 

• Appeals from judgments or orders in divorce, alimony, child custody, and other 

domestic relations cases; 67 

• Dispossessory or distress warrant cases where the only issue is the amount of rent due 

and the amount is $2,500 or less; 

• Cases involving garnishment or attachment except those involving applications for 

attachment against fraudulent debtors; 

• Revocations of probation; 68 

62 Ferguson v. Composite State Bd. of Med. Exam’rs, 275 Ga. 255, 257, 564 S.E.2d 715, 717 (2002). 

63 Ga. Mountain Excavation, Inc. v. Dobbins, 309 Ga. App. 155, 155 n.1, 710 S.E.2d 205, 206 n.1 (2011). 

64 McCaughey v. Murphy, 267 Ga. 64, 65, 473 S.E.2d 762, 764 (1996). 

65 Ladzinske v. Allen, 280 Ga. 264, 266, 626 S.E.2d 83, 86 (2006); Ferguson, 275 Ga. at 258, 564 S.E.2d at 

718; Consol. Gov’t of Columbus v. Barwick, 274 Ga. 176, 177, 549 S.E.2d 73, 74-75 (2001). 

66 Bullock v. Sand, 260 Ga. App. 874, 875, 581 S.E.2d 333, 334-35 (2003). This does not apply to decisions 

of the Public Service Commission and the probate courts, or to cases involving ad valorem taxes and 

condemnations. O.C.G.A. § 5-6-35(a)(1). 

67 Symms v. Symms, 288 Ga. 748, 748 n.1, 707 S.E.2d 368, 368 n.1 (2011); Walker v. Estate of Mays, 279 

Ga. 652, 655, 619 S.E.2d 679, 682 (2005). In December 2002, the Supreme Court voted “to launch a 

one-year experiment in which the court will grant all ‘non-frivolous’ appeal applications from divorce 

and alimony cases.” Jonathan Ringel, High Court to Accept All Divorce, Alimony Bids, FULTON COUNTY 

DAILY REPORT, Dec. 20, 2002. The Supreme Court extended the pilot project periodically through June 

30, 2011. On June 20, 2011, the Supreme Court amended its Rule 34, effective July 1, 2011, to include 

a new subsection (4), providing that timely applications from a judgment and decree of divorce shall be 

granted if they are “determined to have possible merit by a majority vote of the Court.” GA. S. CT. R. 

34(4). 

68 Andrews v. State, 276 Ga. App. 428, 431, 623 S.E.2d 247, 251 (2005) (“[W]e hold that all direct appeals 

following probation revocations pursuant to O.C.G.A. § 16-13-2(a), that are fi led after the date of this 

opinion, will be subject to the discretionary appeal procedures of O.C.G.A. § 5-6-35(a)(5).”); Zamora v. 

State, 226 Ga. App. 105, 105-06, 485 S.E.2d 214, 214 (1997). 

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• Actions for damages where judgment is $10,000 or less; 69 

• Denials of extraordinary motions for new trials, unless taken as part of a direct appeal; 70 

• Appeals from denial of a motion seeking DNA testing as part of an extraordinary 

motion for new trial; 71 

• Orders under O.C.G.A. § 9-11-60(d) or (e) denying a motion to set aside a judgment; 72 

• Appeals from orders granting or denying temporary restraining orders; 73 

• Awards of attorneys’ fees or expenses of litigation under § 9-15-14; 74 

• Appeals from decisions of state courts reviewing decisions of magistrate courts de 

novo so long as the decision is not otherwise subject to a right of direct appeal; 75 

• Appeals from decisions of Superior Courts resolving will construction issues pursuant 

to O.C.G.A. § 53-7-75; 76 

69 Harpagon Co. v. Davis, 283 Ga. 410, 411, 658 S.E.2d 633, 634 (2008); NF Invs., Inc. v. Whitfi eld, 245 

Ga. App. 72, 72, 537 S.E.2d 207, 208 (2000); Eberhardt v. Ga. Farm Bureau Mut. Ins. Co., 223 Ga. App. 

478, 479, 477 S.E.2d 907, 908 (1996); cf. Kelly v. Pierce Roofi ng Co., 220 Ga. App. 391, 391, 469 S.E.2d 

469, 471 (1996) (holding that action on lien for less than $10,000 does not require discretionary appeal 

application). 

70 O.C.G.A. § 5-5-41. 

71 Crawford v. State, 278 Ga. 95, 96, 597 S.E.2d 403, 404 (2004). 

72 O.C.G.A. § 5-6-35(a)(8); Martin v. Williams, 263 Ga. 707, 708, 438 S.E.2d 353, 354 (1994); Rogers v. 

Estate of Harris, 276 Ga. App. 898, 899, 625 S.E.2d 65, 67 (2005). 

73 O.C.G.A. § 5-6-35(a)(9). 

74 O.C.G.A. § 5-6-35(a)(10); Capricorn Sys., Inc. v. Godavarthy, 253 Ga. App. 840, 841-42, 560 S.E.2d 

730, 731 (2002). 

75 O.C.G.A. § 5-6-35(a)(11). 

76 Bandy v. Elmo, 280 Ga. 221, 222, 626 S.E.2d 505, 506 (2006). 

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• Appeals from revocation of “fi rst offender probation”; 77 and 

• Appeals from judgments on petitions for writs of habeas corpus. 78 

§ 2.4.6 Orders Requiring Interlocutory Application for Appeal 

If the judgment or order from which an appeal is sought is not fi nal and is not covered by 

O.C.G.A. § 5-6-34(a), the appellant must seek and receive a certifi cate of immediate review from 

the trial court before fi ling an application for interlocutory appeal. 79 The trial judge must certify, 

within 10 days of the entry of the order, whether the order or ruling is of such importance to the case 

that immediate review should be had. 80 If the trial judge issues the certifi cate, the appellant must 

fi le an application for interlocutory review with the appellate court within 10 days of its issuance. 81 

The appellate court will then decide whether to allow an appeal. Failure to follow this procedure 

will lead to a dismissal of the appeal. 82 

§ 2.4.7 Basis for Granting Interlocutory Appeal 

Applications for interlocutory appeal are not granted automatically. The appellate courts 

have issued rules providing that applications for interlocutory review will be granted only if: 

(i) the issue to be decided appears to be dispositive of the case; (ii) the objectionable order appears 

erroneous and will probably cause a substantial error at trial, or will adversely affect the rights of 

the appealing party until the entry of fi nal judgment, in which case the appeal will be expedited; 

or (iii) the establishment of precedent is desirable. 83 The Supreme Court has the inherent power 

to assume jurisdiction over and consider appeals of interlocutory orders in rare instances when it 

disagrees with the trial court and considers the issues to be of suffi cient gravity. 84 

77 Freeman v. State, 245 Ga. App. 333, 333-34, 537 S.E.2d 763, 763 (2000). 

78 Brown v. Crawford, 289 Ga. 722, 723-24, 715 S.E.2d 132, 133-35 (2011). Prior to Crawford, judgments 

on petitions for writs of habeas corpus had been treated as directly appealable. See, e.g., Jackson v. 

Bittick, 286 Ga. 364, 364-65, 690 S.E.2d 803, 804 (2010). In Crawford, however, the Supreme Court 

held that a 1999 amendment to the Prison Litigation Reform Act, O.C.G.A. §§ 42-12-1 et seq., rendered 

appeals from such judgments subject to the discretionary review process set forth in O.C.G.A. § 5-6-35. 

79 O.C.G.A. § 5-6-34(b). 

80 Id.; Clayton v. Edwards, 225 Ga. App. 141, 144, 483 S.E.2d 111, 114 (1997). 

81 O.C.G.A. § 5-6-34(b); Barnes v. Justis, 223 Ga. App. 671, 672, 478 S.E.2d 402, 403 (1996). 

82 Gray v. Springs, 224 Ga. App. 427, 428, 481 S.E.2d 3, 4 (1997); Holton v. State, 173 Ga. App. 249, 249, 

326 S.E.2d 240, 240 (1985). 


84 Waldrip v. Head, 272 Ga. 572, 575-77, 532 S.E.2d 380, 385-86 (2000). 

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§ 2.4.8 Orders Requiring Interlocutory Appeal 

Although not intended to be complete, the following is a list of orders that have been held 

to be appealable only with a certifi cate of immediate review from the trial court and an application 

to the proper appellate court: 

• Orders denying motions to suppress evidence; 85 

• Orders granting motions to set aside judgments and motions for new trials; 86 

• Orders granting motions to transfer venue where the case remains pending below; 87 

• Orders granting or denying motions to dismiss motions to set aside judgments against 

garnishees; 88 

• Orders denying motions to require that a garnishment bond be strengthened; 89 

• Orders vacating prior orders substituting parties; 90 

• Orders granting a writ of possession; 91 

• Orders sustaining a motion for a directed verdict as to less than all plaintiffs; 92 

• Orders dismissing one of multiple defendants (unless an express determination of 

fi nality as required under O.C.G.A. § 9-11-54(b) is made); 93 

85 Genter v. State, 218 Ga. App. 311, 311, 460 S.E.2d 879, 880 (1995); Holton, 173 Ga. App. at 249, 326 

S.E.2d at 240; Cody v. State, 116 Ga. App. 331, 331, 157 S.E.2d 496, 496 (1967). 

86 Brooks v. State, 229 Ga. 593, 593, 194 S.E.2d 256, 256 (1972); Ferri v. Puckett, 241 Ga. App. 34, 34, 525 

S.E.2d 779, 779 (1999); Griffi th v. Ga. Bd. of Dentistry, 175 Ga. App. 533, 534, 333 S.E.2d 647, 647-48 

(1985); Franklin v. Collins, 162 Ga. App. 755, 293 S.E.2d 364 (1982); . 

87 Griffi th, 175 Ga. App. at 534, 333 S.E.2d at 647-48. 

88 Trust Co. of Columbus v. Ferrior, 141 Ga. App. 328, 328, 233 S.E.2d 280, 280 (1977); Finch v. Kilgore, 

120 Ga. App. 320, 320, 170 S.E.2d 304, 305 (1969). 

89 Wilson v. Wilson, 130 Ga. App. 175, 176, 202 S.E.2d 681, 682 (1973). 

90 Franklin v. Sea Island Bank, 120 Ga. App. 654, 658, 171 S.E.2d 866, 870 (1969). 

91 Golden v. Gray, 156 Ga. App. 596, 596-97, 275 S.E.2d 162, 162-63 (1980). 

92 Rodriguez v. Newby, 130 Ga. App. 139, 140, 202 S.E.2d 565, 566 (1973). 

93 Stancil v. Gwinett Cnty., 259 Ga. 507, 508, 384 S.E.2d 666, 667 (1989); Home Mart Bldg. Ctrs., Inc. v. 

Wallace, 139 Ga. App. 49, 49, 228 S.E.2d 22, 22 (1976). 

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• Orders regarding discovery, depositions, or interrogatories unless they fall within the 

very limited collateral orders exception; 94 

• Judgments denying intervention; 95 

• Judgments sustaining or dismissing pleas in abatement; 96 

• Judgments overruling pleas of jurisdiction; 97 

• Orders overruling or dismissing pleas of res judicata; 98 

• Orders denying motions for judgment notwithstanding a mistrial; 99 

• Orders failing to declare acts of the General Assembly unconstitutional; 100 

• Orders subject to revision; 101 

• Orders granting relief from supersedeas or permanent injunction; 102 

• Determinations of liability without determination of damages; 103 

• Entries of judgments as to one or more, but fewer than all, claims or parties; 104 

94 Gen. Motors Corp. v. Hammock, 255 Ga. App. 131, 132-33, 564 S.E.2d 536, 538 (2002); Johnson & 

Johnson v. Kaufman, 226 Ga. App. 77, 81-82, 485 S.E.2d 525, 528-29 (1997). 

95 Prison Health Servs., Inc. v. Ga. Dept. of Admin. Servs., 265 Ga. 810, 811, 462 S.E.2d 601, 603 (1995); 

Henderson v. Atlanta Transit Sys., Inc., 233 Ga. 82, 82, 210 S.E.2d 4, 4 (1974). 

96 Austin v. State, 179 Ga. App. 235, 235, 345 S.E.2d 688, 689 (1986); Peach v. State, 116 Ga. App. 703, 

704, 158 S.E.2d 701, 702 (1967). 

97 Carlisle v. Carlisle, 227 Ga. 221, 221, 179 S.E.2d 769, 769 (1971). 

98 Gen. Shoe Corp. v. Hood, 119 Ga. App. 648, 648-49, 168 S.E.2d 326, 326 (1969). 

99 Phillips v. State, 153 Ga. App. 410, 411, 265 S.E.2d 293, 295 (1980). 

100 Keck v. Harris, 277 Ga. 667, 668, 594 S.E.2d 367, 369 (2004); Lane v. Morrison, 226 Ga. 526, 527, 175 

S.E.2d 830, 830 (1970). 

101 Stephens v. State Farm Mut. Auto. Ins. Co., 236 Ga. App. 758, 760, 513 S.E.2d 508, 510 (1999); Davis 

v. Transairco, Inc., 141 Ga. App. 544, 545, 234 S.E.2d 134, 136 (1977). 

102 Fulford v. Fulford, 225 Ga. 510, 510, 170 S.E.2d 27, 27 (1969). 

103 Havischak v. Neal, 176 Ga. App. 203, 204, 335 S.E.2d 469, 470 (1985). 

104 Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243, 248 S.E.2d 641, 642 (1978). 

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• Orders dismissing complaints where counterclaims remain pending; 105 and 

• Orders awarding temporary alimony. 106 

§ 2.5 Procedure for Filing Appeal 

§ 2.5.1 Procedure for Direct Appeal 

A notice of appeal must be fi led with the trial court within 30 days after entry of the decision 

or judgment appealed from unless a motion for a new trial, a motion in arrest of judgment, or a 

motion for judgment notwithstanding the verdict has been fi led. 107 This includes orders designated 

as fi nal judgments pursuant to O.C.G.A. § 9-11-54(b). 108 In cases in which a motion for a new 

trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict is fi led, 

the notice of appeal must be fi led within 30 days of the entry of the order granting, overruling 

or otherwise fi nally disposing of the motion. 109 It is important to note that neither a motion for 

reconsideration nor a motion to set aside extends the time for fi ling a notice of appeal. 110 In 

general, a motion for reconsideration that is pending in the trial court does not operate to block the 

jurisdiction of the Supreme Court or Court of Appeals over a notice of appeal regarding the effi cacy 

105 Yates v. CACV of Colo., LLC, 295 Ga. App. 69, 70, 670 S.E.2d 884, 885 (2008); Hadid v. Beals, 233 Ga. 

App. 5, 6, 502 S.E.2d 798, 799 (1998); Hogan Mgmt. Servs., P.C. v. Martino, 225 Ga. App. 168, 168-69, 

483 S.E.2d 148, 148-49 (1997). 

106 Bailey v. Bailey, 266 Ga. 832, 833, 471 S.E.2d 213, 214 (1996). 

107 O.C.G.A. § 5-6-38(a); see also Chapter 4 of this Handbook. 

108 Lewis v. Carscallen, 274 Ga. App. 711, 713, 618 S.E.2d 618, 620 (2005) (“The law is clear that when 

a trial court designates its order as a fi nal judgment under O.C.G.A. § 9-11-54(b), a party is required to 

appeal any adverse rulings in that order within 30 days of the entry of judgment.”). 

109 O.C.G.A. § 5-6-38(a); Heard v. State, 274 Ga. 196, 197, 552 S.E.2d 818, 821 (2001) (holding that a 

trial court order resolving a motion for new trial, instead of a voluntary withdrawal of such a motion, is 

required to extend time for fi ling notice of appeal beyond 30 days after entry of judgment); Cooper v. 

Spotts, 309 Ga. App. 361, 362, 710 S.E.2d 159, 161 (2011) (overruling Dept. of Human Res. v. Holland, 

236 Ga. App. 273, 511 S.E.2d 628 (1999), to the extent Holland held that the fi ling of a discretionary 

application divests the trial court of jurisdiction to rule on a motion for new trial); see also Chapter 4 of 

this Handbook. 

110 Bell v. Cohran, 244 Ga. App. 510, 510, 536 S.E.2d 187, 187 (2000); Hardrick v. Morgan, 240 Ga. App. 

155, 155-56, 522 S.E.2d 742, 743 (1999); MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 561, 462 

S.E.2d 771, 773 (1995) (holding that a motion to set aside does not extend the time for fi ling an appeal). 

- 32 -


of the order that underlies the motion for reconsideration. 111 Any cross appeal by the appellee must 

be fi led within 15 days of the service of the appellant’s notice of appeal. 112 

§ 2.5.2 Procedure for Appeal by Application 

§ 2.5.2.1 Appeal of Final Order by Application 

If the appeal is of a fi nal judgment enumerated in O.C.G.A. § 5-6-35(a), the appellant 

must fi le an application for leave to appeal with the appellate court. 113 The application required 

is a petition enumerating the errors to be urged on appeal, stating why the appellate court has 

jurisdiction, and specifying the order or judgment being appealed. 114 The application must include 

as exhibits copies of the order being appealed, the petition or motion that led directly to the order, 

and any responses to the petition or motion. 115 The application may also include copies of other 

parts of the record as the applicant deems appropriate. Court of Appeals Rule 31 requires that all 

material submitted be tabbed and indexed. The appellant has the burden of showing error from the 

material submitted and presenting the necessary portions of the record to the court. The application 

may be denied if the material submitted is not suffi cient for review by the court. 116 Accordingly, 

attorneys should give careful consideration to what portions of the record they choose to submit and 

should omit portions of the record only after considered deliberation. 

The application must be fi led with the clerk of the appellate court within 30 days of the 

entry of the order appealed from. 117 A party opposing the application must fi le a response within 10 

days from the date the application is fi led. 118 The appellate court must then issue an order granting 

or denying the appeal within 30 days of its fi ling. 119 If the court grants the application, the applicant 

111 Threatt v. Forsyth Cnty., 250 Ga. App. 838, 844, 552 S.E.2d 123, 128 (2001). 

112 O.C.G.A. § 5-6-38(a); Moon v. State, 288 Ga. 508, 517, 705 S.E.2d 649, 658 (2011); see also Chapter 4 

of this Handbook. 

113 Adivari v. Sears, Roebuck & Co., 221 Ga. App. 279, 280, 471 S.E.2d 59, 60 (1996). 

114 O.C.G.A. § 5-6-35(b). 

115 O.C.G.A. § 5-6-35(c). 

116 Harper v. Harper, 259 Ga. 246, 246-47, 378 S.E.2d 673, 674 (1989). 

117 O.C.G.A. § 5-6-35(d). 

118 O.C.G.A. § 5-6-35(e). 

119 O.C.G.A. § 5-6-35(f). 

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must fi le a notice of appeal within 10 days of the issuance of the order granting the application. 120 

The procedure followed after the fi ling of the notice is then the same as in other appeals. 121 

A failure to follow the discretionary appeal procedure will lead to a dismissal of the 

appeal. 122 However, the fi ling of a notice of appeal after the entry of judgment but before the 

granting of the application is not a failure to fi le timely and is not grounds for dismissal. 123 

§ 2.5.2.2 Appeal of Non-Final Order by Application 

A party may appeal, on an interlocutory basis, an otherwise non-appealable order under 

O.C.G.A. § 5-6-34(b). In order to fi le such an interlocutory appeal, the appellant must obtain a 

certifi cate from the trial judge certifying that the order, decision, or judgment is of such importance 

to the case that immediate review should be permitted. 124 This certifi cate must be obtained within 

10 days of the entry of the order. If the trial court issues the certifi cate, the party must then fi le 

an application for interlocutory review with the appellate court within 10 days of the trial court’s 

issuance of the certifi cate. Because the appeal is discretionary, the application should articulate the 

issues involved and the need for interlocutory review. The application may also include a copy of 

those portions of the record necessary for the court to understand and evaluate the request. These 

copies need not be certifi ed. 125 

The opposing party must be served with a copy of the application on or before the date it 

is fi led. The opposing party has 10 days from the date the application is fi led to tender a response. 

The response may include those parts of the record the opposing party deems necessary to the 

evaluation of the application. 

The appellate court is required either to grant or deny the application within 30 days. If the 

application is granted, the moving party must then fi le a notice of appeal within 10 days of the order 

granting the application, as required by O.C.G.A. § 5-6-37. The failure to fi le a notice of appeal 

will deprive the appellant of the right to prosecute the appeal even if the application is granted. 

120 O.C.G.A. § 5-6-35(g). 

121 Id. 

122 Parker v. Bellamy-Lunda-Dawson, 190 Ga. App. 257, 258, 378 S.E.2d 502, 503 (1989); AAA Van Servs., 

Inc. v. Willis, 182 Ga. App. 46, 46, 354 S.E.2d 631, 632 (1987). 

123 Randall v. Randall, 274 Ga. 107, 108, 549 S.E.2d 384, 386 (2001); Wannamaker v. Carr, 257 Ga. 634, 

635, 362 S.E.2d 53, 54 (1987). 

124 The certifi cate need not contain any “magic words,” but substantial compliance with the statute is 

required. Clayton v. Edwards, 225 Ga. App. 141, 144, 483 S.E.2d 111, 114 (1997). 

125 O.C.G.A. § 5-6-34(b). 

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Once the notice of appeal is fi led, it serves as a supersedeas as provided in O.C.G.A. § 5-6-46, and 

the interlocutory appeal proceeds in the same manner as an appeal from a fi nal judgment. 126 

Before 1995, there was no provision for granting an extension of time to fi le discretionary 

and interlocutory applications with the appellate courts. Trial courts still may not grant an 

extension, 127 and the rules of the Court of Appeals prohibit such a request. 128 Current Supreme 

Court Rule 12, however, allows for the possibility of the grant of an extension of time for fi ling 

applications, although an extension will be given only in unusual circumstances and only when the 

request is fi led before the expiration of the original period for fi ling. 

§ 2.6 Nature of Review on Appeal 

§ 2.6.1 Appeals Generally Limited to Corrections of Errors of Law 

Georgia’s appellate courts do not sit as fact-fi nding bodies and generally review appeals for 

the correction of errors of law. 129 Nevertheless, the appellate courts will review a trial court’s factual 

determinations to determine if there is “any evidence” to support them. 130 Moreover, although the 

excessiveness or inadequacy of a damages award is a factual question, 131 the appellate court will 

review the award in light of the evidence to determine whether it is “so fl agrantly excessive or 

inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross 

mistake.” 132 

126 Id. 

127 Rosenstein v. Jenkins, 166 Ga. App. 385, 304 S.E.2d 740 (1983). 

128 GA. CT. APP. R. 16; Wilson v. Carver, 252 Ga. App. 174, 174, 555 S.E.2d 848, 849 (2001). 

129 Young v. Scott, 212 Ga. App. 572, 575, 442 S.E.2d 768, 770-71 (1994). 

130 Lifestyle Home Rentals, LLC v. Rahman, 290 Ga. App. 585, 660 S.E.2d 409 (2008); Cannon v. Wesley 

Plantation Apartments, 256 Ga. App. 244, 247, 568 S.E.2d 137, 139 (2002). 

131 Moody v. Dykes, 269 Ga. 217, 221-22, 496 S.E.2d 907, 912 (1998); Riddle v. Golden Isles Broad., LLC, 

292 Ga. App. 888, 889, 666 S.E.2d 75, 77 (2008). 

132 Kohl v. Tirado, 256 Ga. App. 681, 682, 569 S.E.2d 576, 578 (2002); see also O.C.G.A. § 51-12-12. 

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§ 2.6.2 Issue Must Have Been Raised In and Ruled Upon 

by Trial Court 

The appellate courts review only those issues presented to and ruled upon by the trial court 

and properly presented to the appellate court. If an issue, including a constitutional issue, 133 is 

not presented to or ruled upon by the trial court, it typically is waived. 134 However, the appellate 

court nevertheless may allow the appeal when manifest injustice would result in the absence of 

appellate review. The error alleged must appear in the appellate record 135 and must be specifi ed in 

the enumerations of error. 136 Similarly, if an issue raised in the trial court is not raised on appeal, it 

is waived. If the error is not set forth in the enumerations of error, the appellate court will not hear 

or decide the issue. 137 An enumeration of error may not be enlarged by brief on appeal to cover 

issues not contained in the original enumeration. 138 

§ 2.6.3 Scope of Review of Jury Verdicts 

The appellate courts may reverse a judgment entered on a jury verdict if the trial court 

committed legal error, such as improperly excluding or allowing evidence, or incorrectly charging 

the jury. 139 Absent legal error, the appellate courts will not disturb a jury verdict supported by some 

evidence. 140 However, when a jury returns a general verdict without specifying under what legal 

theory the award is made, the verdict will be reversed if any of the legal theories submitted to it is 

held to be improper. 141 

133 Kohl v. Manning, 223 Ga. 755, 755, 158 S.E.2d 375, 376 (1967); Finnicum v. State, 296 Ga. App. 86, 88, 

673 S.E.2d 604, 605-06 (2009) (“A constitutional issue is waived by the failure of the trial court to rule 

upon it, and cannot be reviewed on appeal.”) (internal quotation marks omitted); Bain v. State, 258 Ga. 

App. 440, 446, 574 S.E.2d 590, 595 (2002). 

134 Dudley v. State, 197 Ga. App. 877, 877-78, 399 S.E.2d 747, 748 (1990); MacDonald v. MacDonald, 156 

Ga. App. 565, 566, 275 S.E.2d 142, 144 (1980). 

135 Moss v. State, 194 Ga. App. 181, 181, 390 S.E.2d 268, 269 (1990); Moye v. State, 127 Ga. App. 338, 341, 

193 S.E.2d 562, 564 (1972). 

136 O.C.G.A. § 5-6-40. 

137 Andrews v. State, 276 Ga. App. 428, 433 n.7, 623 S.E.2d 247, 252 n.7 (2005) (noting that “‘enumerations 

of error cannot be enlarged in the brief to include other issues not asserted’”) (citation omitted). 

138 Howe & Assocs., P.C. v. Daniels, 274 Ga. App. 312, 316, 618 S.E.2d 42, 45 (2005); Ailion v. Wade, 190 

Ga. App. 151, 154, 378 S.E.2d 507, 509 (1989). 

139 Jimenez v. Morgan Drive Away, Inc., 238 Ga. App. 638, 640, 519 S.E.2d 722, 725 (1999); Upchurch v. 

Upchurch, 76 Ga. App. 215, 216, 45 S.E.2d 855, 856 (1947). 

140 S. Co. v. Hamburg, 220 Ga. App. 834, 840, 470 S.E.2d 467, 472 (1996). 

141 Dep’t of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 825, 426 S.E.2d 905, 909 (1992). 

- 36 -


The appellate courts will not disturb the trial court’s fi ndings of fact (with or without 

the assistance of a jury) if they are supported by “any evidence,” unless they are premised upon 

erroneous conclusions of law. 142 If the trial court’s decision is correct for any reason, it will not be 

set aside. 143 Additionally, an appellate court will not entertain moot cases or rule upon hypothetical 

issues. 144 

§ 2.7 Dismissal of Appeals 

Though it is the policy of the Georgia appellate courts to reach the merits of appeals and 

avoid dismissals, 145 there are several instances in which an appeal must or may be dismissed. 

§ 2.7.1 Statutory Grounds for Dismissal 

There are three statutory grounds that require the dismissal of an appeal: (i) the failure to 

fi le a timely notice of appeal; (ii) the fi ling of a notice of appeal from a decision or judgment that 

is not appealable; or (iii) an appeal involving questions that have become moot. 146 In any of these 

instances, the appeal will be dismissed. 147 

142 Guye v. Home Indem. Co., 241 Ga. 213, 215, 244 S.E.2d 864, 866 (1978); T&G Enters., LLC v. White, 

298 Ga. App. 355, 356, 680 S.E.2d 196, 197 (2009); Page v. Braddy, 255 Ga. App. 124, 126, 564 S.E.2d 

538, 541 (2002); Barber v. Perdue, 194 Ga. App. 287, 289, 390 S.E.2d 234, 236 (1989). 

143 Glynn Cnty. v. Palmatary, 247 Ga. 570, 574, 277 S.E.2d 665, 668 (1981); Dempsey v. Se. Indus. 

Contracting Co., 309 Ga. App. 140, 142, 709 S.E.2d 320, 322 (2011); Gwinnett Place Assocs., L.P. v. 

Pharr Eng’g, Inc., 215 Ga. App. 53, 55, 449 S.E.2d 889, 892 (1994). 

144 Ray v. Hartwell R.R. Co., 289 Ga. 452, 453, 711 S.E.2d 722, 724 (2011); Rogers v. Composite State Bd. 

of Med. Exam’rs, 245 Ga. 364, 364-65, 265 S.E.2d 1, 2 (1980); Great N. Nekoosa Corp. v. Bd. of Tax 

Assessors, 244 Ga. 624, 627-28, 261 S.E.2d 346, 348 (1979). 

145 Fulton Cnty. Bd. of Tax Assessors v. Love, 289 Ga. App. 252, 254, 656 S.E.2d 576, 578 (2008); Bates v. 

Snelling, 172 Ga. App. 448, 448, 323 S.E.2d 179, 180 (1984); Corbin v. First Nat’l Bank of Atlanta, 151 

Ga. App. 33, 34, 258 S.E.2d 697, 698 (1979). 

146 O.C.G.A. § 5-6-48(b). 

147 Pimper v. State ex rel. Simpson, 274 Ga. 624, 627, 555 S.E.2d 459, 462 (2001); Young v. Climatrol Se. 

Distrib. Corp., 237 Ga. 53, 54-55, 226 S.E.2d 737, 738-39 (1976); Kappers v. DeKalb Cnty. Bd. of 

Health, 214 Ga. App. 117, 117, 446 S.E.2d 794, 795 (1994). 

- 37 -


§ 2.7.2 Failure to File a Timely Notice of Appeal 

The timely and proper fi ling of a notice of appeal is a jurisdictional condition precedent to 

the exercise of jurisdiction by either appellate court. 148 If the notice is not properly and timely fi led, 

the appeal must be dismissed. 149 

§ 2.7.3 Appealability of Non-Final Orders or Judgments; 

Issues That Are Moot 

An appeal will be dismissed if it is from a non-appealable, non-fi nal order or judgment. 150 

The courts will not entertain issues that are moot, and an appeal may be dismissed on this ground 

as well. 151 The courts have had some diffi culty articulating exactly when a case is moot, and when 

it should or should not be dismissed, but a moot case generally is one that seeks to determine an 

abstract question that does not arise upon existing facts or rights. 152 Although the trial court is not 

specifi cally empowered under O.C.G.A. § 5-6-48 to dismiss an appeal for mootness, the appellate 

courts will affi rm the trial court’s dismissal of a notice of appeal when the issues presented are or 

have become moot. 153 

The courts will not hear appeals from oral orders. Appealable orders must be “‘reduced to 

writing, signed by the judge, and fi led with the clerk.’” 154 

§ 2.7.4 Dismissals for Delays in Transmitting the Transcript or Record 

Most motions to dismiss appeals are fi led with the appellate court. Under O.C.G.A. 

§ 5-6-48(c), however, the trial court may dismiss an appeal if there is an inexcusable delay in the 

148 Caldwell v. Elbert Cnty. Sch. Dist., 247 Ga. 359, 360, 276 S.E.2d 43, 44 (1981); Hester v. State, 242 Ga. 

173, 175, 249 S.E.2d 547, 549 (1978); Hammond v. Unifi ed Gov’t of Athens-Clarke Cnty., 240 Ga. App. 

432, 432, 525 S.E.2d 709, 710 (1999). 

149 Rowland v. State, 264 Ga. 872, 875, 452 S.E.2d 756, 760 (1995); Hammond, 240 Ga. App. at 432, 525 

S.E.2d at 710. For a more detailed discussion of the deadline and extensions for fi ling a notice of appeal, 

please see Chapter 4 of this Handbook. 

150 In re G.C.S., 186 Ga. App. 291, 291-92, 367 S.E.2d 103, 104 (1988); D.C.E. v. State, 130 Ga. App. 724, 

725, 204 S.E.2d 481, 482 (1974). 

151 Pimper, 274 Ga. at 626-27, 555 S.E.2d at 462; Spear v. State, 271 Ga. App. 845, 846, 610 S.E.2d 642, 

644 (2005); Kappers, 214 Ga. App. at 117-18, 446 S.E.2d at 795-96. 

152 Chastain v. Baker, 255 Ga. 432, 433, 339 S.E.2d 241, 242 (1986). 

153 Grant v. Gaines, 265 Ga. 159, 159, 454 S.E.2d 481, 481-82 (1995); Attwell v. Lane Co., 182 Ga. App. 

813, 814, 357 S.E.2d 142, 143 (1987). 

154 In re W.P.B., 269 Ga. App. 101, 102, 603 S.E.2d 454, 455 (2004) (quoting Smith v. State, 242 Ga. App. 

459, 459, 530 S.E.2d 223, 224 (2000)). 

- 38 -


preparation and fi ling of the transcript of evidence and proceedings or in the transmission of the 

record to the appellate court. 155 A hearing is not required on a motion to dismiss an appeal brought 

in the trial court pursuant to O.C.G.A. § 5-6-48(c) so long as the opposing party is allowed an 

opportunity to respond on the record to the motion to dismiss. 156 

§ 2.7.5 Non-Statutory Grounds for Dismissal 

In addition to the statutory grounds for dismissal, the appellate courts will dismiss an appeal 

if the appellant becomes a fugitive from justice after fi ling the notice of appeal, 157 or if reversal of 

the judgment would not benefi t the appellant. 158 In addition, an appellant’s failure to comply with 

an order of the appellate court directing the party to fi le a brief and enumeration of errors may result 

in the dismissal of the appeal. 159 

155 Adams v. Hebert, 279 Ga. App. 158, 159, 630 S.E.2d 652, 653 (2006); Dye v. U.S. Bank Nat’l Ass’n, 273 

Ga. App. 652, 653, 616 S.E.2d 476, 477 (2005). For a more detailed discussion of this issue, see Chapter 

4 of this Handbook. 

156 Grant v. Kooby, 310 Ga. App. 483, 486, 713 S.E.2d 685, 688 (2011). 

157 Russell v. State, 152 Ga. App. 663, 663, 263 S.E.2d 552, 552 (1979). 

158 McGalliard v. Jones, 133 Ga. App. 44, 44, 209 S.E.2d 664, 664-65 (1974). 

159 GA. CT. APP. R. 26; Crane v. State, 249 Ga. 501, 501-02, 292 S.E.2d 67, 67-68 (1982); Reeder v. Gen. 

Motors Acceptance Corp., 235 Ga. App. 617, 618-19, 510 S.E.2d 337, 339-40 (1998). 

- 39 -


- 40 -

3 

POST-TRIAL MOTIONS AS PART OF THE APPEALS 

PROCESS 

Wade Pearson Miller* 

Angela Adams** 

Kimyatta E. McClary*** 


This chapter will discuss several post-trial motions that litigants may fi le after the entry of 

judgment by a Georgia superior or state court, including motions: (i) for new trial; (ii) for judgment 

* Ms. Miller is a partner with the law fi rm of Alston & Bird LLP. Her practice is primarily devoted to 

health care litigation, internal investigations, and corporate compliance. She received her B.A. from the 

University of Virginia in 1999 and a J.D. from the University of Virginia School of Law in 2002. 

** Ms. Adams is a senior associate with the law fi rm of Alston & Bird LLP. Her practice focuses on 

government investigations, internal corporate investigations, and general criminal litigation. She 

received her B.S. from Clark Atlanta University in 2004 and a J.D. from Howard University School of 

Law in 2007. 

*** Ms. McClary is an associate with the law fi rm of Alston & Bird LLP. Her practice focuses on complex 

commercial litigation. She received her B.S. from Vanderbilt University in 2005 and a J.D. from 

Vanderbilt University School of Law in 2008. 

- 41 -


notwithstanding the verdict (“JNOV”); (iii) to set aside the judgment; (iv) to amend or modify a 

judgment; (v) for a supersedeas bond; and (vi) for attorneys’ fees and costs. 

§ 3.1.1 Post-Judgment Motions for New Trial or JNOV Are Not Ordinarily 

a Prerequisite to Appeal 

The fi ling of a motion for new trial or for JNOV typically is not a prerequisite to appeal. 1 

A party may elect to fi le either type of motion or simply to appeal directly. There is an exception, 

however, that applies when there is “newly discovered evidence” that is developed or discovered 

subsequent to the verdict or judgment and otherwise does not appear in the record, 2 or in “other 

like instances.” 3 In such cases, a motion for new trial must be fi led in the trial court to preserve the 

issue on appeal. Furthermore, because a claim for ineffective assistance of counsel must be raised 

at the earliest “practicable moment,” if an appellant fi les a motion for new trial, failure to raise the 

claim for ineffective assistance could preclude appellate consideration. 4 

Motions for new trial or for JNOV may not, however, have the same impact upon an 

appellant’s obligation to enumerate errors on appeal. An appellant fi rst fi ling a motion for new trial 

may appeal on points of error different than those enumerated in the motion for new trial, and if the 

motion for new trial is denied, need not enumerate the denial of the motion for new trial as error. 5 

On the other hand, there is precedent stating that a party who moves for directed verdict, and then 

later for JNOV, has used the JNOV as a means for reviewing the adverse directed verdict ruling at 

the trial level. Thus, if the JNOV is denied in this circumstance, then the movant must enumerate 

the denial “as error on appeal or become bound by the ruling and judgment unexcepted to, which 

becomes the law of the case.” 6 

1 O.C.G.A. §§ 5-6-36(a)-(b); see also Dempsey v. Ellington, 125 Ga. App. 707, 708, 188 S.E.2d 908, 909 

(1972) (recognizing that an unsuccessful litigant generally “may elect to attack the judgment in the court 

below or to appeal directly”). 

2 O.C.G.A. § 5-6-36(a). 

3 The author is aware of no Georgia authority concerning “other like instances.” Arguably, however, such 

instances would arise when the validity of the prior adjudication could be affected signifi cantly by facts 

outside the record. 

4 McGhee v. State, 237 Ga. App. 541, 544-45, 515 S.E.2d 656, 659-60 (1999); Glover v. State, 266 Ga. 

183, 184, 465 S.E.2d 659, 660-61 (1996). But see Haggard v. State, 273 Ga. App. 295, 296, 614 S.E.2d 

903, 904 (2005) (describing facts where motion for new trial is not required to raise ineffective assistance 

of counsel). 

5 O.C.G.A. § 5-6-36; Hulsey v. Sears, Roebuck & Co., 138 Ga. App. 523, 525, 226 S.E.2d 791, 792 (1976); 

State Highway Dep’t v. Hilliard, 114 Ga. App. 328, 329, 151 S.E.2d 491, 493 (1966). 

6 Wood v. Mobley, 114 Ga. App. 170, 171, 150 S.E.2d 358, 360 (1966). But see O.C.G.A. § 9-11-60(h) 

(formally abolishing the “law of the case” doctrine, but still applying it to rulings by appellate courts; 

such appellate court rulings are binding in all subsequent proceedings in the same matter). 

- 42 -

§ 3.1.2 Tolling of Time for Appeal 

CHAPTER 3: POST-TRIAL MOTIONS AS PART OF THE APPEALS PROCESS 

The fi ling of a motion for new trial, motion in arrest of judgment, or motion for JNOV tolls 

the time for fi ling a notice of appeal. 7 The 30-day period for fi ling a notice of appeal 8 begins to run 

anew from the date of the trial court’s order granting, overruling, or otherwise fi nally disposing of 

the motion. 9 Note, however, that a motion for new trial that is subsequently withdrawn does not toll 

the time for appeal because “[a] party’s voluntary withdrawal of its motion for new trial, standing 

alone, is not the statutorily-required court order fi nally disposing of the motion for new trial.” 10 

A motion to amend fi ndings of fact under O.C.G.A. § 9-11-52(c) does not toll the time for 

fi ling a notice of appeal unless the motion to amend fi ndings is joined with a motion for new trial. 11 

Likewise, neither a motion for reconsideration nor a motion to set aside, vacate, modify, or amend 

a prior order or judgment tolls the time for fi ling. 12 

§ 3.1.3 To Warrant Post-Judgment Relief, Any Error Must Be Harmful 

The appellate courts have held that the harmful error suffi cient to entitle a litigant to posttrial 

relief must be “legal error,” consisting of both error and injury. In the absence of either 

“constituent element,” the grant of a new trial or other post-judgment relief is unwarranted. 13 

7 O.C.G.A. § 5-6-38(a); see also Donnelly v. Stynchcombe, 246 Ga. 118, 118, 269 S.E.2d 10, 11 (1980). 

But see City of Lawrenceville v. Davis, 233 Ga. App. 1, 4, 502 S.E.2d 794, 797-98 (1998) (holding that 

certain municipal courts are not “courts of record” capable of granting new trials and, as such, a motion 

for new trial fi led with such a municipal court does not toll the time for appeal). 

8 In any criminal case involving a capital offense for which the death penalty is sought, a party wishing to 

appeal a judgment, ruling, or order in the pretrial proceedings of such a case must bring such an appeal 

as provided in O.C.G.A. § 17-10-35.1. See O.C.G.A. § 5-6-38(c). 

9 O.C.G.A. § 5-6-38(a); see also Denson v. Kloack, 177 Ga. App. 483, 484, 339 S.E.2d 761, 762 (1986) 

(holding that when co-defendants were found liable as joint tortfeasors, a notice of appeal was timely 

when fi led within 30 days after one co-defendant’s motion for new trial was denied, even though the 

other co-defendant appellant did not join in the motion). 

10 Heard v. State, 274 Ga. 196, 197, 552 S.E.2d 818, 821 (2001). But see Ailion v. Wade, 190 Ga. App. 151, 

153-54, 378 S.E.2d 507, 508-09 (1989) (stating that withdrawal of motion for new trial by submitting a 

consent order, which the court signed and entered, creates the court order necessary to toll the time for 

appeal). 

11 Am. Flat Glass Distribs., Inc. v. Michael, 260 Ga. 312, 312, 392 S.E.2d 855, 855 (1990); see also 

O.C.G.A. § 9-11-52(c). 

12 See, e.g., Blackwell v. Sutton, 261 Ga. 284, 284, 404 S.E.2d 114, 114 (1991); Adamson v. Adamson, 226 

Ga. 719, 720, 177 S.E.2d 241, 242 (1970); MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 560-61, 

462 S.E.2d 771, 773 (1995); In re A.C.J., 211 Ga. App. 865, 866, 440 S.E.2d 751, 752 (1994); Anton v. 

Garvey, 160 Ga. App. 157, 157, 286 S.E.2d 493, 493 (1981); Robinson v. Carswell, 147 Ga. App. 521, 

522, 249 S.E.2d 331, 331 (1978). 

13 Norris v. Sikes, 102 Ga. App. 609, 610, 117 S.E.2d 214, 215-16 (1960). 

- 43 -


The Georgia Code articulates this concept by focusing on whether the “substantial rights” 

of the parties have been affected: 

No error in either the admission or the exclusion of evidence and no error or defect 

in any ruling or order or in anything done or omitted by the court or by any of 

the parties is ground for granting a new trial or for setting aside a verdict or for 

vacating, modifying, or otherwise disturbing a judgment or order, unless refusal 

to take such action appears to the court inconsistent with substantial justice. The 

court at every stage of the proceeding must disregard any error or defect in the 

proceeding which does not affect the substantial rights of the parties. 14 

Without error of the caliber described above, a motion for new trial will not be granted. 

§ 3.1.4 Filing of Post-Trial Motions as Supersedeas 

The fi ling of a motion for new trial or motion for judgment notwithstanding the verdict acts 

as a supersedeas unless otherwise ordered by the court. 15 Upon motion, the court may condition the 

supersedeas upon the giving of a bond with good security in such amount as the court may order. 16 

§ 3.1.5 Trial Court Jurisdiction When Both a Motion for New Trial and 

Notice of Appeal Are Filed 

Prior to the decision of the Supreme Court in Housing Authority v. Geeter, 17 the prevailing 

party in the trial court could prevent the losing party from fi ling a motion for new trial by appealing 

an adverse decision on an ancillary claim (or, in the case of a successful defendant, a counterclaim), 

such as a claim for attorneys’ fees or bad faith insurance damages, thereby “divesting the trial court 

of jurisdiction.” The Geeter decision put an end to this tactic, holding that a timely notice of appeal 

does not prevent the trial court from ruling on a motion for new trial: 

Even though a notice of appeal may divest the trial court of jurisdiction, we 

conclude that such divestiture does not become effective during the period in which 

a motion for new trial may be fi led. In the event a motion for new trial is timely 

fi led as provided in O.C.G.A. § 5-5-40 (Code Ann. § 70-301), the effectiveness of 

the divestiture of jurisdiction is then delayed until the motion for new trial is ruled 

14 O.C.G.A. § 9-11-61. 

15 O.C.G.A. § 9-11-62(b); see also discussion infra at Section 3.5 and Chapter 5 of this Handbook. 

16 O.C.G.A. § 9-11-62(b). 

17 252 Ga. 196, 312 S.E.2d 309 (1984). 

- 44 -


upon and a notice of appeal to the ruling has been fi led or the period for appealing 

the ruling has expired. 18 

The appellate courts have further held that a trial court has jurisdiction to hear and decide 

a timely fi led motion for new trial even if fi led by the same party that fi led the notice of appeal. 19 

Additionally, the trial court may, on its own motion, grant a new trial “within the time in which a 

motion for new trial may be fi led even though a notice of appeal has been fi led.” 20 

Importantly, the Geeter court also held that “[t]he proper means of placing this issue before 

this court would be to fi le a motion for a stay of the direct appeal with the Court of Appeals, and 

if the stay were denied, then to petition for writ of certiorari.” 21 Relying on this language, some 

appellate cases have held that when a timely notice of appeal and timely motion for new trial are 

both fi led, if a motion to stay is not fi led in the Court of Appeals, then the Court of Appeals may 

move forward and decide the appeal. In such a case, an actual ruling by the appellate court will 

divest the trial court of “jurisdiction to grant the motion for new trial.” 22 

§ 3.2 Methods for Attacking Civil Judgments 

In civil matters, O.C.G.A. § 9-11-60 prescribes the “exclusive means” for attacking a 

judgment, 23 providing for both “collateral” and “direct” attacks. 24 A “collateral attack,” which may 

be made only as to “[a] judgment void on its face,” need not be made in the court where the 

judgment was rendered, but instead may be made “in any court by any person.” 25 A direct attack, 

however, may be made only by a motion for a new trial or a motion to set aside the judgment, either 

of which must be fi led in the court that rendered the judgment under attack. 26 

18 Id. at 197, 312 S.E.2d at 311; see also Jones v. State, 309 Ga. App. 149, 709 S.E.2d 593 (2011). 

19 Griffi n v. Loper, 209 Ga. App. 504, 505, 433 S.E.2d 653, 654 (1993); O’Kelly v. State, 196 Ga. App. 860, 

860, 397 S.E.2d 197, 198 (1990). However, if the losing party fi les an untimely motion for new trial and 

either party fi les a timely notice of appeal, the trial court is divested of jurisdiction to entertain the motion 

for a new trial. See Andrews v. Rentz, 266 Ga. 782, 783, 470 S.E.2d 669, 670 (1996). 

20 Geeter, 252 Ga. at 197, 312 S.E.2d at 311. 

21 Id. 

22 Rich v. Ga. Farm Bureau Mut. Ins. Co., 176 Ga. App. 663, 337 S.E.2d 370, 371 (1985); see also Sharif 

v. Tidwell Homes, Inc., 252 Ga. 205, 206, 312 S.E.2d 114, 115 (1984). 

23 But see Section 3.7, infra, regarding the inherent powers of the trial court. 

24 Henry v. Adair Realty Co., 141 Ga. App. 182, 183, 233 S.E.2d 39, 40 (1977); Henry v. Polar Rock Dev. 

Corp., 143 Ga. App. 189, 189-90, 237 S.E.2d 667, 668 (1977). 

25 O.C.G.A. § 9-11-60(a). 

26 O.C.G.A. § 9-11-60(b)-(d). 

- 45 -


§ 3.3 New Trial 

Motions for new trial are governed by O.C.G.A § 9-11-60(b), (c), and (f) and O.C.G.A. §§ 

5-5-1 et seq. Forms for motions for new trial in both civil and criminal matters are set forth in 

O.C.G.A. § 5-5-42. 

§ 3.3.1 General Nature 

The Georgia Code grants the superior courts, state courts, juvenile courts, and the city court 

of Atlanta the power to correct their own errors and grant new trials in such manner and under such 

rules as they may establish according to the law and the usages and customs of courts. 27 Probate 

courts, in turn, have the power to correct errors and grant new trials in civil cases provided for by 

O.C.G.A. § 15-9-6, under such rules and procedures as apply to the superior courts. 28 

A motion for new trial must be based upon “some intrinsic defect which does not appear 

upon the face of the record or pleadings.” 29 Further, a trial court may, in some circumstances, grant 

a motion for new trial on a limited issue or as to only some of the parties. 30 

§ 3.3.2 Grounds for New Trial 

A trial court may grant a new trial on the general grounds that: (i) the “verdict of a jury 

is found contrary to evidence and the principles of justice and equity”; or (ii) the “verdict may 

be decidedly and strongly against the weight of the evidence.” 31 A motion for new trial on these 

27 O.C.G.A. § 5-5-1(a). 

28 O.C.G.A. § 5-5-1(b). 

29 O.C.G.A. § 9-11-60(b)-(c). 

30 See, e.g., Petty v. Barrett, 187 Ga. App. 83, 83, 369 S.E.2d 294, 294 (1988); Anthony v. Anthony, 143 Ga. 

App. 691, 694-95, 240 S.E.2d 167, 170 (1977) (holding that a trial court, faced with a motion for new 

trial “can review a verdict severably rather than as a whole . . . if it can logically separate issues rightly 

decided from those wrongly decided”) (internal punctuation omitted); Kimbell v. DuBose, 139 Ga. App. 

224, 227, 228 S.E.2d 205, 207-08 (1976) (explaining when, in joint and several liability context, a new 

trial is appropriate with respect to some, but not all, defendants). 

31 See O.C.G.A. §§ 5-5-20, -21. 

- 46 -


general grounds can be used to challenge not only a fi nding of guilt or liability, but also, pursuant 

to O.C.G.A. § 51-12-12, a fi nding of inadequate 32 or excessive damage. 33 

Whether to grant or deny a motion for new trial based on the general grounds is left to 

the trial court’s discretion. 34 The fi rst grant of a new trial based upon general grounds will not 

be disturbed by an appellate court unless the appellant shows that: (i) the trial court abused its 

discretion in granting the new trial; and (ii) the law and facts demand the verdict notwithstanding 

the judgment of the presiding judge. 35 If the grant of a new trial in a civil case is based on the 

discretion of the judge, the judge must set forth by written order the reason(s) for the exercise of his 

discretion, though the order need not conform to the provisions of O.C.G.A. § 9-11-52. 36 

A motion for new trial also may be granted on more particularized special grounds, among 

which include: 

• A juror’s failure to answer, or to answer honestly, a material question posed in voir 

dire, but only if the movant can show that a correct response would have provided a 

valid basis to challenge the juror for cause; 37 

• Improper and prejudicial arguments by counsel, such as arguments using facts not in 

evidence; 38 

• The trial judge’s expression of an opinion to the jury, whether during the charge or the 

progress of the case, as to what has or has not been proved; 39 

32 See, e.g., Brooks v. Williams, 127 Ga. App. 311, 313-14, 193 S.E.2d 231, 233 (1972). The rule in Georgia 

used to be that “‘[w]hen the rule concerning comparative negligence is involved in a case, the verdict of 

the jury cannot be set aside on the ground that the amount of the damages awarded is inadequate.’” Beal 

v. Braunecker, 185 Ga. App. 429, 432, 364 S.E.2d 308, 312 (1987) (citations omitted). This holding was 

overruled by Robinson v. Star Gas of Hawkinsville, Inc., 269 Ga. 102, 103-04, 498 S.E.2d 524, 525-26 

(1998). “Robinson makes it clear that a jury verdict in a comparative negligence case may be reviewed 

by the trial court and that a new trial may be awarded under O.C.G.A. § 51-12-12(b)” if the jury award 

of damages is suffi ciently inadequate or excessive. Dawson v. Fulton-DeKalb Hosp. Auth., 236 Ga. App. 

96, 97, 511 S.E.2d 199, 200 (1999). 

33 See, e.g., Baxter v. Weiner, 246 Ga. 28, 29, 268 S.E.2d 619, 620 (1980). 

34 Kitchin v. Kitchin, 219 Ga. 417, 419, 133 S.E.2d 880, 882 (1963); Blanchard v. Westview Cemetery, Inc., 

133 Ga. App. 262, 263-64, 211 S.E.2d 135, 137-38 (1974), aff’d, 234 Ga. 540, 216 S.E.2d 776 (1975). 

35 O.C.G.A. § 5-5-50; see also Thomas v. Wiley, 240 Ga. App. 135, 136, 522 S.E.2d 714, 716 (1999). 

36 O.C.G.A. § 5-5-51. 

37 Gainesville Radiology Grp. v. Hummel, 263 Ga. 91, 93, 428 S.E.2d 786, 789 (1993). 

38 Locklear v. Morgan, 129 Ga. App. 763, 767, 201 S.E.2d 163, 167 (1973). 

39 O.C.G.A. § 9-10-7. 

- 47 -


• Error of the court in failing to give a proper jury charge, or in giving an erroneous 

charge; 40 

• Instances where “any material evidence may be illegally admitted to or illegally 

withheld from the jury over the objection of the movant;” 41 

• Improper submission of an issue to the jury; 42 

• Discovery of new, competent, admissible and material evidence if certain conditions 

are met, 43 though it is important to note that this ground is not favored; 44 

• Instances where verdict and judgment are based on testimony of a witness who is 

subsequently found guilty of perjury; 45 

• A suffi ciently close family relationship between a juror and the prosecutor that is not 

discovered until after trial; 46 and 

• Lack of notice of trial where the lack of notice does not appear on the face of the record 

but is developed by the evidence. 47 

When the grant of a new trial is based on special grounds involving a question of law, the 

general rule that the fi rst grant of a new trial will not be disturbed does not apply. 48 Instead, the fi rst 

40 O.C.G.A. § 5-5-24(a); Edwards v. McKenzie, 114 Ga. App. 395, 399, 151 S.E.2d 469, 472 (1966). 

41 O.C.G.A. § 5-5-22. 

42 Denny v. D.J.D., Inc., 186 Ga. App. 727, 729, 368 S.E.2d 329, 330-31 (1988). 

43 O.C.G.A. § 5-5-23. The six criteria for the grant of a new trial on newly discovered evidence are: (i) 

the evidence came to the knowledge of the moving party since trial; (ii) it was not due to the lack of due 

diligence that the moving party did not acquire the evidence sooner; (iii) the evidence is so material that 

it would probably produce a different verdict; (iv) the evidence is not cumulative only; (v) the affi davit 

of the witness should be produced or the absence accounted for; and (vi) the effect of the evidence will 

not be solely to impeach the credibility of a witness. Hegedus v. Hegedus, 255 Ga. 44, 45-46, 335 S.E.2d 

284, 285 (1985); Collins v. Kiah, 218 Ga. App. 484, 486, 462 S.E.2d 158, 160 (1995). 

44 Cantrell v. Red Wing Rollerway, Inc., 184 Ga. App. 506, 507, 361 S.E.2d 720, 722 (1987); see also Gill 

v. Spivey, 264 Ga. App. 723, 724, 592 S.E.2d 132, 134 (2003). 

45 Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773, 773-75, 175 S.E.2d 65, 65-66 (1970). 

46 Tatum v. State, 206 Ga. 171, 176-77, 56 S.E.2d 518, 522 (1949). 

47 Hill v. Bailey, 187 Ga. App. 413, 414-15, 370 S.E.2d 520, 522 (1988) (citing Newman v. Greer, 131 Ga. 

App. 128, 129-30, 205 S.E.2d 486, 487 (1974)). 

48 Armstrong v. Vallion, 187 Ga. App. 380, 380, 370 S.E.2d 215, 216 (1988) (citing Cobb Cnty. Kennestone 

Hosp. Auth. v. Crumbley, 179 Ga. App. 896, 348 S.E.2d 49 (1986)). 

- 48 -


grant of a new trial on special grounds involving questions of law generally is reviewable by the 

Court of Appeals. 49 

§ 3.3.3 Insuffi cient Grounds for New Trial 

A new trial will not be granted based upon: 

• Insuffi ciency of the pleadings; 50 

• Failure of counsel and client to appear at trial without explanation and without a 

showing of a meritorious defense; 51 

• The trial court’s expression of an opinion as to any uncontested and undisputed fact; 52 

• An inadvertent statement or mere slip of the judge’s tongue that is not prejudicial to 

the complaining party; 53 

• An erroneous instruction where self-induced by the movant’s own written request to 

charge; 54 or 

• Entry of an invalid default judgment. 55 

§ 3.3.4 Procedure for Filing a Motion for New Trial 

The Georgia Code requires motions for new trial to be fi led with the clerk of court. 56 

Therefore, a litigant who presents only an oral motion for new trial or merely sends it to a judge, 

without more, risks the possibility that the motion will be deemed untimely fi led or that the court 

49 Smith v. Telecable of Columbus, Inc., 238 Ga. 559, 559, 234 S.E.2d 24, 24 (1977). 

50 Stone v. Cranfi eld, 122 Ga. App. 178, 179, 176 S.E.2d 498, 499 (1970); McJenkin Ins. & Realty Co. v. 

Burton, 92 Ga. App. 832, 832, 90 S.E.2d 27, 28 (1955). 

51 S. Ariz. Sch. for Boys, Inc. v. Morris, 123 Ga. App. 67, 68, 179 S.E.2d 548, 548 (1970); see also Scriver 

v. Lister, 235 Ga. App. 487, 489, 510 S.E.2d 59, 61 (1998) (holding that counsel’s own negligence in 

failing to appear for trial was insuffi cient grounds for new trial). 

52 Columbus Transp. Co. v. Curry, 104 Ga. App. 700, 705, 122 S.E.2d 584, 588 (1961). 

53 City of Summerville v. Sellers, 94 Ga. App. 152, 159, 94 S.E.2d 69, 76 (1956). 

54 Reese v. Lyons, 193 Ga. App. 548, 548, 388 S.E.2d 369, 370 (1989). 

55 Royal LePage Real Estate Servs. of Atlanta, Inc. v. Spalding Partners, Ltd., 192 Ga. App. 284, 285, 384 

S.E.2d 424, 426 (1989). 

56 O.C.G.A. § 5-5-44. 

- 49 -


will refuse to consider the motion. 57 The trial court’s authority to grant a new trial is not dependent, 

however, upon the fi ling of a motion by a party to the action. Instead, the court may grant a new 

trial on its own motion (except in criminal cases in which the defendant was acquitted), so long as 

this motion is timely made. 58 

A motion for new trial must be fi led within 30 days after the “entry of the judgment on the 

verdict or entry of the judgment where the case is tried without a jury.” 59 A judgment is “entered” 

when it is signed by the judge and fi led with the clerk. 60 The Georgia Code expressly states that 

no extension of time may be granted for the fi ling of a motion for new trial. 61 A motion for new 

trial fi led prior to the entry of judgment is premature, invalid, and void. 62 Similarly, unless it meets 

the requirement of an extraordinary motion for new trial, 63 a motion for new trial fi led subsequent 

to the 30-day period after the entry of a judgment is a nullity and does not toll the time for fi ling a 

notice of appeal. 64 

As a matter of right, a properly fi led motion for new trial may be amended to add additional 

grounds at any time up until the trial court’s disposition of the motion. 65 Further, it should be noted 

that an appellant is not limited on appeal to the issues presented in the motion for new trial and may 

argue any additional, properly raised enumeration of error. 66 

57 See Smith v. Forrester, 145 Ga. App. 281, 282, 243 S.E.2d 575, 576-77 (1978); Motor Contract Co. of 

Atlanta v. Wigington, 116 Ga. App. 398, 400-01, 157 S.E.2d 321, 322-23 (1967). 

58 See O.C.G.A. § 5-5-40(h). 

59 O.C.G.A. § 5-5-40(a). An exception to this rule exists when the motion for new trial is joined with a 

motion under O.C.G.A. § 9-11-52(c) to amend or make additional fi ndings. In such cases, the time for 

fi ling is shortened to 20 days after entry of judgment. 

60 O.C.G.A. § 9-11-58(b). 

61 See O.C.G.A. §§ 5-6-39(b), 9-11-6(b). 

62 Harrison v. Harrison, 229 Ga. 692, 693, 194 S.E.2d 87, 87-88 (1972); Jessup v. Newman, 191 Ga. App. 

772, 772-73, 383 S.E.2d 136, 137-38 (1989). 

63 See discussion infra at Section 3.3.5. 

64 Johnson v. State, 227 Ga. 219, 219-20, 180 S.E.2d 94, 94 (1971); Crolley v. Johnson, 185 Ga. App. 671, 

672, 365 S.E.2d 277, 278 (1988); see also Porter v. State, 271 Ga. 498, 498, 521 S.E.2d 566, 567 (1999). 

65 O.C.G.A. § 5-5-40(b); see also Hegedus v. Hegedus, 255 Ga. 44, 45, 335 S.E.2d 284, 285 (1985) (holding 

that an amendment to a motion for new trial is not required to be fi led within 30-day period after entry 

of judgment during which initial motion for new trial must be fi led; amendments to motion for new trial 

are allowed until trial court’s fi nal disposition of the motion). Note, however, that a motion for a new 

trial may not be amended to add a motion for JNOV more than 30 days after the entry of judgment. See 

Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 270, 329 S.E.2d 900, 903 (1985). 

66 O.C.G.A. § 5-5-40(g); see also Smith v. State, 244 Ga. App. 165, 169, 534 S.E.2d 903, 907-08 (2000); 

Hulsey v. Sears, Roebuck & Co., 138 Ga. App. 523, 524-25, 226 S.E.2d 791, 792 (1976). 

- 50 -


Although the utility of the requirement is questionable in light of the common practice by 

which motion hearings are scheduled by the court upon notice to the parties, the Georgia Code still 

states that service of a motion for new trial must be accompanied by a “rule nisi” setting forth the 

hearing date for the motion. 67 Failure to do so may provide the court with discretion to either dismiss 

the motion for new trial as void or continue the matter until the service imperfection is corrected. 68 

Service of the motion and accompanying rule nisi are governed by O.C.G.A. §§ 5-5-44 and 5-6-32. 

Service by mail upon opposing counsel 69 should suffi ce. 70 Although neither O.C.G.A. § 5-5-44 nor 

O.C.G.A. § 5-6-32(a) prescribes a specifi c time within which service must be perfected, service 

should be made in ample time to allow the opposite party to prepare for the hearing. 71 

§ 3.3.5 Extraordinary Motions for New Trial 

Motions for new trial made subsequent to the 30-day period after entry of judgment are 

referred to as “extraordinary motions.” 72 Such motions are not favored and are granted only when 

there is “some good reason” shown as to why the motion was not made during the 30-day period. 73 

When the trial court considers the ground(s) for an extraordinary motion for new trial, it acts 

as the trier of fact, and its ruling on the motion will not be disturbed absent a manifest abuse of 

67 O.C.G.A. § 5-5-44. 

68 Craig v. Holsey, 264 Ga. App. 344, 344 & n.l, 590 S.E.2d 742, 745 & n.1 (2003) (citing Stoner v. 

McDougall, 235 Ga. 171, 172, 219 S.E.2d 138 (1975)); Griggs v. State, 167 Ga. App. 581, 584, 307 

S.E.2d 75, 78 (1961). In Craig, the Court of Appeals affi rmed the trial court’s dismissal of a motion for 

new trial based on the movant’s failure to attach a rule nisi. But the Court of Appeals also found that the 

motion nevertheless tolled the period for appeal and the dismissal for imperfect service was a disposition 

under O.C.G.A § 5-6-38 commencing the 30-day period for appeal. Craig, 264 Ga. App. at 345, 590 

S.E.2d at 745. 

69 At least two decisions that predated the Appellate Practice Act of 1965 suggested that personal service on 

a party might be required. See, e.g., Braziel v. Hunter, 103 Ga. App. 854, 854, 121 S.E.2d 39, 39 (1961); 

Jones v. Fox, 49 Ga. App. 573, 573, 176 S.E. 530, 531 (1934). 

70 See O.C.G.A. § 5-6-32(a); Hughes v. Newell, 152 Ga. App. 618, 619, 263 S.E.2d 505, 506 (1979). 

71 See Trammell v. Throgmorton, 210 Ga. 659, 661, 82 S.E.2d 140, 141 (1954); Peavy v. Peavy, 167 Ga. 

219, 220, 145 S.E. 55, 56 (1928). 

72 O.C.G.A. § 5-5-41. 

73 O.C.G.A. § 5-5-41(a); see also Patterson v. State, 228 Ga. 389, 390-91, 185 S.E.2d 762, 763 (1971); 

Dyal v. State, 121 Ga. App. 50, 50, 172 S.E.2d 326, 327 (1970). 

- 51 -


discretion. 74 Notice of the motion must be given to the opposing party at least 20 days prior to the 

hearing. 75 A party is permitted to fi le only one extraordinary motion for new trial. 76 

Normally, the “good reason” or “good cause” necessary to justify the fi ling of an extraordinary 

motion for new trial consists of newly discovered evidence. 77 As the Court of Appeals has noted: 

On an extraordinary motion for a new trial based on newly discovered evidence, 

it is incumbent on the movant to satisfy the court: (1) that the newly discovered 

evidence has come to his knowledge since the trial; (2) that want of due diligence 

was not the reason that the evidence was not acquired sooner; (3) that the evidence 

was so material that it would probably produce a different verdict; (4) that it is not 

cumulative only; (5) that the affi davit of the witness is attached to the motion or 

its absence accounted for; and (6) that the new evidence does not operate solely to 

impeach the credit of a witness. 78 

Moreover, extraordinary motions for new trial cannot be based on matters: (i) that were 

known to the movant and could have been articulated in a timely-fi led motion; or (ii) that could 

have been discovered in time through the exercise of proper diligence. 79 

The fi ling of an extraordinary motion for new trial also may be predicated on grounds other 

than the discovery of new evidence, including: 

• Error on the part of the clerk’s offi ce in informing movants of the correct fi ling date, 

when the motion would have been timely if the clerk’s representations had been 

correct; 80 

• Failure of a defendant and his counsel to appear at trial based upon representation 

of counsel for plaintiff that the case would be removed from the docket to discuss 

settlement; 81 

74 See, e.g., Satterwhite v. State, 235 Ga. App. 687, 689, 509 S.E.2d 97, 100 (1998); Cade v. State, 107 Ga. 

App. 30, 30-31, 129 S.E.2d 405, 406-07 (1962) (holding that in considering an extraordinary motion 

for new trial, the trial judge sits as the trier of fact, and in the event of confl icting facts, his discretion in 

refusing the motion will not be disturbed unless manifestly abused). 

75 O.C.G.A. § 5-5-41(a). 

76 O.C.G.A. § 5-5-41(b). 

77 See, e.g., Martin v. Children’s Sesame, Inc., 188 Ga. App. 242, 242, 372 S.E.2d 648, 649 (1988). 

78 Smith v. Dep’t of Human Res., 226 Ga. App. 491, 493, 487 S.E.2d 94, 96 (1997). 

79 See, e.g., Patterson v. State, 228 Ga. 389, 390-91, 185 S.E.2d 762, 763 (1971); Barfi eld v. McEntyre, 136 

Ga. App. 294, 294, 221 S.E.2d 58, 58 (1975). 

80 Martin, 188 Ga. App. at 242-43, 372 S.E.2d at 649-50. 

81 Union Life Ins. Co. v. Aaronson, 109 Ga. App. 384, 384, 136 S.E.2d 142, 143 (1964). 

- 52 -


• Conviction of a trial witness on perjury charges arising from testimony at trial; 82 or 

• The discovery that an alleged murder victim is alive after trial. 83 

As is true with a timely fi led motion for new trial, the trial court typically is required to 

hold a hearing on an extraordinary motion for new trial. 84 An exception to this rule exists, however, 

when the extraordinary motion obviously fails to show any merit. In such circumstances, the 

motion may be denied without a hearing. 85 

§ 3.3.6 Effect of a Motion for New Trial Upon the Time for Filing a Notice 

of Appeal 

As noted supra in Section 3.l.2, a timely fi led motion for new trial tolls the time for 

appeal, and the 30-day period begins anew at such time as the motion for new trial is overruled or 

dismissed. 86 However, an improperly fi led motion for new trial will not prevent the 30-day appeal 

period from expiring. For example, since rulings upon the pleadings are not subject to review by 

motion for new trial, a motion for new trial fi led after the court has dismissed a complaint for failure 

to state a claim will not extend the time for fi ling a notice of appeal. 87 

§ 3.4 Motions to Set Aside a Judgment 

The reasons justifying a motion to set asi de a judgment, and the procedures for fi ling such 

a motion, are set forth in O.C.G.A. § 9-11-60(b)-(h). 

§ 3.4.1 Statutory Grounds 

The statute describes three grounds upon which a motion to set aside a judgment may be 

based. 88 

82 Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773, 773, 175 S.E.2d 65, 65-66 (1970). 

83 Cox v. Hillyer, 65 Ga. 57 (1880). 

84 Dick v. State, 248 Ga. 898, 899, 287 S.E.2d 11, 13 (1982). 

85 Id. (“[I]f the pleadings in an extraordinary motion for new trial in a criminal case do not contain a 

statement of facts suffi cient to authorize that the motion be granted . . . it is not error for the trial court to 

refuse to conduct a hearing . . . .”). 

86 O.C.G.A. § 5-6-38(a); Allen v. Rome Kraft Co., 114 Ga. App. 717, 718, 152 S.E.2d 618, 620 (1966) 

(holding that the fi ling of a motion for new trial tolls the time for fi ling appeal from judgment or verdict 

until the motion for new trial is overruled). 

87 See Pillow v. Seymour, 255 Ga. 683, 683, 341 S.E.2d 447, 447-48 (1986). 

88 O.C.G.A. § 9-11-60(d). 

- 53 -


First, a motion to set aside may be based on a “[l]ack of jurisdiction over the person or the 

subject matter.” 89 While a motion to set aside normally must be brought within three years of the 

judgment complained of, an attack based on lack of jurisdiction may be brought at any time. 90 

Second, a motion to set aside may be based on “[f]raud, accident, or mistake or the acts 

of the adverse party unmixed with the negligence or fault of the movant.” 91 “A claim of mistake 

. . . refers to the misapprehension of a past or present fact.” 92 Similarly, a claim of “accident” 

must involve “an event, not proximately caused by negligence, arising from an unforeseen or 

unexplained cause.” 93 

Lastly, a motion to set aside may be based o n “[a] nonamendable defect which appears 

upon the face of the record or pleadings.” 94 Under this subsection, “it is not suffi cient that the 

complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings 

must affi rmatively show that no claim in fact existed.” 95 For example, the failure of counsel or a 

party to receive notice of a hearing may constitute a nonamendable defect and serve as the basis 

for a motion to set aside a judgment. 96 By contrast, “a matter which is developed by the evidence 

rather than appearing upon the face of the record or pleadings does not fall within the orbit of a 

motion to set aside.” 97 

89 O.C.G.A. § 9-11-60(d)(1); Peters v. Hyatt Legal Servs., 211 Ga. App. 587, 589, 440 S.E.2d 222, 224-25 

(1993). 

90 O.C.G.A. § 9-11-60(f); Smyrna Marine, Inc. v. Stocks, 172 Ga. App. 426, 426, 323 S.E.2d 286, 287 (1984). 

91 O.C.G.A. § 9-11-60(d)(2); see Porter v. Tissenbaum, 247 Ga. App. 816, 818, 545 S.E.2d 372, 374 (2001) 

(denying a motion to set aside judgment and fi nding that the defendants were at fault for failing to “stay 

abreast of the pending action against them”). 

92 Ne. Atlanta Sur. Co. v. State, 197 Ga. App. 399, 400, 398 S.E.2d 435, 437 (1990); see Lee v. Rest. Mgmt. 

Servs., 232 Ga. App. 902, 904, 503 S.E.2d 59, 61 (1998) (fi nding that the failure of a party’s insurance 

company to fi le an answer was not a “mistake” within the meaning of the statute); Aycock v. Hughes, 189 

Ga. App. 838, 839, 377 S.E.2d 689, 690 (1989) (concluding that a party’s failure to appear at the call of 

the case for trial did not constitute a “mistake” because it resulted from the defendant and his counsel’s 

negligence). 

93 Ne. Atlanta Sur. Co., 197 Ga. App. at 400, 398 S.E.2d at 437. 

94 O.C.G.A. § 9-11-60(d)(3). 

95 Id. 

96 Hous. Auth. v. Parks, 189 Ga. App. 97, 98, 374 S.E.2d 842, 843 (1988). But see Am. Mobile Imaging, 

Inc. v. Miles, 260 Ga. App. 877, 878, 581 S.E.2d 396, 398 (2003) (distinguishing Housing Authority 

and holding that a party’s failure to actually receive the notice did not constitute a nonamendable defect 

because the notice was properly mailed). 

97 Gulf Oil Co. v. Mantegna, 167 Ga. App. 844, 846, 307 S.E.2d 732, 734 (1983). 

- 54 -

§ 3.4.2 Procedure 


A motion to set aside must be brought within three years from entry of the judgment being 

attacked (unless the motion is based on a jurisdictional argument) and must be brought in the court 

that rendered the judgment. 98 A motion to set aside “may be served by any means by which an 

original complaint may be legally served if it cannot be legally served as any other motion.” 99 

§ 3.4.3 Relationship to Appeals 

A motion to set aside does not toll the time for fi ling a notice of appeal. 100 

§ 3.5 Motions for Judgment Notwithstanding the Verdict 

§ 3.5.1 General Nature 

After a trial is concluded and judgment is entered, a party who has moved unsuccessfully 

for a directed verdict during the trial may move in writing for a JNOV. 101 The sole purpose of a 

motion for JNOV is to allow the trial judge to review and reconsider a previously denied motion for 

directed verdict before appellate judicial resources are expended and additional time and expenses 

are incurred. 102 Accordingly, the failure of a party to move for a directed verdict during trial will bar 

a subsequent motion for JNOV. 103 Moreover, a party moving for JNOV is limited by the grounds 

asserted in support of the motion for directed verdict. 104 

98 O.C.G.A. § 9-11-60(b), (f). 

99 Id. 

100 See supra note 12. 

101 O.C.G.A. § 9-11-50(b). Motions for directed verdict or JNOV are unavailable in nonjury trials because 

there is no verdict for the judge to direct or to disregard; the judge’s decision is not a verdict but a 

judgment. Smith v. Gen. Motors Acceptance Corp., 98 Ga. App. 840, 842, 107 S.E.2d 334, 336 (1959); 

see also Carter v. State, 196 Ga. App. 226, 229 n.l, 395 S.E.2d 891, 895 n.1 (1990) (noting that a motion 

for a directed verdict in a nonjury trial is inappropriate). 

102 Sec. Life & Trust Co. v. Smith, 220 Ga. 744, 747, 141 S.E.2d 405, 408 (1965); Crosby Aeromarine, Inc. 

v. Hyde, 115 Ga. App. 836, 838, 156 S.E.2d 106, 109 (1967). 

103 See O.C.G.A. § 9-11-50(b); Whitman v. Burden, 155 Ga. App. 67, 67, 270 S.E.2d 235, 236 (1980). 

104 O.C.G.A. § 9-11-50(b); see also S. Land Title, Inc. v. N. Ga. Title, Inc., 270 Ga. App. 4, 7, 606 S.E.2d 

43, 47 (2004) (“It is patent . . . that [a] j.n.o.v. must be based on grounds raised in the motion for directed 

verdict initially, for it is in effect only a ruling based on a renewed motion.”). 

- 55 -


The standards for granting a directed verdict and a JNOV are the same. 105 A movant for 

JNOV bears a heavy burden, because the court must be convinced that “there is no confl ict in 

the evidence as to any material issue and the evidence introduced, with all reasonable deductions 

therefrom, shall demand a particular verdict.” 106 Stated somewhat differently, a JNOV is appropriate 

only when, without weighing the credibility of the evidence, there can be but one reasonable 

conclusion as to the proper judgment. 107 If, upon refl ection, the trial judge determines that the 

motion for directed verdict was valid, the judge is to set aside the verdict and the original judgment 

and enter a new judgment in accordance with the directed verdict motion. 108 

The record as it existed at the close of the trial controls whether a JNOV should be granted. 109 

The trial court may not eliminate evidence on the grounds that it was received improperly at trial 

and then dispose of the case on a motion for JNOV based on the diminished record. 110 In other 

words, the jury verdict must be construed by the trial court and appellate courts in the light most 

favorable to upholding the jury verdict. 111 

Finally, the function of a motion for JNOV is not the same as that of a motion for new 

trial. JNOV is a summary method of disposing of the “[e]ntire litigation where it is obvious that 

the party against whom it is directed cannot, under any circumstances, [prevail] in [the] case.” 112 A 

JNOV does not lie in every instance in which a motion for new trial might be granted, even on the 

general grounds. 113 

105 See O.C.G.A. § 9-11-50(b); Custom Coating, Inc. v. Parsons, 188 Ga. App. 506, 507, 373 S.E.2d 291, 

291-92 (1988). 

106 O.C.G.A. § 9-11-50(a)-(b); Hiers-Wright Assocs., Inc. v. Mfrs. Hanover Mortg. Corp., 182 Ga. App. 732, 

732, 356 S.E.2d 903, 905 (1987). 

107 Bryant v. Colvin, 160 Ga. App 442, 444, 237 S.E.2d 238, 240 (1981) (holding that a JNOV “may be 

granted only when . . . there can be but one reasonable conclusion as to the proper judgment,” and 

“[w]here there is confl icting evidence, or there is insuffi cient evidence to make a ‘one-way verdict’ 

proper, [JNOV] should not be awarded”); see also Fertility Tech. Res., Inc. v. Lifetech Med. Inc., 282 Ga. 

App. 148, 149, 637 S.E.2d 844, 846 (2006). 

108 Famiglietti v. Brevard Med. Investors, Ltd, 197 Ga. App. 164, 166-67, 397 S.E.2d 720, 722-23 (1990). 

109 De Loach v. Myers, 215 Ga. 255, 256, 109 S.E.2d 777, 759 (1959). 

110 See, e.g., Mays v. Daniels, 179 Ga. App. 677, 677-78, 347 S.E.2d 642, 643 (1986); Wooten v. Life Ins. 

Co. of Ga., 93 Ga. App. 665, 670, 92 S.E.2d 567, 572 (1956); . Furthermore, “[i]n considering whether 

to grant judgment n.o.v., the trial court should not rely upon certain evidence merely because it is not 

specifi cally contradicted, while disregarding other relevant evidence which may be equally undisputed.” 

Lawrence v. Russell, 254 Ga. App. 793, 796, 563 S.E.2d 884, 887 (2002). 

111 Bryant, 160 Ga. App at 444, 237 S.E.2d at 240. 

112 Robbins v. Hays, 107 Ga. App. 12, 12-13, 128 S.E.2d 546, 548 (1962). 

113 Id. at 13, 128 S.E.2d at 548. 

- 56 -


§ 3.5.2 Procedure for Filing a Motion for JNOV 

As is true with a motion for new trial, a motion for JNOV must be fi led within 30 days after 

entry of judgment, or if a verdict was not returned, within 30 days after the jury was discharged. 114 

No extensions of time will be granted for the fi ling of a motion for JNOV. 115 

A motion for JNOV fi led before the entry of judgment is invalid or void. 116 Similarly, a 

motion for JNOV fi led after the expiration of the 30-day period under the guise of an amendment 

to a timely motion for new trial is a nullity and void. 117 

When the transcript of the evidence is essential for consideration of a motion for JNOV 

and the movant fails to make a reasonable effort to obtain the transcript, the trial court may exercise 

its discretion in dismissing the motion. 118 However, if the court is familiar with the evidence, the 

court has discretion to rule on a motion for JNOV, even though the trial transcript is not physically 

available at the time. 119 

§ 3.5.3 Combining a Motion for New Trial with a Motion for JNOV 

Section 9-11-50(b) of the Georgia Code expressly permits a motion for new trial to be 

joined with a motion for JNOV. When the two motions are combined, several different procedural 

outcomes are possible. 

First, if the trial court grants the motion for JNOV, O.C.G.A. § 9-11-50(c)(1) instructs the 

court to issue a conditional ruling on the motion for new trial. Then: 

• If the trial court, having granted the motion for JNOV, also conditionally grants a new 

trial, the JNOV remains fi nal and may be examined by the Court of Appeals. 120 If the 

order granting the JNOV is reversed on appeal, the new trial will proceed unless the 

appellate court orders differently. 121 

114 O.C.G.A. § 9-11-50(b). 

115 O.C.G.A. § 5-6-39(b). 

116 Harrison v. Harrison, 229 Ga. 692, 693, 194 S.E.2d 87, 88 (1972); Jessup v. Newman, 191 Ga. App. 772, 

772, 383 S.E.2d 136, 137-38 (1989). 

117 Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 270-71, 329 S.E.2d 900, 903 (1985). 

118 Coates v. Mulji Motor Inn, Inc., 178 Ga. App. 208, 209, 342 S.E.2d 488, 490 (1986). 

119 Castile v. Rich’s, Inc., 131 Ga. App. 586, 586, 206 S.E.2d 851, 852 (1974). 

120 O.C.G.A. § 9-11-50(c)(1). 

121 Id. 

- 57 -


• If the trial court, having granted the JNOV, conditionally denies the motion for new 

trial, both the grant of the JNOV and the denial of a new trial may be claimed as error 

and examined on appeal. 122 If the JNOV is reversed on appeal, subsequent proceedings 

in the trial court will be in accordance with the appellate court’s order. 123 

On the other hand, if the motion for JNOV is denied, the trial court may still rule on the 

motion for new trial. Then: 

• If the trial court, having denied the JNOV, grants a motion for new trial, the order 

denying the motion for JNOV is not a fi nal judgment and may not be appealed. 124 In 

such cases, the new trial shall proceed. 

• If the trial court, having denied the motion for JNOV, also denies the motion for new 

trial, then both rulings may be appealed. 

The interplay of these two motions can also lead to some interesting post-trial role reversals 

between the parties. A party who prevailed at trial, but whose verdict is set aside on a JNOV 

motion, may decide (and is permitted within 30 days of the entry of the JNOV) to move for a new 

trial. 125 Likewise, if a party suffers an adverse decision at trial, is denied a JNOV, and then appeals 

the denial of his motion for JNOV, the party who prevailed at trial may have to advocate for a new 

trial in the event that the appellate court fi nds that a JNOV should be entered. If the appellate court 

reverses the denial of JNOV in this second situation, it also may grant a new trial or remand to the 

trial court for a determination of whether a new trial should be granted. 126 

When a motion for new trial is made with a motion for JNOV, the court “shall specify the 

grounds for granting or denying the motion for the new trial.” 127 Although fi ndings of fact and 

122 Id. 

123 Id. 

124 See Days Inn of Am., Inc. v. Sharkey, 178 Ga. App. 718, 718, 344 S.E.2d 518, 519 (1986) (holding that 

in the absence of an O.C.G.A. § 9-11-54(b) order, the trial court’s grant of a new trial and denial of the 

motion for JNOV resulted in the continuing pendency of the cases, preventing the order denying JNOV 

from becoming “fi nal” for appeal purposes). But see Gen. Motors Acceptance Corp. v. Bowen Motors, 

Inc., 167 Ga. App. 463, 468, 306 S.E.2d 675, 680 (1983) (holding that the denial of a JNOV can be 

appealed even though motion for a new trial as to a counterclaim has been granted, if the appeal is taken 

from a fi nal judgment entered pursuant to O.C.G.A. § 9-11-54(b)). 

125 O.C.G.A. § 9-11-50(c)(2). 

126 O.C.G.A. § 9-11-50(d). 

127 O.C.G.A. § 9-11-50(c)(1); see also O.C.G.A. § 5-5-51 (providing that in all civil cases in which a new 

trial is granted on discretionary grounds, the trial court must set forth the reason(s) for exercising its 

discretion). 

- 58 -


conclusions of law are not required, 128 failure to specify the grounds upon which a motion for new 

trial is granted may require that the case be remanded with directions to vacate the prior order and 

enter a new order specifying the grounds. 129 

§ 3.5.4 Effect of Motion for JNOV on Time for Appeal 

The fi ling of a timely motion for JNOV tolls the time for fi ling a notice of appeal. The 

30-day period begins anew at the time the motion for JNOV is granted, overruled, or “otherwise 

fi nally dispos[ed].” 130 

§ 3.6 Motions to Amend or Modify a Judgment 

§ 3.6.1 General Provisions 

Under O.C.G.A. § 9-11-52, a court ruling on an interlocutory injunction or presiding over 

a non-jury trial must, upon request made prior to such ruling, issue an order that includes fi ndings 

of fact and conclusions of law. 131 However, the requirements of O.C.G.A. § 9-11-52(a) “may be 

waived in writing or on the record by the parties.” 132 Only where an appellate court determines that 

the fi ndings of fact are clearly erroneous will they be set aside. 133 Further, an appellate court must 

give deference to the trial judge’s assessment of witness credibility. 134 

§ 3.6.2 Form of the Order 

In drafting a judgment for a trial judge sitting without a jury, two principles should be kept 

in mind. First, the fi ndings of fact must be stated separately from the conclusions of law in the 

judgment or order. 135 The purpose of setting forth separate fi ndings of fact is threefold: (i) to aid 

in the trial judge’s process of adjudication; (ii) to defi ne the facts for purposes of res judicata and 

128 Sigmon v. Womack, 158 Ga. App. 47, 51, 279 S.E.2d 254, 258 (1981). 

129 Famiglietti v. Brevard Med. Investors, Ltd., 197 Ga. App. 164, 169, 397 S.E.2d 720, 724 (1990). 

130 O.C.G.A. § 5-6-38(a). 

131 This requirement, however, does not apply to actions involving uncontested divorce, alimony, or custody 

of minors, nor to motions except as provided in O.C.G.A. § 9-11-41(b). See O.C.G.A. § 9-11-52(b). 

132 O.C.G.A. § 9-11-52(b). 

133 O.C.G.A. § 9-11-52(a). 

134 Id. 

135 Id. 

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collateral estoppel; and (iii) to aid the appellate court on review. 136 If an opinion or memorandum 

of decision is fi led, it will be suffi cient if the fi ndings and conclusions are both contained therein. 137 

When an order fails to specify clearly the fi ndings of fact and conclusions of law, or fails to contain 

any such recitation, the case will be remanded with direction that the prior order be vacated and a 

new order containing appropriate fi ndings and conclusions be entered. 138 

Second, although the court’s order need not necessarily specify the evidence actually relied 

upon in making its fi ndings and reaching its conclusions, 139 neither the mere recitation of events that 

took place at trial nor a bare statement of what the court considered in reaching its conclusions is 

suffi cient. 140 Instead, the order should state not only the end result of the judge’s inquiry, but the 

process by which it was reached. 141 

The procedure for fi ling motions to amend or modify a judgment entered pursuant to 

O.C.G.A. § 9-11-52(c) is as follows: 

Upon motion made not later than 20 days after entry of judgment, the court may 

make or amend its fi ndings or make additional fi ndings and may amend the 

judgment accordingly. If the motion is made with a motion for new trial, both 

motions shall be made within 20 days after entry of judgment. The question of the 

suffi ciency of the evidence to support the fi ndings may be raised on appeal whether 

or not the party raising the question has made in the trial court an objection to 

fi ndings or a motion for judgment. When fi ndings or conclusions are not made 

prior to judgment to the extent necessary for review, failure of the losing party to 

move therefor after judgment shall constitute a waiver of any ground of appeal 

which requires consideration thereof. 142 

136 Spivey v. Mayson, 124 Ga. App. 775, 776, 186 S.E.2d 154, 155 (1971). 

137 O.C.G.A. § 9-11-52(a). 

138 Fairburn Banking Co. v. Upton, 172 Ga. App. 81, 82, 321 S.E.2d 814, 815 (1984); C & H Couriers Inc. 

v. Am. Mut. Ins. Co., 166 Ga. App. 853, 854, 305 S.E.2d 500, 501 (1983). 

139 Siegel v. Gen. Parts Corp., 165 Ga. App. 339, 339, 301 S.E.2d 292, 293 (1983). 

140 See, e.g., In re D.L.G., 212 Ga. App. 353, 353, 442 S.E.2d 11, 11 (1994); Moore v. Farmers Bank of 

Union Point, 182 Ga. App. 94, 95, 354 S.E.2d 692, 693 (1987); C & H Couriers, 166 Ga. App. at 853, 

305 S.E.2d at 501; Woodruff v. B-X Corp., 154 Ga. App. 197, 197-98, 267 S.E.2d 757, 758 (1980). 

141 See, e.g., In re D.L.G., 212 Ga. App. at 353, 442 S.E.2d at 11; Woodruff, 154 Ga. App. at 197-98, 267 

S.E.2d at 758; Beasley v. Jones, 149 Ga. App. 317, 318-19, 254 S.E.2d 472, 473 (1979). 

142 O.C.G.A. § 9-11-52(c). Importantly, the non-prevailing party in a non-jury trial bears the burden of 

requesting that the trial court’s judgment be made specifi c enough for the Court of Appeals to review. 

Accordingly, failure to move for clarifi cation of a vague judgment may constitute waiver of some 

grounds for appeal. 

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This code section is not intended, however, to provide a party with a second opportunity 

to prove his case after he fails to do so in the fi rst instance. 143 It also bears emphasis that this 

provision requires a party to fi le a motion to amend or modify “not later than 20 days after entry of 

judgment.” 144 

§ 3.6.3 Effect of Motion to Amend or Modify on Running of Time 

Limitations 

Motions to amend or modify are not included among the post-trial motions that, by statute, 

enlarge the time for fi ling a notice of appeal. 145 Thus, given the decisions concerning other motions 

that are not listed in O.C.G.A. § 5-6-38, good practice dictates that a notice of appeal be fi led within 

30 days after the entry of judgment, even if a motion to amend or modify is pending. 146 

§ 3.7 The Inherent Power of the Court Over Its Own Orders During the Term of 

Court 

Beyond the aforementioned post-trial motions, longstanding precedent supports the inherent 

power of trial judges to revise, correct, revoke, modify, or vacate orders through the end of the term 

of court, for the purpose of promoting justice and in the exercise of sound legal discretion. 147 The 

143 Buckley v. Thornwell, 143 Ga. App. 764, 765, 240 S.E.2d 258, 259 (1977). 

144 O.C.G.A. § 9-11-52(c). But see infra Section 3.7. 

145 See O.C.G.A. § 5-6-38(a). 

146 See, e.g., Barlow v. State, 279 Ga. 870, 872, 621 S.E.2d 438, 440 (2005); Robinson v. Carswell, 147 

Ga. App. 521, 249 S.E.2d 331 (1978) (holding that a motion to vacate a summary judgment is not listed 

in O.C.G.A. § 5-6-38 and thus does not extend time for appeal); Ellis v. Cont’l Ins. Co., 141 Ga. App. 

809, 234 S.E.2d 377 (1977) (holding that a motion for reconsideration of a judgment arming a worker’s 

compensation board fi nding is not listed in O.C.G.A. § 5-6-38 and does not extend the time for appeal). 

147 Bagley v. Robertson, 265 Ga. 144, 145-46, 454 S.E.2d 478, 480 (1995); E. Side Lumber & Coal Co. v. 

Barfi eld, 193 Ga. 273, 276, 18 S.E.2d 492, 494 (1942); LeCraw v. Atlanta Arts Alliance, Inc., 126 Ga. 

App. 656, 663, 191 S.E.2d 572, 577 (1972); Armour & Co. v. Youngblood, 107 Ga. App. 505, 508, 130 

S.E.2d 786, 787 (1963). Note that “[t]he rule that a trial judge, in the exercise of a sound discretion, has 

authority to amend, revise, modify, or set aside a judgment during the term in which it is rendered is not 

applicable to a judgment based on a jury verdict.” Dep’t of Transp. v. Kenney, 238 Ga. 173, 174, 231 

S.E.2d 767, 769 (1977); Jones v. Meyers, 223 Ga. App. 277, 278, 477 S.E.2d 411, 411-12 (1996). 

- 61 -


enactment of the Civil Practice Act did not change this rule. 148 In fact, “this inherent power may be 

exercised in a subsequent term where a motion for modifi cation or other statutorily defi ned action 

was fi led during the term when the challenged order was entered, and is continued to the subsequent 

term.” 149 The terms of court vary from county to county, as set forth in O.C.G.A. § 15-6-3. 

§ 3.8 Motions for Supersedeas Bond 

§ 3.8.1 General Provisions 

The fi ling of a notice of appeal ordinarily serves as supersedeas 150 to enforcement of a 

civil judgment so long as the appellant has paid all costs into the court. 151 The appellee, however, 

may move the trial court to require the appellant to post a bond. 152 Section 5-6-46 of the Georgia 

Code provides that the court “shall” require the posting of a bond or other form of security if such 

a motion is made. 153 The amount of the bond depends upon the type of civil judgment involved. 154 

§ 3.8.2 Time for Filing 

Section 5-6-46 of the Georgia Code does not state a defi nite time period in which a motion 

for supersedeas bond should be fi led. As a matter of course, however, the motion should be fi led, 

148 McCoy Lumber Co. v. Garland Lumber Sales, Inc., 182 Ga. App. 75, 75, 354 S.E.2d 686, 686 (1987) 

(citing Martin v. Gen. Motors Corp., 226 Ga. 860, 862-63, 178 S.E.2d 183, 184 (1970)); see also City 

of Cornelia v. Gunter, 227 Ga. 464, 465, 181 S.E.2d 489, 489 (1971) (“‘After the expiration of the term 

at which a decree was entered, it is out of the power of the court to modify and revise it in any matter of 

substance or in any matter affecting the merits. A decree, during the term at which it was rendered is said 

to be in the breast of the judge; after it is over, it is upon the roll.’ This rule as to the fi nality of judgments 

has not been changed by the Civil Practice Act of 1966 (Code Ann. s 81A-160(h)).” (internal citation 

omitted)). 

149 Bagley, 265 Ga. at 146, 454 S.E.2d at 480. Note that “[a]n interlocutory ruling does not pass from the 

control of the court at the end of the term if the cause remains pending.” Bradley v. Tattnall Bank, 170 

Ga. App. 821, 823, 318 S.E.2d 657, 661 (1984). 

150 The fi ling of a notice of appeal does not act as a supersedeas unless all costs in the trial court have 

been paid. O.C.G.A. § 5-6-46(a); Duncan v. Ball, 172 Ga. App. 750, 751, 324 S.E.2d 477, 479 (1984); 

Chappelaer v. Gen. G.M.C. Trucks, Inc., 130 Ga. App. 664, 665, 204 S.E.2d 326, 327 (1974). 

151 O.C.G.A. § 5-6-46(a). See O.C.G.A. § 5-6-45 for operation of notice of appeal as supersedeas in criminal 

cases. 

152 O.C.G.A. § 5-6-46(a). 

153 Id. 

154 See generally Chapter 5 of this Handbook. 

- 62 -


heard, and decided prior to the time the case is docketed in the appellate court. 155 Arguably, once 

the case is docketed, the trial court loses jurisdiction and cannot require a supersedeas bond. 156 

§ 3.8.3 Penalties for Failure to Post a Supersedeas Bond 

If the appellant fails to post the bond set by the trial court, the appellee is at liberty to 

enforce the judgment by all legal means, including levy, execution, and garnishment. 157 Failure 

to post a supersedeas bond is not, however, grounds for dismissing the appeal, and the appellee 

who levies on the judgment creditor’s property acts at its own peril if the judgment is reversed on 

appeal. 158 

§ 3.9 Motions for Attorneys’ Fees Under O.C.G.A. § 9-15-14 

Section 9-15-14 of the Georgia Code provides for the recovery of attorneys’ fees when 

a litigant asserts “a claim, defense, or other position with respect to which there existed such a 

complete absence of any justiciable issue of law or fact that it could not be reasonably believed 

that a court would accept the asserted claim, defense, or other position,” or when an attorney or 

party “brought or defended an action, or any part thereof, that lacked substantial justifi cation, 159 

was interposed for delay or harassment, or . . . unnecessarily expanded the proceeding by other 

improper conduct, including, but not limited to, abuses of discovery procedures . . . .” 160 A motion 

for attorneys’ fees and expenses under O.C.G.A. § 9-15-14 may be fi led “at any time during the 

course of the action but not later than 45 days after the fi nal disposition of the action.” 161 

155 The trial court is not required to conduct an oral hearing prior to granting a motion to require a supersedeas 

bond, nor must the trial court give the non-moving party 30 days to respond to the motion. Rapps v. 

Cooke, 234 Ga. App. 131, 134, 505 S.E.2d 566, 570 (1998). 

156 See Park v. Minton, 229 Ga. 765, 769-70, 194 S.E.2d 465, 468 (1972). But see Hughes v. Star Bonding 

Co., 137 Ga. App. 661, 662-63, 224 S.E.2d 863, 863-66 (1976). 

157 See Crymes v. Crymes, 240 Ga. 721, 721, 242 S.E.2d 30, 31 (1978). 

158 Hawn v. Chastain, 246 Ga. 723, 726-27, 273 S.E.2d 135, 138-39 (1980); see generally Chapter 5 of this 

Handbook. 

159 As used in this Code Section, “lacked substantial justifi cation” means “substantially frivolous, 

substantially groundless, or substantially vexatious.” O.C.G.A. § 9-15-14(b). Attorneys’ fees will not 

be assessed when it is determined that the attorney or party asserted a claim or defense in a good faith 

effort to establish a new theory of law in Georgia if such new theory is based on some recognizable 

precedential or persuasive authority. O.C.G.A. § 9-15-14(c). 

160 O.C.G.A. § 9-15-14(a)-(b). 

161 O.C.G.A. § 9-15-14(e). 

- 63 -


Unless appealed as part of a judgment that is directly appealable, an appeal from an award 

of attorneys’ fees under O.C.G.A. § 9-15-14 must be sought through application, and a direct appeal 

will be dismissed for failure to comply with O.C.G.A. § 5-6-35. 162 An award of attorneys’ fees and 

expenses under O.C.G.A. § 9-15-14 is determined by the court without a jury, is discretionary, and 

will be affi rmed by the appellate court if: (i) under subsection (a), there is “any evidence” to support 

it; or (ii) under subsection (b), the trial court did not abuse its discretion. 163 

§ 3.10 Pauper’s Affi davit 

Section 5-6-47 of the Georgia Code allows an appellant to fi le an affi davit stating that he or 

she is indigent and unable to pay costs or to post a supersedeas bond. Such an affi davit of indigence 

shall act as supersedeas unless successfully contested, i.e., traversed, under the procedure set forth 

in O.C.G.A. § 5-6-47(b). The traverse must be fi led in the trial court. 164 The trial court’s ruling on 

issues of fact concerning a party’s ability to pay costs is fi nal and not subject to review. 165 

162 Martin v. Outz, 257 Ga. 211, 211, 357 S.E.2d 91, 91-92 (1987); Cheeley-Towns v. Rapid Grp., Inc., 212 

Ga. App. 183, 184, 441 S.E.2d 452, 452-53 (1994); Rolleston v. Huie, 198 Ga. App. 49, 52, 400 S.E.2d 

349, 352 (1990); Bowles v. Lovett, 190 Ga. App. 650, 650, 379 S.E.2d 805, 805 (1989). 

163 Haggard v. Bd. of Regents of the Univ. Sys., 257 Ga. 524, 526, 360 S.E.2d 566, 568 (1987); Sacha v. 

Coffee Butler Serv., Inc., 215 Ga. App. 280, 282, 450 S.E.2d 704, 706 (1994); Haywood v. Aerospec, Inc., 

193 Ga. App. 479, 480, 388 S.E.2d 367, 369 (1989). 

164 D’Zesati v. Poole, 174 Ga. App. 142, 143, 329 S.E.2d 280, 281 (1985); Mark Trail Campgrounds, Inc. v. 

Field Enters., Inc., 140 Ga. App. 608, 609, 231 S.E.2d 468, 467 (1976). 

165 Cottrell v. Askew, 276 Ga. App. 717, 719 n.1, 624 S.E.2d 203, 206 n.1 (2005). 

- 64 -

4 

COMMENCING THE APPEAL: NOTICE OF APPEAL, 

TRANSCRIPT, AND RECORD 

Daniel C. Norris* 

§ 4.1 Notice of Appeal 

§ 4.1.1 Time to File 

An appeal begins with the fi ling of a notice of appeal. The proper and timely fi ling of such 

a notice is an absolute requirement for conferring jurisdiction on the appellate court. 1 

* Mr. Norris is a partner at the law fi rm of Alston & Bird LLP, focusing his practice on complex commercial 

litigation and appellate practice. He received a B.A. from Southern Methodist University in 2000 and a 

J.D. from the Florida State University College of Law in 2004. 

1 Cody v. State, 277 Ga. 553, 553, 592 S.E.2d 419, 420 (2004); Schroder v. Murphy, 282 Ga. App. 701, 

704, 639 S.E.2d 485, 488 (2006). 

- 65 -


A notice of appeal must be fi led with the clerk of the trial court 2 within 30 days after the 

trial court enters an appealable decision or judgment 3 or within 10 days after the appellate court 

grants an interlocutory or discretionary appeal. 4 In a dispossessory action, however, the notice 

of appeal must be fi led within seven days after entry of judgment. 5 The Georgia Code expressly 

defi nes “entry of judgment” to be the fi ling of a signed judgment with the clerk of court. 6 

Early notices are valid; late ones are not. When a notice of appeal is fi led before judgment 

is formally entered, the notice lies dormant until judgment is entered and then becomes immediately 

effective. 7 However, when a notice is fi led after the generally applicable 10- or 30-day window has 

expired, the appeal will be dismissed. 8 

§ 4.1.2 Extensions of Time to File 

§ 4.1.2.1 Automatic Extensions 

When a party fi les either a motion for new trial, a motion in arrest of judgment, or a motion 

for judgment notwithstanding the verdict, the time for fi ling a notice of appeal is extended to 30 

days after the trial court grants, denies, or otherwise disposes of the motion. 9 A post-judgment 

2 Under limited circumstances involving expedited direct appeals by a minor to the Supreme Court, parties 

must fi le a notice of appeal with the Supreme Court. GA. S. CT. R. 63. 

3 O.C.G.A. §§ 5-6-37, 5-6-38(a); see also Cody, 277 Ga. at 553, 592 S.E.2d at 420; Veasley v. State, 272 

Ga. 837, 839, 537 S.E.2d 42, 43-44 (2000) (holding that opposing counsel’s consent to late fi ling does 

not prevent dismissal). 

4 O.C.G.A. §§ 5-6-34(b), 5-6-35(g). Section 5-6-34(b) requires a two-step process for fi ling an interlocutory 

appeal. Within 10 days of rendering an order, decision, or judgment that cannot be directly appealed, the 

trial court must certify that the issue to be appealed is worthy of immediate review. Id. Within 10 days 

of obtaining such a certifi cate, the appellant must petition the appropriate appellate court for permission 

to appeal. Id. For a more complete discussion of interlocutory and discretionary appeals, see Chapter 2 

of this Handbook. 

5 O.C.G.A. § 44-7-56. 

6 O.C.G.A. § 5-6-31; see also Bd. of Comm’rs v. Guthrie, 273 Ga. 1, 2, 537 S.E.2d 329, 331 (2000) 

(“To constitute an ‘entry,’ the decision must be reduced to writing, signed by the judge, and fi led with 

the clerk.”); Miner v. Harrison, 205 Ga. App. 523, 524-25, 422 S.E.2d 899, 901 (1992) (holding that 

when plaintiff elects to have judgment entered on only the fi rst of two counts, the second count is not 

appealable). 

7 Randall v. Randall, 274 Ga. 107, 108, 549 S.E.2d 384, 386 (2001); Stone v. State, 272 Ga. 351, 351 n.1, 

529 S.E.2d 136, 137 n.1 (2000). 

8 Campbell v. McLarnon, 265 Ga. App. 87, 90, 593 S.E.2d 21, 24 (2003); In re H.L.W., 244 Ga. App. 498, 

498, 535 S.E.2d 834, 835 (2000). 

9 O.C.G.A. § 5-6-38(a). 

- 66 -

CHAPTER 4: COMMENCING THE APPEAL: NOTICE OF APPEAL, TRANSCRIPT, AND RECORD 

motion triggers this extension, however, only when the motion is disposed of by court order. If 

a motion for new trial, for example, is voluntarily withdrawn, the would-be appellant gains no 

extension, unless the withdrawal is effected or approved by order of the court. 10 

Not all motions will trigger an extension. A motion for reconsideration, for example, does 

not extend the time for fi ling a notice of appeal. 11 Neither does a motion for new trial if it is 

untimely fi led. 12 Likewise, when a motion for new trial is not the proper vehicle to seek review of 

a trial court’s action, the motion is of no effect and will not extend the deadline for fi ling a notice of 

appeal. 13 A motion to amend fi ndings of fact under O.C.G.A. § 9-11-52(c) will not toll the time for 

fi ling a notice of appeal unless it is joined with a motion for new trial. 14 Clerical changes to a trial 

court order will not extend the time for fi ling a notice of appeal, but a revised order that changes the 

parties’ substantive rights will. 15 

§ 4.1.2.2 Extensions by Motion 

When a party does not receive timely notice that an appealable order has been entered, 

and when the party thus is deprived of its opportunity to fi le a notice of appeal, the party may fi le 

a motion to set the order aside. 16 Upon a fi nding that the party did not timely receive the order, the 

trial court should grant the motion to set aside, reenter its original order, and thus give the party its 

full allotment of time in which to appeal. 17 

As noted above, the time in which to fi le a notice of appeal may sometimes be extended 

automatically. The parties may also seek an extension, however, by motion. The trial court judge 

10 Simmons v. State, 276 Ga. 525, 525 n.1, 579 S.E.2d 735, 736 n.1 (2003). 

11 Majeed v. Randall, 279 Ga. App. 679, 680, 632 S.E.2d 413, 415 (2006); South v. Bank of Am., 250 Ga. 

App. 747, 750 n.16, 551 S.E.2d 55, 57 n.16 (2001). 

12 Peters v. State, 237 Ga. App. 625, 625, 516 S.E.2d 331, 331 (1999) (holding that untimely motion for 

new trial does not toll notice of appeal deadline). 

13 Turner v. Bynum, 255 Ga. App. 173, 175, 564 S.E.2d 784, 786 (2002) (noting that a motion for new trial 

does not extend the deadline for fi ling a notice of appeal if the motion for new trial is an improper means 

by which to challenge the trial court’s action). 

14 Am. Flat Glass Distribs. Inc. v. Michael, 260 Ga. 312, 312, 392 S.E.2d 855, 855 (1990). 

15 Yancey v. Poe, 254 Ga. App. 410, 411, 562 S.E.2d 798, 799 (2002) (holding that an amended order that 

reversed which party’s cross-motion for summary judgment had been granted reset the 30-day clock for 

fi ling a notice of appeal prescribed by O.C.G.A. § 5-6-38). 

16 Veasley v. State, 272 Ga. 837, 838, 537 S.E.2d 42, 43 (2000); Woods v. Savannah Rest. Corp., 267 Ga. 

App. 387, 387-88, 599 S.E.2d 338, 339 (2004); Sea Tow/Sea Spill of Savannah v. Phillips, 247 Ga. App. 

613, 614, 545 S.E.2d 34, 35 (2001). 

17 Veasley, 272 Ga. at 838, 537 S.E.2d at 43; Woods, 267 Ga. App. at 387-88, 599 S.E.2d at 339; Sea Tow, 

247 Ga. App. at 614, 545 S.E.2d at 35. 

- 67 -


or any judge of the appellate court to which an appeal is taken may grant an extension for fi ling a 

notice of appeal or cross-appeal. 18 Only one extension is authorized, and it must be obtained before 

the original deadline for fi ling the notice of appeal expires. 19 The extension may not exceed the 

time initially allowed for fi ling the notice. Thus, a 10-day deadline may be extended for no more 

than an additional 10 days, and a 30-day deadline may be extended for no more than an additional 

30 days. 

When requesting an extension from the Court of Appeals, the movant must demonstrate a 

bona fi de effort to obtain an extension in the trial court and explain why the extension could not be 

obtained. 20 A motion for an extension must be accompanied by an $80 fi ling fee. 21 The Court of 

Appeals will not grant an extension of time to fi le an interlocutory or discretionary application. 22 

No such rules apply in the Supreme Court. 23 Motions fi led in that court thus are subject to 

the general requirements of Supreme Court Rule 26. 

§ 4.1.3 Contents 

A notice of appeal must set forth the following: 

• The title and docket number of the case; 

• The name of the appellant and its attorney’s name and address; 

• A concise statement of the judgment, ruling, or order entitling the appellant to take an 

appeal; 

• The court appealed to; 

• A designation of those portions of the record, if any, to be omitted on appeal; 

18 O.C.G.A. § 5-6-39(a)(1), (2). Extensions are discretionary and may be granted without motion or notice 

to the other party. Id. 

19 O.C.G.A. § 5-6-39(c), (d); Grovnor v. Bd. of Regents, 231 Ga. App. 120, 120-21, 497 S.E.2d 652, 653 

(1998); Cody v. State, 277 Ga. 553, 554, 592 S.E.2d 419, 421 (2004) (holding that double extension was 

a nullity). 

20 GA. CT. APP. R. 16(a). 

21 Id. 

22 GA. CT. APP. R. 16(c). 

23 Georgia Supreme Court Rule 12 states that extensions for fi ling “petitions for certiorari, applications, 

and motions for reconsideration” will be granted only in “unusual circumstances.” This rule makes no 

specifi c mention, however, of extensions for fi ling a notice of appeal. 

- 68 -


• A concise statement of why the appellate court appealed to has jurisdiction rather than 

another appellate court; 24 

• In criminal cases, a brief statement of the offense and punishment; 25 and 

• A statement of whether any transcript is to be prepared and sent as part of the record 

on appeal. 26 

Designating the wrong appellate court or failing to include a jurisdictional statement is not 

fatal to the appeal and is not grounds for dismissal. 27 

All parties of record to proceedings in the lower court are parties on appeal, and they must 

be served with the notice of appeal and all other pleadings in the manner prescribed in O.C.G.A. 

§ 5-6-32. 28 

§ 4.1.4 Cross-Appeal: Time to File and Contents 

Cross-appeals in civil cases must be fi led within 15 days from the date the notice of appeal 

is served 29 and must contain the following: 


• The name of the appellee and the name and address of its attorney; 

• A designation of any portions of the record or transcript that the appellant has directed 

the clerk to omit, but which the appellee desires to include; and 

• A statement that the appellee takes a cross-appeal. 30 

24 Although not required, appellants are encouraged to cite the specifi c statutory or constitutional provision 

conferring jurisdiction. 

25 Failure to state the offense and punishment prescribed is not grounds for dismissal when notice is 

otherwise suffi cient. Brumby v. State, 264 Ga. 215, 217-18, 443 S.E.2d 613, 615 (1994). 

26 O.C.G.A. § 5-6-37. 

27 Id. 

28 Id. 

29 O.C.G.A. § 5-6-38(a); Mobley v. Coast House, Ltd., 182 Ga. App. 305, 309, 355 S.E.2d 686, 690 

(1987) (holding appellant’s amending notice of appeal does not toll 15-day deadline for fi ling notice of 

cross-appeal). 

30 O.C.G.A. § 5-6-38(a). 

- 69 -


If the notice of appeal does not specify that the transcript should be sent up on appeal, the notice of 

cross-appeal must state whether the transcript should be included. 31 

The service requirements for a notice of cross-appeal are the same as those for the original 


§ 4.2 Transcript and Record 

The “record on appeal” consists of two parts: the trial court record, and, if desired, a 

transcript of trial court proceedings. 33 It is the parties’ responsibility to see that the relevant portions 

of each are transmitted to the appellate court. 

§ 4.2.1 Preparing the Transcript 

In all civil cases that can be appealed to the Supreme Court or Court of Appeals, the trial 

judge may require that the proceedings be reported and that the parties share the cost of reporting 

equally. 34 If the parties are unable to pay reporting costs, the trial may go unreported, and if a 

transcript is later necessary, the moving party shall prepare the transcript from recollection of the 

parties. 35 A transcript can be prepared from the recollection of the parties only when the trial has 

not been reported or the transcript is unavailable for some other reason. 36 

Whenever parties prepare a transcript from recollection, the agreed-upon transcript shall 

be included as part of the record in the same manner and with the same binding effect as any other 

31 O.C.G.A. §§ 5-6-38(a), 5-6-42. 

32 O.C.G.A. §§ 5-6-32, 5-6-38(a). 

33 Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga. App. 674, 676, 530 S.E.2d 800, 803 (2000). 

34 O.C.G.A. § 5-6-41(c). A party has an absolute right in every case, including misdemeanors, to have the 

case reported at his own expense. O.C.G.A. § 5-6-41(j); Dumas v. State, 131 Ga. App. 79, 83, 205 S.E.2d 

119, 122 (1974). A party cannot compel the court reporter to prepare a transcript, even if he offers to pay 

for it, if he has refused to participate in the takedown costs. Ruffi n v. Banks, 249 Ga. App. 297, 298-99, 

548 S.E.2d 61, 62-63 (2001). But see Pryor v. State, 271 Ga. App. 347, 348, 609 S.E.2d 694, 695 (2005) 

(holding that a criminal defendant’s failure to pay for takedown after being declared indigent is not a 

“refusal” to pay). However, once a transcript is prepared and fi led with the court, it becomes part of the 

public record, and all members of the public, including a non-paying party, may have access to it. Ruffi n, 

249 Ga. App. at 298-99, 548 S.E.2d at 62-63. 

35 O.C.G.A. § 5-6-41(c). Whenever the transcript is prepared from recollection, it may be prepared in 

narrative form. O.C.G.A. § 5-6-41(d). 

36 Womack v. State, 223 Ga. App. 82, 82, 476 S.E.2d 767, 769 (1996); Whitt v. State, 215 Ga. App. 704, 708, 

452 S.E.2d 125, 128 (1994); Harrison v. Piedmont Hosp., Inc., 156 Ga. App. 150, 151, 274 S.E.2d 72, 

74 (1980). 

- 70 -


transcript. 37 If the parties are unable to agree as to whether a transcript prepared from recollection 

is correct, the trial judge may reconstruct the record herself. 38 If the trial judge is unable to recall 

what transpired, he/she shall enter an order stating that fact. 39 If neither an original transcript nor 

one from recollection is provided, the appellate court must presume the trial court acted correctly. 40 

§ 4.2.2 Stipulation in Lieu of Transcript 

In lieu of a transcript, the parties may agree to fi le a stipulation of the case, showing how the 

questions arose and how they were decided by the trial court, together with a suffi cient statement 

of facts to allow the appellate court to review the questions presented on appeal. 41 A stipulation 

must be approved by an appropriate judge from the trial court in which the proceedings were 

conducted. 42 If the trial judge does not approve the stipulation of the case, the appellate court must 

affi rm the judgment. 43 

§ 4.2.3 Physical Evidence 

When a party relies on physical evidence, the party may include a photograph or other 

recording of the evidence as part of the transcript in lieu of sending the original evidence. 44 If a 

party wishes to transmit the actual physical evidence to the Court of Appeals, the party fi rst must 

fi le a motion with the court. 45 Before fi ling actual physical evidence with the Supreme Court, 

however, the party must seek permission from the trial court. 46 Upon showing that the trial court’s 

permission could not be obtained, a party may seek permission directly from the Supreme Court. 47 

37 O.C.G.A. § 5-6-41(g). 

38 Id.; see also Griggs v. Griggs, 234 Ga. 451, 454, 216 S.E.2d 311, 315 (1975); Goodwin v. State, 251 

Ga. App. 549, 550, 554 S.E.2d 317, 318 (2001) (holding that trial judge may reconstruct record from 

the submission of one or both parties or from judge’s own recollection, and correctness of judge’s 

reconstruction is not subject to review). 

39 O.C.G.A. § 5-6-41(g). 

40 Sterling, Winchester & Long LLC v. Loyd, 280 Ga. App. 416, 419, 634 S.E.2d 188, 190-91 (2006). 

41 O.C.G.A. § 5-6-41(i); McMillian v. Rogers, 223 Ga. App. 699, 701, 479 S.E.2d 7, 10 (1996). 

42 McMillian, 223 Ga. App. at 701, 479 S.E.2d at 10. 

43 Elliott v. Ga. Baptist Convention, 165 Ga. App. 800, 801, 302 S.E.2d 714, 715 (1983). 


45 GA. CT. APP. R. 21. 

46 GA. S. CT. R. 71. 

47 Id. 

- 71 -


§ 4.2.4 Transmitting the Transcript and Record to the Appellate Court 

The notice of appeal must state which portions of the transcript, if any, should be included 

in the record. 48 When the appellant states that all or part of the transcript is to be included in the 

record on appeal, the appellant must ensure that the court reporter prepares and fi les the transcript 

with the trial court clerk within 30 days after the notice of appeal is fi led. 49 

In addition to ordering a transcript if one is desired, the appellant must designate which 

portions of the record are to be omitted on appeal. 50 If the appellant omits any matter from the 

record, the appellee may, within 15 days after the appellant serves the notice of appeal, fi le a 

“designation of record” stating that all or part of the omitted matters should be included in the 

record. 51 

The clerk of the trial court must transmit the transcript and record to the appellate court 

within fi ve days after the court reporter fi les the transcript. 52 However, if neither party requests the 

transcript, the clerk must prepare and transmit the record within 20 days after the notice of appeal 

is fi led. 53 If the record is not prepared within the prescribed time, the clerk shall state by certifi cate 

the cause for the delay and include the certifi cate in the record. 54 

Parties should note that there is a presumption in favor of the regularity of all proceedings 

in a court of competent jurisdiction. Without a transcript of the proceedings or some other legally 

acceptable record for review, the appellate court will be bound to assume that the trial court’s factual 

fi ndings are supported by suffi cient competent evidence. Without a transcript or its substitute, 

therefore, the decision of the trial judge on evidentiary matters is fi nal and not subject to review. 55 

48 O.C.G.A. § 5-6-37; McCormick v. State, 277 Ga. App. 473, 473, 627 S.E.2d 106, 106 (2006). 

49 O.C.G.A. §§ 5-6-41(c), 5-6-42. For a discussion of how to extend this deadline, please see Section 4.2.7 

of this Chapter. 

50 O.C.G.A. § 5-6-42. 

51 Id. 

52 O.C.G.A. § 5-6-43(a); Holy Fellowship Church of God in Christ v. First Cmty. Bank of Henry Cnty., 242 

Ga. App. 400, 402, 530 S.E.2d 24, 26 (2000) (holding it is the appellant’s obligation to ensure that the 

transcript is fi led and that costs are paid to prepare the record; it is the trial clerk’s obligation to prepare 

and transmit the record); see also Long v. City of Midway, 251 Ga. 364, 364, 306 S.E.2d 639, 640 (1983). 

53 O.C.G.A. § 5-6-43(a). 

54 Id. 

55 Price v. Price, 281 Ga. 126, 127, 636 S.E.2d 546, 547 (2006); Sterling, Winchester & Long LLC v. Loyd, 

280 Ga. App. 416, 419, 634 S.E.2d 188, 190 (2006). 

- 72 -


§ 4.2.5 Record Appendix Procedure in the Supreme Court 

In the event of a direct appeal to the Supreme Court, in lieu of having the trial court clerk 

prepare the record on appeal, the parties may submit to the clerk of the Supreme Court a record 

appendix. 56 It should be noted, however, that this procedure is only available in the Supreme Court 

because the Court of Appeals rescinded the procedure and it is no longer available in that court as 

of December 16, 2011. 57 Therefore, no record appendix will be accepted by the Court of Appeals in 

lieu of the trial court clerk preparing the record for an appeal in which a notice of appeal was fi led 

after December 16, 2011. 58 

Nevertheless, the record appendix procedure continues to be available in the Supreme 

Court, 59 and parties can make use of it when appealing to the Supreme Court. When doing so, 

the notice of appeal shall be designated for inclusion in the appellate record, but otherwise the 

appellant may direct the clerk of the trial court to omit everything else. 60 Instead, the parties can 

submit a record appendix, which shall consist of: 

• The relevant portions of the pleadings, charge, fi ndings, or opinion; 

• The judgment, order, or decision in question; and 

• Other parts of the record to which the parties wish to direct the court’s attention. 61 

The transcript is not part of the record appendix, and it is handled in accordance with Georgia 

Supreme Court Rule 70. 62 

In order to establish the contents of the record appendix, the appellant must serve on the 

appellee a designation of the parts of the record that the appellant intends to include in the record 

appendix at the time of serving the notice of appeal. The appellee then has 15 days after receiving 

56 GA. S. CT. R. 67(2). 

57 Important Notice – Termination of Record Appendix Rule in the Court of Appeals of Georgia (Nov. 21, 

2011), http://www.gaappeals.us/termination_of_record.pdf. 

58 Id. 

59 Of course, the Supreme Court could also rescind the record appendix procedure in the future. Therefore, 

litigants should check the availability of the record appendix procedure before utilizing it in the Supreme 

Court. 

60 GA. S. CT. R. 67(2). 

61 Id. 

62 GA. S. CT. R. 67(3); GA. S. CT. R. 70. 

- 73 -


the designation to serve on the appellant a designation of additional parts of the record to be included 

in the record appendix. 63 

The record appendix must be transmitted to the Supreme Court within fi ve days after the 

date of fi ling the transcript of evidence and proceedings by the appellant or appellee. 64 The parties 

should not designate unnecessary portions of the record to be included, and disputes about the 

correctness of the record appendix should be submitted to the trial court as provided in O.C.G.A. 

§ 5-6-41(f). 65 

The contents of the record appendix, with page numbers at the bottom and a manuscript 

cover, should be organized in the following order: (i) an index, including page references and dates 

of fi ling; (ii) a copy of the notice of appeal; (iii) the other items designated in chronological order; 

and (iv) a statement of correctness. 66 

§ 4.2.6 Costs 

When both parties designate portions of the record and transcript to be sent up on appeal, 

the cost of obtaining the transcript normally falls on the party who directs it to be transmitted to the 

appellate court. 67 However, if the appellee designates additional documents that are necessary to 

complete the record, then the trial court must tax the additional costs against the appellant. 68 The 

cost of preparing the record (and transcript, if required) must also be divided among the parties, 

either by agreement or by order of the trial court, in the event of a cross-appeal. 69 

63 GA. S. CT. R. 67(4). 

64 Id. “Where no transcript of evidence and proceedings is to be sent up, the record appendix shall be 

transmitted to this Court within 30 days after the date of fi ling of the notice of appeal.” Id. 

65 Id. 

66 GA. S. CT. R. 69(2). 

67 O.C.G.A. §§ 5-6-41(c), 5-6-42; see also Stone Mountain Mem’l Ass’n v. Stone Mountain Scenic R.R., 

Inc., 232 Ga. 92, 94, 205 S.E.2d 293, 295 (1974) (“The Appellate Practice Act makes it clear that the cost 

of obtaining from the court reporter a transcript of the evidence falls on the party desiring that the same 

be transmitted to the appellate court.”); Dye v. U.S. Bank Nat’l Ass’n, 273 Ga. App. 652, 616 S.E.2d 476 

(2005). 

68 See Jones v. Spindel, 239 Ga. 68, 70-71, 235 S.E.2d 486, 488 (1977) (“[I]f the trial court fi nds that the 

additional portions designated by the appellee are necessary to complete the record on appeal, the costs 

must be paid by the appellant; only if considered unnecessary on appeal, should the costs be taxed 

against the appellee.”); Williamson v. Yang, 250 Ga. App. 228, 235, 550 S.E.2d 456, 463 (2001) (same). 

69 O.C.G.A. § 5-6-38(b). 

- 74 -


The cost of preparing the transcript cannot be recovered; it is not a cost that can be taxed 

against an appellee if the appellant wins the appeal. 70 

§ 4.2.7 Delays in Preparing the Transcript or Record 

Normally, delays in transmitting the transcript or record will not cause the appeal to be 

dismissed, as long as the delay is not the fault of either party. However, when a party, rather than 

the court reporter or clerk, is responsible for a signifi cant delay, the appeal may be dismissed. 

The trial court may dismiss an appeal, after notice and a hearing, if a transcript is untimely 

fi led and if the delay is: (i) unreasonable; (ii) inexcusable; and (iii) caused by the party who 

requested that the transcript be fi led. 71 An “unreasonable” delay is one that prevents a case from 

being placed on the earliest possible calendar in the appellate court or that delays the docketing of 

the appeal. 72 An “inexcusable” delay is one without just cause, such as when counsel forgets to 

order the transcript or confi rm whether it has been timely fi led. 73 

Where a transcript has been timely ordered, but the court reporter is unable to prepare and 

fi le it in time, the party requesting the transcript may seek an extension from the trial court. 74 The 

court is required by statute to grant such extensions when necessary to allow a court reporter to 

complete the transcript. 75 A party’s failure to seek an extension may factor into the court’s analysis 

of whether a dismissal is warranted, 76 but such a failure, standing alone, will not itself cause an 

appeal to be dismissed. 77 

70 Gwinnett Prop., N.V. v. G+H Montage GmbH, 215 Ga. App. 889, 896, 453 S.E.2d 52, 59 (1994); Flight 

Int’l, Inc. v. Dauer, 180 Ga. App. 405, 406, 349 S.E.2d 271, 272 (1986). 

71 O.C.G.A. § 5-6-48(c); Coptic Constr. Co. v. Rolle, 279 Ga. App. 454, 454-55, 631 S.E.2d 475, 476 

(2006); see also Baker v. S. Ry. Co., 260 Ga. 115, 116, 390 S.E.2d 576, 576-77 (1990). 

72 Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga. App. 674, 677, 530 S.E.2d 800, 803-04 (2000). 

73 Id. at 677-78, 530 S.E.2d at 803-04. 

74 O.C.G.A. § 5-6-39(a)(3). 

75 O.C.G.A. § 5-6-42. 

76 See, e.g., Crown Diamond, 242 Ga. App. at 678, 530 S.E.2d at 804 (noting that appellant’s failure to seek 

extension was one but not only factor court took into account). 

77 Baker v. S. Ry. Co., 260 Ga. 115, 116, 390 S.E.2d 576, 577 (1990) (“The failure to apply for an extension 

does not automatically convert the delay into one which fi ts all of the conditions necessary to vest 

the trial court with the discretion to dismiss the appeal. The court must fi nd all these conditions [i.e., 

unreasonable, inexcusable delay caused by party] before an exercise of discretion is authorized.”). 

- 75 -


An appellant is responsible only for the preparing and fi ling of the transcript. It is the trial 

court clerk’s responsibility to prepare the record in accordance with the parties’ request. 78 Once an 

appellant has fi led a notice of appeal, his only duty regarding the trial court record is to pay costs. 79 

Nevertheless, the trial court may dismiss an appeal if the appellant has caused delay in transmitting 

the record, such as by failing to pay costs within 20 days of receiving notice of their amount by 

registered or certifi ed mail. 80 

Only the trial court can dismiss an appeal for failure to timely fi le the transcript; appellate 

courts cannot. 81 To obtain a dismissal, the opposing party must fi le a motion with the trial court. 82 

Dismissing an appeal will not affect the validity of a properly fi led cross-appeal. 83 

§ 4.2.8 Amending and Supplementing the Record 

At any point during an appeal, a party may ask to supplement the record. The jurisdiction 

and procedure for such a request differs, however, depending on when it is made. 

If a party wishes to supplement the record at any time before an appeal is concluded, the 

request is governed by O.C.G.A. § 5-6-41(f) and must be made to the trial court. 84 If anything 

material is omitted from or misstated in the record on appeal, the trial court, acting either sua sponte 

or in response to a party’s motion, may have the record corrected and, if necessary, may direct that a 

78 Long v. City of Midway, 251 Ga. 364, 364, 306 S.E.2d 639, 640 (1983); Holy Fellowship Church of God 

in Christ v. First Cmty. Bank of Henry Cnty., 242 Ga. App. 400, 402, 530 S.E.2d 24, 26 (2000); Crown 

Diamond, 242 Ga. App. at 676, 530 S.E.2d at 803. 

79 Long, 251 Ga. at 364, 306 S.E.2d at 640; Holy Fellowship, 242 Ga. App. at 402, 530 S.E.2d at 26. 

80 O.C.G.A. § 5-6-48(c); Cottrell v. Askew, 276 Ga. App. 717, 718, 624 S.E.2d 203, 205 (2005) (affi rming 

dismissal where appellant failed to pay costs for nearly two years); Strickland v. State, 257 Ga. App. 

304, 305, 570 S.E.2d 713, 714 (2002) (affi rming dismissal where appellant failed to pay costs for three 

months); Cody v. Coldwell Banker Real Estate Corp., 253 Ga. App. 752, 753-54, 560 S.E.2d 275, 277 

(2002) (affi rming dismissal where appellant waited 40 days after indigence claim was rejected and two 

days after motion to dismiss was fi led before paying costs). 

81 O.C.G.A. § 5-6-48(c); Campbell v. Crumpton, 173 Ga. App. 488, 489, 326 S.E.2d 845, 845-46 (1985). 

82 Campbell, 173 Ga. App. at 489, 326 S.E.2d at 846; see also GA. S. CT. R. 74 (“Appellee shall be deemed 

to have waived any failure of the appellant to comply with the provisions of the Appellate Practice Act 

relating to the fi ling of the transcript of the evidence and proceedings or transmittal of the record to this 

Court unless objection thereto was made and ruled upon in the trial court prior to transmittal, and such 

order is appealed as provided by law.”); GA. CT. APP. R. 20 (same). 

83 O.C.G.A. § 5-6-48(e). 

84 O.C.G.A. § 5-6-41(f); Nobles v. Prevost, 221 Ga. App. 594, 595, 472 S.E.2d 134, 135 (1996) (holding 

that motion to supplement record must be heard in trial court, even after appeal was docketed in Court 

of Appeals). 

- 76 -


supplemental record be certifi ed and transmitted to the appellate court. 85 If the trial court refuses to 

allow an amendment or other pleading to be included in the record, the amendment or pleading may 

nevertheless be fi led, with notation of disallowance thereon, and shall become part of the record for 

purposes of appeal. 86 

Once an appeal is decided, any motion to amend the record (for example, to support a 

motion for reconsideration or petition for certiorari) is governed by O.C.G.A. § 5-6-48(d) and must 

be fi led with the appellate court. 87 

85 O.C.G.A. § 5-6-41(f). 

86 O.C.G.A. § 5-6-41(h). 

87 O.C.G.A. § 5-6-48(d); State v. Pike, 253 Ga. 304, 307, 320 S.E.2d 355, 358 (1984) (holding that 

“[o]nce the appellate court renders its decision, O.C.G.A. § 5-6-48 . . . becomes the exclusive method 

for supplementing the record”); Hirsch v. Joint City Cnty. Bd. of Tax Assessors, 218 Ga. App. 881, 883, 

463 S.E.2d 703, 706 (1995). 

- 77 -


- 78 -

5 

STAYS OF PROCEEDINGS TO ENFORCE A JUDGMENT 

Brian R. Stimson* 

Meredith Jones** 


In many cases, parties receiving unfavorable results in the trial court desire to stay 

enforcement of the judgment pending the resolution of an appeal or post-trial motion. A stay 

typically can be obtained with relative ease. 1 Counsel should, however, proceed with caution. 

There are numerous factors that can complicate the process and negatively affect a party’s position. 

These factors include the special procedures that apply to certain types of proceedings, such as 

* Mr. Stimson is a partner in the Litigation & Trial Practice Group at Alston & Bird LLP. He focuses his 

practice on complex litigation, trial and appellate advocacy, and investigations, primarily in the health 

care and telecommunications industries. 

** Ms. Jones is an associate in the Litigation & Trial Practice Group at Alston & Bird LLP and focuses on 

civil litigation. She received her undergraduate degree from Rhodes College in 2005 and her J.D. from 

Wake Forest University in 2009. 

1 At common law, a party seeking to stay proceedings would seek a writ of supersedeas. A supersedeas 

writ would contain a command to the lower court to stay the proceedings. Although a writ is no longer 

required, the staying power of supersedeas remains intact. 

- 79 -


divorce and custody cases. Failure to follow the appropriate procedure can result in the execution 

and enforcement of the judgment, rendering moot any requested post-trial relief. 

Under current Georgia law, there are four basic types of stays of proceedings to enforce 

a judgment: (i) a limited automatic stay; (ii) a mandatory stay; (iii) a special mandatory stay; and 

(iv) a discretionary stay. The automatic stay applies for 10 days immediately following most fi nal 

judgments. A mandatory stay commences upon the fi ling of post-trial motions or a notice of appeal 

in civil cases. A special mandatory stay may apply to certain types of judgments, including divorce, 

child custody, and alimony judgments, as well as interlocutory judgments and injunctions. Finally, 

courts may grant discretionary stays when appropriate circumstances warrant. 

In addition to the four types of stays listed above, this chapter discusses additional 

considerations when determining whether to seek a stay of proceedings to enforce a judgment. 

These additional considerations include the jurisdictional consequences of supersedeas and certain 

bond requirements. 

§ 5.2 Limited Automatic Stay 

After the entry of a judgment, the 10-day automatic stay prevents the prevailing party from 

immediately executing and enforcing the judgment. 2 The purpose of the 10-day stay is to provide 

the losing party with an opportunity to evaluate its options and determine how to proceed. 3 Because 

the 10-day stay protects the losing party, it can be waived by stipulation so long as the parties’ 

agreement is in writing and fi led with the clerk of the court. 4 In the case of a default judgment, 

2 O.C.G.A. § 9-11-62(a). A “judgment” for purposes of O.C.G.A. § 9-11-62(a) “includes a decree and 

any order from which an appeal lies.” O.C.G.A. § 9-11-54(a). Judgments that are directly appealable 

to the Supreme Court or the Court of Appeals are identifi ed in O.C.G.A. § 5-6-34(a). Judgments that 

are appealable at the discretion of the appellate court are the subject of O.C.G.A. § 5-6-35. In addition, 

in cases involving judgments not otherwise subject to direct appeal, the trial court may certify to the 

Supreme Court or Court of Appeals that the judgment is of such importance to the case that immediate 

review should be had. O.C.G.A. § 5-6-34(b); see also infra Section 5.4.1. 

The court may direct the entry of a fi nal judgment as to fewer than all the claims or parties; however, the 

court may do so only upon an express determination that there is no just reason for delay. O.C.G.A. § 

9-11-54(b). When the court so designates, it “may stay enforcement of that judgment until the entering 

of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the 

benefi t thereof to the party in whose favor the judgment is entered.” O.C.G.A. § 9-11-62(f). 

It is important to note that if a grant of partial summary judgment is not made fi nal pursuant to O.C.G.A. 

§ 9-11-54(b), the party against whom summary judgment was granted has the option either to appeal or 

not appeal at the time the partial summary judgment is rendered. Roth v. Gulf Atl. Media of Ga., Inc., 

244 Ga. App. 677, 679, 536 S.E.2d 577, 580 (2000). If the party chooses to appeal, then the appellate 

decision on the summary judgment ruling is binding under O.C.G.A. § 9-11-60(h). Id. 

3 Landau v. Davis Law Grp., P.C., 269 Ga. App. 904, 908, 605 S.E.2d 461, 465 (2005). 

4 O.C.G.A. § 9-11-62(a). 

- 80 -

CHAPTER 5: STAYS OF PROCEEDINGS TO ENFORCE A JUDGMENT 

execution and enforcement proceedings can begin immediately. 5 Also, when an interlocutory or 

fi nal judgment is entered in an injunction or receivership action, immediate execution is available 

unless the court orders otherwise. 6 

§ 5.3 Mandatory Stay 

As mentioned above, a party can stay the enforcement of a judgment by fi ling: (i) post-trial 

motions; or (ii) a notice of appeal. While a stay is mandatory upon fi ling of the appropriate papers, 

certain actions by the court or opposing party can limit the effect of the stay. 

§ 5.3.1 Stay Pending the Resolution of Post-Trial Motions 

“The fi ling of a motion for a new trial or motion for judgment notwithstanding the 

verdict shall act as supersedeas” of the judgment and thus prevent the initiation of execution and 

enforcement proceedings, unless the court orders otherwise. 7 A party has 30 days after entry of 

judgment to make such motions. 8 

Stays obtained by fi ling these post-trial motions may be conditioned on posting bond “in 

such amounts as the court may order.” 9 The requesting and posting of bond is addressed more fully 

infra Section 5.7. Additionally, the court has discretion to deny supersedeas even when a proper 

post-trial motion has been fi led. 10 

Stays obtained by fi ling a motion for a new trial or JNOV are not indefi nite. Such stays 

expire upon a fi nal ruling on the motion. If, after disposition of these motions, a party desires an 

appeal, the party must fi le a notice of appeal within 30 days. 11 

5 Id. 

6 Id. 

7 O.C.G.A. § 9-11-62(b) (emphasis added). 

8 O.C.G.A. § 9-11-50(b). For discussion of the relationship between this deadline and the automatic 10day 

stay, see infra Section 5.3.2.1. 

9 O.C.G.A. § 9-11-62(b). 

10 Id.; see also Frazier v. Frazier, 280 Ga. 687, 691, 631 S.E.2d 666, 669 (2006). 

11 O.C.G.A. § 5-6-38. 

- 81 -


§ 5.3.2 Stay Upon Filing Notice of Appeal in Civil Cases 

A properly fi led notice of appeal “shall serve as supersedeas upon payment of all costs in 

the trial court by the appellant and it shall not be necessary that a supersedeas bond or other form 

of security be fi led.” 12 This is by far the most common means to stay a judgment pending appeal. 

The requirements for an effective notice of appeal are discussed more fully supra Chapter 

4. Absent an extension, the notice must be fi led within 30 days after entry of judgment or within 30 

days after the entry of the order fi nally disposing of the post-trial motions. 13 

§ 5.3.2.1 Timing of Notice of Appeal 

Unless the court has provided otherwise, the appellant can lose the benefi t of a stay: 

(i) during the 20 days after the automatic 10-day stay outlined in O.C.G.A. § 9 -11-62(a) expires 

and before a notice of appeal or post-trial motion is required to be fi led; or (ii) during the 30 days 

after fi nal disposition of post-trial motions and before a notice of appeal is required to be fi led. 

The appellant must thoughtfully consider when to fi le a notice of appeal because the appellee may 

otherwise take steps to enforce the judgment, such as by executing on the judgment immediately 

following the end of the 10-day automatic stay or the fi nal disposition of the post-trial motions. 

To avoid the possibility of such enforcement actions, the appellant should fi le its notice of appeal 

or post-trial motions prior to the end of the 10-day automatic stay. If the appellant fi les posttrial 

motions, then the appellant should fi le its notice of appeal immediately following the fi nal 

disposition of those motions. 

The case of Bank South, N.A. v. Roswell Jeep Eagle, Inc. 14 illustrates some of the problems 

that can occur once a party loses the protection of the 10-day automatic stay. In Bank South, a 

judgment was entered after a jury verdict for the plaintiff, Roswell Jeep Eagle, Inc., in the amount 

of $187,681.47. 15 On the 13th day following entry of the judgment, Roswell Jeep began obtaining 

and fi ling writs of execution in several counties where the defendant, Bank South, N.A., possessed 

millions of dollars of real estate. 16 The Court of Appeals held that “O.C.G.A. § 9-11 -62(a), by 

negative implication, clearly allows an execution to issue upon a judgment after the 10-day period 

has run, if a notice of appeal or post-trial motion acting as a supersedeas has not been fi led.” 17 Thus, 

Roswell Jeep’s actions were authorized by statute. 

12 O.C.G.A. § 5-6-46(a) (emphasis added). However, upon the timely fi ling of a motion by the appellee, 

the court “shall require” that a supersedeas bond be given. Id.; see infra Section 5.7.1. 

13 O.C.G.A. § 5-6-38(a). 

14 200 Ga. App. 489, 408 S.E.2d 503 (1991). 

15 Id. at 489, 408 S.E.2d at 504. 

16 Id. at 489, 491, 408 S.E.2d at 504. 

17 Id. at 490-91, 408 S.E.2d at 505. 

- 82 -


Bank South moved the trial court for approval of a cash bond and for an order expunging 

the writs of execution. The Court of Appeals approved the bond, 18 but refused to expunge the writs: 

[T]here is a longstanding line of Georgia Supreme Court decisions holding that the 

only effect of a supersedeas is to stay further action in the case, and a court is without 

authority to order that the supersedeas operate retroactively so as to undo what has 

previously been done in execution of the judgment appealed. Consequently, the 

trial court did not err in denying that portion of the bank’s motion which sought 

affi rmative voidance and “removal” of the entry of the judgment on the general 

execution dockets. 19 

This holding was of little help to Bank South, which suddenly had millions of dollars in real estate 

tied up by a judgment worth less than $200,000. 

writs: 

Ultimately, the Court of Appeals relieved Bank South by fi nding that the bond mooted the 

[Bank South’s] cash bond would have the legal effect of standing in lieu of the 

lien which otherwise attaches and remains by way of the recorded writs although 

their enforcement is stayed by the supersedeas effected by the fi ling of the notice 

of appeal. 20 

While the mooting of the writs enabled Bank South to obtain clean title on the properties, Bank 

South still had to resolve any problems which had already been caused by the liens. The lesson 

from Bank South is that an appellant can avoid the risks associated with an aggressive opponent’s 

efforts to execute on a judgment by fi ling a notice of appeal or post-trial motion before the 10-day 

automatic stay expires. 

For the same reasons, one should fi le a notice of appeal immediately upon fi nal disposition 

of post-trial motions. 

§ 5.3.2.2 Payment of Costs 

The mere fi ling of a notice of appeal does not trigger a stay. A properly fi led notice of 

appeal serves as a supersedeas only “upon payment of all costs in the trial court by the appellant.” 21 

18 Id. at 489-90, 408 S.E.2d at 504. 

19 Id. at 491-92, 408 S.E.2d at 506 (internal citations omitted). 

20 Id. at 492, 408 S.E.2d at 506. 

21 O.C.G.A. § 5-6-46(a); see also Lo tt v. Arrington & Hollowell, 258 Ga. App. 51, 54-55, 572 S.E.2d 664, 

667 (2002); Chappelaer v. Gen. G.M.C. Trucks, Inc., 130 Ga. App. 664, 665, 204 S.E.2d 326, 327-28 

(1974). 

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Once the notice of appeal is fi led and costs are paid, then “the supersedeas comes into effect and the 

trial court loses jurisdiction over a given case while the appeal of that case is pending.” 22 

When a notice of appeal has been fi led but costs have not been paid, the lower court 

retains jurisdiction to administer the case. For example, absent payment of costs, a trial court 

retains jurisdiction to consider a motion to enforce a settlement agreement, 23 a motion to set aside 

a dismissal, 24 a motion for additur, 25 or a motion for a new trial. 26 Not only can the court proceed 

when costs are unpaid, but it can also dismiss the appeal if a party unreasonably delays in the 

payment of costs. 27 

The costs that must be paid are accrued “trial costs,” which do not include those costs 

associated with preparing the record for appeal. 28 A detailed discussion of “trial costs” is beyond 

the scope of this chapter. Taxable costs are dealt with generally at O.C.G.A. §§ 9-15-1 to -14. 

A party that is fi nancially unable to pay costs can still obtain a stay under O.C.G.A. § 5-6- 

47 by fi ling an affi davit of indigence and a notice of appeal. An affi davit of indigence is often 

referred to as a “pauper’s affi davit,” and is discussed in more detail in Chapter 3 of this Handbook. 

§ 5.4 Special Mandatory Stays 

§ 5.4.1 Interlocutory Judgments 

The fi ling of a notice of appeal of an interlocutory judgment acts as a supersedeas only if 

the appellant follows the provisions of O.C.G.A. § 5-6-34(b). Spec ifi cally, the appellant must: (i) 

fi rst ask the lower court to certify an issue for immediate review and receive such certifi cation; (ii) 

make application to the appellate court for review and have that application granted; and (iii) then 

fi le a notice of appeal, which acts as a supersedeas pursuant to O.C.G.A. § 5-6-46. 

22 A.R.A. Health Servs. v. Stitt, 250 Ga. App. 420, 423, 551 S.E.2d 793, 796 (2001); Duncan v. Ball, 172 

Ga. App. 750, 751, 324 S.E.2d 477, 479 (1984). 

23 Penny Profi t Foods, Inc. v. McMullen, 214 Ga. App. 740, 741, 448 S.E.2d 787, 789 (1994). 

24 Lunsford v. DeKalb Med. Ctr., Inc., 263 Ga. App. 394, 395, 587 S.E.2d 859, 860 (2003). 

25 A.R.A. Health Servs., 250 Ga. App. at 423, 551 S.E.2d at 796. 

26 Rockdale Awning & Iron Co. v. Kerbow, 210 Ga. App. 119, 120-21, 435 S.E.2d 619, 621 (1993); 

Chappelaer, 130 Ga. App. at 665, 204 S.E.2d at 327-28. 

27 O.C.G.A. § 5-6-48(c). 

28 J.M. Clayton Co. v. Martin, 177 Ga. App. 228, 229, 339 S.E.2d 280, 281 (1985). 

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If the app ellant does not follow the interlocutory review procedures of O.C.G.A. § 5-6- 

34(b), the appel late court does not acquire jurisdiction to hear the appeal, leaving the lower court 

free to take all action with respect to the judgment that it deems appropriate. 29 

§ 5.4.2 Divorce, Child Custody, and Alimony Judgments 

Divorce, child custody, and alimony decisions are not fi nal judgments appealable as of right 

pursuant to O.C.G.A. § 5-6-34(a). Such decisio ns are appealable only after application has been 

made to and approved by the appellate court pursuant to O.C.G.A. § 5-6-35. A party seeking t o 

appeal a decision respecting “divorce, alimony, child custody, and other domestic relations cases” 

must fi le an application for appeal within 30 days of the entry of the order, decision, or judgment. 30 

The fi ling of an application in those cases, and in all cases subject to O.C.G.A. § 5-6-35(a), “act[s] 

as a supe rsedeas to the extent that a notice of appeal acts as supersedeas.” 31 

In divorce cases, courts typically enter “temporary orders” regarding alimony, child 

support, and child custody. 32 Temporary orders “remain[] in the breast of the trial court and may 

be revised in the discretion of the trial court at any time prior to fi nal determination of the case.” 33 

Such orders are binding on the parties pending appellate review of the fi nal judgment and can be 

enforced by the parties through contempt proceedings. 34 

The absence of a temporary order transforms the 10-day automatic stay into a permanent 

stay pending resolution of the application for appeal and, if the appeal is accepted, consideration of 

the merits by the appellate court. Absent a temporary order, the trial court may be unable to address 

a party’s grievance pending appellate review. For example, in Walker, the Supreme Court reversed 

the trial court’s fi nding of willful contempt against an appellant who refused to relinquish custody 

29 Cherry v. Coast House, Ltd., 257 Ga. 403, 404, 359 S.E.2d 904, 906 (1987). 

30 O.C.G.A. § 5-6-35(a)(2), (b), (d). 

31 O.C.G.A. § 5-6-35(h). Appeals requiring applications pursuant to O.C.G.A. § 5-6-35 are discussed more 

fully in Chapter 2. 

32 Walker v. Walker, 239 Ga. 175, 176, 236 S.E.2d 263, 263 (1977). 

33 Shepherd v. Shepherd, 233 Ga. 228, 232, 210 S.E.2d 731, 734 (1974); see also Pierce v. Pierce, 241 

Ga. 96, 102, 243 S.E.2d 46, 51 (1978). A subsequent Supreme Court decision states that the fi ling of 

a notice of appeal “reinvests the trial court with jurisdiction” over such temporary orders. Staten v. 

Staten, 242 Ga. 399, 400, 249 S.E.2d 81, 82 (1978). The concept of reinvestment appears to presume 

that jurisdiction over the temporary orders was lost at some point. However, the case cited by the court 

in Staten for this proposition does not support this presumption. Under Twilley v. Twilley, 195 Ga. 297, 

299, 24 S.E.2d 46, 47 (1943), the court emphasized that as long as the divorce case was still pending in 

the appellate court, the trial judge was vested with the discretion to “continue in force, or modify, his 

previous order pertaining to temporary alimony and attorney’s fees.” 

34 Walker, 239 Ga. at 176, 236 S.E.2d at 264. 

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of a minor child following entry of a judgment awarding custody to the appellee. 35 The court held 

that because no temporary order (or similar provision in the fi nal judgment) respecting custody was 

in place, the appellant’s fi ling of a notice of appeal divested the trial court of jurisdiction to enter 

its subsequent order of contempt. 36 

§ 5.4.3 Injunctions 

As mentioned above, judgments regarding injunctions are not subject to the 10-day 

automatic stay. Similarly, the mere fi ling of a notice of appeal from a judgment regarding an 

injunction will not stay the judgment from becoming effective during the appeal. 37 Trial courts 

do, however, have the discretion to “suspend, modify, restore, or grant an injunction during the 

pendency of [an] appeal upon such terms as to bond or otherwise as it considers proper for the 

security of the rights of the adverse party.” 38 

A party who is aggrieved by a judgment regarding an injunction and desires temporary relief 

while appealing the judgment must fi rst petition the trial court for relief. The burden of obtaining 

such an order rests squarely on the appellant. 39 If the trial court denies the relief requested, the 

aggrieved party may then petition the Supreme Court for the relief needed during the pendency of 

the appeal. 40 

Of course, the party which sought the injunction must be mindful of the risk that the appeal 

may become moot if the disputed act occurs. It is well established that “if the thing sought to be 

enjoined in fact takes place, the grant or denial of the injunction becomes moot.” 41 A case is moot, 

and thus subject to dismissal, 42 “when the resolution would amount to the determination of an 

35 Id. at 175, 236 S.E.2d at 263. 

36 Id. at 175-76, 236 S.E.2d at 263-64. The mere fi ling of a notice of appeal in Walker was suffi cient to 

create a stay because the court’s decision was entered prior to enactment of legislation requiring an 

application for appeal to be made in divorce cases. See O.C.G.A. § 5-6-35. 

37 O.C.G.A. § 9-11-62(a); Knapp v. Cross, 279 Ga. App. 632, 634, 632 S.E.2d 157, 159 (2006); Howard v. 

Smith, 226 Ga. 850, 850, 178 S.E.2d 159, 159 (1970). 

38 O.C.G.A. § 9-11-62(c); Et heredge v. All Am. Hummer Limousines, Inc., 269 Ga. 436, 437 n.1, 498 S.E.2d 

60, 61 n.1 (1998). 

39 O.C.G.A. § 9-11-62(c); Jackson v. Bibb Cnty. Sch. Dist., 271 Ga. 18, 19, 515 S.E.2d 151, 152-53 (1999). 

40 O.C.G.A. § 9-11-62(e); Ci tizens to Save Paulding Cnty. v. City of Atlanta, 236 Ga. 125, 125, 223 S.E.2d 

101, 101 (1976). But see Va . Highland Civic Ass’n v. Pace Props., Inc., 272 Ga. 723, 723, 535 S.E.2d 

230, 230 (2000) (issuing stay “through the pendency of the appeal” despite fact that appellant did not 

fi rst petition the trial court pursuant to O.C.G.A. § 9-11-62(c)). 

41 Brown v. Spann, 271 Ga. 495, 496, 520 S.E.2d 909, 910 (1999); see also Fincher v. Fleet Mortg. Grp., 

Inc., 251 Ga. App. 757, 758, 555 S.E.2d 120, 121 (2001); Jackson, 271 Ga. at 19, 515 S.E.2d at 152-53. 

42 O.C.G.A. § 5-6-48(b)(3). 

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abstract question not arising upon existing facts or rights.” 43 To prevent an appeal from becoming 

moot, the appellant must, in addition to fi ling the appeal, obtain a supersedeas. 44 

The same analysis applies to mandatory injunctions, which seek to compel a particular act. 

If a mandatory injunction is granted and the party whose performance has been ordered does the 

thing ordered, its appeal becomes moot. 45 Thus, in the case of a mandatory injunction, the party 

subject to the injunction must seek a suspension or modifi cation of the order or, alternatively, defy 

the order so as to preserve appellate review of the order. 

§ 5.4.4 Contempt Cases 

Except for actions punishable by contempt that occur “in the presence of the court during 

the progress of a proceeding,” contemnors are entitled, as a matter of right, to a supersedeas 

pending appeal. 46 Section 5-6-13(a) sets forth the procedures t hat must be followed to enforce a 

contemnor’s rights: 

A judge . . . shall grant . . . a supersedeas upon application and compliance with 

the provisions of law as to appeal and certiorari, where the person also submits, 

within the time prescribed by law, written notice that he intends to seek review of 

the conviction or adjudication of contempt. It shall not be in the discretion of any 

trial court judge to grant or refuse a supersedeas in cases of contempt. 47 

Once a written notice of intent to appeal a contempt judgment is presented to the court, 

enforcement of the contempt judgment must halt and the contemnor’s request for a supersedeas 

must be granted. 48 

43 City of Comer v. Seymour, 283 Ga. 536, 537, 661 S.E.2d 539, 540-41 (2008); Speedwell United Methodist 

Church v. Chatham Cnty., 278 Ga. 234, 235, 599 S.E.2d 185, 185 (2004) (per curiam); Brown, 271 Ga. 

at 496, 520 S.E.2d at 910. 

44 See, e.g., Jackson, 271 Ga. at 19, 515 S.E.2d at 153. 

45 Bd. of Comm’rs v. Cooper, 259 Ga. 785, 387 S.E.2d 138, 139 (1990); see also Grindle v. Chastain, 

229 Ga. App. 386, 388, 493 S.E.2d 714, 717 (1997) (“To prevent the appeal of a mandatory injunction 

from becoming moot, ‘it is necessary for the appealing party to obtain a supersedeas. If a supersedeas 

is not obtained, then the ordered action takes place as ordered, and the appeal becomes moot.’” (citation 

omitted)). 

46 O.C.G.A. § 5-6-13(a)-(b). 

47 O.C.G.A. § 5-6-13(a) (emphasis added); see also Bl ake v. Spears, 254 Ga. App. 21, 25, 561 S.E.2d 173, 

177 (2002). 

48 See Brinkley v. Flatt, 256 Ga. App. 263, 265, 568 S.E.2d 95, 98 (2002) (“Under O.C.G.A. § 5-6-13, a 

trial court has no discretion to grant or refuse a supersedeas in cases of contempt where the defendant has 

submitted an application and written notice indicating her intention to seek an appeal.”); Calvert Enters., 

Inc. v. Griffi n-Spalding Cnty. Hosp. Auth., 197 Ga. App. 727, 728-29, 399 S.E.2d 287, 288 (1990). 

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§ 5.5 Discretionary Stays 

In addition to the automatic and mandatory stays discussed above, both the trial and 

appellate courts have discretion to grant supersedeas in appropriate circumstances. 

Trial judges have the authority “[t]o grant for their respective circuits writs 

of . . . supersedeas.” 49 While a grant of supersedeas usually occurs after a party has followed 

the procedures outlined in O.C.G.A. § 5-6-46, that section does not depriv e the trial or appellate 

courts of their inherent powers to grant a supersedeas. For example, “where the prevailing party 

is insolvent and irreparable injury is about to fl ow from enforcement of the judgment,” trial courts 

can exercise their discretion and grant a supersedeas notwithstanding a party’s failure to follow the 

proper procedures. 50 

Consistent with this principle, both the Court of Appeals and the Supreme Court have rules 

that enable them to grant a supersedeas in appropriate circumstances. The Court of Appeals Rules 

provide as follows: 

In the exercise of its inherent power this Court may issue such orders or give 

such direction to the trial court as may be necessary to preserve jurisdiction of an 

appeal or to prevent the contested issue from becoming moot. This power will 

be exercised sparingly. Generally, no order will be made or direction given in an 

appeal until it has been docketed in this Court. 51 

The Rules of the Supreme Court provide as follows: 

The Court may issue supersedeas or other orders whenever deemed necessary. 

Service of motions for supersedeas shall be made on the opposing party or attorney 

before fi ling and so certifi ed. A copy of the order being appealed and a copy of the 

Notice of Appeal must be included with the motion. 52 

§ 5.6 Jurisdictional Consequences of Supersedeas 

If the appellant does not take the steps necessary to obtain a supersedeas, then the trial court 

retains jurisdiction over the action. For example, if the appellant appeals an interlocutory order 

49 O.C.G.A. §§ 15-6-9(1) & 15-7-4(a)(6). 

50 Biggers v. Hope, 176 Ga. 141, 141, 167 S.E. 177, 177 (1932); see also Scott v. Thompson, 202 Ga. App. 

746, 748, 415 S.E.2d 508, 510 (1992) (declining to fi nd abuse of discretion in entering supersedeas 

where irreparable harm might have resulted in the absence of the trial court’s order). 

51 GA. CT. APP. R. 40(b). 

52 GA. S. CT. R. 9. 

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and does not follow proper procedures, then “the appellate court does not acquire jurisdiction,” no 

supersedeas is obtained, and the trial court may proceed with all aspects of the case. 53 

Even when all steps have been taken to obtain a supersedeas, a party may still be subject to 

the trial court’s jurisdiction pending resolution of the appeal. The trial court’s jurisdiction during 

a pending appeal depends on the order or judgment to which the supersedeas applies. When the 

appellant obtains the supersedeas, “the trial court loses all jurisdiction as to matters contained 

within the appeal.” 54 The supersedeas “does not deprive the trial court of jurisdiction as to other 

matters in the same case not affecting the judgment on appeal.” 55 

Actions that directly affect “the judgment on appeal” include: (i) proceedings to enforce 

the judgment; 56 (ii) efforts to modify, alter, or amend the judgment; 57 (iii) efforts to correct mistakes 

in judgments pursuant to O.C.G.A. § 9-11-60(g); 58 and (iv) even the issuance b y a court of an 

amended order. 59 The supersedeas voids all such actions, even if the parties have consented to 

them. 60 Any action taken regarding the judgment while the trial court lacks jurisdiction is a nullity 

and will be reversed. 61 

Actions that do not directly affect the judgment on appeal often arise in the context of 

appeals from orders or judgments that fail to dispose of the entire case. For example, discovery, 

and even trial on the merits, may take place during the pendency of an appeal from an interlocutory 

order denying a motion to dismiss for failure to state a claim. 62 Discovery may also take place “as 

to matters pending in the trial courts notwithstanding the grant and appeal of summary judgments 

53 Cherry v. Coast House Ltd., 257 Ga. 403, 404, 359 S.E.2d 904, 906 (1987); see also Amado v. City of 

Atlanta, 228 Ga. App. 791, 791, 492 S.E.2d 761, 761 (1997). 

54 Cherry, 257 Ga. at 404, 359 S.E.2d at 906 (emphasis added). 

55 Cohran v. Carlin, 249 Ga. 510, 512, 291 S.E.2d 538, 540 (1982) (emphasis added); see also Avren v. 

Garten, 289 Ga. 186, 190, 710 S.E.2d 130, 137 (2011). 

56 Williams v. Natalie Townhouses of Inman Park Condo. Ass’n, 182 Ga. App. 815, 816-17, 357 S.E.2d 156, 

157-58 (2009); Walker v. Walker, 239 Ga. 175, 175, 236 S.E.2d 263, 264 (1977). 

57 Guthrie v. Wickes, 295 Ga. App. 892, 894, 673 S.E.2d 523, 525-26 (2009); Park v. Minton, 229 Ga. 765, 

769-70, 194 S.E.2d 465, 468 (1972). 

58 Metro. Atlanta Rapid Transit Auth. v. Doe, 292 Ga. App. 532, 539, 664 S.E.2d 893, 899 (2008); Upton 

v. Jones, 280 Ga. 895, 896, 635 S.E.2d 112, 112 (2006); Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. 

App. 525, 531, 258 S.E.2d 139, 143 (1979). 

59 Bryan v. Brown Childs Realty Co., 236 Ga. App. 739, 741, 513 S.E.2d 271, 273 (1999). 

60 Philips Broad. Equip. Corp. v. Prod. 70’s, Inc., 133 Ga. App. 765, 766, 213 S.E.2d 35, 35 (1975). 

61 Walker, 239 Ga. at 175-76, 236 S.E.2d at 265; Park, 229 Ga. at 769-70, 194 S.E.2d at 468. 

62 Argonaut Ins. Co. v. Atl. Wood Indus., Inc., 187 Ga. App. 477, 479-80, 370 S.E.2d 770, 772-73 (1988). 

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as to counterclaims, cross claims and third party complaints or the grant and appeal of partial 

summary judgments.” 63 

§ 5.7 Supersedeas Bond 

§ 5.7.1 Bond Required Upon Motion of Appellee 

A supersedeas bond is not automatically required in cases in which a notice of appeal has 

been fi led and costs have been paid. Nevertheless, “upon motion by the appellee, made in the trial 

court before or after the appeal is docketed in the appellate court, the trial court shall require that 

supersedeas bond or other form of security be given.” 64 Generally, a supersedeas bond should be in 

an amount suffi cient to satisfy: (i) the judgment in full; (ii) costs; (iii) interest; and (iv) damages for 

delay, if the appeal is found to be frivolous. 65 In cases where the judgment is for “the recovery of 

money not otherwise secured,” a supersedeas bond shall be fi xed in an amount suffi cient to satisfy: 

(i) the whole amount of the judgment remaining unsatisfi ed; (ii) costs on the appeal; (iii) interest; 

and (iv) damages for delay, unless the court, for good cause shown, fi xes a lesser amount. 66 Finally, 

in cases where the judgment “determines the disposition of the property in controversy as in real 

actions, trover, and actions to foreclose mortgages,” a supersedeas bond shall be fi xed in an amount 

only as will secure: (i) the use and detention of the property; (ii) the costs of the action; (iii) costs 

on appeal; (iv) interest; and (v) damages for delay. 67 

In a civil case, regardless of the legal theory asserted, the type of damages awarded, and 

the number of parties, “the total supersedeas bond or other form of security that is required of all 

appellants collectively shall not exceed $25 million regardless of the value of the judgment.” 68 

63 Cohran v. Carlin, 249 Ga. 510, 512, 291 S.E.2d 538, 540 (1982). 

64 O.C.G.A. § 5-6-46(a) (emphasis added). Under prior law, motions to require a bond were to be directed 

to the trial court before the appeal was docketed and to the appellate court after the appeal was docketed. 

This is no longer the case. Ruffi n v. Banks, 249 Ga. App. 297, 297, 548 S.E.2d 61, 61 (2001) (holding 

that the trial court did not err in requiring supersedeas bond after appeal was docketed in the appellate 

court). 

65 O.C.G.A. § 5-6-46(a). 

66 Id. 

67 Id. 

68 O.C.G.A. § 5-6-46(b). If the court fi nds that the party on whose behalf a supersedeas bond requirement 

has been limited to $25 million is dissipating or secreting assets, or diverting assets outside the ordinary 

course of business to avoid payment of a judgment, the court may require the appellant(s) to post a bond 

or other form of security in an amount “not to exceed the total amount of the judgment.” O. C.G.A. 

§ 5-6-46(f). 

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§ 5.7.2 Failure to Comply Order to Post Bond 

“The cases uniformly hold that the failure to post a supersedeas bond neither mandates 

nor permits dismissal of an appeal but simply allows the prevailing party (the appellee) to enforce 

the judgment pending appeal.” 69 “The well recognized sanction for failure to post a supersedeas 

bond is that the appellee may proceed to enforce . . . the judgment, subject to the outcome of the 

appeal.” 70 Thus, where a bond is ordered but not provided, the appellant loses the protection of a 

supersedeas, but the appellee that chooses to enforce the judgment pending appeal acts at his own 

risk, since the judgment could be reversed. 

§ 5.7.3 No Bond Required for State or Local Governments 

Pursuant to O.C.G .A. § 9-11-62(d), “[w]hen an appeal is taken by the state or by any county, 

city, or town within the state, or an offi cer or agency thereof, and the operation or enforcement of 

the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.” 

§ 5.7.4 Jurisdiction Over Surety 

“By entering into an appeal or supersedeas bond or other form of security given pursuant 

to [O.C.G.A. § 5-6-46(d)], the surety submits himself or herself to the jurisdiction of the court and 

irrevocably appoints the clerk of the court as the surety’s agent upon whom any papers affecting 

the surety’s liability on the bond may be served. The surety’s liability may be enforced on motion 

without the necessity of notice or an independent action.” 71 

69 Hawn v. Chastain, 246 Ga. 723, 725, 273 S.E.2d 135, 137-38 (1980). 

70 Id. at 138-39. The same rule applies equally to appeals to Superior Courts and appellate courts in 

Georgia. Id.; Jonas v. Jonas, 280 Ga. App. 155, 157, 633 S.E.2d 544, 548 (2006). 

71 O.C.G.A. § 5-6-46(d). 

- 91 -


- 92 -

6 

BRIEFS AND ENUMERATIONS OF ERROR 

Adam J. Biegel* 

Bennett D. Bryan** 

Both of Georgia’s appellate courts—the Court of Appeals and the Supreme Court—have 

promulgated sets of rules governing various procedural issues related to the timing, format, and 

content of appellate briefs. Practitioners before both courts must pay careful attention to the relevant 

rules, as each court’s rules differ from each other and are occasionally amended. 1 

* Mr. Biegel is a partner with the law fi rm of Alston & Bird LLP focusing on antitrust counseling and 

complex litigation. He received his B.A. from Emory University in 1993 and a J.D. from the University 

of Chicago in 1998. 

** Mr. Bryan is an associate in the Litigation & Trial Practice Group at Alston & Bird LLP and focuses on 

civil litigation. He received his undergraduate degree from Piedmont College in 2005 and his J.D. from 

the University of Georgia in 2009. 

1 The Court of Appeals and the Supreme Court publish amendments on their respective websites. For 

amendments to the Georgia Court of Appeals Rules, see “Recent Amendments,” available at http://www. 

gaappeals.us/rules2/recent_amendments.php. For amendments to the Georgia Supreme Court Rules, see 

“Amendments to Rules,” available at http://www.gasupreme.us/rules/amended_rules/. 

- 93 -


§ 6.1 Briefs in the Georgia Court of Appeals 2 

§ 6.1.1 Rules Governing Procedure 

§ 6.1.1.1 Docketing and Deadlines 

Upon the docketing of every appeal and application for appeal, the clerk of court mails 

notice of the docketing date and a schedule for briefi ng to all counsel. 3 Failure to receive the court’s 

docketing notice does not relieve counsel of the responsibility to fi le a timely brief. 4 

Parties are permitted to fi le an appellant’s brief, an appellee’s brief, and a reply brief. 5 

An appellant’s brief and enumeration of errors must be fi led within 20 days after the appeal is 

docketed. 6 Failure to fi le an appellant’s brief within that time, unless extended upon motion for 

good cause shown, may cause the appeal to be dismissed and subject the offender to sanctions for 

contempt. 7 A motion for extension of time to fi le an appellant’s brief and enumeration of errors 

must be fi led prior to the date the documents are due, or the court may dismiss the appeal. 8 

An appellee’s brief must be fi led within 40 days after the appeal is docketed or 20 days 

after the fi ling of the appellant’s brief, whichever is later. 9 Failure to fi le a timely appellee’s brief 

may result in the brief not being considered and may subject counsel to sanctions for contempt. 10 

2 References in this section to counsel include pro se parties. GA. CT. APP. R. 1(d). References to appellants 

and appellees include cross-appellants and cross-appellees, respectively. 

3 GA. CT. APP. R. 13. The notice contains the docketing date, a schedule for briefi ng to all counsel, and 

a warning that failure to timely fi le responsive briefs may result in their non-consideration or subject 

counsel to contempt. The notice of docketing of a direct appeal will also include a statement that failure 

to fi le the enumeration of errors and appellant’s brief within the time required may result in a dismissal 

of the appeal. Id. 

4 Id. 

5 GA. CT. APP. R. 24(a). 

6 GA. CT. APP. R. 23(a). With respect to all briefi ng deadlines in the Court of Appeals, when an expiration 

date falls on Saturday, Sunday, or an offi cial state or national holiday, the time is extended to the next 

business day. GA. CT. APP. R. 3. 

7 GA. CT. APP. R. 23(a). 

8 Id. 

9 GA. CT. APP. R. 23(b). 

10 Id. (requiring the state to fi le briefs in all criminal cases in which it is an appellee); see also GA. CT. APP. 

R. 13. 

- 94 -

CHAPTER 6: BRIEFS AND ENUMERATIONS OF ERROR 

An appellant may fi le a reply brief within 20 days after the appellee’s brief is fi led. 11 

§ 6.1.1.2 Extensions of Time 

Parties seeking to extend the time for fi ling a brief must fi le a motion requesting the 

extension. 12 The motion, based on good cause, must be fi led prior to the date the brief is due, or 

else the court may decline to consider the motion and may dismiss the appeal. 13 Extensions of time 

for fi ling briefs are discretionary, and the court will grant extensions only by written order. 14 Oral 

extensions will not be recognized. 15 

The court will not grant extensions of time for fi ling interlocutory or discretionary 

applications or responses. 16 

§ 6.1.1.3 Physical Preparation/Formatting 

As with all documents fi led with the court, briefs must be typed or printed upon nontransparent, 

letter-size (8½” x 11”) white paper. 17 Physical briefs (i.e., those not fi led electronically) 

must be bound at the top with staples or round-head or Acco fasteners, and must have a non-glossy 

white back of recyclable paper, heavier than regular stationery-type paper. 18 All text, including 

quotations and footnotes, must be at least double-spaced. 19 Text cannot be smaller than 10 characters 

per inch (“cpi”). 20 Notwithstanding the 10 cpi requirement, the court will accept briefs using Times 

New Roman Regular 14 point. 21 

11 GA. CT. APP. R. 23(c). 

12 GA. CT. APP. R. 16(b). 

13 GA. CT. APP. R. 16 (b), 23(a). 

14 GA. CT. APP. R. 16(b). 

15 Id. 

16 GA. CT. APP. R. 16(c). 

17 GA. CT. APP. R. 1(c). 

18 Id. 

19 GA. CT. APP. R. 1(c), 24(b). 

20 Ga. Ct. App. R. 1(c). 

21 Id. 

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Writing may appear on only one side of each page, with each page having margins of at 

least two inches at the top, and one inch on the sides and bottom. 22 Each page must be numbered 

sequentially with Arabic numerals at the bottom of the page. 23 

Any documents that do not comply with the rules may be returned to counsel with notice of 

the defect of the pleading, and/or counsel may be ordered to “redact and recast” the brief. 24 

§ 6.1.1.4 Page Limitations 

Briefs and responsive briefs are limited to 30 pages in civil cases and 50 pages in criminal 

cases (including certifi cates of service, indices, exhibits, and appendices), except upon the court’s 

approval of a written motion to exceed this limit fi led with the clerk of court. 25 Appellant’s reply 

brief is limited to 15 pages. 26 Supplemental briefs, which may be fi led only with leave of the court, 

may not exceed 15 pages. 27 

§ 6.1.1.5 Copies 

As with all documents physically fi led with the court, the parties must fi le an original 

and two copies of each brief. 28 To receive a fi le-stamped copy of a fi led document, a party should 

22 GA. CT. APP. R. 24(c). 

23 GA. CT. APP. R. 24(e). 

24 GA. CT. APP. R. 1(c). Failure to redact or recast a brief as ordered may lead to the striking of a brief or 

dismissal of an appeal. See, e.g., Dep’t of Transp. v. Gaines, No. A97A2535 (Ga. Ct. App. Oct. 28, 1997) 

(dismissing appeal after brief ordered to be redacted and recast was resubmitted with same type-size and 

style errors as original brief, and denying request to fi le third brief); compare GLW Int’l Corp. v. Yao, 

243 Ga. App. 38, 40, 532 S.E.2d 151, 154 (2000) (declining to dismiss appeal due to violation of brief 

type-size rule when court did not order it to be redacted and recast, because plaintiff was not prejudiced 

enough to “warrant the harsh remedy of dismissal”). 

When the court does not return defi cient briefs in time for redacting and recasting prior to oral argument, 

the court may choose to proceed without requiring additional submissions. See, e.g., Ford v. State, 

274 Ga. App. 695, 696, 617 S.E.2d 262, 265 (2005) (considering brief in excess of page limitation and 

noting that to the extent the court failed to address arguments raised therein, author would not be heard 

to complain); Cooper v. State, 258 Ga. App. 825, 825-26, 575 S.E.2d 691, 693 (2002) (considering 

defi cient brief despite its “mind numbing” defi ance of type-size and line-spacing requirements, “albeit 

with a diffi culty solely of [appellant’s] own making”). 

25 GA. CT. APP. R. 24(f). 

26 Id. 

27 GA. CT. APP. R. 27(a). 

28 GA. CT. APP. R. 6. Counsel are required to fi le an original and two copies of their brief for each docketed 

appeal, including companion cases and cross appeals. GA. CT. APP. R. 24(a). 

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include an extra copy and, if fi led by mail, a pre-addressed stamped envelope with suffi cient return 

postage. 29 

§ 6.1.1.6 Filing Procedure 

The court deems a brief fi led on the earlier of: 

(i) The date it is physically delivered to the clerk’s offi ce, with suffi cient costs, if 

applicable, and clocked in by the clerk’s offi ce staff; 

(ii) The United States Postal Service postmark date or commercial delivery service 

transmittal date that appears on the envelope or container in which the document 

was received, if accompanied with suffi cient costs, if applicable; 30 or 

(iii) If fi ling electronically, the date and time the document is received by the court’s 

e-fi ling system, if accompanied with suffi cient costs, if applicable. 31 

It should be noted that the fi ling procedure for briefs is different from those for motions for 

reconsideration. Motions for reconsideration are deemed fi led only on the date of physical receipt 

in the clerk’s offi ce regardless of the date of mailing. 32 

Filing by facsimile is not permitted. 33 

29 GA. CT. APP. R. 2(c). 

30 GA. CT. APP. R. 4(c). 

31 Counsel may electronically fi le briefs, extensions to fi le, and requests for oral argument by using the 

court’s electronic fi ling system (“EFAST”). To fi le electronically, counsel must: (i) agree to the terms of 

use and comply with the instructions of the court’s e-fi ling system; and (ii) comply with all other rules of 

the court except as modifi ed by the e-fi ling system’s terms of use. Note that counsel fi ling a document 

electronically is still responsible for offi cial service of his or her document on the opposing counsel 

or pro se party. GA. CT. APP. R. 46. For further instructions on e-fi ling, see “EFAST Registration and 

E-Filing Instructions,” available at http://www.gaappeals.us/eFile2/instructions.pdf and “Questions and 

Answers EFAST,” available at http://www.gaappeals.us/eFile2/questions_and_answers.pdf. 

32 GA. CT. APP. R. 4(b), 37(b). Motions for reconsideration must be fi led within 10 days from the rendition 

of the judgment or dismissal and any response, though not required, must be fi led “expeditiously.” GA. 

CT. APP. R. 37(b). See also Chapter 10 of this Handbook. 

33 GA. CT. APP. R. 1(e). 

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§ 6.1.1.7 Clerk’s Offi ce Hours and Contact Information 

The clerk’s offi ce is open Monday through Friday between the hours of 8:30 a.m. and 4:30 

p.m. E.S.T./E.D.T. 34 The address of the clerk’s offi ce is: 

Clerk of Court 

Court of Appeals of Georgia 

Suite 501 

47 Trinity Avenue, S.W. 

Atlanta, Georgia 30334 35 

The telephone number of the clerk’s offi ce is (404) 656-3450. 36 The court’s web address 

is http://www.gaappeals.us. 

The clerk’s offi ce maintains a drop box for fi ling briefs and other documents after business 

hours. 37 It is located at the street level entrance to the 47 Trinity Avenue Building, which is generally 

open from 7 a.m. until 5 p.m. (check the court’s website for current hours). 38 Court personnel will 

remove the documents from the drop box each morning and fi le the documents to the prior business 

day. 39 

§ 6.1.1.8 Costs 

The Court of Appeals assesses costs of $300 in civil cases and $80 in criminal cases. 

Appellant and appellant’s counsel become liable for costs when the case is docketed, but costs are 

to be paid upon fi ling of an actual application or, in direct appeals, upon fi ling of the appellant’s 

brief. 40 The clerk will not receive an application or an appellant’s brief until costs have been paid 

or waived. 41 

34 GA. CT. APP. R. 2(a). 

35 Id. 

36 Id. 

37 GA. CT. APP. R. 4(a). 

38 Id. 

39 Id. 

40 O.C.G.A. § 5-6-4; GA. CT. APP. R. 5. Appeals from probation revocation and juvenile delinquency are 

considered “criminal cases” for the purposes of this section. Id. 

41 GA. CT. APP. R. 5. Costs are not required to fi le an appellant’s brief in a direct appeal that is fi led pursuant 

to an order of the court granting an interlocutory or discretionary application. Id. 

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Parties seeking a waiver of costs must fi le a pauper’s affi davit, a form showing a public 

defender has been appointed to represent the party, or otherwise show evidence of indigency 

contained in the record. 42 

Fees must be paid by check or money order. The clerk is not responsible for cash 

accompanying a fi ling. 43 

§ 6.1.1.9 Sealed Filings 

The court will not permit parties to fi le briefs or motions under seal unless it has granted 

counsel’s motion for permission to fi le such documents under seal. 44 

§ 6.1.2 Rules Governing Structure and Content of Briefs 

§ 6.1.2.1 In General 

§ 6.1.2.1.1 Record and Transcript References 

All record and transcript citations must be to the: (i) volume or part; and (ii) page number 

of the record or transcript as sent from the court from which the decision is appealed. 45 Page 

numbers should be identifi ed with the letter R (for Record), T (for Transcript), or MT (for Motion 

Transcript) followed by a dash and the page number in the record (i.e., R-Page Number of the 

Record, T-Page Number of the Transcript, and MT-Page Number of the Motion Transcript and date 

of the hearing). 46 

42 O.C.G.A. § 5-6-4; GA. CT. APP. R. 5. 

43 GA. CT. APP. R. 2(b). 

44 GA. CT. APP. R. 25(c)(3). 

45 GA. CT. APP. R. 25(a)(1), (c)(2)(iii). 

46 GA. CT. APP. R. 25(c)(2)(iii); see also Hay v. Newton Cnty., 273 Ga. App. 423, 423, 615 S.E.2d 

234, 234 (2005) (“‘Our requirements as to the form of appellate briefs were created, not to provide 

an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and 

effi ciently comprehended by this court.’” (quoting Bennett v. Moody, 225 Ga. App. 95, 96, 483 S.E.2d 

350, 352 (1997))); Todd v. Casciano, 256 Ga. App. 631, 631 n.1, 569 S.E.2d 566, 567 n.1 (2002) (“Use 

of lengthy titles supplied by court reporters to volumes of the record is not helpful.”); Kendall v. Griffi n- 

Spalding Cnty. Hosp. Auth., 242 Ga. App. 821, 821, 531 S.E.2d 396, 397 (2000) (“References to exhibits 

introduced in the trial court without further reference to the volume and page of the record do not satisfy 

the Rule’s requirement to cite to the record on appeal.”). Citations to record indexes may not be used. 

Bennett v. Builders II, Inc., 237 Ga. App. 756, 756-57, 516 S.E.2d 808, 809 (1999). 

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§ 6.1.2.1.2 Citations 

Citations of cases must include the case name as well as the volume, page, and year of the 

Offi cial Report. Cases not yet reported must be cited by the Court of Appeals or Supreme Court 

case number and date of decision. 47 

§ 6.1.2.1.3 Signature 

As with all documents fi led with the court, briefs must be signed by counsel and include the 

mailing address and telephone number of the attorney signing the brief, as well as the State Bar of 

Georgia membership numbers of all submitting attorneys. 48 Counsel for the defendant in a criminal 

case must also include the address of the defendant on the face of the brief and notify the court of 

any change of address. 49 

To sign an electronically-fi led document, counsel’s name must be typed, preceded by a 

“/s/” and underlined; counsel’s typed name must also appear below the underline. 50 For e-fi led 

briefs signed by multiple parties, use of the fi ling attorney’s login and password and the conformed 

signatures of the others will be presumed to mean that the fi ling attorney has the agreement of 

the other signatories to the document being fi led. 51 For physically fi led briefs, however, stamped 

signatures, conformed signatures, and signatures by express permission do not constitute acceptable 

signatures for fi ling. 52 

47 GA. CT. APP. R. 24(d). Note the court’s distinction between its binding precedent and its physical 

precedent. Binding precedent arises solely from decisions concurred in by all judges of a division or a 

full concurrence of a majority of a seven- or 12-judge court. Physical precedents, which are not binding 

precedents, arise from cases in which, within a division, special concurrences without statements of 

agreement or concurrences in the judgment only are fi led or, with a seven- or 12-judge court, less than a 

majority generally concurs. This rule applies to each section of the opinion; that is, an opinion may have 

certain sections that are binding precedent and others that are physical precedent only. GA. CT. APP. R. 

33(a). Further, cases affi rmed without opinion under Rule 36 have no precedential value. GA. CT. APP. 

R. 36. 

Note also that “[a]lthough ‘the law of the case rule has been formally abolished . . . it (still) applies to 

rulings by one of the appellate courts; they are binding in all subsequent proceedings.’” Davis v. Silvers, 

295 Ga. App. 103, 105, 670 S.E.2d 805, 807 (2008) (quoting O.C.G.A. § 9-11-60(h)). Still, the law of 

the case rule only applies to express rulings, not implied rulings. See Hicks v. McGee, 289 Ga. 573, 578, 

713 S.E.2d 841, 846 (2011). 

48 GA. CT. APP. R. 1(a). 

49 GA. CT. APP. R. 24(h). 

50 See, supra, “EFAST Registration and E-Filing Instructions.” 

51 Id. 

52 GA. CT. APP. R. 1(a). 

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§ 6.1.2.1.4 Certifi cate of Service 

Briefs must be served prior to their fi ling with the court. 53 A certifi cate of service bearing the 

name and complete mailing address of all opposing counsel must be attached to all briefs. 54 Service 

may be shown by certifi cate of counsel, written acknowledgement, or affi davit of the server. 55 The 

certifi cate, like all signed documents submitted to the court, should bear the submitting attorney’s 

State Bar of Georgia membership number. 56 

§ 6.1.2.1.5 Attachments and Exhibits 

Documents attached to a brief that have not been certifi ed by the clerk of the trial court as 

part of the appellate record and forwarded to the court will not be considered on appeal. 57 

§ 6.1.2.1.6 Inappropriate Remarks 

Personal remarks that are discourteous or disparaging to opposing counsel, any judge, or 

the court are forbidden in written materials submitted to the court and in oral presentations made 

to the court, and may subject counsel to penalties including contempt or having such statements 

stricken from the record. 58 

§ 6.1.2.1.7 Motions and Responses 

Motions and responses to motions must conform to the requirements of Rule 24; no party 

may fi le a motion in the body of any brief. 59 Parties may cite to the record, but shall not attach to 

53 GA. CT. APP. R. 6. 

54 Id. 

55 See id. (“Any document without a certifi cate of service shall not be accepted for fi ling.”); but see Ellis 

v. Stanford, 256 Ga. App. 294, 295, 568 S.E.2d 157, 159 (2002) (despite appellant’s failure to serve 

brief and include certifi cate of service, court denied motion to dismiss because appellee did obtain brief, 

received extension of time for fi ling responsive brief and was not prejudiced by delay). 

56 GA. CT. APP. R. 1(a). 

57 GA. CT. APP. R. 24(g). 

58 GA. CT. APP. R. 10; Kappelmeier v. PDQ Prop. Mgmt., Inc., 309 Ga. App. 430, 431-32, 710 S.E.2d 631, 

634 (2011); see also Wilson v. Moore, 275 Ga. App. 493, 494, 621 S.E.2d 507, 508 (2005) (subjecting 

appellant to contempt when brief contained numerous discourteous and disparaging remarks about the 

trial court judge ); Anderson v. Ga. Farm Bureau Mut. Ins. Co., 255 Ga. App. 734, 737, 566 S.E.2d 

342, 345-46 (2002) (denying motion to strike based on personal attacks on counsel because “[a]lthough 

argumentative, the language in question is not so discourteous and disparaging as to warrant granting the 

motion to strike”). 

59 GA. CT. APP. R. 41(b). 

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the motion or response to a motion exhibits that are included in the trial court record. 60 Failure to 

comply with these rules may result in non-consideration of such motions or responses. 61 

§ 6.1.2.2 Appellant’s Brief 

§ 6.1.2.2.1 Parts 

The brief of the appellant must consist of three parts: 

(1) Proceedings Below. Part One must be a succinct and accurate statement of the 

proceedings below and the material facts relevant to the appeal. This part must include citations 

to the parts of the record or transcript essential to the consideration of the enumerated errors, and a 

statement of the method by which each enumerated error was preserved for consideration. 62 Facts 

alleged in the brief must be supported by evidence in the record to be considered. 63 

(2) Enumeration of Errors. Part Two must consist of the enumeration of errors. 64 An 

enumeration of errors must be fi led within 20 days after the case is docketed (the same deadline 

for appellant’s brief), but no separately-fi led enumeration of errors is required, apart from the 

enumeration included as part of the brief. 65 Failure to fi le an enumeration of errors may result in 

dismissal of the appeal. 66 

60 Id. 

61 Id. 

62 GA. CT. APP. R. 25(a)(1); see also SEC, Inc. v. Puckett, 252 Ga. App. 422, 422, 555 S.E.2d 198, 200 

(2001) (“By failing to cite to the portion of the record showing where it purportedly preserved the 

enumerated errors, [appellant] risked the Court deeming all its arguments abandoned.”). 

63 In re Ray, 248 Ga. App. 45, 545 S.E.2d 617 (2001); see also Stebbins v. Ga. Power Co., 252 Ga. App. 

261, 262, 555 S.E.2d 906, 907 (2001) (“‘Exhibits contained in an appellate brief which do not appear 

in the record or transcript cannot be considered by this court and afford no basis for reversal.’” (quoting 

Strickland v. Am. Motorists Ins. Co., 149 Ga. App. 690, 691, 256 S.E.2d 92, 93 (1979))). 

64 GA. CT. APP. R. 25(a)(2). 

65 GA. CT. APP. R. 22(a). 

66 See GA. CT. APP. R. 7; see also Shell v. Teachers Ret. Sys. of Ga., 291 Ga. App. 571, 572, 662 S.E.2d 

345, 346 (2008); State v. McClendon, 286 Ga. App. 75, 76, 648 S.E.2d 680, 681 (2007) (“The failure 

to fi le any enumerations of errors, either in the brief of in a separate document, requires dismissal of 

the appeal.”); see also Strom v. London, 257 Ga. App. 889, 890, 572 S.E.2d 409, 410 (2002) (“This 

Court and the Supreme Court of Georgia have made clear that failure to fi le an enumeration of errors 

requires dismissal of an appeal.” (quoting Miles v. Emmons, 234 Ga. App. 487, 487, 507 S.E.2d 762, 762 

(1998))). 

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As required by Georgia statute, an enumeration of errors must set forth separately each 

error relied upon on appeal. 67 It must be concise and need not set out or refer to portions of the 

record on appeal. 68 Prior to 1999, reported decisions of the court reached different results about 

whether “multifarious” or compound enumerations of error were properly “set forth and argued 

separately” and whether they should be considered. 69 In 1999, the Supreme Court held that such 

enumerations of error do not violate the statutory requirement as long as they “identif[y] the trial 

court ruling asserted to be error.” 70 Thus, for example, an appellant may properly allege in an 

enumeration that a single trial court ruling was in error and provide multiple subsidiary reasons for 

this conclusion in the argument section of the brief. 71 Or a single enumeration may contain multiple 

allegations of related but particularly designated errors, such as refusing to give certain charges or 

permitting certain witnesses to testify. 72 

In addition, even if the enumeration of errors fails to identify clearly the errors sought to 

be reviewed, the appeal will still be considered if it is apparent from the notice of appeal, the fi led 

enumeration of errors, and the record (or any combination of these documents), what errors are 

sought to be asserted on appeal. 73 

The enumeration of errors must be served on the appellee as set forth in O.C.G.A. § 5-6- 

32, 74 need not have approval of the trial court, and when fi led shall become part of the record on 

67 O.C.G.A. § 5-6-40; see also Chhina Family P’ship, L.P. v. S-K Grp. of Motels, Inc., 275 Ga. App. 811, 

811-12, 622 S.E.2d 40, 42 (2005) (deeming claim that was not enumerated as error to be abandoned). 

68 O.C.G.A. § 5-6-40. 

69 Felix v. State, 271 Ga. 534, 534, 523 S.E.2d 1, 2 (1999). The court has cataloged cases defi ning an error 

and in which compound enumerations led to partial dismissal or consideration on appeal. See id. at 538 

n.3, 523 S.E.2d at 5 n.3. 

70 Id. at 539, 523 S.E.2d at 5; see also Phillips v. State, 267 Ga. App. 733, 733, 601 S.E.2d 147, 149 (2004) 

(court refused to dismiss appeal even where errors were not clearly enumerated, because court could 

determine from the record what errors were sought to be appealed); Adams-Cates Co. v. Marler, 235 Ga. 

606, 606, 221 S.E.2d 30, 31 (1975) (“‘[T]he subject matter need be indicated only in the most general 

way’ . . . .” (quoting Wall v. Rhodes, 112 Ga. App. 572, 572, 145 S.E.2d 756, 757 (1965))); O.C.G.A. § 

5-6-30 (requiring that Appellate Practice Act provisions be “liberally construed so as to bring about a 

decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider 

any points raised therein, except as may be specifi cally referred to in [the Act]”). 

71 Felix, 271 Ga. at 539-40, 523 S.E.2d at 6. 

72 Id. at 538 n.5, 523 S.E.2d at 5 n.5. 

73 Id. at 538, 523 S.E.2d at 5; Phillips, 267 Ga. at 733, 601 S.E.2d at 149; O.C.G.A. § 5-6-48(f). 

74 O.C.G.A. § 5-6-40. Georgia Code Section 5-6-32 allows for service on counsel, in person or by mail, 

with proof shown by acknowledgment or certifi cate. See also GA. CT. APP. R. 1(a). 

- 103 -


appeal. 75 The enumeration of errors must also contain a statement of jurisdiction as to why the 

Court of Appeals—and not the Supreme Court—has jurisdiction. 76 

Errors not set forth in the enumeration of errors will not be considered by the court, even if 

subsequently argued to the court. 77 The enumeration of errors may not be amended after the original 

time for fi ling the enumeration (20 days after docketing) has expired. 78 Further, an additional brief 

fi led after that date may not be used to argue an enumerated error not argued in the original brief. 79 

(3) Argument and Citation of Authorities. Part Three must contain the argument and 

citation of specifi c supporting authorities. 80 Part Three also must include a concise statement of 

the applicable standard of review for each issue presented in the brief, with supporting authority. 81 

75 O.C.G.A. § 5-6-40. 

76 GA. CT. APP. R. 22(b). 

77 Prado v. State, 306 Ga. App. 240, 249 n.31, 701 S.E.2d 871, 879 n.31 (2010) (“The appellate court is 

precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the 

enumeration of errors.” (quoting Felix, 271 Ga. at 539, 523 S.E.2d at 6)); Odum v. State, 255 Ga. App. 

70, 71, 564 S.E.2d 490, 492 (2002). 

78 Bryant v. State, 288 Ga. App. 564, 565 n.4, 655 S.E.2d 247, 248 n.4 (2007); Hill v. State, 257 Ga. App. 

82, 85, 570 S.E.2d 395, 398 (2002). But see Blanton v. Duru, 247 Ga. App. 175, 176, 543 S.E.2d 448, 

450 (2000) (exercising discretion under liberal construction of Appellate Practice Act to consider merits 

of appeal in which untimely brief and enumeration of errors was fi led). 

79 Bryant, 288 Ga. App. at 565 n.4, 655 S.E.2d at 248 n.4 (citing Getty v. State, 202 Ga. App. 490, 491, 415 

S.E.2d 29, 30 (1992)); see also Hullender v. State, 256 Ga. 86, 92, 344 S.E.2d 207, 211 (1986). 

80 GA. CT. APP. R. 25(a)(3); see Hester v. State, 304 Ga. App. 441, 444, 696 S.E.2d 427, 430 (2010) 

(“Rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the 

appropriate law as applied to the relevant facts.” (quoting Dixon v. Metro. Atlanta Rapid Transit Auth., 

242 Ga. App. 262, 266, 529 S.E.2d 398, 402 (2000))); see also Bonner v. Brunson, 262 Ga. App. 521, 

523, 585 S.E.2d 917, 919 (2003) (declining to consider argument concerning payment of amount owed 

when party cited to a 28-page list in the record of approximately one thousand checks, which would 

require the court to sift through all the checks to fi nd and address the six or more payments in question); 

Yang v. Washington, 256 Ga. App. 239, 243, 568 S.E.2d 140, 144 (2002) (“‘Appellate judges should 

not be expected to take pilgrimages into records in search of error without the compass of citation and 

argument.’” (quoting Rolleston v. Estate of Sims, 253 Ga. App. 182, 185, 558 S.E.2d 411, 415 (2001))); 

Gilbert v. Montlick & Assocs., P.C., 248 Ga. App. 535, 539, 546 S.E.2d 895, 901 (2001) (“Argument 

is defi ned as a reason given in proof or rebuttal, or a coherent series of reasons offered. Clearly, the 

central element in those defi nitions is reason. A mere statement of what occurred during the trial, and the 

contentions of the appellant, does not constitute an argument in support of such contentions. The failure 

to support the enumerated errors by citation of authority or argument constitutes an abandonment of such 

enumerated errors.”). 

81 GA. CT. APP. R. 25(a)(3). 

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Mere restatement or repetition of the enumeration of errors or legal contentions is not argument. 82 

An appealing party may not use this section of the brief to expand its enumeration of errors by 

arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors. 83 

§ 6.1.2.2.2 Sequence Of Argument 

The sequence of argument or arguments in briefs shall follow the order of the enumeration 

of errors and be numbered accordingly. 84 

§ 6.1.2.2.3 Unsupported Enumerated Error 

Each enumerated error must be supported in the brief by specifi c reference to the record 

or transcript. In the absence of such reference, the court will not search for or consider such an 

enumeration. 85 Furthermore, an enumerated error not supported in the appellant’s brief by citation 

of authority or argument may be deemed abandoned. 86 The function of the brief’s argument is to 

supply the reason why the court should support the party’s contentions. 87 

82 Glisson v. Freeman, 243 Ga. App. 92, 107, 532 S.E.2d 442, 454 (2000); Green v. State, 208 Ga. App. 1, 

2-3, 429 S.E.2d 694, 695-96 (1993). 

83 Felix v. State, 271 Ga. 534, 539 n.5, 523 S.E.2d 1, 5 n.5 (1999). 

84 GA. CT. APP. R. 25(c)(1); see Stagl v. Assurance Co. of Am., 245 Ga. App. 8, 9, 539 S.E.2d 173, 175 (2000) 

(“The rules of this court require that there be a direct and logical relationship between the enumerations 

of error and the arguments contained in the brief.”); see also Kilburn v. Young, 256 Ga. App. 807, 809- 

10, 569 S.E.2d 879, 882 (2002) (“‘Our requirements as to the form of appellate briefs were created 

not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to 

be fully and effi ciently comprehended by this Court; a party will not be granted relief should we err in 

deciphering a brief which fails to adhere to the required form.’” (quoting Campbell v. Breedlove, 244 

Ga. App. 819, 821, 535 S.E.2d 308, 310 (2000))). But see Owens v. Dep’t of Human Res., 255 Ga. App. 

678, 679 n.1, 566 S.E.2d 403, 404 n.1 (2002) (exercising discretion to address argument that “does not 

follow the order of the enumerations, is not logically linked to them, and is not divided and numbered 

accordingly” to the extent that the court “can discern the main arguments”). 

85 GA. CT. APP. R. 25(c)(2)(i); see, e.g., Bass v. State, 287 Ga. App. 600, 600 n.1, 653 S.E.2d 749, 749 n.1 

(2007) (“It is not the function of this court to cull the record on behalf of a party.” (quoting Harris v. 

State, 256 Ga. App. 120, 122, 567 S.E.2d 394, 398 (2002))); McLeod v. State, 251 Ga. App. 371, 373, 

554 S.E.2d 507, 510 (2001) (refusing to consider enumeration of error not supported by citation to record 

or transcript). 

86 GA. CT. APP. R. 25(c)(2); see Savage v. State, 252 Ga. App. 251, 256, 556 S.E.2d 176, 182 (2001); Davis 

v. State, 244 Ga. App. 345, 349, 535 S.E.2d 528, 532 (2000); Felix, 271 Ga. at 539 n.6, 523 S.E.2d at 5 

n.6. 

87 Davis, 244 Ga. App. at 349, 535 S.E.2d at 533; Caring Hands, Inc. v. Ga. Dep’t of Human Res., 222 Ga. 

App. 608, 610, 475 S.E.2d 660, 662 (1996). 

- 105 -


§ 6.1.2.3 Appellee’s Brief 

§ 6.1.2.3.1 Parts 

The brief of appellee should be divided into two parts: 

(1) Defi ciencies in Appellant’s Statement of Proceedings Below. Part One should point 

out any material inaccuracy or incompleteness of the factual statement in appellant’s brief, add any 

additional statement deemed necessary, and cite any additional parts of the record or transcript 

deemed material. 88 Failure to do so constitutes consent to a decision based on the appellant’s 

statement of facts. The court may accept uncontroverted portions of the appellant’s statement of 

facts as true. 89 

(2) Argument and Citation of Authorities. Part Two must contain the argument and 

citation of authorities relevant to each enumeration of error. 90 In this part, appellee shall also include 

the standard of review for a particular error if different from the one contended by appellant. 91 

§ 6.1.2.3.2 Sequence of Argument 

The sequence of argument or arguments in briefs should follow the order of the enumeration 

of errors and be numbered accordingly. 92 

§ 6.1.2.3.3 Defending Against Claims of Unsupported 

Matters 

In defending against the contention that certain fi ndings, rulings, or other matters are not 

supported by the record, counsel may refer to particular pages of the record where they may be 

found. 93 

88 GA. CT. APP. R. 25(b)(1). This rule applies only to an inaccurate or incomplete statement as evidenced 

by the transcript and record. The appellee’s brief cannot supply evidence not contained in the record 

or transcript. See, e.g., Biven Software, Inc. v. Newman, 222 Ga. App. 112, 115, 473 S.E.2d 527, 530 

(1996); Voxcom, Inc. v. Boda, 221 Ga. App. 619, 619, 472 S.E.2d 155, 155-56 (1996). 

89 GA. CT. APP. R. 25(b)(1); see, e.g., LaBrec v. Davis, 243 Ga. App. 307, 534 S.E.2d 84 (2000). 

90 GA. CT. APP. R. 25(b)(2). 

91 Id. 

92 GA. CT. APP. R. 25(c)(1). 

93 GA. CT. APP. R. 25(c)(2)(ii). 

- 106 -



Supplemental briefs 94 may be fi led only with leave of court. 95 Leave of court may be 

obtained by fi ling a motion for permission to fi le a supplemental brief. Such motions may be 

accompanied by a copy of the supplemental brief as an exhibit, but counsel may not fi le the 

supplemental brief until permission is granted. 96 Once permission is granted, counsel must fi le 

an original and two copies of the proposed supplemental brief, if physically fi led with the court. 97 

Supplemental briefs may not expand the issues beyond the scope of the original enumeration of 

errors nor resurrect those unsupported and abandoned in the original brief. 98 Supplemental briefs 

may not exceed 15 pages. 99 

Parties may not fi le letter briefs or letter cites. 100 If a party wishes to apprise the court 

of a recent authority that has come to its attention after the fi ling of the party’s brief or after oral 

argument, but prior to the court’s decision, the party should fi le a supplemental brief. 101 An original 

and two copies of such a brief, if physically fi led, must be fi led with the court, and it must be served 

on opposing counsel. 102 A response to such a fi ling should be made promptly and in accordance 

with the procedure for fi ling supplemental briefs. 103 


Amicus curiae briefs may be fi led without leave of court. 104 Such a brief should disclose 

the identity and interest of the persons or group on whose behalf the brief is fi led and be limited to 

94 Note the difference between a supplemental brief and a motion to supplement the record. In a motion 

to supplement the record, counsel shall describe the material to be supplemented, but shall not attach 

the supplemental materials to the motion fi led with the court unless directed to do so by the court. If the 

motion is granted, the clerk of court will obtain the supplemental record from the trial court clerk. GA. 

CT. APP. R. 41(c). 

95 GA. CT. APP. R. 27(a). 

96 Id. 

97 Id. 

98 Holloway v. State, 245 Ga. App. 510, 513, 537 S.E.2d 708, 713 (2000); Anderson v. Houser, 240 Ga. 

App. 613, 621 n.23, 523 S.E.2d 342, 349 n.23 (1999). 

99 GA. CT. APP. R. 27(a). 

100 GA. CT. APP. R. 27(b). 

101 Id. 

102 Id. 

103 Id. 

104 GA. CT. APP. R. 26. 

- 107 -


issues properly raised by the parties. 105 The only persons who may fi le such briefs are members of 

the bar of the court or attorneys appearing by courtesy. 106 

The court has refused to consider portions of amicus briefs that constitute an attempted 

expansion of the original appeal. 107 

§ 6.2 Briefs in the Supreme Court of Georgia 108 

§ 6.2.1 Rules Governing Procedure 

§ 6.2.1.1 Docketing and Deadlines 

The clerk will notify all attorneys by mail of the docketing dates of their appeals. 109 An 

appellant’s brief must be fi led within 20 days after the case is docketed. 110 

The brief of an appellee must be fi led within 40 days after the case is docketed or 20 days 

after the fi ling of appellant’s brief, whichever is later. 111 An appeal and a cross-appeal may be 

argued in the same brief, but this does not extend the time for fi ling. 112 

Failure to comply with an order of the court directing the fi ling of briefs may result in 

dismissal of the appeal and imposition of sanctions. 113 

105 Id. 

106 Id. 

107 Shaver v. Aetna Fin. Co., 148 Ga. App. 740, 741, 252 S.E.2d 684, 685 (1979) (decided under prior 

version of rules). 

108 References in this section to counsel include pro se parties. GA. S. CT. R. 4(7). References to appellants 

and appellees include cross-appellants and cross-appellees, respectively. 

109 GA. S. CT. R. 8. 

110 GA. S. CT. R. 10. To calculate the due date for briefs to be fi led in the Supreme Court, begin counting with 

the day after docketing, including weekends and holidays. When an expiration date falls on Saturday, 

Sunday, or an offi cial state or national holiday, the time is extended until the next business day. GA. S. 

CT. R. 11. 

111 GA. S. CT. R. 10. 

112 Id. 

113 GA. S. CT. R. 7, 10. 

- 108 -

§ 6.2.1.2 Extensions of Time 


Requests for extensions of time for fi ling briefs should be directed by letter to the clerk 

suffi ciently in advance of the due date so that, if the request is denied, the brief may be fi led within 

the required time. 114 Requests not showing service on opposing parties will not be honored. 115 

§ 6.2.1.3 Physical Preparation/Formatting 

All briefs must be typed or printed on letter-size (8½” x 11”) paper with covers on the front 

and back and, if physically fi led, stapled on the left side in booklet form. 116 All physically-fi led 

covers must be of recyclable paper heavier than regular stationery. 117 Covers must bear the style 

of the case, the case number, and the names of the persons preparing the brief, along with their bar 

numbers, if attorneys. 118 

All briefs must be printed or typed with not less than double-spacing between the lines, 

except in block quotations or footnotes. 119 Margins must be at least one inch on the top, bottom and 

each side. 120 The type size must not be smaller than 12-point Courier font or 14-point Times New 

Roman. 121 The pages of each brief must be sequentially numbered with Arabic numbers. 122 

§ 6.2.1.4 Page Limitations 

Briefs must be limited to 30 pages in civil cases, except upon written request by letter to 

the clerk and authorization by the court prior to the fi ling due date. 123 

114 GA. S. CT. R. 12. 

115 Id. 

116 GA. S. CT. R. 18. 

117 Id. 

118 Id. 

119 GA. S. CT. R. 16. 

120 Id. 

121 Id. 

122 GA. S. CT. R. 21. 

123 GA. S. CT. R. 20. 

- 109 -


§ 6.2.1.5 Copies 

For physically fi led briefs, an original and seven copies of all briefs must be fi led with the 

clerk. 124 

§ 6.2.1.6 Filing Procedure 

The Supreme Court deems a brief fi led on the earlier of: 125 

(i) The date it is physically received in the clerk’s offi ce and stamped fi led by the 

clerk; 126 

(ii) If sent by priority, express or fi rst-class mail, the date it is postmarked by the United 

States Postal Service; 127 

(iii) If sent through a third party commercial carrier, the date shown on the carrier’s 

transmittal form or envelope if the brief is marked for delivery within three days; 128 

or 

(iv) If fi ling electronically, on the date it is received by the Supreme Court E-fi ling/ 

Docket (“SCED”) system. 129 

124 GA. S. CT. R. 15. 

125 If the fi ler is a pro se prisoner, the Supreme Court deems the brief fi led on the date it is given to prison 

offi cials. GA. S. CT. R. 13(3). In the absence of an offi cial United States Postal Service postmark 

showing a date on or before the fi ling deadline, such delivery shall be shown by the date on the certifi cate 

of service or on an affi davit submitted by the prisoner with the document stating that the prisoner is giving 

the document to prison offi cials with suffi cient prepaid postage for fi rst-class mail. Such a certifi cate or 

affi davit will give rise to a presumption that the date of fi ling refl ected therein is accurate, but the state 

may rebut the presumption with evidence that the document was given to prison offi cials after the fi ling 

deadline or with insuffi cient postage. If the institution has a system designed for legal mail, the prisoner 

must use it to benefi t from this rule. Id. 

126 GA. S. CT. R. 13. 

127 GA. S. CT. R. 13(2). 

128 Id. If mailing via the United States Postal Service or a common carrier, the envelope or package must 

be properly addressed, postage prepaid, and the postmark or transmittal date must be visible and legible. 

Id. 

129 GA. S. CT. R. 1, 13(1) (permitting counsel to “fi le electronically with the court” in compliance with 

“policies and procedures governing electronic fi ling”). To use the e-fi ling system, counsel must have a 

Bar number and must be in good standing with the State Bar and the Supreme Court of Georgia. Counsel 

appearing pro hac vice must contact the clerk’s offi ce for instructions on use. All e-fi led documents must 

be in PDF searchable format and no larger than 15MB. For further instructions on e-fi ling procedures, 

see “SCED Registration and e-Filing Instructions,” available at www.gasupreme.us/efi le/. 

- 110 -


It should be noted that the fi ling procedure for briefs is different from those for motions for 

reconsideration. Motions for reconsideration must be fi led within 10 days of the court’s decision 

and are deemed fi led only on the date of physical receipt in the clerk’s offi ce regardless of the date 

of mailing. 130 

No fi ling, except requests for an extension of time, oral argument, extra time, or extra pages, 

will be accepted by facsimile without prior permission of the court. 131 When such permission is 

granted, facsimile fi lings will be fi led as of the date the facsimile is received, but only after receipt 

of the original by mail. 132 Service on an opposing party must also be shown on the facsimile 

fi ling. 133 

§ 6.2.1.7 Clerk’s Offi ce Hours and Contact Information 

The clerk’s offi ce is open Monday through Friday from 8:30 a.m. to 4:30 p.m. E.S.T/ 

E.D.T. 134 The address of the clerk’s offi ce is: 

Clerk of Court 

Supreme Court of Georgia 

Room 572 

244 Washington Street 

Atlanta, Georgia 30334 135 

The clerk’s telephone number is (404) 656-3470. 136 The facsimile number is (404) 656- 

2253. 137 The court’s web address is http://www.gasupreme.us. 138 

§ 6.2.1.8 Costs 

Costs in all civil cases are $300, unless pauper’s status has been granted in the trial court 

and is refl ected in the record, or the fi ling is accompanied by a form showing a public defender has 

been appointed to represent the party. Costs in all criminal cases and in habeas corpus cases for 

130 GA. S. CT. R. 13(4); GA. S. CT. R. 27. 

131 GA. S. CT. R. 2. 

132 Id. 

133 Id. 

134 GA. S. CT. R. 1. 

135 Id. 

136 Id. 

137 Id. 

138 Id. 

- 111 -


persons whose liberty is being restrained by virtue of a sentence imposed against them by a state 

court are $80. Costs must be paid upon fi ling, except for direct appeals, for which the costs, which 

accrue on docketing, must be paid upon fi ling of the original brief. Attorneys are liable for the 

costs, and failure to pay costs subjects the offender to sanctions. 139 

§ 6.2.2 Rules Governing Structure and Content of Briefs 

§ 6.2.2.1 In General 

§ 6.2.2.1.1 Record and Transcript References 

Page references to the record and transcript are essential and are to be noted with the letters 

R and T, respectively, followed by the appropriate page number (i.e., R-Page Number and T-Page 

Number). 140 

§ 6.2.2.1.2 Citations 

All citations of authority must be complete. Georgia citations must include the volume and 

page number of the offi cial Georgia reporters (Harrison, Darby, or Lexis). 141 Cases not yet reported 

must be cited by the Supreme Court or Court of Appeals case number and date of decision. 142 

§ 6.2.2.1.3 Certifi cate of Service 

All briefs fi led with the court, including those fi led by facsimile with permission, must 

certify service on opposing attorneys and state their names and addresses. 143 If a brief is not so 

certifi ed, it will not be accepted for fi ling. 144 In appeals involving the death penalty, murder, aircraft 

139 O.C.G.A. § 5-6-4; GA. S. CT. R. 5. Costs need not be paid again when a discretionary or interlocutory 

application, an application for interim review or for a certifi cate of probable cause, or a petition for 

certiorari has been granted. Nor are costs required for certifi ed questions or disciplinary cases. O.C.G.A. 

§ 5-6-4; GA. S. CT. R. 5; see also Wilson v. Carver, 252 Ga. App. 174, 174, 555 S.E.2d 848, 849 (2001) 

(ruling that court did not have jurisdiction to hear appeal when fi ling fee not paid). 

140 GA. S. CT. R. 19 n.1. With respect to the failure to make specifi c citations to the record or transcript, see 

Glisson v. Morton, 203 Ga. App. 77, 416 S.E.2d 134 (1992) (“‘[A]n appellant’s failure to make specifi c 

references to the record or transcript will not, in and of itself, warrant a summary refusal to consider an 

enumeration of error.’” (quoting Justice v. Dunbar, 244 Ga. 415, 416, 260 S.E.2d 327, 328 (1979))). 

141 GA. S. CT. R. 22. 

142 Id. Note that civil cases affi rmed by the court without published opinions under Rule 59 have no 

precedential value. GA. S. CT. R. 59. 

143 GA. S. CT. R. 14. 

144 Id. 

- 112 -


hijacking, and treason, copies of briefs must be served on the attorney general, the district attorney, 

and the attorney for the accused. 145 

§ 6.2.2.1.4 Inappropriate Remarks 

Personal remarks that are discourteous or disparaging to opposing counsel or any judge are 

forbidden in written materials, submissions, or oral presentations to the court. 146 

§ 6.2.2.2 Appellant’s Brief 

§ 6.2.2.2.1 Parts 

The court prescribes no particular arrangement for briefs. However, the volume of cases 

received by the court requires all matters to be presented succinctly. The court notes in its rules that 

inclusion of extraneous facts and frivolous issues tends to obscure critical issues. 147 

145 Id. 

The court identifi es the following order of presentation as the most effi cient: 

• Type of case. This section should show the court’s jurisdiction, the judgment appealed, 

and date of entry. 148 

• Brief statement of facts showing the general nature of the case. 149 Citations to evidence 

in the record in this section are essential. 150 The court will not consider factual 

representations contained in an appellate brief when such evidence does not appear in 

the record. 151 

146 GA. S. CT. R. 29. 

147 GA. S. CT. R. 19 n.1. 

148 Id. 

149 Id. 

150 Id. 

151 Shelby v. McDaniel, 266 Ga. 215, 216 n.2, 465 S.E.2d 433, 434 n.2 (1996); see also Rivera v. Harris, 259 

Ga. 171, 171, 377 S.E.2d 844, 845 (1989) (“‘Exhibits attached to an appellate brief but not appearing 

in the record transmitted by the trial court cannot be considered by this court and afford no basis for 

reversal.’” (quoting Taylor v. Bentley, 166 Ga. App. 887, 887, 305 S.E.2d 617, 618 (1983))). 

- 113 -


• Enumeration of errors. 152 An enumeration of errors must be stated as a separate part 

of, and shall be incorporated in, the brief. 153 

As required by Georgia statute, an enumeration of errors must set forth separately each 

error relied upon on appeal. 154 It must be concise, and need not set out or refer to portions of the 

record on appeal. 155 The enumeration of errors is deemed to include and present for review all 

judgments necessary for a determination of the errors specifi ed. 156 The purpose of this rule is to 

eliminate a litigant’s inadvertent forfeiture of substantial rights through technical error. 157 

The enumeration of errors must be served on the appellee as set forth in O.C.G.A. § 5-6- 

32, 158 need not have approval of the trial court, and when fi led shall become part of the record on 

appeal. 159 The enumeration of errors must also contain a statement of jurisdiction as to why the 

Supreme Court—and not the Court of Appeals—has jurisdiction. 160 

Errors not set forth in the enumeration of errors will not be considered by the court, even if 

subsequently argued to the court. 161 The enumeration of errors generally may not be amended after 

152 GA. S. CT. R. 19 n.1. 

153 GA. S. CT. R. 19; see Lamb v. State, 267 Ga. 464, 465, 479 S.E.2d 719, 721 (1997) (refusing to consider 

enumerations of error raised outside of appellant’s brief (citing Brooks v. State, 265 Ga. 548, 551-52, 458 

S.E.2d 349, 353-54 (1995))). 

154 O.C.G.A. § 5-6-40. 

155 Id. 

156 GA. S. CT. R. 22. 

157 Sims v. Am. Cas. Co., 131 Ga. App. 461, 484-85, 206 S.E.2d 121, 136 (interpreting prior version of 

identical Court of Appeals rule), aff’d sub nom., Providence Wash. Ins. Co. v. Sims., 232 Ga. 787, 209 

S.E.2d 61 (1974). In 1999, the Supreme Court clarifi ed that enumerations of error are adequately “set 

out separately” as long as they enable the appellate court to identify the errors of law to be reviewed, 

as discussed supra in § 6.1.2.2.1(2). See Felix v. State, 271 Ga. 534, 534-40, 523 S.E.2d 1, 2-6 (1999) 

(interpreting O.C.G.A. § 5-6-40); see also O.C.G.A. § 5-6-48(f) (requiring appellate consideration if it 

is “apparent” from fi lings and record what errors are sought to be asserted on appeal). 

158 O.C.G.A. § 5-6-40. Georgia Code Section § 5-6-32 allows for service on counsel, in person, or by mail, 

with proof shown by acknowledgment or certifi cate. See also GA. S. CT. R. 14. 

159 O.C.G.A. § 5-6-40. 

160 GA. S. CT. R. 19. 

161 Felix, 271 Ga. at 539, 523 S.E.2d at 6. (“The appellate court is precluded from reviewing the propriety 

of a lower court’s ruling if the ruling is not contained in the enumeration of errors.”). 

- 114 -


the original time for fi ling the enumeration has expired. 162 An additional brief fi led after that date 

also may not be used to argue an enumerated error not argued in the original brief. 163 

(4) Argument. This section should include additional facts, where essential, and 

citation of authorities. 164 An appealing party may not use this section of the brief to expand its 

enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the 

enumeration of errors. 165 

(5) Certifi cate of service. 166 


It is suggested that arguments in briefs be in sequence with the enumeration of errors. 167 

§ 6.2.2.2.3 Unsupported Enumerated Error 

Each enumerated error must be supported in the brief by argument or citation of authority. 

In the absence of such support, the enumeration of error will be deemed abandoned. 168 

§ 6.2.2.3 Appellee’s Brief 

§ 6.2.2.3.1 Parts 

The court suggests that the elements of the appellee’s brief should be in the same order of 

presentation as the appellant’s brief. 169 

162 Harrison v. State, 268 Ga. 574, 492 S.E.2d 218 (1997). But see Pittman v. State, 273 Ga. 849, 850-51, 

546 S.E.2d 277, 279 (2001) (permitting motion to supplement enumeration of error because it “raise[d] 

an issue which could materially affect the fair trial rights of the appellant and cause[d] no delay in the 

disposition of this case” and noting “plain error” exception in certain criminal cases). 

163 Hullender v. State, 256 Ga. 86, 92, 344 S.E.2d 207, 211 (1986). 

164 GA. S. CT. R. 19 n.1. 

165 Felix, 271 Ga. at 539 n.6, 523 S.E.2d at 5 n.6. 

166 GA. S. CT. R. 19 n.1; see also GA. S. CT. R. 14. 

167 GA. S. CT. R. 19 n.1. 

168 GA. S. CT. R. 22; see also Sharpe v. State, 272 Ga. 684, 691, 531 S.E.2d 84, 90-91 (2000). 

169 GA. S. CT. R. 19 n.1. 

- 115 -



It is suggested that arguments in briefs be in sequence with the enumeration of errors. 170 


Supplemental briefs may be fi led at any time before decision. 171 The court will not 

consider any supplemental brief that serves only to circumvent the page limitations on briefs in 

civil cases. 172 Supplemental briefs generally may not expand the issues beyond the scope of the 

original enumeration of errors. 173 

§ 6.2.2.5 Supplemental Record 

If a record is supplemented pursuant to O.C.G.A. § 5-6-41(f) or § 5-6-48(d), a party 

wishing to present an issue to the court relating to the trial court proceeding wherein the record 

was supplemented must: (i) raise the issue before the trial court; and (ii) then fi le additional 

enumerations of error and a brief within 10 days after docketing of the supplemental record with 

the court or after the trial court rules on the issue raised, whichever is later. 174 Opposing parties 

may fi le a supplemental brief within 20 days after docketing or after the trial court rules on the issue 

raised, whichever is later. 175 


Amicus curiae briefs may be fi led without prior permission of the court, but must disclose 

the identity and interest of the persons on whose behalf they are fi led. 176 

170 Id. 

171 GA. S. CT. R. 24. 

172 Id. 

173 Saint v. Williams, 287 Ga. 746, 748, 699 S.E.2d 312, 313 (2010) (“It is improper to use a supplemental 

brief to expand upon the issues to be decided by this Court.”). But see Pittman v. State, 273 Ga. 849, 

850-51, 546 S.E.2d 277, 279 (2001) (considering supplemental enumeration of error where issue raised 

“could materially affect the fair trial rights of the appellant”). 

174 GA. S. CT. R. 25. 

175 Id. 

176 GA. S. CT. R. 23. 

- 116 -

7 

ORAL ARGUMENT 

Doug Scribner* 

Allison S. Thompson** 

§ 7.1 Court of Appeals Rules 

§ 7.1.1 Oral Argument Is Not Granted as a Matter of Right 

Oral argument is not mandatory. Oral argument may be granted upon request of either 

party or sua sponte by the court. 1 

* Mr. Scribner is a partner with the law fi rm of Alston & Bird LLP and co-chair of the Litigation & Trial 

Practice Group. He is a trial lawyer who specializes in complex commercial, products, and insurance 

litigation in federal and state courts nationwide. He received a B.B.A. from the University of Toledo in 

1992 and a J.D. from the University of Toledo in 1995. 

** Ms. Thompson is a senior associate in the Litigation & Trial Practice Group at Alston & Bird LLP 

and focuses on civil litigation. She received her undergraduate degree from the Georgia Institute of 

Technology in 2003 and her J.D. from the University of Georgia in 2006. 

1 GA. CT. APP. R. 28(a)(1). 

- 117 -


§ 7.1.2 Request for Oral Argument 

A case may be placed on the calendar for oral argument only upon the request of either 

party or upon a sua sponte order of the court. 2 Any request must be made within 20 days from 

the date the case is docketed in the Court of Appeals irrespective of any extensions of time to fi le 

written materials. 3 A request for oral argument must: 

• Be fi led as a separate document; 

• Be directed to the clerk; 

• Certify that the opposing party or attorney has been notifi ed of the request to argue the 

case orally; 

• Certify that opposing counsel does or does not desire to argue the case orally; 

• Identify the counsel scheduled to argue; and 

• Contain a brief, specifi c statement demonstrating that the decisional process will be 

signifi cantly aided by oral argument. 4 

Any change as to the attorney or party who will argue must be communicated in writing to the clerk 

as soon as practicable. 5 

Court of Appeals Rule 28(a)(4) requires that the request for oral argument explain why 

oral argument will aid the decision-making process. Counsel should start from the premise that in 

most cases oral argument will not help the decision-making process beyond the assistance provided 

by the written briefs. Counsel should explain, with brief but specifi c references to the case, why 

the case requires oral as well as written presentation. 6 In other words, counsel should explain what 

distinguishes this case from the normal one in which oral argument is not helpful. Statements 

that oral argument is warranted “because the case is an important one” or that oral argument “is 

necessary to clarify the issues” are not adequate. 

The request for oral argument should be self-contained, and counsel should not assume the 

appellate brief will be considered in ruling on the request. The request should convey succinctly 

2 Id. 

3 GA. CT. APP. R. 28(a)(2). 

4 GA. CT. APP. R. 28(a)(3)-(4). 

5 Id. 

6 GA. CT. APP. R. 28(a)(3). 

- 118 -

- 119 - 

CHAPTER 7: ORAL ARGUMENT 

everything the court needs to decide whether to grant the request. 7 The Court of Appeals has 

indicated the request will be granted if any of the three judges on the panel to which the case is 

assigned believes oral argument is warranted. The request should not be another brief, but should 

state specifi cally and succinctly why the case should be argued orally. 

§ 7.1.3 Time Limitations 

Argument is limited to 30 minutes for each case, 15 minutes per side, unless by special 

leave of court an extension of time is granted. 8 Appeals, cross appeals, companion cases, and 

related cases are considered one case for purposes of oral argument. A request to have a companion 

case treated as a separate case or for an extension of the time allotted for oral argument, must be 

made in writing at least fi ve days prior to the date set for oral argument. Upon the granting of a 

request for additional time, the appeal normally will be placed at the end of the argument calendar 

for that day. 9 

§ 7.1.4 Number of Argu ments 

Ordinarily, when both sides of an appeal are argued, only two counsel on each side will be 

heard. When only one side of an appeal is argued, or when arguments are to be made on behalf of 

more than two parties, no more than one counsel per party may be heard. 10 Where there are third 

parties, or additional parties of divergent interests, additional time may be requested. 11 

§ 7.1.5 Opening and Closing 

The appellant has the right to open and conclude the argument. 12 The appellant must 

reserve a portion of the allotted time in order to present concluding statements, and the conclusion 

should be confi ned to matters covered in opposing counsel’s argument. 

§ 7.1.6 Courtroom Decorum 

Counsel appearing for oral argument must check in with the clerk in the courtroom at 9:30 

a.m. on the date of oral argument, specifying who will argue and for how long. Talking, reading 

7 Id.; see also GA. CT. APP. R. 28(a)(4). 

8 GA. CT. APP. R. 28(d). 

9 Id. 

10 GA. CT. APP. R. 28(e). 

11 GA. CT. APP. R. 28(d). 

12 GA. CT. APP. R. 28(f).


newspapers or other material, audibly studying briefs, and arranging papers are prohibited in the 

courtroom, as this may be done in the lawyers’ lounge. 13 

§ 7.1.7 Order of Argument 

The Court of Appeals diverges from the order listed on the calendar when all counsel 

appearing for argument in a given case inform the clerk that the time of argument will be limited to 

fi ve or 10 minutes for each side. Ordinarily, fi ve-minute arguments will be heard fi rst, 10-minute 

arguments will be heard next, and 15-minute arguments will be heard last. 14 

§ 7.1.8 Waiver of Argument 

A party may waive the right to present oral argument if the party’s brief has not been 

timely fi led or if counsel is not actually inside the courtroom when the case is called for argument. 

Counsel requesting an extension of time to fi le briefs will waive oral argument if the extension is 

beyond the end of the term for which the case was originally docketed. 15 

After either side has been granted oral argument, a party may voluntarily waive the right to 

appear for argument by notifying opposing counsel and the court of that fact. A voluntary waiver 

of argument by the requesting party does not remove the case from the calendar. 16 

§ 7.1.9 Miscellaneous 

• Oral argument is not permitted for applications or motions. 17 

• Oral argument is open to the public, but counsel may submit a written request that the 

court exclude the public for good cause shown at least 24 hours prior to oral argument. 18 

• Personal remarks that are discourteous or disparaging to opposing counsel or to any 

judge or court are strictly forbidden. 19 

13 GA. CT. APP. R. 28(g); see also GA. S. CT. R. 55(1) (applying same rule in the Supreme Court). 

14 GA. CT. APP. R. 28(d). 

15 GA. CT. APP. R. 28(b). 

16 Id. 

17 GA. CT. APP. R. 28(a)(1); see also GA. CT. APP. R. 37(h) (disallowing oral argument on motion for 

reconsideration); GA. CT. APP. R. 44(c) (same regarding motion for recusal). 

18 GA. CT. APP. R. 28(i). 

19 GA. CT. APP. R. 10; see also GA. S. CT. R. 29 (applying same rule in the Supreme Court). 

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• Each docketing notice lists a tentative date for oral argument, but the clerk will mail 

counsel a calendar fi xing the actual date for argument at least 14 days prior to the date 

set for oral argument. 20 Counsel not receiving a calendar at least 10 days prior to the 

tentative date should contact the clerk to inquire about the oral argument date. 21 

• Postponement of oral argument is not favored and will not be granted under any 

circumstances that would allow oral argument to occur subsequent to the term for 

which the case was docketed. 22 

§ 7.2 Supreme Court Rules 

§ 7.2.1 Oral Argument Is Granted as a Matter of Right Only in Certain 

Cases 

Oral argument is mandatory on direct appeals from judgments imposing the death penalty 

and all granted writs of certiorari that are not disposed of summarily by the court. 23 Otherwise, 

unless expressly ordered by the court, oral argument is never mandatory, and argument may be 

submitted on briefs only. 24 

§ 7.2.2 Calendaring of Oral Argument 

Oral argument will be scheduled by the court as follows: 

• Direct appeals from judgments imposing the death penalty are placed on the calendar 

automatically. 

• All granted writs of certiorari are placed on the calendar automatically unless disposed 

of summarily by the court. 

• Other cases will be placed on the calendar upon the request of either party within 20 

days from the date the case is docketed by the Supreme Court. 25 

20 GA. CT. APP. R. 14(a). 

21 GA. CT. APP. R. 14(b). 

22 GA. CT. APP. R. 28(a)(3). 

23 GA. S. CT. R. 50(1) & (2). 

24 GA. S. CT. R. 50(3). 

25 GA. S. CT. R. 50.


Oral argument will not be granted to parties or attorneys whose briefs have not been timely 

fi led. The court may deny or limit oral argument where appropriate. 26 

§ 7.2.3 Request for Oral Argument 

Requests for oral argument, when required, must be fi led by letter directed to the clerk, and 

must certify that the opposing parties or their attorneys have been notifi ed of the intention to argue 

the case orally and that an inquiry has been made as to whether they intend also to present oral 

argument. The request must further certify that the opponents do or do not desire to argue orally. 

Finally, the request must show service on the opposing parties or counsel. 27 

A request for oral argument must be renewed upon transfer of an appeal to the Supreme 

Court from the Court of Appeals. 28 

§ 7.2.4 Appearance and Waiver 

Attorneys appearing for argument are to notify the clerk of their presence upon arrival in 

the courtroom. 29 Argument is deemed to be waived unless the attorneys are prepared to argue in the 

sequence presented on the calendar. 30 

§ 7.2.5 Order of Argument 

Opening argument is made by the appellant. The appellee or cross-appellant has the right 

to respond. Rebuttal is limited to one attorney on behalf of the appellant. 31 

§ 7.2.6 Time Limitations 

Oral argument is typically limited to 20 minutes for each side, except by leave of court; 

however, the parties are allotted 30 minutes per side in direct appeals from death penalty cases and 

10 minutes per side in divorce appeals granted under Supreme Court Rule 34(4). 32 

26 GA. S. CT. R. 50(3). 

27 GA. S. CT. R. 51. 

28 Id. 

29 GA. S. CT. R. 52. 

30 Id. 

31 GA. S. CT. R. 53. 

32 GA. S. CT. R. 54. 

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Appeals, cross appeals, and companion cases are considered one case for purposes of oral 

argument, and the parties must divide the allotted time by agreement among themselves. The 

yellow light on the podium indicates fi ve minutes remain in the argument; the red light indicates 

time has expired. 33 

§ 7.2.7 Media Rules 

Attorneys are prohibited from giving media interviews in the courtroom or the Judicial 

Building absent the court’s permission, 34 except with respect to ceremonial or non-judicial 

proceedings. 35 In the event that the court holds judicial session at any place other than the courtroom 

of the Judicial Building, the spirit of the court’s rules regarding media coverage shall be followed 

to the extent possible. 36 

§ 7.3 Use of Visual Aids 37 

Counsel intending to use any visual aids in connection with oral argument is advised to 

contact the appropriate clerk to schedule time to become familiar with the podium and document 

projector prior to the date set for oral argument. Generally, the following rules apply to the use of 

visual aids. 

§ 7.3.1 Court of Appeals 

The Court of Appeals provides counsel with access to a document projector and DVD 

player for use during oral argument. Counsel are advised to bring their own materials and should 

provide courtesy copies of any documents to each judge on the panel and opposing counsel. The 

courtroom is also equipped so that counsel may project material stored on a laptop computer. 

§ 7.3.2 Supreme Court 

The Supreme Court permits counsel to present copies of relevant documents during oral 

argument through the court’s document projection system. Counsel are advised to bring a hard 

copy of any document to be projected during oral argument and should bring additional courtesy 

copies to provide to each justice and opposing counsel. The use of any other type of visual aid, 

33 Id. 

34 GA. S. CT. R. 85. 

35 GA. S. CT. R. 88. 

36 GA. S. CT. R. 87. 

37 The information presented in this Section 7.3 was derived through consultation with the offi ces of the 

Clerks of the Georgia Court of Appeals and Georgia Supreme Court.


such as a power point presentation or airing a video clip, requires preapproval from the clerk and 

generally will require counsel to provide the necessary equipment. 

§ 7.4 Professionalism in Oral Argument 

In arguing before the courts, counsel are not only advocates for their clients, but also offi cers 

of the courts. In discussing the facts of the case and applicable law, counsel must be consistent 

with the record and true to the authorities upon which they rely. In addition, counsel must be 

respectful of the appellate process and must refrain from personal remarks that are discourteous and 

disparaging of opposing counsel or any member of the court. 38 


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8 

EXTRAORDINARY WRITS 

Gregory B. Mauldin* 

§ 8.1 Petitions for Certiorari 

See infra Chapter 10, discussing the authority of the Supreme Court, vested by the Georgia 

Constitution, to review by certiorari Court of Appeals decisions that are of “gravity or great public 

importance.” 1 The procedure for obtaining a writ of certiorari from the Georgia Supreme Court is 

governed by Georgia Supreme Court Rules 38 through 45. 

* Mr. Mauldin is counsel in the Litigation & Trial Practice Group at Alston & Bird LLP. He received his 

B.A. from Vanderbilt University in 1996 and his J.D. and M.B.A. from the University of Georgia in 

2002. 

1 G A. CONST. art. VI, § 6, 5. 

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§ 8.2 Petitions for Writ of Habeas Corpus 

A petition for a writ of habeas corpus is the procedural vehicle for challenging the legality 

of a person’s restraint or the right of custody over another. 2 The writ challenges only the legality of 

the restraint. 3 A petition for writ of habeas corpus is a civil, not criminal, proceeding. 4 

§ 8.2.1 Individuals Who May File a Habeas Corpus Petition 

A petition for writ of habeas corpus can be utilized by or for two distinct categories of 

individuals. 5 The fi rst category encompasses persons who are restrained of their liberty and seek 

to challenge the legality of such restraint. 6 Included in this class are persons sentenced by a state 

court, although O.C.G.A. §§ 9-14-40 et seq. provide the exclusive procedure for seeking the writ 

in such cases. 7 Habeas corpus is available when a prisoner is unlawfully confi ned beyond the 

term of his sentence 8 or when a prisoner is confi ned under a sentence longer than that permitted 

by state statute. 9 Habeas corpus is also available for cases involving exorbitantly high bail. 10 It is 

not available, however, as a vehicle for protesting conditions of incarceration. 11 Any person may 

petition for a writ of habeas corpus on behalf of one imprisoned or wrongfully detained. 12 

2 For a general discussion of the defi nition, history, and operation of the writ of habeas corpus, see 14 

ENCYCLOPEDIA OF GEORGIA LAW Habeas Corpus §§ 1-79 (1999). 

3 Hall v. Hall, 222 Ga. 820, 821, 152 S.E.2d 737, 738 (1966); Faughnan v. Ross, 197 Ga. 21, 26, 28 S.E.2d 

119, 122 (1943). 

4 Schofi eld v. Meders, 280 Ga. 865, 870, 632 S.E.2d 369, 376 (2006); Slakman v. Cont’l Cas. Co., 277 Ga. 

189, 190, 587 S.E.2d 24, 26 (2003); Gibson v. Turpin, 270 Ga. 855, 857, 513 S.E.2d 186, 187 (1999). 

When a prisoner fi les a standard civil complaint against prosecutors for a violation of his constitutional 

rights and false imprisonment, it will be dismissed, because habeas is the appropriate procedure for 

challenging such conduct. Battle v. Sparks, 211 Ga. App. 106, 107, 438 S.E.2d 185, 186 (1993). 

5 Hall, 222 Ga. at 821, 152 S.E.2d at 738; Faughnan, 197 Ga. at 26, 228 S.E.2d at 122. 

6 O.C.G.A. §§ 9-14-1(a), (c). 

7 The scope of available habeas relief is expanded in such cases. See O.C.G.A. § 9-14-40(a)(3). 

8 Lillard v. Head, 267 Ga. 291, 291, 476 S.E.2d 736, 737 (1996). 

9 Harvey v. Meadows, 280 Ga. 166, 168, 626 S.E.2d 92, 94 (2006); Manville v. Hampton, 266 Ga. 857, 

858, 471 S.E.2d 872, 874 (1996). 

10 Rainwater v. Langley, 277 Ga. 127, 128, 587 S.E.2d 18, 19 (2003); Jones v. Grimes, 219 Ga. 585, 587, 

134 S.E.2d 790, 792 (1964). 

11 Lewis v. Griffi n, 258 Ga. 887, 887-88, 376 S.E.2d 364, 365-66 (1989); Brown v. Caldwell, 231 Ga. 795, 

204 S.E.2d 137 (1974). 

12 Broomhead v. Chisolm, 47 Ga. 390 (1872). 

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CHAPTER 8: EXTRAORDINARY WRITS 

The second category of persons who may seek habeas relief is those who claim a right of 

custody over one who is in the custody of another. 13 This circumstance might arise, for example, 

when a person is denied physical custody of a person for whom he or she has legal custody. 14 

Georgia Code Section 9-14-1 sets forth the specifi c persons that may seek a writ of habeas 

corpus: 

• Any person restrained of his liberty under any pretext whatsoever, except under 

sentence of a state court of record, may seek a writ of habeas corpus to inquire into the 

legality of the restraint. 

• Any person alleging that another person in whom for any cause he is interested is kept 

illegally from the custody of the applicant may seek a writ of habeas corpus to inquire 

into the legality of the restraint. 

• Any person restrained of his liberty as a result of a sentence imposed by any state court 

of record may seek a writ of habeas corpus to inquire into the legality of the restraint. 15 

§ 8.2.2 Whether a Court Will Issue a Writ of Habeas Corpus 

Courts must consider the following four issues when deciding whether to issue a writ of 

habeas corpus: (i) the origin of petitioner’s right—whether that right arises under state or federal 

law; (ii) whether that right has been waived; (iii) whether a violation of that right occurred; and 

(iv) whether the violation was harmless. 16 

Although a writ of habeas corpus is a “writ of right,” it does not issue as a matter of 

course. 17 Instead, it is to be granted only when the application for the writ contains allegations that, 

if accepted as true, would authorize the release of the person held in custody. 18 These allegations 

must be specifi c, not conclusory, and facts substantiating a violation of rights are required. 19 An 

13 O.C.G.A. § 9-14-1(b). 

14 O.C.G.A. § 9-14-2. 

15 O.C.G.A. § 9-14-1. 

16 McDuffi e v. Jones, 248 Ga. 544, 545-46, 283 S.E.2d 601, 603 (1981), overruled on other grounds by West 

v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000). 

17 Simmons v. Ga. Iron & Coal Co., 117 Ga. 305, 311, 43 S.E. 780, 782 (1903). 

18 O.C.G.A. § 9-14-5 (specifying that writ is to be granted “[w]hen upon examination of the petition for a 

writ of habeas corpus it appears to the judge that the restraint of liberty is illegal”); Simmons, 117 Ga. at 

311, 43 S.E. at 782. 

19 Salisbury v. Grimes, 223 Ga. 776, 777, 158 S.E.2d 412, 414 (1967).


individual need not be presently confi ned to seek habeas corpus, if he or she can prove adverse 

collateral consequences from a previous confi nement. 20 

A writ of habeas corpus is not proper when another adequate remedy exists. 21 For example, 

a writ will not issue when proceedings under which the petitioner is detained are still pending or 

when other procedural remedies have yet to be exhausted. 22 An exception to this rule arises in the 

case of committed mental patients, who have a statutory right to seek habeas corpus relief “at any 

time.” 23 A writ of habeas corpus cannot be used as a substitute for appeal, motion for new trial, writ 

of error, or other remedial procedures for the correction of errors or irregularities alleged to have 

been committed by a trial court. 24 Further, absent a change in either facts or law, issues decided on 

appeal cannot be relitigated in habeas proceedings. 25 All grounds for habeas relief must be raised 

in the fi rst petition unless the grounds are constitutionally nonwaivable or the grounds could not 

reasonably have been raised in the fi rst petition. 26 Habeas corpus relief is not available for denial 

of a nonconstitutional right secured by Georgia law. 27 

Despite the broad language of O.C.G.A. § 9-14-1(b), a writ of habeas corpus may not be 

used to effect a change of legal custody over a child. 28 Instead, O.C.G.A. § 19-9-23 provides the 

exclusive remedy for seeking a change of custody in that context, and child custody case law prior 

to the enactment of that statute in 1981 should be relied upon with caution. The current standard to 

be used with respect to a change of legal custody is the best interests of the child. 29 

A petition for a writ of habeas corpus remains the appropriate procedure, however, when an 

individual with legal custody of a child seeks to enforce a child custody order or to remove the child 

from wrongful custody. 30 Thus, such a petition is appropriate when the petitioner has permanent 

20 Turner v. State, 284 Ga. 494, 495, 668 Ga. 692, 693 (2008); Tharpe v. Head, 272 Ga. 596, 597, 533 

S.E.2d 368, 369 (2000). 

21 Britt v. Conway, 281 Ga. 189, 189-90, 637 S.E.2d 43, 44 (2006); Kearse v. Paulk, 264 Ga. 509, 510, 448 

S.E.2d 369, 370 (1994). 

22 Tabor v. State, 279 Ga. 98, 99, 610 S.E.2d 59, 60 (2005), overruled on other grounds by Brown v. 

Crawford, 289 Ga. 722, 724-25, 715 S.E.2d 132, 134 (2011). 

23 O.C.G.A. § 37-3-148(a); see also Hogan v. Nagel, 273 Ga. 577, 578, 543 S.E.2d 705, 706 (2001). 

24 Archer v. Grimes, 222 Ga. 8, 9, 148 S.E.2d 395, 396 (1966). 

25 Roulain v. Martin, 266 Ga. 353, 353-54, 466 S.E.2d 837, 839 (1996). 

26 O.C.G.A. § 9-14-51; Stevens v. Kemp, 254 Ga. 228, 230, 327 S.E.2d 185, 187 (1985); Dix v. Zant, 249 

Ga. 810, 811, 294 S.E.2d 527, 528 (1982). 

27 O.C.G.A. § 9-14-42(a); Green v. Dunn, 257 Ga. 66, 355 S.E.2d 61 (1987). 

28 Douglas v. Douglas, 285 Ga. 548, 550, 678 S.E.2d 904, 906 (2009). 

29 Stills v. Johnson, 272 Ga. 645, 650, 533 S.E.2d 695, 701 (2000). 

30 Douglas, 285 Ga. at 550, 678 S.E.2d at 906; Johnson v. Smith, 251 Ga. 1, 2, 302 S.E.2d 542, 543 (1983). 

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- 129 - 


legal custody and seeks the return of a child from one who has temporary custody, 31 or when the 

petitioner has prima facie custody under the law and seeks to obtain actual, physical custody from 

a third party. 32 In short, one must have a legal custodial right to a detained child in order to seek 

habeas corpus relief with respect to that child. 33 

§ 8.2.3 Filing a Petition for Writ of Habeas Corpus 

To fi le a habeas corpus petition, the petitioner must complete Administrative Offi ce of 

the Court (“AOC”) Form HC-1, entitled “Application for Writ of Habeas Corpus.” 34 The Georgia 

Code sets forth the mandatory contents of a habeas petition in criminal cases. 35 These include: 

(i) an identifi cation of the proceeding in which the petitioner was convicted; (ii) the date of the 

judgment complained of; (iii) the manner in which the petitioner’s rights were violated; and (iv) a 

specifi c statement of which claims were raised at trial or on direct appeal, with appropriate citations 

to the trial or appellate record. 36 Affi davits, records, or other evidence supporting the petition 

must be attached, or the petition must state why they are not attached. 37 The petition must also 

identify any previous proceedings that the petitioner may have undertaken to obtain relief from the 

conviction, and if the petitioner has fi led prior habeas petitions, the claims raised previously must 

be identifi ed. 38 The petition itself cannot contain argument and citations of authority, but those may 

be set forth in a brief in support of the petition. 39 Finally, the applicant (or someone on his or her 

behalf) must verify the petition. 40 

While the procedural rules governing habeas corpus petitions generally must be followed, 41 

the failure to comply with procedural rules does not always preclude consideration of a habeas 

31 Alvarez v. Sills, 258 Ga. 18, 19, 365 S.E.2d 107, 108 (1988). 

32 Columbus v. Gaines, 253 Ga. 518, 519, 322 S.E.2d 259, 260-61 (1984). 

33 Spitz v. Holland, 243 Ga. 9, 10, 252 S.E.2d 406, 408 (1979); Bennett v. Schaffer, 228 Ga. 59, 60-61, 183 

S.E.2d 760, 761 (1971). 

34 Jones v. Henderson, 285 Ga. 804, 804, 684 S.E.2d 265, 266 (2009); Donald v. Price, 283 Ga. 311, 311- 

12, 658 S.E.2d 569, 570-71 (2008). 

35 O.C.G.A. § 9-14-44. 

36 Id. 

37 Id. 

38 Id. 

39 Id. 

40 Id. The Supreme Court has reversed dismissal of a habeas petition where the petitioner completed the 

proper AOC form, but failed to provide the verifi cation statement in the traditional format. Heaton v. 

Lemacks, 266 Ga. 189, 190, 466 S.E.2d 7, 8 (1996). 

41 Jones v. Henderson, 285 Ga. 804, 804, 684 S.E.2d 265, 266 (2009).


petition. 42 If a petitioner can demonstrate adequate cause for failing to assert the claim and resulting 

prejudice, such as when there has been ineffective assistance of counsel, 43 an otherwise valid 

procedural bar will not preclude habeas review. 44 Similarly, courts will not procedurally bar or 

default a claim for habeas relief “to avoid a miscarriage of justice,” but this exception is extremely 

narrow and generally tied to actual innocence. 45 

In all habeas cases except those involving initial challenges of state court proceedings 

resulting in death sentences, the respondent has 20 days from the fi ling and docketing of a petition 

to answer or move to dismiss, though the court may allow more time. 46 The court must set the case 

for a hearing on the issues within “a reasonable time after the fi ling of defensive pleadings.” 47 The 

conduct of that hearing, and specifi c rules governing discovery and the entry of sworn affi davits into 

evidence, are governed by O.C.G.A. § 9-14-48. Because habeas corpus is a civil proceeding there 

is no guaranteed right to counsel, 48 and the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., applies. 49 

Georgia Code Section 9-14-47.1 and Uniform Superior Court Rule 44 govern the initial challenges 

of state court proceedings that result in death sentences. These authorities contain specifi c rules 

for the assignment of such cases, the fi ling of pleadings, the conduct of evidentiary hearings, and 

other matters. 

§ 8.2.4 Appeals of Habeas Corpus Rulings 

Any appeal of a court’s action with respect to a habeas corpus fi ling by a prisoner must 

not be direct but instead follow the discretionary review process set forth in O.C.G.A. § 5-6-35. 50 

In fact, appeals in habeas cases are subject to virtually all of the general provisions of Title 5 

42 Valenzuela v. Newsome, 253 Ga. 793, 795-96, 325 S.E.2d 370, 373-74 (1985). 

43 Hall v. Wheeling, 282 Ga. 86, 87, 646 S.E.2d 236, 238 (2007); Turpin v. Todd, 268 Ga. 820, 823-28, 493 

S.E.2d 900, 904-07 (1997). 

44 Head v. Ferrell, 274 Ga. 399, 401-02, 554 S.E.2d 155, 160 (2001); Black v. Hardin, 255 Ga. 239, 

240, 336 S.E.2d 754, 755 (1985); Valenzuela, 253 Ga. at 796, 325 S.E.2d at 374; see also O.C.G.A. § 

9-14-48(d). 

45 Perkins v. Hall, 288 Ga. 810, 824, 708 S.E.2d 335, 347 (2011); Valenzuela, 253 Ga. at 796, 325 S.E.2d at 

374; see also Head v. Stripling, 277 Ga. 403, 409, 590 S.E.2d 122, 128 (2003) (authorizing habeas courts 

to address habeas claims of mental retardation under the miscarriage of justice exception). 

46 O.C.G.A. § 9-14-47. 

47 Id. 

48 Britt v. Conway, 281 Ga. 189, 189, 637 S.E.2d 43, 44 (2006); Gibson v. Turpin, 270 Ga. 855, 857, 513 

S.E.2d 186, 187 (1999). 

49 Rolland v. Martin, 281 Ga. 190, 191, 637 S.E.2d 23, 24 (2006). 

50 Brown v. Crawford, 289 Ga. 722, 724-25, 715 S.E.2d 132, 134 (2011). 

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- 131 - 


of the Georgia Code. 51 An unsuccessful petitioner who desires to appeal must fi le: (i) a written 

application for a certifi cate of probable cause to appeal with the clerk of the Supreme Court; and 

(ii) a notice of appeal with the clerk of the superior court. 52 Both of these documents must be fi led 

within 30 days from the entry of the trial court order denying relief to the petitioner. 53 If, however, 

the petitioner prevails in the trial court, the respondent need only fi le a notice of appeal. 54 Effective 

January 1, 2012, documents sent by “pro se” prisoners are considered fi led in the Supreme Court 

on the date the prisoner delivers them to prison offi cials for mailing. 55 

§ 8.3 Other Extraordinary Writs 

Title 9, Chapter 6 of the Georgia Code provides for three other types of extraordinary writs: 

(i) mandamus; (ii) prohibition; and (iii) quo warranto. 56 The superior and appellate courts have 

exclusive jurisdiction over these extraordinary writs. 57 Although the Supreme Court has appellate 

jurisdiction over cases involving extraordinary writs, 58 no appeal may be taken until the trial court 

has rendered a fi nal judgment. 59 

§ 8.3.1 Writ of Mandamus 

A writ of mandamus commands an inferior offi cer or judge to perform a specifi c duty. 60 

The Georgia Constitution, as well as the Code, vests Georgia’s Supreme Court with the power to 

“grant any writ necessary to carry out any purpose of its organization or to compel any inferior 

tribunal or offi cers thereof to obey its order.” 61 Thus, the Supreme Court has the specifi c power to 

51 O.C.G.A. § 9-14-52(a). 

52 O.C.G.A. § 9-14-52(b). 

53 Id. 

54 O.C.G.A. § 9-14-52(c). 

55 GA. S. CT. R. 13. 

56 See generally O.C.G.A. §§ 9-6-1 et seq. 

57 GA. CONST. art. VI, § 1, 4. 

58 GA. CONST. art. VI, § 6, 3(5); see also Raybestos-Manhattan, Inc. v. Moran, 248 Ga. 461, 462, 284 

S.E.2d 256, 257 (1981) (per curiam) (holding the Court of Appeals also has the power to entertain a 

petition for a writ of mandamus or prohibition in order to enforce its judgments). 

59 O.C.G.A. § 9-6-1. 

60 O.C.G.A. § 9-6-20. 

61 O.C.G.A. § 15-2-8; see generally GA. CONST. art. VI, § 1, 4.


issue a writ of mandamus to compel a lower court to obey its order. 62 As with other extraordinary 

writs, mandamus is not meant to replace an appeal, but is an extraordinary remedy used to correct 

an injustice when other options are not available. 63 

The procedure to be followed before invoking the Supreme Court’s jurisdiction over this 

type of mandamus is set forth in Brown v. Johnson. 64 In Brown, the Supreme Court held that a 

petition for writ of mandamus (or quo warranto or prohibition) must be fi led in the appropriate 

superior court, rather than the Supreme Court, even when a superior court judge is named as the 

respondent. 65 The respondent judge would then be disqualifi ed, and another superior court judge 

would be appointed to hear and determine the matter. 66 This second judge’s decision would then be 

directly appealable to the Supreme Court. 67 

A writ of mandamus may also be used to compel a public offi cial to perform a duty of his 

or her offi ce. Georgia Code Section 9-6-20 provides: 

All offi cial duties should be faithfully performed, and whenever, from any cause, 

a defect of legal justice would ensue from a failure to perform or from improper 

performance, the writ of mandamus may issue to compel a due performance, if 

there is no other specifi c legal remedy for the legal rights. 68 

Georgia’s superior courts have exclusive jurisdiction over this second type of mandamus remedy. 69 

A writ of mandamus will be issued only in limited circumstances. Petitions must satisfy 

a two-pronged test: (i) the applicant must demonstrate a clear legal right to the relief sought; 70 

and (ii) there must be no other adequate remedy. 71 That is, there must be a duty imposed on the 

62 For a general discussion of the defi nition, nature, and history of the writ of mandamus, see 20 ENCYCLOPEDIA 

OF GEORGIA LAW Mandamus §§ 1-17 (2001). 

63 Rabun Cnty. v. Mountain Creek Estates, LLC, 280 Ga. 855, 857-58, 632 S.E.2d 140, 144 (2006); Ford 

Motor Co. v. Lawrence, 279 Ga. 284, 285, 612 S.E.2d 301, 303 (2005); Smith & Wesson Corp. v. City of 

Atlanta, 273 Ga. 431, 433, 543 S.E.2d 16, 19 (2001). 

64 251 Ga. 436, 306 S.E.2d 655 (1983). 

65 Id. at 436-37, 306 S.E.2d at 656. 

66 Id. 

67 Id. 

68 O.C.G.A. § 9-6-20. 

69 Wofford Oil Co. of Ga. v. City of Calhoun, 183 Ga. 511, 514, 189 S.E. 5, 7 (1936). 

70 Willis v. Dep’t of Revenue, 255 Ga. 649, 650, 340 S.E.2d 591, 593 (1986); McClure v. Hightower, 237 

Ga. 157, 158, 227 S.E.2d 47, 48-49 (1976). 

71 Watson v. Matthews, 286 Ga. 784, 786, 692 S.E.2d 338, 340 (2010); Tamaroff v. Cowen, 270 Ga. 415, 

415, 511 S.E.2d 159, 160 (1999); Hunstein v. McDade, 267 Ga. 515, 515, 480 S.E.2d 192, 193 (1997). 

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defendant and a pecuniary loss to the plaintiff that cannot be remedied by an award of damages. 72 

An alternative remedy, however, is not adequate if it is not equally convenient, complete, and 

benefi cial. 73 Furthermore, although the availability of an administrative process through which 

redress may be sought constitutes an adequate remedy, 74 courts often conclude the “no other adequate 

remedy” prong is satisfi ed because pursuit of administrative remedies is futile. 75 A petitioner must 

also establish that he has demanded (preferably in writing) that the offi cial perform the duty and 

that such demand has been refused. 76 

The duty to be enforced must exist at the time the petitioner fi les the application for the 

writ of mandamus. 77 The writ will be denied if the time for the discharge of the duty has passed, 

as its issuance would be “nugatory or fruitless.” 78 Moreover, the writ of mandamus is for the 

enforcement of a public duty, not for the “‘undoing of acts already done or the correction of wrongs 

already perpetrated.’” 79 The writ of mandamus also will not be granted if it is based on mere 

suspicion or fear. 80 

Generally, the writ of mandamus is limited to actions taken against a government offi cial 

in his or her offi cial capacity. 81 A writ of mandamus acts directly on the offi cer or person; it is a 

72 Poole v. Duncan, 202 Ga. 255, 257-58, 42 S.E.2d 731, 733 (1947); see also O.C.G.A. § 9-6-25. 

73 Hall v. Nelson, 282 Ga. 441, 443, 651 S.E.2d 72, 75 (2007); N. Fulton Med. Ctr., Inc. v. Roach, 265 Ga. 

125, 127-28, 453 S.E.2d 463, 466 (1995). 

74 Van Detta v. Bd. to Determine Character & Fitness of Bar Applicants, 280 Ga. 157, 157, 625 S.E.2d 752, 

753 (2006). 

75 DeKalb Cnty. v. Cooper Homes, 283 Ga. 111, 113, 657 S.E.2d 206, 208 (2008); Hall, 282 Ga. at 443, 651 

S.E.2d at 75. 

76 McDonald v. Schofi eld, 216 Ga. 589, 592, 118 S.E.2d 479, 482 (1961). 

77 City of Atlanta v. League of Women Voters of Atlanta-Fulton Cnty., Inc., 244 Ga. 796, 799, 262 S.E.2d 

77, 79 (1979). 

78 O.C.G.A. § 9-6-26; Halpern Props., Inc. v. Newton Cnty. Bd. of Equalization, 245 Ga. 728, 728, 267 

S.E.2d 26, 27 (1980); Skrine v. Kim, 242 Ga. 185, 187, 249 S.E.2d 534, 535 (1978); see also Favorito 

v. Handel, 285 Ga. 765, 801, 684 S.E.2d 257, 263 (2009) (upholding dismissal of complaint seeking 

mandamus relief because challenged provisions were repealed). 

79 Brissey v. Ellison, 272 Ga. 38, 39, 526 S.E.2d 851, 853 (2000) (quoting Hilton Constr. Co. v. Rockdale 

Cnty. Bd. of Educ., 245 Ga. 533, 540, 266 S.E.2d 157, 162 (1980)); see also Adams v. Ga. Dep’t of Corr., 

274 Ga. 461, 462, 553 S.E.2d 798, 800 (2001); Ianicelli v. McNeely, 272 Ga. 234, 235-36, 527 S.E.2d 

189, 191 (2000). 

80 O.C.G.A. § 9-6-26; Halpern Props., 245 Ga. at 728, 267 S.E.2d at 27. 

81 Duncan v. Poythress, 515 F. Supp. 327, 335 (N.D. Ga. 1981); see generally O.C.G.A. § 9-6-21(a) 

(“Mandamus shall not lie as a private remedy between individuals to enforce private rights . . . .”).


personal action against the offi cer and not an action against the offi ce itself. 82 Although the writ 

of mandamus is not limited to the enforcement of ministerial duties, it is not available to enforce a 

duty that is discretionary unless there has been a gross abuse of discretion. 83 

The General Assembly has specifi cally provided that the writ of mandamus will issue to 

compel: (i) the repair of public roads; 84 (ii) the performance of a duty within Title 5 by a sheriff, 

clerk, or other offi cer; 85 and (iii) the performance by a corporation of a public duty. 86 Further, a 

private person may procure the enforcement of a public duty, 87 a city rule, 88 or a private right 89 by 

seeking a writ of mandamus. 

The procedure for a hearing on a mandamus application is set forth in O.C.G.A. § 9-6-27. 90 

If an application for mandamus nisi is granted by the trial court, a trial will be set for not less than 

10 but not more than 30 days later. 91 The defendant must be served at least fi ve days prior to the 

date of the hearing. 92 If there is no substantial issue of fact, the case will be tried without a jury. 93 

If an issue of fact exists, a jury will try the case unless the parties agree otherwise. 94 

The Civil Practice Act applies to mandamus proceedings. 95 Therefore, just as in ordinary 

civil proceedings, summary judgment is available in mandamus cases. 96 Appeals may be made to 

82 Magis. Ct. of DeKalb Cnty. v. Fleming, 284 Ga. 457, 458 n.1, 667 S.E.2d 356, 358 n.1 (2008); HCA 

Health Servs., Inc. v. Roach, 263 Ga. 798, 800 n.3, 439 S.E.2d 494, 497 n.3 (1994); Harper v. State Bd. 

of Pardons & Paroles, 260 Ga. 132, 132, 390 S.E.2d 592, 593 (1990). 

83 O.C.G.A. § 9-6-21(a); Nalley v. Howell, 268 Ga. 63, 63, 487 S.E.2d 600, 600 (1997). 

84 O.C.G.A. § 9-6-21(b). 

85 O.C.G.A. § 9-6-22. 

86 O.C.G.A. § 9-6-23. 

87 O.C.G.A. § 9-6-24. 

88 Morton v. Bell, 264 Ga. 832, 833, 452 S.E.2d 103, 104 (1995). 

89 Poole v. Duncan, 202 Ga. 255, 257, 42 S.E.2d 731, 733 (1947). 

90 O.C.G.A. § 9-6-27. 

91 O.C.G.A. § 9-6-27(a). 

92 Id.; see also O.C.G.A. § 9-11-4(j) (permitting ordinary service of process to be used in mandamus cases 

as an alternative to the issuance of mandamus nisi); DeKalb Cnty. v. Chapel Hill, Inc., 232 Ga. 238, 240, 

205 S.E.2d 864, 866 (1974). 

93 O.C.G.A. § 9-6-27(b). 

94 O.C.G.A. § 9-6-27(c). 

95 Thompson v. Hornsby, 235 Ga. 561, 562, 221 S.E.2d 192, 194 (1975). 

96 Harrison v. Weiner, 226 Ga. 93, 94-95, 172 S.E.2d 840, 841-42 (1970). 

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the Supreme Court upon the denial of a petition for mandamus or upon fi nal judgment after hearing 

of the mandamus nisi. 97 

§ 8.3.2 Writ of Prohibition 

The writ of prohibition is the counterpart to the writ of mandamus. 98 Rather than compelling 

action by a lower court, it restrains a lower court from exceeding its jurisdiction. 99 The same 

principles of right, necessity, and justice that govern the consideration of a writ of mandamus also 

govern the grant or denial of a writ of prohibition. 100 Thus, a court will not grant a writ of prohibition 

if any other adequate remedy exists. 101 A writ of prohibition is available only when there is a lack 

of subject matter jurisdiction, or when the act complained of is outside the jurisdiction of the lower 

court. 102 It is not available for the relief of grievances that may be addressed in the ordinary course 

of judicial proceedings, 103 and it does not serve as a means to review discretionary application of 

the law, as an appeal does. 104 The petition must be fi led in the appropriate superior court rather than 

in an appellate court, although the superior court’s fi nal decision can be appealed to the Supreme 

Court. 105 

The writ of prohibition is available against executive or military offi cers when acting as a 

judicial or quasi-judicial tribunal. 106 The writ will lie against a justice of the peace, 107 but not against 

97 O.C.G.A. § 9-6-28(a). 

98 O.C.G.A. § 9-6-40. 

99 Id.; Henry v. James, 264 Ga. 527, 532, 449 S.E.2d 79, 83 (1994); 24A ENCYCLOPEDIA OF GEORGIA LAW 

Prohibition §§ 1-19 (1994). 

100 O.C.G.A. § 9-6-40. 

101 Watson v. Matthews, 286 Ga. 784, 786, 692 S.E.2d 338, 340 (2010); Ford Motor Co. v. Lawrence, 279 

Ga. 284, 285, 612 S.E.2d 301, 303 (2005); Jersawitz v. Bodiford, 258 Ga. 829, 829, 377 S.E.2d 502, 

502 (1989). But see Patterson v. Faircloth, 256 Ga. 489, 493, 350 S.E.2d 243, 247 (1986) (holding that 

a court may grant the writ to preclude a trial infected by reversible error when considerations of judicial 

economy urge the granting of a writ of prohibition despite a defendant’s failure to seek a direct appeal on 

an issue). 

102 Stokes v. Edwards, 272 Ga. 98, 99, 526 S.E.2d 853, 854 (2000). 

103 Jersawitz v. Riley, 269 Ga. 546, 547, 500 S.E.2d 579, 580 (1998). 

104 Smith & Wesson Corp. v. City of Atlanta, 273 Ga. 431, 433-34, 543 S.E.2d 16, 20 (2001). 

105 Carey Can., Inc. v. Head, 252 Ga. 23, 24-25, 310 S.E.2d 895, 896 (1984); see also GA. CONST. art. VI, § 

1, 4. 

106 O.C.G.A. § 9-6-42. 

107 Mills v. Bell, 136 Ga. 687, 71 S.E. 1120 (1911).


the governor 108 or a grand jury, 109 and has been denied as to a probate court, 110 tax collector, 111 and 

county commissioner. 112 

Although the statute provides that a writ of prohibition may be granted at any time, 113 two 

prerequisites must nonetheless be met. First, the action to which the writ is addressed must be an 

actual pending controversy. 114 Second, the trial court must not have already entered judgment. 115 

Although a writ of prohibition may be granted at any time, the writ must be returned “in term.” 116 

§ 8.3.3 Writ of Quo Warranto 

A private person may challenge the right of another to occupy a public offi ce by the writ 

of quo warranto. 117 It challenges only title to the offi ce. 118 Except for the governor, the remedy of 

a writ of quo warranto applies to all civil offi ces of the state. 119 Whether an individual is a public 

offi ceholder subject to a writ of quo warranto is often litigated, with differing results. While a 

juvenile intake offi cer and county board members have been held to constitute public offi cers, 120 

grand jury members and a college professor have not. 121 Similarly, while a writ of quo warranto 

has been permitted to challenge the title to an offi ce in a private corporation and to the chairman 

108 O.C.G.A. § 9-6-42. 

109 Almand v. Brock, 227 Ga. 586, 587-88, 182 S.E.2d 97, 99 (1971). 

110 Ray v. Jolles, 280 Ga. 452, 453, 629 S.E.2d 250, 253 (2006). 

111 Cody v. Lennard, 45 Ga. 85, 89 (1872). 

112 Pinkston v. Garrason, 178 Ga. 814, 174 S.E. 626 (1934). 

113 O.C.G.A. § 9-6-41. 

114 Jersawitz v. Eldridge, 262 Ga. 19, 20, 413 S.E.2d 725, 727 (1992). 

115 Almand v. Brock, 227 Ga. 586, 587, 182 S.E.2d 97, 99 (1971). 

116 O.C.G.A. § 9-6-41. 

117 O.C.G.A. § 9-6-60. For a general discussion of the defi nition, nature, and history of the writ of quo 

warranto, see 25 ENCYCLOPEDIA OF GEORGIA LAW Quo Warranto §§ 1-21 (1994). 

118 Bowling v. Doyal, 206 Ga. 641, 644, 58 S.E.2d 173, 175 (1950); see also Bruce v. Maxwell, 270 Ga. 883, 

515 S.E.2d 149 (1999). 

119 O.C.G.A. § 9-6-61. 

120 Everetteze v. Clark, 286 Ga. 11, 12, 685 S.E.2d 72, 74 (2009); Brown v. Scott, 266 Ga. 44, 45, 464 S.E.2d 

607, 608 (1995). 

121 MacDougald v. Phillips, 262 Ga. 778, 778, 425 S.E.2d 652, 653 (1993); McDuffi e v. Perkerson, 178 Ga. 

230, 233, 173 S.E. 151, 153-55 (1933). 

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of a state party executive committee, 122 the writ was not the proper remedy for questioning the 

qualifi cations of a General Assembly member. 123 

The petitioner may be one who claims a right to hold the offi ce or who otherwise has some 

interest in the offi ce. 124 Any citizen or taxpayer of a community has a suffi cient interest to challenge 

the qualifi cations of a public offi cial by writ of quo warranto. 125 

A petition for quo warranto may be fi led only by leave of court. 126 The court, in turn, may 

grant the writ at any time. 127 A writ of quo warranto will not issue, however, if: (i) the public offi cer 

against whom the writ is directed is no longer exercising the duties of the offi ce or claiming title 

thereto; 128 (ii) another adequate remedy exists at law or in equity; 129 or (iii) the Georgia Constitution 

or a statute provides a superseding remedy. 130 Although an injunction is the appropriate remedy 

to restrain public offi cers from acting illegally, a plaintiff may seek a writ of quo warranto if she 

alleges irreparable injury and presents a clear case, with a basic and underlying purpose of her suit 

being to declare the public offi ce vacant or to test the title to an offi ce or the validity of an election 

to offi ce. 131 

Quo warranto proceedings must be brought in the superior court of the defendant’s 

county of residence or the county in which the duties of the offi ce are being performed. 132 If the 

defendant is within the state, the writ of quo warranto and process must be personally served upon 

122 Morris v. Peters, 203 Ga. 350, 359-61, 46 S.E.2d 729, 735-36 (1948). 

123 Rainey v. Taylor, 166 Ga. 476, 478, 143 S.E. 383, 384 (1928). 

124 O.C.G.A. § 9-6-60. 

125 Richardson v. Phillips, 285 Ga. 385, 385, 677 S.E.2d 117, 118 (2009); Highsmith v. Clark, 245 Ga. 158, 

158, 264 S.E.2d 1, 1 (1980). 

126 Everetteze v. Clark, 286 Ga. 11, 12, 685 S.E.2d 72, 74 (2009); Richardson, 285 Ga. at 385-86, 677 S.E.2d 

at 117-18. 

127 O.C.G.A. § 9-6-62. 

128 Merry v. Williams, 281 Ga. 571, 572, 642 S.E.2d 46, 47-48 (2007); Bruce v. Maxwell, 270 Ga. 883, 515 

S.E.2d 149 (1999); Holmes v. Sikes, 113 Ga. 580, 582, 38 S.E. 978, 979 (1901). 

129 Stone v. Wetmore, 42 Ga. 601, 603 (1871). 

130 Alexander v. Ryan, 202 Ga. 578, 579, 43 S.E.2d 654, 656 (1947); Casey v. McElreath, 177 Ga. 35, 37, 

169 S.E. 342, 343-44 (1933). 

131 Boatright v. Brown, 222 Ga. 497, 498, 150 S.E.2d 680, 681 (1966); see also Hagood v. Hamrick, 223 Ga. 

600, 602, 157 S.E.2d 429, 431 (1967). 

132 Smith v. Upshaw, 217 Ga. 703, 704, 124 S.E.2d 751, 753 (1962).


the defendant. 133 Otherwise, service of the writ and process may be perfected by publication as 

provided in O.C.G.A. § 9-11-4. 134 

The Civil Practice Act applies to quo warranto proceedings. 135 When the writ of quo 

warranto involves questions of law, the judge of the superior court will hear and determine the 

issues within 10 days of the commencement of the action. 136 When an issue of fact exists, a jury 

of 12 will try the case beginning not less than 10 nor more than 30 days from the date of the order 

notifying the parties of the trial. 137 Once the right to an offi ce is decided, the judgment fi xing that 

right must provide for the delivery of all books and papers belonging to the offi ce to the person 

held to be entitled to the offi ce. 138 The Supreme Court has jurisdiction over an appeal from the trial 

court’s judgment in quo warranto cases. 139 

133 O.C.G.A. § 9-6-63(b). 

134 O.C.G.A. § 9-6-63(c). 

135 Anderson v. Flake, 267 Ga. 498, 500, 480 S.E.2d 10, 12 (1997). 

136 O.C.G.A. § 9-6-64(a). 

137 O.C.G.A. § 9-6-65. 

138 O.C.G.A. § 9-6-66. 

139 See generally Casey v. McElreath, 177 Ga. 35, 169 S.E. 342 (1933). 

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9 

INTERNAL PROCEDURES OF THE APPELLATE COURTS 

Van A. Anderson* 


This chapter will outline the composition and organization of Georgia’s two appellate 

courts, the assignment of cases for determination by those courts, the procedure by which cases, 

motions and petitions are heard and decided, and the power of the Supreme Court to discipline 

judges. 

The following materials could not have been completed without the guidance and efforts 

of Tee Barnes, Clerk of the Supreme Court, and Holly Sparrow, Clerk of the Court of Appeals, both 

of whom reviewed these materials prior to publication. 

* Mr. Anderson is a senior associate at the law fi rm of Alston & Bird LLP. His practice is primarily 

devoted to trial and appellate matters. He received his J.D. from the University of South Carolina in 

2005 and served from 2005 to 2006 as law clerk for Judge Orinda D. Evans of the United States District 

Court for the Northern District of Georgia. 

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§ 9.2 Composition and Organization of the Appellate Courts 

§ 9.2.1 Composition of the Courts 

Although the Georgia Constitution provides that as many as nine justices may sit on the 

Supreme Court, 1 by statute the Supreme Court has been limited to seven justices. 2 While the 

Constitution provides that the Court of Appeals shall consist of not less than nine judges, 3 12 judges 

currently sit on the Court of Appeals. 4 

§ 9.2.2 Election and Appointment to the Courts 

The judges and justices of the appellate courts are elected on a nonpartisan basis for sixyear 

terms that commence on January 1 following their election. 5 When a seat on either court 

becomes vacant between elections, the governor appoints a replacement. The replacement serves 

the remainder of the term until January 1 of the year following the next general election that is 

more than six months after the appointment. 6 In other words, if there are fewer than six months 

of the unexpired term remaining before the election, the replacement appointee will serve for both 

the limited unexpired term to which the justice or judge was appointed initially and until January 1 

following the next general election (two years later). 

The Judicial Nominating Commission (“Commission”), composed of members appointed 

by executive order, helps the governor identify suitable candidates for vacant seats on the appellate 

courts, as well as other courts of record that involve executive appointment. 7 Generally, the 

members of the Commission are appointed by the governor, but the chair of the Commission is 

authorized to appoint additional members as he or she deems appropriate. 8 All members of the 

Commission serve at the pleasure of the governor. 9 

1 GA. CONST. art. VI, § 6, 1. 

2 O.C.G.A. § 15-2-1.1. 

3 GA. CONST. art. VI, § 5, 1. 

4 O.C.G.A. § 15-3-1(a). 

5 GA. CONST. art. VI, § 7, 1; O.C.G.A. § 15-3-4. 

6 GA. CONST. art. VI, § 7, 3 & 4. 

7 Executive Order of the Governor of the State of Georgia, dated June 11, 2003. 

8 Id. 

9 Id. 

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CHAPTER 9: INTERNAL PROCEDURES OF THE APPELLATE COURTS 

Appellate justices and judges are encouraged by statute to resign once they reach the age 

of 75. 10 The members of the appellate courts forfeit certain retirement benefi ts unless they agree to 

retire on or before the day they attain age 75, or upon completing the term of offi ce in which age 

70 is attained, whichever is later. 11 Any justice or judge may be retired involuntarily “for disability 

which constitutes a serious and likely permanent interference with the performance of the duties 

of offi ce.” 12 

§ 9.2.3 Internal Governance 

The Supreme Court is headed by a chief justice, 13 who is elected by members of the 

Supreme Court to a four-year term. The Supreme Court traditionally has elected the most senior 

member of the court who has not already served as chief justice. The members of the Supreme 

Court also elect a presiding justice, 14 who is traditionally the second most senior justice who has 

not already served as presiding justice. 

The members of the Court of Appeals elect a chief judge, 15 who serves a two-year term. 

The chief judge, in turn, designates four presiding judges, each of whom presides over one of the 

four three-judge divisions of the court. 16 The chief judge traditionally is elected on the basis of 

seniority, with the next-most senior judge who has not served as chief judge customarily being 

elected each time a two-year term expires. The presiding judges are traditionally the four most 

senior judges who are not serving as chief judge. At the end of the two-year term, the chief judge 

traditionally resumes service as a presiding judge. 

10 O.C.G.A. § 47-2-244(l) provides: 

Any appellate court judge who elects to receive the benefi ts provided for by this Code 

section and who fails to resign his offi ce as appellate court judge on or before the day such 

judge attains age 75 or on the last day of the term in which such appellate court judge is 

serving when he or she attains age 70, whichever is later . . . shall not be entitled to receive 

any benefi ts under this Code section and shall forfeit all contributions made under it. 

11 Id.; see Smith v. Miller, 261 Ga. 560, 407 S.E.2d 727 (1991). 

12 GA. CONST. art. VI, § 7, 7(a). The specifi c rules governing removal, suspension, and discipline of 

judges are implemented by the Supreme Court. See Rules of the Judicial Qualifi cations Commission, as 

adopted and amended by the Supreme Court, reprinted in GEORGIA COURT RULES & PROCEDURE (STATE) 

(West 2011); GEORGIA RULES OF COURT ANNOTATED (LexisNexis 2011 ed.). 

13 GA. CONST. art. VI, § 6, 1. 

14 Id. 

15 GA. CONST. art. VI, § 5, 1; O.C.G.A. § 15-3-1(a). 

16 O.C.G.A. § 15-3-1(b). 

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§ 9.3 Determination of Which Justices or Judges Will Participate in the Decision of 

a Case 


Every justice of the Supreme Court who has not been disqualifi ed or recused participates in 

the decision of every matter before the court, whether it be an appeal, certifi ed question, application, 

petition for certiorari, or motion. When one or more justices are disqualifi ed, the Constitution 

allows cases to be heard and determined by a majority of the remaining justices. 17 Nonetheless, 

if the parties desire a hearing by a full court, or upon the court’s own motion, one or more judges 

from the Court of Appeals or the superior court will be appointed to substitute for the absent justice 

or justices. 18 

A concurrence of a majority of the justices is essential to a judgment of reversal. 19 If the 

number of justices is reduced, no judgment may be rendered unless at least four justices concur 

therein. 20 If an even number of justices hear a case and they become equally divided on its outcome, 

the judgment below will stand. 21 

Motions seeking reconsideration of a decision are reviewed by the assigned justice and 

presented by the justice to the entire court for consideration and vote. 


The Court of Appeals is divided into “rotating” three-judge “panels” or “divisions.” These 

three-judge panels ordinarily render the decisions of the Court of Appeals. Each division is headed 

by a presiding judge, who is selected by the chief judge under the process described in Section 9.2.3 

above. Assignments of judges to each division are made by the chief judge, and the personnel of 

the divisions is changed from time to time in accordance with rules prescribed by the court. 22 The 

divisional assignments are for the duration of the docket year and are altered during the year only 

17 GA. CONST. art. VI, § 6, 1. 

18 O.C.G.A. § 15-2-2. 

19 O.C.G.A. § 15-2-16(a). 

20 Id. 

21 Id. However, if the case is heard by only four justices and those justices are evenly divided on the result, 

the case is to be re-argued before a full bench, if possible, before the term closes. Id. If it is not possible 

for the case to be re-argued before a full bench before the term closes, then the judgment below will 

stand. Id. 

22 O.C.G.A. § 15-3-1(b). 

- 142 -


for extraordinary circumstances, such as death or retirement. Divisional changes may also be made 

for particular cases, when one or more judges on a panel are disqualifi ed or recused. 

The Court of Appeals decides cases with panels of more than three judges only in limited 

circumstances. In the event a dissent arises in the division to which the case was originally assigned, 

a case will be decided by a seven-judge panel consisting of the division to which the case was 

assigned, the next division in line in rotation, and an additional seventh judge. 23 

Further, there are two situations in which a case will be decided by all 12 judges sitting en 

banc. First, if a majority of the judges of a single division or a majority of the judges of a sevenjudge 

panel determines that a case should be heard by all 12 judges, this determination will be 

presented to all the judges of the court for a vote as to whether a 12-judge review of the case is 

warranted. 24 If a majority of the judges concur that review by all 12 judges is warranted, the case 

will be decided by all the judges sitting en banc. 25 The second situation in which all 12 judges 

will decide the case arises when a division or seven-judge panel is considering the issuance of an 

opinion that would overrule a prior decision of the court. 26 

Decisions rendered by panels consisting of more than three judges have several important 

characteristics, as follows: 

It being among the purposes of this Code section to avoid and reconcile confl icts 

among the decisions made by less than all of the Judges on the court and to secure 

more authoritative decisions, it is provided that when two divisions plus a seventh 

Judge sit as one court the court may, by the concurrence of a majority, overrule 

any previous decision in the same manner as prescribed for the Supreme Court. 

As precedent, a decision by such court with a majority concurring shall take 

precedence over a decision by any division or two divisions plus a seventh Judge. 

A decision concurred in by all the Judges shall not be overruled or materially 

modifi ed except with the concurrence of all the Judges. 27 

When a judge on a division or seven-judge panel is disqualifi ed or recused, that judge is 

replaced by another member of the court. In the event that the whole court considers a case and 

23 O.C.G.A. § 15-3-1(c)(1). 

24 O.C.G.A. § 15-3-1(c)(2). 

25 Id. 

26 O.C.G.A. § 15-3-1(d). 

27 O.C.G.A. § 15-3-1(d). 

- 143 -


is evenly divided, the case is transferred to the Supreme Court. 28 The Court of Appeals may also 

certify questions to the Supreme Court to aid it in deciding the cases before it. 29 

After a judgment has been rendered by the court, a losing party may fi le a motion for 

reconsideration, requesting the court to reconsider its decision. 30 No oral argument is permitted 

on such a motion. Initially, a motion for reconsideration is reviewed by the judge who wrote 

the original opinion. After studying the motion, this judge makes a recommendation to the other 

judges who participated in the decision of the case. Upon receiving the recommendation, these 

judges vote on the disposition. If the case was originally decided by a division, the motion for 

reconsideration will also be decided by the division, unless a new dissent is generated that requires 

consideration of a seven-judge panel. If the case originally was decided by the whole court, then 

the whole court also votes on the motion for reconsideration. 

§ 9.4 Scheduling of Arguments 


With the exception of criminal cases imposing the death penalty and granted writs of 

certiorari not disposed of summarily, hearings are not conducted in the Supreme Court unless one 

of the parties requests oral argument. 31 Oral argument is mandatory in death penalty appeals and in 

granted interim review of matters raised in a death penalty proceeding, and such cases automatically 

will be placed on the oral argument calendar. 32 All granted writs of certiorari will be placed on the 

oral argument calendar unless disposed of summarily by the court. 33 Oral argument in all other 

cases normally will be placed on the calendar upon request of either party made within 20 days 

from the date of docketing. 34 Oral argument is never mandatory except in death penalty appeals, 

and the court may deny, limit, or require oral argument where appropriate. 35 Oral argument is 

28 GA. CONST. art. VI, § 5, 5. 

29 GA. CONST. art. VI, § 5, 4. 

30 GA. CT. APP. R. 37. 

31 GA. S. CT. R. 50(3). For a more complete discussion of rules and other considerations related to oral 

argument in the Supreme Court, see supra Chapter 7. 

32 GA. S. CT. R. 50(1). 

33 GA. S. CT. R. 50(2). 

34 GA. S. CT. R. 50(3). 

35 Id. 

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limited to 20 minutes per side. 36 Each side in a death penalty appeal is given 30 minutes to argue. 37 

Discretionary applications to appeal a judgment and decree of divorce that are granted under Rule 

34(4) of the Georgia Supreme Court Rules are allowed only 10 minutes per side to argue. 38 

The oral argument calendar in the Supreme Court ordinarily commences on the second 

Monday of each month (excluding August and December) and lasts for as many days as are 

necessary to hear the cases assigned for that month. The Supreme Court’s monthly argument 

calendar is ordinarily two to four days with seven cases being heard each day. Four cases are heard 

in the morning session, and three cases are heard in the afternoon session. Cases are heard in the 

order listed on the calendar. 

The clerk of the Supreme Court arranges the cases for argument and provides notice by 

publication through the e-fi le system, mail, and the court’s website of scheduled arguments at least 

20 days prior to each session. With reasonable notice, the Supreme Court may conduct a special 

oral argument session at places other than its courtroom in Atlanta or by video-conference. 39 Oral 

argument case summaries detailing information about matters to be presented to the court during 

an oral argument are available on the court’s website a few days before the scheduled argument. 

All oral argument sessions are broadcasted via webcast and available for viewing via a link on the 

court’s website. 


The hearings calendar for the Court of Appeals is coordinated by the clerk’s offi ce. 40 The 

presiding judges, however, choose in order of seniority the days on which their divisions will hear 

argument. The Court of Appeals ordinarily schedules oral argument for four days during each 

month (excluding December and August), with each panel hearing arguments once a month. 

36 GA. S. CT. R. 54. 

37 Id. 

38 Id. On June 20, 2011, the Supreme Court amended Georgia Supreme Court Rules 34 and 54 to incorporate 

the standards and procedures previously set forth in the Domestic Relations Pilot Project, which was set 

to expire on June 30, 2011. The amended rules took effect on July 1, 2011. See Order of the Supreme 

Court of Georgia (June 20, 2011), available at http://www.gasupreme.us/press_releases/Order_PILOT- 

PROJECT_%20FINAL.pdf. 

39 O.C.G.A. § 15-2-5. The Supreme Court has heard oral argument at the state’s law schools and in other 

cities and counties throughout the state, including New Echota, Cassville, Louisville, Talbotton, Augusta, 

Tifton, Westville, Savannah, Milledgeville, Statesboro, Covington, Griffi n, Putnam, Coweta, and Cobb. 

40 The oral argument calendar is available on the Court of Appeals’ website: http://www.gaappeals.us. The 

website also contains a web docket that is updated hourly. For a more complete discussion of rules and 

other considerations related to oral argument in the Court of Appeals, see supra Chapter 7. 

- 145 -


Due to the growing number of cases that are appealed and the limited number of judges 

to hear them, the Court of Appeals does not automatically grant oral argument. 41 Accordingly, a 

party seeking oral argument must specify why the case is appropriate for oral argument and why 

oral argument will assist the court in reaching a decision. The party requesting oral argument must 

convince at least one judge on the panel that “the decisional process will be signifi cantly aided by 

oral argument.” 42 The judge to whom the case is assigned initially will consider the plea in favor of 

oral argument. If the judge concludes that oral argument will help, then the request will be granted. 

If the judge thinks otherwise, the remaining judges on the panel will consider the merits of the 

request for oral argument seriatim. If, however, the request for oral argument is not made timely 

– within 20 days from the date the case is docketed – then the untimely request will be considered 

only by the judge to whom the case is assigned initially. 

The docketing notice sent by the clerk when the case is docketed informs counsel that if 

requested and granted, oral argument will be calendared on a specifi ed date. This date is tentative. 

If a request for oral argument is granted, the clerk notifi es counsel by mail, at least 14 days before 

the hearing, of the exact date the case will be heard. Additionally, the docketing notice directs 

counsel to call the clerk’s offi ce if counsel does not receive a copy of the court’s calendar at least 

10 days before the tentative oral argument date. 

§ 9.5 Procedure for Decision After Argument, Including Assignment of Cases and 

Issuance of Opinions 


The Supreme Court customarily takes an informal, preliminary vote immediately after the 

conclusion of each day’s oral arguments. In general, decisional “bancs” are then held bi-weekly, 

usually on Thursdays. At the bancs, the justices consider proposals for editorial or substantive 

changes in opinions, present concurring or dissenting opinions, and take a fi nal vote by show of 

hands on those cases which all the justices are prepared to decide. The opinion, as agreed upon 

by all of the concurring justices, then issues from the clerk’s offi ce. Decisions of the Supreme 

Court are binding on all other Georgia state courts. The opinion is offi cially issued and released 

on the Monday following the decisional banc. If the number of sitting justices has been reduced 

by disqualifi cation or recusal to an even number, and the remaining justices are evenly divided on 

a case, the judgment of the court below stands affi rmed. 43 Moreover, no judgment can be rendered 

without the concurrence of at least four justices. 44 The justices decide applications, other than 

41 GA. CT. APP. R. 28(a)(1). 

42 GA. CT. APP. R. 28(a)(4). 

43 O.C.G.A. § 15-2-16(a). 

44 Id. 

- 146 -


habeas corpus, by a written vote form including a memorandum and recommendation, which the 

assigned justice circulates to the other justices. 

Petitions for certiorari, motions for reconsideration, non-unanimous applications, habeas 

corpus applications, disciplinary decisions, and other like matters are also discussed during the 

decisional bancs. Each petition for certiorari is assigned to a justice, who is provided with the 

record in the case. All the justices review the petition, with the justice to whom the petition was 

assigned taking responsibility for answering any questions that require a review of the record. A 

hand vote is then taken at the weekly decisional banc. If the vote is not unanimous, the matter 

is brought back to a second banc at a later time for a re-vote. If a discretionary application or 

certiorari is granted, the order will indicate which issues the court wants addressed. 

To assure equal and impartial assignment among the seven justices, cases in the Supreme 

Court are assigned through the use of 19 “wheels.” Within each wheel, cases are assigned to 

the justices consecutively, so that each justice is assigned every seventh case. The wheels are 

organized according to subject matter as follows: (i) direct appeals including granted applications 

and certifi ed questions; (ii) appeals of death sentences; (iii) petitions for certiorari; (iv) cases in 

which petitions for certiorari have been granted; (v) original matters (motions for supersedeas 

or other extraordinary motions which relate to appeals); (vi) original petitions for mandamus; 

(vii) applications for discretionary appeal; (viii) interim review applications involving the death 

penalty; (ix) habeas corpus applications; (x) habeas corpus applications involving the death penalty; 

(xi) lawyer disciplinary cases; (xii) bar admissions matters; (xiii) judicial qualifi cations cases; (xiv) 

matters related to pending or imminent executions; (xv) domestic relations cases; (xvi) applications 

for interlocutory appeal; (xvii) emergency motions; (xviii) requests for review before the appeal is 

docketed; and (xix) certifi ed questions. 


Cases are assigned to the judges of the Court of Appeals through the use of four “wheels,” 

one each for: (i) direct appeals for criminal cases; (ii) direct appeals for civil cases; (iii) interlocutory 

applications; and (iv) discretionary applications. The clerk uses the wheels to assign cases as they 

are docketed to the four divisions of the court. The fi rst four cases are assigned to the presiding 

judges, the next four cases are assigned to the second-most senior judges on each panel, and the 

next cases are assigned to the least senior judges on each panel. The cycle then repeats itself. 

The judge to whom the case is assigned is responsible for drafting and submitting a proposed 

opinion, and ordinarily, the same judge will write the fi nal opinion. When a case is considered by 

the full court or a seven-judge panel, however, the judge who garners a majority of votes for his or 

her view authors the majority opinion. 

Unlike the Supreme Court, the Court of Appeals does not hold regular decisional bancs. 

Informal bancs do occur, however. 

- 147 -


The precedential value of decisions of the Court of Appeals depends upon how they are 

decided and reported. Reported decisions, insofar as they are not in confl ict with decisions of 

the Supreme Court, are binding precedent in all Georgia courts except the Supreme Court. 45 By 

contrast, cases that are affi rmed without opinion in accordance with Rule 36 have no precedential 

value. 46 Written but unreported opinions establish only the law of the case. 47 Furthermore, when 

one member of a division concurs specially or in the judgment only, or when fewer than a majority 

of the judges sitting as a seven-judge or 12-judge court concur with all that is said in the decision, 

the decision constitutes a nonbinding “physical” precedent only. 48 In all cases, the Court of Appeals 

has no authority to overrule or modify a decision of the Supreme Court. 49 

§ 9.5.3 Time Limitations for Decisions 

The Supreme Court and the Court of Appeals consider cases during three annual “terms,” 

commencing on the fi rst Monday in January, the third Monday in April, and the fi rst Monday in 

September. 50 A Constitutional “two-term” limitation requires each court to “dispose of every case 

at the term for which it is entered on the court’s docket for hearing or at the next term.” 51 In the 

vernacular of the appellate courts, “distress” cases are those cases that have reached the second 

term without being decided, and “distress day” is the last day on which opinions can be issued for 

distress cases. 

The time required for a decision depends upon the circumstances of each case and, beyond 

the “two-term” limitation, the courts follow no specifi c schedule. However, statutorily, the courts 

must expedite certain types of cases, including but not limited to civil cases in which the State of 

45 GA. CONST. art. VI, § 5, 3; GA. CT. APP. R. 33. 

46 GA. CT. APP. R. 36. 

47 GA. CT. APP. R. 33(b). 

48 GA. CT. APP. R. 33(a). 

49 State v. Coe, 243 Ga. App. 232, 533 S.E.2d 104 (2000); Adams v. State, 174 Ga. App. 558, 559, 331 

S.E.2d 29, 30 (1985). 

50 O.C.G.A. §§ 15-2-4(b), 15-3-2; GA. S. CT. R. 3. 

51 GA. CONST. art. VI, § 9, 2. It should be noted that the key date relates to the term to which the 

case is docketed for hearing, not the term in which the case appeared initially on the court’s docket. 

Practitioners seeking to determine the opinion due date for a case pending in the Court of Appeals should 

look to the docketing notice received from the clerk’s offi ce, calculating the due date based upon the term 

in which oral argument is to be held in the event that oral argument is granted. See Superb Carpet Mills, 

Inc. v. Thomason, 183 Ga. App. 554, 556, 359 S.E.2d 370, 372 (1987) (“The relevant date is . . . the date 

the case was docketed for hearing.”). 

- 148 -


Georgia is a plaintiff, 52 criminal cases in which the defendant is incarcerated, 53 and cases involving 

the Parental Notifi cation Act. 54 Also, by policy, the Court of Appeals expedites cases involving 

child custody, appeal bonds, and emergency motions fi led under Court of Appeals Rule 40(b). 

Judgments are issued on a continuing basis by the Court of Appeals. However, counsel should not 

expect to receive decisions from either court during the last 15 days of a term. As a general rule, 

the courts issue only rulings on motions for reconsideration during that period. 55 

§ 9.6 Discipline of Judges 

The Supreme Court has inherent authority to regulate the conduct of judges, including 

the promulgation and enforcement of the Code of Judicial Conduct. 56 A Georgia judge may be 

removed, suspended, or otherwise disciplined for willful misconduct in offi ce, willful or persistent 

failure to perform the duties of offi ce, habitual intemperance, conviction of a crime of moral 

turpitude, or conduct prejudicial to the administration of justice that brings the judicial offi ce 

into disrepute. 57 As a practical matter, the power to investigate and recommend the discipline of 

judges is delegated to the Judicial Qualifi cations Commission, a seven-member body comprised 

of two judges, three members of the State Bar, and two non-lawyer citizens. 58 The Supreme Court 

reviews the recommendations of the Judicial Qualifi cations Commission and exercises its power to 

discipline or remove judges by order or opinion. 59 Opinions are then published. 60 

52 O.C.G.A. § 9-10-1. 

53 O.C.G.A. § 5-6-43(c). 

54 O.C.G.A. § 15-11-114(e). 

55 See O.C.G.A. § 15-2-4(c). This general rule may be disregarded in extraordinary circumstances. See 

Shore v. Shore, 253 Ga. 183, 184, 318 S.E.2d 57, 59 (1984); Stuckey v. Richardson, 188 Ga. App. 147, 

148, 372 S.E.2d 458, 459-60 (1988). 

56 Jud. Qualifi cations Comm’n v. Lowenstein, 252 Ga. 432, 433, 314 S.E.2d 107, 108 (1984). 

57 GA. CONST. art. VI, § 7, 7. 

58 GA. CONST. art. VI, § 7, 6. 

59 GA. CONST. art. VI, § 7, 8. 

60 See, e.g., In re Inquiry Concerning a Judge, 265 Ga. 843, 462 S.E.2d 728 (1995). 

- 149 -


- 150 -

10 

PROCEEDINGS SUBSEQUENT TO DECISIONS 

Debra D. Bernstein* 

Ellen Persons** 

§ 10.1 Decisions of the Georgia Supreme Court and the Georgia Court 

of Appeals 

§ 10.1.1 Entry and Transmittal of Decision 

In rendering a decision, an appellate court may make an order or give any directions to the 

lower court concerning the fi nal disposition of the case that are consistent with the law and justice 

of the case. 1 A decision by an appellate court usually either affi rms or reverses the judgment below, 

but it may also include further directions to the lower court. 

* Ms. Bernstein is a partner with the law fi rm of Alston & Bird LLP, focusing her practice on antitrust 

and complex commercial litigation. She received a B.A., magna cum laude, from the University of 

Pennsylvania in 1995 and a J.D., cum laude, from the University of Georgia School of Law in 1998. 

** 

Ms. Persons is an associate with the law fi rm of Alston & Bird LLP, focusing her practice on complex 

commercial litigation and government investigations. She received a B.A. from the University of 

Virginia in 2005 and a J.D. from the University of Georgia School of Law in 2008. 

1 O.C.G.A. § 5-6-8. 

- 151 -


When its decision requires a further hearing in a lower court, the Supreme Court or the 

Court of Appeals will instruct its clerk to transmit immediately and without charge a copy of the 

court’s opinion to the clerk of the lower court. 2 The clerk will transmit the opinion as soon as it 

is available, and a copy of the opinion will remain on fi le for the information of the court and the 

parties. 3 

§ 10.1.2 Transmittal of Remittitur to Lower Court 

The remittitur of a case decided by an appellate court shall be transmitted to the clerk of 

the trial court as soon as practicable after the expiration of 10 days from the date the judgment 

is entered or a motion for reconsideration is denied, unless otherwise ordered by the court. 4 The 

remittitur of a case must contain the decision of the court, any direction made in the case, and an 

accounting of the costs paid in the appellate court. 5 The remittitur instructs the lower court to carry 

into full effect the appellate court’s decision and direction. 

The fi ling of a motion for reconsideration stays the remittitur, as does the fi ling of a notice 

of intention to apply to the Supreme Court of Georgia for a writ of certiorari. A party who wishes to 

have a remittitur stayed in order to appeal to, or seek a writ of certiorari in, the United States Supreme 

Court must fi le with the Supreme Court of Georgia a motion to stay the remittitur accompanied 

with a concise statement of the issues to be raised on appeal or in the petition for certiorari. 6 This 

notice must be fi led at the time of fi ling a motion for reconsideration or within the time allowed for 

fi ling a motion for reconsideration. 7 The fi ling of a notice of intent to apply to the Supreme Court 

of the United States for writ of certiorari, however, does not automatically stay the remittitur. 8 


Affi rmed 

If an appellate court affi rms the judgment of the lower court, the transmittal of the remittitur 

to the clerk of the court terminates the supersedeas earlier imposed by the notice of appeal and 

instructs the lower court to immediately issue an execution for the amount of the original judgment. 9 

2 O.C.G.A. § 5-6-9(a). 

3 Id. 

4 GA. S. CT. R. 60(2); GA. CT. APP. R. 39(a). 

5 O.C.G.A. § 5-6-10. 

6 GA. S. CT. R. 61. 

7 Id. 

8 GA. CT. APP. R. 39(b). 

9 O.C.G.A. § 5-6-12. 

- 152 -

CHAPTER 10: PROCEEDINGS SUBSEQUENT TO DECISIONS 

If an appellate court determines that an appeal was fi led only for delay, the court may award 

additional damages to the appellee in the amount of 10 percent of the judgment affi rmed. 10 Such 

damages, if awarded, are entered in the remittitur and transmitted to the lower court. 11 Damages 

for delay will be awarded only when no reasonable ground existed upon which the appellant might 

have anticipated reversal of the trial court’s judgment. 12 


Reversed 

When an appellate court reverses the judgment below, the appellant is entitled, as soon as 

the remittitur is returned to the lower court, to a judgment against the appellee for the costs incurred 

in the appellate court. 13 

§ 10.2 Motions for Reconsideration in the Georgia Court of Appeals 

§ 10.2.1 Time for Filing Motion 

A motion for reconsideration must be fi led: (i) no later than the tenth day after the court 

renders its decision; and (ii) during the term that the judgment or order sought to be reviewed was 

rendered. 14 A motion for reconsideration must also be fi led before the remittitur has been forwarded 

to the clerk of the trial court. 15 The court may shorten the foregoing time limitation by issuing a 

special order. 16 Importantly, a motion for reconsideration must be physically received and fi led by 

the clerk within 10 days of the order of judgment for which reconsideration is sought. 17 Note that 

Court of Appeals Rule 4, providing that properly addressed registered or certifi ed mail packets are 

deemed fi led on the offi cial postmark date, does not apply to motions for reconsideration. 18 

10 O.C.G.A. § 5-6-6. For a more complete discussion of issues related to frivolous appeals, see infra 

Chapter 13. 

11 Id. 

12 See Crawford v. Holt, 172 Ga. App. 326, 327, 323 S.E.2d 245, 246 (1984); see also Shamsai v. Coordinated 

Props., Inc., 259 Ga. App. 438, 439, 576 S.E.2d 901, 903 (2003). 

13 O.C.G.A. § 5-6-5. 

14 GA. CT. APP. R. 37(b). 

15 Id. 

16 GA. CT. APP. R. 37(c). 

17 GA. CT. APP. R. 37(b). 

18 Id. 

- 153 -


An extension of time for fi ling a motion for reconsideration will be granted only when 

the requesting party submits a written application and shows “providential cause” for the delay in 

fi ling. 19 This written application for extension of time must be made to the court within 10 days of 

the court’s decision. 20 

§ 10.2.2 Form, Filing, and Service of Motion 

Motions for reconsideration must comply with the requirements of Court of Appeals Rule 

24, concerning length, paper quality, spacing, margins, citations, attachments and exhibits, and 

page numbering. 21 An original and two clearly legible copies of the motion must be fi led with 

the court. 22 Service to opposing counsel must be shown by written acknowledgment, certifi cate 

of counsel or affi davit of server, and must include the name and complete mailing address of all 

opposing counsel. 23 This certifi cate of service must be attached to the document fi led with the 

court. 24 

§ 10.2.3 Response to a Motion for Reconsideration and Oral Argument 

A response to a motion for reconsideration is not required, but a party who wishes to 

respond must do so expeditiously. 25 It should also be noted that oral argument is never permitted 

on a motion for reconsideration. 26 

§ 10.2.4 Grounds for Granting Motion 

The Court of Appeals will grant a motion for reconsideration “only when it appears that 

the Court overlooked a material fact in the record, a statute or a decision which is controlling as 

authority and which would require a different judgment from that rendered, or has erroneously 

construed or misapplied a provision of law or a controlling authority.” 27 

19 Id. 

20 Id. 

21 See GA. CT. APP. R. 24. 

22 GA. CT. APP. R. 6 & 41(a). 

23 GA. CT. APP. R. 6. 

24 Id. 

25 GA. CT. APP. R. 37(b). 

26 GA. CT. APP. R. 37(h). 

27 GA. CT. APP. R. 37(e). 

- 154 -


A motion for reconsideration may be denied even when the movant shows that a material fact 

or provision of law was overlooked or misconstrued. When such is the case, the court may simply 

revise its opinion without granting reconsideration. 28 The court may also sua sponte reconsider and 

revise its opinion at any time prior to the printing of the opinion in the offi cial reports. 

The decision of whether to reconsider a case is made by the judges who voted on the 

original opinion. 29 If there is a dissent on the motion for reconsideration, the motion is voted on by 

seven judges, or if the court deems it appropriate, 12 judges. 30 

§ 10.2.5 Subsequent Motions for Reconsideration 

If a party’s motion for reconsideration is denied, that party may not fi le a second motion 

for reconsideration unless granted permission by order of the court. 31 The fi ling of a motion for 

permission to fi le a second motion for reconsideration, however, does not toll the 10 days for fi ling 

a notice of intent to apply for certiorari with the Supreme Court. 32 

§ 10.3 Motions for Reconsideration in the Georgia Supreme Court 

§ 10.3.1 Time for Filing Motion 

Motions for reconsideration regarding any matter on which the Supreme Court has ruled 

must be physically received at the court within 10 days of the date of the court’s decision to be 

rendered timely. 33 

§ 10.3.2 Form, Filing, and Service of Motion 

Requirements and suggestions concerning physical form of motions are contained in 

Georgia Supreme Court Rules 17 through 21. An original and seven copies of the motion must be 

fi led, 34 and a copy of the opinion or disposition to be reconsidered must be attached to the motion. 35 

28 GA. CT. APP. R. 37(f). 

29 GA. CT. APP. R. 37(g). 

30 Id. 

31 GA. CT. APP. R. 37(d). 

32 Id. 

33 GA. S. CT. R. 27. 

34 GA. S. CT. R. 15. 

35 GA. S. CT. R. 27. 

- 155 -


Additionally, there is a 30 page limit for the motion in civil cases; however, upon written request 

and authorization by the court, this limitation may be expanded. 36 

§ 10.3.3 Subsequent Motions for Reconsideration 

As in the Court of Appeals, a party may not fi le a second or subsequent motion for 

reconsideration with the Supreme Court without express permission of the court. 37 

§ 10.4 Writs of Certiorari from the Georgia Supreme Court to the Georgia Court of 

Appeals 

§ 10.4.1 Introduction 

The Georgia Constitution vests the Supreme Court with authority to review by certiorari 

Court of Appeals decisions that are of “gravity or great public importance.” 38 The procedure for 

obtaining a writ of certiorari from the Supreme Court is governed by Georgia Supreme Court Rules 

38 through 45. 

§ 10.4.2 Motion for Reconsideration Not Required for Petition for Writ of 

Certiorari 

The fi ling and denial of a motion for reconsideration in the Court of Appeals is no longer a 

prerequisite for fi ling a petition for writ of certiorari to the Supreme Court. 39 Any question that was 

not raised ini tially before the Court of Appeals or in a motion for reconsideration, however, will not 

be considered by the Supreme Court on a writ of certiorari. 40 

§ 10.4.3 Time for Filing Petition for Writ of Certiorari 

A notice of intention to petition for writ of certiorari must be fi led with the clerk of the Court 

of Appeals within 10 days of the judgment or the order denying reconsideration. 41 The petition for 

36 GA. S. CT. R. 20. 

37 GA. S. CT. R. 28. 

38 G A. CONST. art. VI, § 6, 5. 

39 GA. S. CT. R. 38; GA. CT. APP. R. 38(a)(1). 

40 Orkin v. State, 239 Ga. 334, 334 n.1, 236 S.E.2d 576, 576 n.1 (1977). Note that Georgia Supreme Court 

Rule 36(h), cited by the court in Orkin, has been rescinded. 


- 156 -


writ of certiorari itself must then be fi led with the clerk of the Georgia Supreme Court within 20 

days of judgment or the ruling on a motion for reconsideration, if one was fi led. 42 Simultaneously 

with the fi ling of the petition for writ of certiorari in the Supreme Court, counsel must fi le in the 

Court of Appeals a notice stating that a petition for writ of certiorari has been fi led in the Supreme 

Court. 43 

§ 10.4.4 Filing and Service of Petition for Writ of Certiorari 

An original and seven copies of the petition for writ of certiorari must be fi led in the 

Supreme Court, and the opposing attorney or pro se party must be served with a copy of the 

petition. 44 A copy of the Court of Appeals opinion or order must be attached to each copy of the 

petition for writ of certiorari. 45 

§ 10.4.5 Transmittal of Record to the Georgia Supreme Court 

The clerk of the Court of Appeals is responsible for transmitting the record and a certifi ed 

copy of the Court of Appeals opinion and judgment to the Supreme Court. 46 

§ 10.4.6 Grounds for Granting Writ of Certiorari 

The review of a case on certiorari is not a matter of right, but a matter of judicial discretion. 47 

The Georgia Supreme Court will grant writs of certiorari “only in cases of great concern, gravity, 

or importance to the public.” 48 The Supreme Court will not ordinarily grant certiorari: (i) to review 

the suffi ciency of evidence; or (ii) where the Court of Appeals has affi rmed the denial of a motion 

to dismiss, denial of a motion for judgment on the pleadings, or a denial of a motion for summary 

judgment. 49 

42 GA. S. CT. R. 38(2). 

43 GA. CT. APP. R. 38(a)(2). 

44 GA. S. CT. R. 14 & 15. 

45 GA. S. CT. R. 39. 

46 GA. S. CT. R. 43. 

47 See GA. S. CT. R. 40. 

48 Id. 

49 Id. But see Country Club Apartments, Inc. v. Scott, 246 Ga. 443, 271 S.E.2d 841 (1980) (granting 

certiorari where confusion of law regarding important issue was evidenced by split vote in Court of 

Appeals). 

- 157 -


§ 10.4.7 Motion for Reconsideration 

If a petition for writ of certiorari is denied, and reconsideration is desired, a motion for 

reconsideration must be fi led in the Supreme Court within 10 days of the date of denial of the 

petition for writ of certiorari. 50 A copy of the opinion or other disposition must be attached to the 

motion for reconsideration. 51 If the motion for reconsideration is denied, no subsequent motion for 

reconsideration may be fi led by the same party except by permission of the court. 52 

50 GA. S. CT. R. 27. 

51 Id. 

52 Id. 

- 158 -

11 

AN OVERVIEW OF THE CRIMINAL APPELLATE 

PROCESS AND PROCEDURE 

T.C. Spencer Pryor* 

Jason D. Popp** 


This chapter provides an overview of the various mechanisms available under Georgia law 

for challenging a criminal conviction or sentence. Although reversals of criminal convictions are 

the exception to the rule, Georgia law provides a number of opportunities for post-conviction relief. 

* Mr. Pryor is a partner in the Litigation & Trial Practice Group at Alston & Bird LLP. Before joining 

Alston & Bird, Mr. Pryor served as a federal prosecutor in the criminal division of the United States 

Attorney’s Offi ce for the Eastern District of Virginia and as Counsel to the Deputy Attorney General at 

the United States Department of Justice. He received his B.A. in 1995 from the University of Georgia 

and his J.D. in 1999 from the University of Georgia School of Law. 

** Mr. Popp is an associate in the Litigation & Trial Practice Group at Alston & Bird LLP. He received his 

B.A. in 2005 from Vanderbilt University and his J.D. in 2008 from Georgetown University. 

- 159 -


This chapter addresses three avenues for challenging a criminal conviction or sentence: (i) posttrial 

motions in the trial court; (ii) direct appeals; and (iii) state petitions for habeas corpus. 1 

§ 11.2 Post-Trial Motions 

§ 11.2.1 Motion for New Trial 

A motion for new trial is the most commonly utilized means of seeking post-conviction 

relief. The superior, state, and juvenile courts and the City Court of Atlanta are empowered by 

statute to grant new trials, 2 and whether to grant a motion for new trial is committed to the discretion 

of the trial court. 3 A motion for new trial ordinarily must be fi led within 30 days of the entry of 

a judgment of conviction. 4 When the motion for new trial will require the court to consider trial 

transcripts—except in cases where a sentence of death has been imposed—the trial court may in its 

discretion grant an extension of time for the preparation and fi ling of the transcript. 5 

Georgia law enumerates several grounds upon which a trial court may order a new trial, 

including: 

• A jury verdict “contrary to evidence and the principles of justice and equity”; 6 

• A jury verdict “decidedly and strongly against the weight of the evidence even though 

there may appear to be some slight evidence in favor of the fi nding”; 7 

• Material evidence illegally admitted or withheld from the jury over the objection of 

the movant; 8 

1 For a more thorough discussion of Georgia habeas corpus, see 10 GEORGIA PROCEDURE: CRIMINAL 

PROCEDURE § 35:1 et seq., at 211 (2003); Donald E. Wilkes, Jr., Postconviction Habeas Corpus Relief in 

Georgia: A Decade After the Habeas Corpus Act, 12 GA. L. REV. 249 (1978); 14 E. G. L. HABEAS CORPUS, 

§ 1 et seq. (1999 Rev.); and for federal habeas corpus, see JAMES LIEBMAN & RANDY HERTZ, FEDERAL 

HABEAS CORPUS PRACTICE AND PROCEDURE (6th ed. 2011); RONALD P. SOKOL, FEDERAL HABEAS CORPUS (2d 

ed. 1969). 

2 O.C.G.A. § 5-5-1. 

3 O.C.G.A. §§ 5-5-20, 5-5-21. 

4 O.C.G.A. § 5-5-40(a). 

5 O.C.G.A. § 5-5-40(c). 

6 O.C.G.A. § 5-5-20. 

7 O.C.G.A. § 5-5-21. 

8 O.C.G.A. § 5-5-22. 

- 160 -

CHAPTER 11: AN OVERVIEW OF THE CRIMINAL APPELLATE PROCESS AND PROCEDURE 

• Material evidence discovered by the movant after the verdict and timely brought to the 

attention of the trial court; 9 and 

• Erroneous jury instructions. 10 

In addition, Georgia courts are empowered, in the exercise of “sound legal discretion,” to 

grant new trials upon other grounds “according to the provisions of the common law and practice 

of the courts.” 11 In that regard, Georgia courts have relied on the following additional grounds in 

granting new trials: 

• Failure of the defendant or counsel to appear, for good cause; 12 

• Juror misconduct; 13 

• Other misconduct, mistake, surprise, or prejudice; 14 

• Deprivation of the right of cross examination, of an opening statement, or of a closing 

argument; 15 and 

• The judge’s expression of opinion as to what has or has not been proved. 16 

9 O.C.G.A. § 5-5-23. 

10 O.C.G.A. § 5-5-24. 

11 O.C.G.A. § 5-5-25. 

12 Melcher v. Melcher, 274 Ga. 711, 712, 559 S.E.2d 468, 468 (2002); Vaughan v. Car Tapes, Inc., 135 

Ga. App. 178, 180, 217 S.E.2d 436, 438 (1975); Haralson Cnty. Econ. Dev. Corp. v. Hammock, 233 Ga. 

381, 384, 211 S.E.2d 278, 280 (1974). But see Lett v. Alderman, 279 Ga. 630, 632, 619 S.E.2d 599, 601 

(2005). 

13 Schmidt v. Parrish, 63 Ga. App. 663, 664, 11 S.E.2d 921, 922 (1940). 

14 Johnson v. State, 75 Ga. App. 186, 188-89, 43 S.E.2d 119, 121 (1947); Cent. of Ga. Ry. Co. v. Harden, 

113 Ga. 453, 38 S.E. 949, 951 (1901). 

15 Thomas v. State, 262 Ga. App. 492, 497-98, 589 S.E.2d 243, 249 (2003); Strickland v. State, 6 Ga. App. 

536, 536, 65 S.E. 300, 300 (1909). 

16 O.C.G.A. § 9-10-7; Wright v. State, 5 Ga. App. 813, 815, 63 S.E. 936, 937 (1909). But see Green v. State, 

298 Ga. App. 17, 23, 679 S.E.2d 348, 354 (2009). 

- 161 -


Although he or she may do so, a defendant need not fi le a motion for new trial before 

taking an appeal. 17 Even when a motion for new trial is fi led, a defendant may raise any trial error 

on appeal, regardless of whether it was raised in the motion for new trial, so long as the error was 

preserved at trial. 18 

In extraordinary cases, a motion for new trial may be fi led outside the 30-day limit. These 

are commonly called extraordinary motions for a new trial. The procedural requirements for these 

motions are the product of case law and are governed by case law, not the Civil Practice Act. 19 In 

such cases, however, the defendant must show a good reason why the motion was not timely fi led. 20 

Perhaps the most common reason for fi ling an untimely motion for new trial is the late discovery 

of new evidence, but it may be fi led and granted for other reasons. 21 A motion for new trial based 

upon newly discovered evidence may be fi led outside the 30-day limit only when the defendant 

shows that: 

17 O.C.G.A. § 5-6-36. It bears noting, however, that a claim that the verdict is against the weight of the 

evidence may be asserted only in the trial court. Appellate courts are not vested with the discretion to 

overturn a conviction because it is against the weight of the evidence, and they cannot resolve confl icts in 

trial testimony or reweigh the evidence on appeal. Rather, an appellate court may overturn a conviction 

for insuffi ciency of the evidence only where no reasonable jury could conclude beyond a reasonable 

doubt, based on the evidence viewed in the light most favorable to the state, that the defendant committed 

the crime of which he was convicted. Mosley v. State, 157 Ga. App. 578, 578, 278 S.E.2d 154, 155 

(1981). 

18 Smith v. State, 244 Ga. App. 165, 169, 534 S.E.2d 903, 907-08 (2000). Claims that a defendant’s trial 

counsel rendered ineffective assistance, however, sometimes are an exception to this rule. When the 

original trial counsel continues to represent a defendant on post-trial motions and direct appeal, ineffective 

assistance need not be raised in a motion for new trial, “[b]ecause an attorney cannot reasonably be 

expected to assert or argue his or her own ineffectiveness.” White v. Kelso, 261 Ga. 32, 32, 401 S.E.2d 

733, 734 (1991). But when new counsel is appointed or retained for post-trial proceedings, “[n]ew 

counsel must raise the ineffectiveness of previous counsel at the fi rst possible stage of post-conviction 

review.” Id. Accordingly, if new counsel fi rst appears on a motion for new trial, or an amended motion 

for new trial, any claim of ineffective assistance of trial counsel must be raised in the motion (or amended 

motion) for new trial. Id.; see also Thompson v. State, 257 Ga. 386, 387, 359 S.E.2d 664, 665 (1987). If 

new counsel’s fi rst appearance is on direct appeal, a claim of ineffective assistance can then be raised for 

the fi rst time, but the appeals court will remand the case to allow the trial court the fi rst opportunity to 

address the ineffective assistance claim. McCulley v. State, 273 Ga. 40, 43, 537 S.E.2d 340, 345 (2000). 

19 Davis v. State, 283 Ga. 438, 440, 660 S.E.2d 354, 357-58 (2008). 

20 O.C.G.A. § 5-6-41(a); Hight v. State, 308 Ga. App. 595, 596, 708 S.E.2d 555, 556 (2011); Van Scoik v. 

State, 142 Ga. App. 341, 341, 235 S.E.2d 765, 766 (1977). 

21 See, e.g., Fowler Props., Inc. v. Dowland, 282 Ga. 76, 79, 646 S.E.2d 197, 200 (2007). The Georgia 

General Assembly recently amended Section (c) relating to DNA testing in criminal cases to apply to all 

convicted felons as opposed to just persons convicted of serious violent felonies. The convicted felon 

must then meet all of the other statutory requirements for the motion. Howard v. State, 307 Ga. App. 

772, 772, 706 S.E.2d 136, 136-37 (2011). 

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• The evidence has come to his knowledge since trial; 

• His failure to discover the evidence at an earlier time is not attributable to a lack of due 

diligence; 

• The evidence is admissible; 

• The evidence is so material that it likely would produce a different verdict; 

• The evidence is not merely cumulative; and 

• The evidence is not admissible merely to impeach the credibility of a witness that 

testifi ed at trial. 22 

§ 11.2.2 Motion in Arrest of Judgment 

A motion in arrest of judgment may be used to obtain relief from a nonamendable defect 

appearing on the face of the record or pleadings. 23 In a criminal case, a motion in arrest of judgment 

is allowable only to challenge an indictment, plea, verdict, or judgment. 24 Either party may move 

to arrest the judgment during the term in which the judgment was obtained. 25 A judgment may not 

be arrested for any defect in the pleading or in the record that is amendable as a matter of form 26 or 

for any defi ciency that does not affect “the real merits of the offense charged in the indictment or 

accusation.” 27 Granting a criminal defendant’s motion in arrest of judgment vacates the judgment, 

but does not prevent the defendant from being re-indicted and retried. 28 

22 Timberlake v. State, 246 Ga. 488, 491-92, 271 S.E.2d 792, 796 (1980); Davis v. State, 283 Ga. 438, 448, 

660 S.E.2d 354, 363 (2008); Fetter v. State, 271 Ga. App. 652, 652, 610 S.E.2d 615, 616-17 (2005); 

Davis v. State, 221 Ga. App. 375, 377, 471 S.E.2d 307, 309-10 (1996). 

23 Smith v. State, 257 Ga. App. 468, 469, 571 S.E.2d 446, 448 (2002); Hall v. State, 202 Ga. 42, 45-46, 42 

S.E.2d 130, 132-33 (1947). 

24 Hall, 202 Ga. at 46, 42 S.E.2d at 133. 

25 Bowen v. State, 144 Ga. App. 329, 336, 241 S.E.2d 431, 437 (1977). A motion in arrest of judgment 

fi led after the term in which the judgment was obtained is untimely. Orr v. State, 275 Ga. 141, 141, 

562 S.E.2d 498, 498 (2002). However, an untimely motion in arrest of judgment does not preclude 

a defendant from appealing the trial court’s ruling and the appellate court ruling on the merits of the 

appeal; instead, “untimeliness of the motion is simply a defect that limits the trial court’s authority to 

grant the motion.” Lay v. State, 289 Ga. 210, 212, 710 S.E.2d 141, 143 (2011). 

26 O.C.G.A. § 17-9-62. 

27 O.C.G.A. § 17-9-63; Dandy v. State, 253 Ga. App. 407, 408, 559 S.E.2d 150, 151 (2002). 

28 Hill v. Nelms, 122 Ga. 572, 50 S.E. 344, 345 (1905). 

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§ 11.2.3 Writ of Coram Nobis 

The writ of coram nobis, though once one of the most signifi cant common-law writs, 

largely has fallen out of use because of the availability of other remedies. The writ has been 

labeled a “procedural fossil” and the Georgia Court of Appeals has refused to “condone [an] 

attempt to restore it to Georgia practice.” 29 The Georgia Supreme Court has recognized that coram 

nobis is available to correct errors of fact that are not apparent on the face of the record, that 

are not attributable to the negligence of the accused, and that if before the court, would have 

prevented entry of the judgment. 30 To provide a basis for coram nobis relief, a factual error must 

be of suffi cient magnitude to undermine confi dence in the trier of fact’s verdict. 31 The writ is not 

available, however, when the defendant has an adequate statutory remedy such as habeas corpus. 32 

The Georgia Supreme Court has expressed its disfavor with the writ and has suggested that 

a petition for coram nobis is more properly labeled an extraordinary motion for new trial based 

on newly discovered evidence. 33 Coram nobis relief is available in federal court, although its 

usefulness largely has been supplanted by habeas corpus. 34 

§ 11.3 Appeals 

§ 11.3.1 Standing to Appeal 

The United States and Georgia Constitutions afford no right, to the state or to defendants, 

to appellate review in criminal cases. Rather, the right to appeal in a criminal case exists only to the 

29 Harris v. State, 269 Ga. App. 92, 93, 603 S.E.2d 490, 491 (2004). 

30 Parris v. State, 232 Ga. 687, 688-89, 208 S.E.2d 493, 495 (1974). 

31 

STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL PROCEDURE: CASES AND COMMENTARY 1628 

(7th ed. 2004). 

32 Riley v. State, 107 Ga. App. 639, 639, 131 S.E.2d 124, 124-25 (1963). 

33 Waye v. State, 239 Ga. 871, 873, 238 S.E.2d 923, 925-26 (1977); see also Moss v. State, 255 Ga. App. 

107, 107-08, 564 S.E.2d 516, 517 (2002). 

34 The United States Supreme Court has held that the writ is authorized by the All Writs Statute, 28 U.S.C. 

§ 1651(a), as a means for federal defendants to correct errors of a fundamental nature. United States 

v. Morgan, 346 U.S. 502, 506 (1954); see also United States v. Swindall, 107 F.3d 831, 834 (11th Cir. 

1997). The availability of habeas review in federal courts has, however, largely supplanted coram nobis 

and made it “diffi cult to conceive of a situation in a federal criminal case today where [coram nobis 

relief] would be necessary or appropriate.” United States v. Smith, 331 U.S. 469, 475 n.4 (1947); see 

also Lowery v. United States, 956 F.2d 227, 230 (11th Cir. 1992). 

- 164 -


extent afforded by statute. 35 Although Georgia law permits both the state and defendants to appeal 

in criminal cases, a defendant’s authority to appeal is much broader than that of the state. 

Georgia statutory law authorizes the state to appeal in a criminal case only from an order, 

decision, or judgment: 

• Dismissing an indictment, accusation, or petition of delinquency; 

• Arresting a judgment of conviction or adjudication of delinquency upon legal grounds; 

• Sustaining a plea or motion in bar, when the defendant has not been put into jeopardy; 

• Suppressing evidence illegally seized or the result of any alcohol or drug test, when no 

jury has been impaneled and the defendant has not been put into jeopardy; 

• Reaching beyond the jurisdiction of the court that issued the order, or otherwise void 

under the state constitution or statutory law; 

• Transferring a case to juvenile court pursuant to O.C.G.A. § 15-11-28(b)(2)(B) 

• Granting a motion for new trial or an extraordinary motion; 

• Denying a motion by the state to recuse or disqualify a judge if the defendant has not 

been put into jeopardy; or 

• Issued pursuant to O.C.G.A. § 17-10-6.3(c). 36 

Some appellate cases have interpreted this express statutory authorization to appeal from 

certain orders as an implicit limitation upon the state’s authority, precluding appeals by the state 

in criminal cases from any order or judgment not enumerated in the statute. 37 The Georgia courts, 

however, typically construe the enumeration of orders appealable by the state liberally. 38 

35 Fullwood v. Sivley, 271 Ga. 248, 250, 517 S.E.2d 511, 514 (1999); see also Bradford v. S. Ry. Co., 195 

U.S. 243, 250-51 (1904). 

36 O.C.G.A. § 5-7-1. The state has a right to interlocutory appeals in instances in which the trial court has 

granted a motion to suppress or a motion in limine not involving a search and seizure. Strickman v. State, 

253 Ga. 287, 288, 319 S.E.2d 864, 865 (1984); State v. Vansant, 208 Ga. App. 772, 776, 431 S.E.2d 708, 

711 (1993), aff’d in part, rev’d in part, 264 Ga. 319, 443 S.E.2d 474 (1994). 

37 State v. Thurmond, 195 Ga. App. 369, 369, 393 S.E.2d 518, 518 (1990); State v. Hollomon, 132 Ga. App. 

304, 306, 208 S.E.2d 167, 168 (1974). 

38 State v. Greenwood, 206 Ga. App. 188, 188, 424 S.E.2d 870, 871 (1992) (citing Strickman, 253 Ga. at 

288, 319 S.E.2d at 865). But see In re Interest of D.Q.H., 212 Ga. App. 271, 271, 441 S.E.2d 411, 411 

(1994) (stating that O.C.G.A. § 5-7-1 is “to be construed narrowly, against the State”). 

- 165 -


Defendants in criminal cases have a much broader statutory right to appeal. Indeed, 

O.C.G.A. § 5-6-33 provides: 

[T]he defendant in any criminal proceeding in the superior, state, or city courts 

may appeal from any sentence, judgment, decision, or decree of the court, or of the 

judge thereof in any matter heard at chambers. 

The courts liberally construe this statutory right to appeal to avoid the dismissal of any appeal and 

to afford defendants a decision on the merits. 39 

Notwithstanding the broad statutory right of defendants to appeal, a criminal defendant may 

forfeit voluntarily his right to appeal. 40 He may do so expressly, in return for the state’s agreement 

not to seek the death penalty, 41 or by his own conduct, either alone or in concert with his attorney. 42 

Forfeiture may occur, for example, when the defendant and his attorney have intentionally abused 

or attempted to delay the appellate process, 43 such as by failing to fi le the trial transcript on time or 

pay the reporter’s costs. 44 

Whether to appeal a criminal conviction is a decision committed to the defendant himself. If 

counsel has reason to believe that a rational defendant would want to appeal the decision, however, 

then counsel has a duty to consult on the matter with her client. 45 The defendant alone determines 

whether a criminal conviction should be appealed, and he cannot be deprived of that right because 

his counsel has determined independently that the appeal is unlikely to succeed. 46 

An out-of-time appeal is available only when an appellant can show that: (i) he actually 

had a right to fi le a timely direct appeal; and (ii) the right to appeal was frustrated by ineffective 

assistance of counsel. 47 A defendant who pleads guilty to a crime is only entitled to a direct appeal 

from a judgment of conviction and sentence entered on a guilty plea if he establishes that his claims 

39 O.C.G.A. § 5-6-30; Grantham v. State, 244 Ga. 775, 775, 262 S.E.2d 777, 777 (1979). 

40 State v. Denson, 236 Ga. 239, 240, 223 S.E.2d 640, 641 (1976). 

41 Thomas v. State, 260 Ga. 262, 263, 392 S.E.2d 520, 522 (1990). 

42 Denson, 236 Ga. at 240, 223 S.E.2d at 641. 

43 Id. 

44 Denson, 236 Ga. 239 at 240, 223 S.E.2d at 641; Langston v. State, 206 Ga. App. 874, 875, 426 S.E.2d 

609, 610-11 (1992). 

45 Roe v. Flores-Ortega, 528 U.S. 470, 478-79 (2000). 

46 Lee v. State, 139 Ga. App. 65, 65, 227 S.E.2d 878, 879-80 (1976). 

47 Moore v. State, 304 Ga. App. 105, 105, 695 S.E.2d 661, 662 (2010) (quoting Dowling v. State, 294 Ga. 

App. 413, 413, 669 S.E.2d 198 (2008)). 

- 166 -


can be resolved solely by reference to facts contained in the record. 48 When a defendant’s case 

meets this threshold requirement and he can prove that his right of appeal was denied through the 

negligence or ignorance of his counsel, or because he was not adequately informed of his right to 

appeal, Georgia courts ordinarily will permit the defendant to bring an out-of-time appeal. 49 

§ 11.3.2 Appealable Decisions 

A party to a criminal case that has standing to appeal an order of the trial court ordinarily 

must await a fi nal judgment before taking the appeal. 50 There are some occasions, however, when 

an interlocutory appeal may be taken in a criminal case. First, the state has a statutory right to bring 

an interlocutory appeal of any order, decision, or judgment “suppressing or excluding illegally 

seized evidence” or granting a motion for new trial or an extraordinary motion for new trial. 51 

Second, in all cases in which the state seeks to impose the death penalty, the trial court is obliged 

to review all pretrial matters and determine whether immediate appellate review of such pretrial 

matters is warranted, considering the delay caused by interlocutory review and the need for such 

review. 52 

If the trial court concludes that interlocutory review is warranted in a capital case, the 

Supreme Court may conduct an interlocutory review. Finally, in any criminal case, either the state 

or the defendant may seek a certifi cation from the trial court, within 10 days of the entry of an order, 

if “the order, decision, or judgment is of such importance to the case that immediate review should 

be had.” 53 If the certifi cate is issued by the trial court, the party seeking interlocutory review must 

also fi le an application with the appropriate appellate court. 54 As provided in Supreme Court Rule 

48 Dowling, 294 Ga. App. at 413, 669 S.E.2d at 198. 

49 Banegas v. State, 283 Ga. App. 346, 346 n.1, 641 S.E.2d 593, 594 n.1 (2007); Walker v. State, 280 Ga. 

App. 393, 395, 634 S.E.2d 177, 178 (2006); Harrell v. State, 257 Ga. App. 525, 525, 571 S.E.2d 502, 

503 (2002); see also Glass v. State, 248 Ga. App. 91, 93, 545 S.E.2d 360, 362 (2001). A motion for an 

out-of-time appeal is committed to the discretion of the trial court and the “any-evidence standard” is 

applied in reviewing a trial court’s fi ndings of fact. Hill v. State, 285 Ga. App. 310, 310, 645 S.E.2d 758, 

759 (2007); Butts v. State, 244 Ga. App. 366, 367, 536 S.E.2d 154, 156-57 (2000). 

50 See O.C.G.A. § 5-6-34(a). 

51 O.C.G.A. § 5-7-2 (amended by 2011 Ga. Laws 200). 

52 O.C.G.A. §§ 17-10-35.1, 17-10-35.2. 

53 O.C.G.A. § 5-6-34(b). 

54 Id. 

- 167 -


25, the Supreme Court will grant an application for leave to appeal an interlocutory order only 

when: 

• The issue to be decided appears to be dispositive of the case; 

• The order appears erroneous and will cause a substantial error at trial; or 

• The establishment of a precedent is desirable. 55 

Court of Appeals Rule 30 sets out a similar standard for the Court of Appeals. 56 

§ 11.3.3 Appellate Jurisdiction 

The state constitution vests the Georgia Supreme Court with appellate jurisdiction over 

certain kinds of cases, and a party may bypass the Court of Appeals and appeal directly to the 

Supreme Court in such cases. 57 Among the cases in which the Supreme Court has original appellate 

jurisdiction are all cases in which the constitutionality of a federal or state statute is called into 

question, habeas corpus cases, and all cases in which the death penalty is imposed or could be 

imposed. 58 The death penalty need not be imposed for the Supreme Court to have jurisdiction, but 

the case must be one in which the trial court could have imposed a penalty of death. 59 Although 

Georgia statutes authorize imposing the death penalty for rape, kidnapping, and armed robbery, the 

Georgia Supreme Court has concluded that such cases are beyond its original appellate jurisdiction, 

insofar as the death penalty ordinarily cannot be imposed in such cases consistent with the Eighth 

Amendment. 60 The Supreme Court has original jurisdiction “regardless of whether the order being 

appealed is based on facts having some bearing on the underlying criminal trial.” 61 

55 GA. S. CT. R. 31. 

56 GA. CT. APP. R. 30. 

57 GA. CONST. art. VI, § 6, 1, 2. The Supreme Court has exclusive appellate jurisdiction over constitutional 

challenges to statutes and general appellate jurisdiction in habeas and capital cases. 

58 Id. 

59 See GA. CONST. art. VI, § 6, 3. In State v. Thornton, the Supreme Court exercised appellate jurisdiction 

in a case where the death penalty could not be imposed because the district attorney did not give the 

defense timely notice of the state’s intention to seek the death penalty. 253 Ga. 524, 524, 322 S.E.2d 711, 

711 (1984). The court went on to state: “As a matter of policy, however, we deem it appropriate, at the 

present time, that all murder cases be reviewed by this court.” Id. Although this holding seems contrary 

to the express intention of the changes adopted by the 1983 Constitution, the Supreme Court recently 

concluded that the statement is still good law. See State v. Murray, 286 Ga. 258, 259, 687 S.E.2d 790, 

790-91 (2009). 

60 Jarrell v. State, 234 Ga. 410, 414-15, 216 S.E.2d 258, 264 (1975). 

61 Murray, 286 Ga. at 259, 687 S.E.2d at 790-91. 

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For those classes of cases in which the Supreme Court lacks original appellate jurisdiction, 

the Court of Appeals has original appellate jurisdiction. The Supreme Court, of course, may review 

any decision of the Court of Appeals by writ of certiorari. 62 

§ 11.3.4 Motion to Stay Execution of Sentence 

A motion to stay execution of a sentence is closely connected with the right of the defendant 

to be released on bond pending appeal. Whether the defendant can be released pending appeal 

depends initially on whether the underlying offense was a misdemeanor or felony. Appeals of a 

misdemeanor case automatically entitle the defendant to be released on bond. 63 On the other hand, 

a motion to stay execution of a felony sentence is committed to the discretion of the judge, 64 and 

such a motion should be granted “only after careful consideration.” 65 Indeed, the release of a felony 

defendant should not be granted unless the court fi nds satisfaction of the following criteria, known 

as the “Birge” criteria based on the seminal case: (i) there is no substantial risk of the appellant 

fl eeing to avoid judgment at the conclusion of the appellate proceedings; (ii) the appellant is not 

likely to commit a serious crime, intimidate witnesses, or otherwise obstruct the administration of 

justice; and (iii) the appeal is not frivolous or taken for delay. 66 A defendant seeking bail bears the 

burden of producing evidence on each of these factors, but the state holds the burden of persuasion 

that the defendant is not entitled to pretrial release. 67 

In White v. State, 68 the Court of Appeals established a procedure for a trial court’s 

consideration of these factors. After a sentence of imprisonment has been imposed, the trial 

court should review the request for bail and make a “fresh determination” that includes: (i) giving 

notice to the applicant of the hearing and the chance to appear and be heard; (ii) requiring at such 

hearing that the defendant bear the burden of seeking a stay of execution and a release on bond; and 

(iii) considering all evidence introduced at the trial and all other oral and documentary evidence 

that the court considers appropriate. After the hearing, the court must consider the questions set 

forth in Birge. 69 White held that any affi rmative answer, indicating some risk upon the defendant’s 

62 GA. CONST. art. VI, § 6, 5. 

63 In re Inquiry Concerning a Judge, 265 Ga. 843, 848-49, 462 S.E.2d 728, 733-34 (1995). 

64 Watts v. Grimes, 224 Ga. 227, 227, 161 S.E.2d 286, 287-88 (1968); see also Myers v. St. Lawrence, 289 

Ga. 240, 240-41, 710 S.E.2d 557, 558-59 (2011). 

65 Mulligan v. Zant, 531 F. Supp. 458, 460 (M.D. Ga. 1982). 

66 O.C.G.A. § 17-6-1(e); Birge v. State, 238 Ga. 88, 230 S.E.2d 895 (1976); Prayor v. State, 214 Ga. App. 

132, 447 S.E.2d 155 (1994). 

67 Constantino v. Warren, 285 Ga. 851, 854, 684 S.E.2d 601, 604 (2009). 

68 146 Ga. App. 147, 147-48, 245 S.E.2d 870, 870-71 (1978), overruled in part by Moore v. State, 151 Ga. 

App. 413, 414, 260 S.E.2d 350, 350-51 (1979). 

69 Id. at 148, 245 S.E.2d at 871. 

- 169 -


release or some concern that the appeal was frivolous or taken for delay, required the court to set 

forth fi ndings in support of the affi rmative answer(s) and deny the defendant’s request for release. 

White was subsequently overruled to the extent that it required courts to “set forth fi ndings of fact to 

support the affi rmative answer,” but the other requirements remain 70 and require the court to point 

to the appropriate basis to justify the denial of release. 71 Failure to set forth the basis of the decision 

according to the Birge criteria will force the appellate courts to vacate the decision below. 72 

The Birge criteria do not apply, however, to applications for bond pending appeal of 

murder convictions. 73 In murder cases, the trial court has sole discretion in considering the bond 

motions and “need not give any reasons for denying an appeal bond to a convicted murderer.” 74 

Additionally, O.C.G.A. § 17-6-1(g) prohibits the granting of release on bond of any person who has 

been convicted of “murder, rape, aggravated sodomy, armed robbery, aggravated child molestation, 

child molestation, kidnapping, traffi cking in cocaine or marijuana, aggravated stalking, or aircraft 

hijacking and who has been sentenced to serve a period of incarceration of fi ve years or more.” 75 

Either the state or the defendant can appeal the trial court’s decision regarding release 

pending appeal. 76 On appeal, the defendant has the burden of proving a negative by establishing 

the nonexistence of the Birge criteria. 77 

§ 11.3.5 Appeals by Indigent Defendants 

Historically, indigent defendants were those persons found by the court to be “fi nancially 

unable to retain a lawyer.” 78 Georgia law presently provides more clarity by defi ning the term 

“indigent person” as one who earns less than a certain percentage of the income set forth in federal 

poverty guidelines and lacks other resources “that might reasonably be used to employ a lawyer 

70 Moore v. State, 151 Ga. App. 413, 414, 260 S.E.2d 350, 350 (1979). 

71 McCormick v. State, 161 Ga. App. 573, 573, 289 S.E.2d 23, 23 (1982). 

72 Leath v. State, 200 Ga. App. 539, 539, 408 S.E.2d 835, 836 (1991). 

73 Hardin v. State, 251 Ga. 533, 534, 307 S.E.2d 669, 670-71 (1983). 

74 Ayala v. State, 262 Ga. 704, 706, 425 S.E.2d 282, 285 (1993). 

75 O.C.G.A. § 17-6-1(g) (emphasis added); see also Browning v. State, 254 Ga. 478, 480, 330 S.E.2d 879, 

881-82 (1985). 

76 Owens v. State, 141 Ga. App. 154, 154-55, 232 S.E.2d 646, 647 (1977). 

77 Jarrett v. State, 222 Ga. App. 521, 521, 474 S.E.2d 702, 703 (1996); Pressel v. State, 161 Ga. App. 488, 

488, 287 S.E.2d 780, 781-82 (1982). 

78 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 11.1 (4th ed. 2004). 

- 170 -


without undue hardship on the person or his or her dependents.” 79 While providing some guidance, 

the Georgia statute leaves considerable opportunity for fact fi nding in defi ning “undue hardship.” 

Denial of a motion to proceed in forma pauperis is “fi nal and not subject to review.” 80 

As a matter of federal constitutional law, an indigent defendant is entitled to have 

legal counsel appointed to provide representation through the fi rst level of appellate review. 81 

The defendant’s federal constitutional right to appellate counsel, however, does not extend to 

discretionary appeals and petitions for certiorari, including petitions for certiorari from the United 

States Supreme Court. 82 

Similarly, the Georgia Supreme Court has ruled that, even in the absence of a constitutional 

right to appeal, once the state has established a right to appellate review, it must assure access to this 

criminal process for all criminal defendants on equal terms and conditions. 83 The Georgia Supreme 

Court also has held that an indigent defendant does not have a constitutional right to appointed 

counsel for discretionary appeals or to apply for a writ of certiorari from the Georgia Supreme 

Court. 84 

Once counsel has been appointed to provide representation during an indigent’s fi rst 

appeal from his conviction, the court-appointed counsel must pursue the appeal to the best of his 

ability. Indeed, appellate counsel’s conduct, like the conduct of trial counsel, may form the basis 

for a claim of ineffective assistance of counsel if the appellate counsel fails to raise an error or 

79 O.C.G.A. § 17-12-2. Determination of a defendant’s status as an indigent during the trial or pretrial stage 

is governed in some jurisdictions by Uniform Superior Court Rule 29. Although this provision does not 

specifi cally apply to appointment or continuation of counsel for appeal, it may also serve useful in those 

contexts. 

80 Harris v. State, 170 Ga. App. 726, 727, 318 S.E.2d 315, 316 (1984); see also Morris v. Dep’t of Transp., 

209 Ga. App. 40, 40, 432 S.E.2d 638, 639 (1993). 

81 Douglas v. California, 372 U.S. 353, 356-57 (1963); Weber v. State, 203 Ga. App. 356, 356, 416 S.E.2d 

868, 868 (1992). 

82 Ross v. Moffi tt, 417 U.S. 600, 617-18 (1974); Strozier v. Hopper, 234 Ga. 597, 601, 216 S.E.2d 847, 850 

(1975). 

83 Cunningham v. State, 232 Ga. 416, 416, 207 S.E.2d 48, 48-49 (1974). 

84 Wooten v. State, 245 Ga. 724, 724, 266 S.E.2d 927, 927 (1980). 

- 171 -


argument that any competent attorney in the same situation would raise. 85 Appointed counsel does 

not, however, have any “constitutional duty to raise every nonfrivolous issue” at the request of the 

defendant or otherwise. 86 The Supreme Court has recognized the strategic signifi cance of counsel’s 

determination to delete weaker arguments and focus on one or a few key issues on appeal. 87 

The Georgia Supreme Court has abandoned an approach allowing appointed defense 

counsel to withdraw from the appeal of a case on grounds that the appeal is frivolous. Formerly, 

defense counsel could seek to withdraw by complying with the requirements set forth in the United 

States Supreme Court case of Anders v. California. 88 In federal cases, Anders prohibits appointed 

counsel from withdrawing from a “wholly frivolous” case simply by stating that the appeal is 

without merit. The Anders decision instead requires counsel’s statement that, after fair review, 

counsel has found the appeal to be “wholly frivolous,” accompanied by a brief, submitted to both 

the court and the defendant, discussing all points of record that might arguably support the appeal. 

The appellate court then conducts its own examination of the record and transcript in order to reach 

a determination with regard to the basis for the appeal. If the court fi nds that the appeal is in fact 

“wholly frivolous,” it may dismiss the appeal or affi rm the conviction. 89 

In the 1985 case of Huguley v. State, 90 the Georgia Supreme Court held that the Anders 

procedure need not apply to state appeals, stating that, although Anders “provides a mechanism 

for withdrawal of appointed counsel at the appellate level in the event that the appeal would be 

frivolous, . . . it does not require such withdrawal.” 91 As a result, and because the review required 

of the court by Anders is burdensome, the Georgia Supreme Court no longer entertains Anders 

85 See Hall v. Lewis, 286 Ga. 767, 769-70, 692 S.E.2d 580, 585-86 (2010); Shorter v. Waters, 275 Ga. 581, 

584, 571 S.E.2d 373, 376 (2002); Battles v. Chapman, 269 Ga. 702, 703, 506 S.E.2d 838, 839-40 (1998). 

To prevail on a claim of ineffective assistance of appellate counsel, of course, a defendant must show 

not only that appellate counsel did not render reasonable assistance, but also that appellate counsel’s 

unreasonable performance prejudiced the defendant. If the basis for the ineffective assistance of counsel 

claim is a failure to call a witness, the defendant “cannot use defense counsel’s testimony about what 

an uncalled witness had been expected to say in order to establish the truth of that uncalled witness’s 

testimony.” Dickens v. State, 280 Ga. 320, 322, 627 S.E.2d 587, 590 (2006). This is hearsay and 

therefore the uncalled witness must testify or a legally recognized substitute for the witness’s testimony 

must be produced. Id. 

86 Jones v. Barnes, 463 U.S. 745, 746 (1983); Mullins v. Lavoie, 249 Ga. 411, 412, 290 S.E.2d 472, 473-74 

(1982). 

87 Jones, 463 U.S. at 751-52; Davis v. Williams, 258 Ga. 552, 553, 372 S.E.2d 228, 229-30 (1988). 

88 386 U.S. 738 (1967). For a thorough overview of Anders jurisprudence, see LAFAVE ET AL., supra note 

78, § 11.2(c). 

89 See Bethay v. State, 237 Ga. 625, 626, 229 S.E.2d 406, 406 (1976); Fegan v. State, 154 Ga. App. 791, 

791-92, 270 S.E.2d 211, 212 (1980). 

90 253 Ga. 709, 324 S.E.2d 729 (1985). 

91 Id. at 710, 324 S.E.2d at 731. 

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motions. 92 The Georgia Court of Appeals has followed suit. 93 Before the Georgia Supreme Court, 

defendants are “entitled to review of any claim which might afford [them] relief.” 94 The courts 

have not yet reconciled this development with counsel’s well-settled discretion to omit weaker 

arguments on appeal. 95 

The indigent appellant has a federal constitutional right to a trial transcript of the proceedings 

or adequate substitute, free of cost, when challenging trial errors on an appeal as of right. 96 This right 

does not necessarily entitle the defendant to the entire verbatim transcript, but it does guarantee a 

record of suffi cient completeness to permit consideration of all points raised on appeal. 97 This right 

arises regardless of whether the appellant was represented by retained counsel at trial. 98 In cases 

of partial or limited transcripts, the state must insure that the record is of suffi cient completeness to 

allow full consideration of the indigent appellant’s contentions. 99 

The representation of indigent appellants in capital cases is specifi cally governed by 

O.C.G.A. § 17-12-2 et seq. Section 17-12-12 constitutes the Offi ce of the Georgia capital defender 

division, which serves all Georgia counties. In a capital case, once a defendant is determined 

to be indigent, the court hearing the case must notify the capital defender division. 100 Barring 

a confl ict of interest, the capital defender division is required to represent all indigent persons 

charged with a capital felony for which the death penalty is being sought. 101 If a confl ict of interest 

precludes the Georgia capital defender division from defending such indigent persons, then its 

director must appoint counsel to represent the defendant. 102 If counsel is appointed, the director is 

92 Id.; Saunders v. State, 254 Ga. 262, 262 n.2, 328 S.E.2d 544, 545 n.2 (1985). 

93 Fields v. State, 189 Ga. App. 532, 532, 376 S.E.2d 912, 913-14 (1988); see also Richards v. State, 288 

Ga. App. 578, 579, 654 S.E.2d 468, 468 (2007) (affi rming that Anders motions have not been permitted 

since 1988). 

94 Huguley, 253 Ga. at 710, 324 S.E.2d at 731; see also Saunders, 254 Ga. at 262, 328 S.E.2d at 544. 

95 See Jones v. Barnes, 463 U.S. 745, 751-52 (1983); Davis v. Williams, 258 Ga. 552, 553, 372 S.E.2d 228, 

229-30 (1988). 

96 Griffi n v. Illinois, 351 U.S. 12, 19-20 (1956); Stalling v. State, 231 Ga. 37, 37, 200 S.E.2d 121, 122-23 

(1973). 

97 Bailey v. State, 232 Ga. 873, 874, 209 S.E.2d 204, 205 (1974). Motions for new trial and other posttrial 

motions are included under the defi nition of “proceeding.” Mitchell v. State, 280 Ga. 802, 802, 633 

S.E.2d 539, 540 (2006). 

98 Coleman v. State, 293 Ga. App. 251, 252, 666 S.E.2d 620, 621 (2008); Ga. Pub. Defender Standards 

Council v. State, 284 Ga. App. 660, 664, 644 S.E.2d 510, 513 (2007). 

99 Sales v. State, 152 Ga. App. 635, 635, 263 S.E.2d 519, 519 (1979). 

100 O.C.G.A. § 17-12-12(b). 

101 O.C.G.A. § 17-12-12(a). 

102 O.C.G.A. 17-12-12.1(a). 

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charged with establishing a contractual agreement with the defendant’s counsel for payment of the 

representation. 103 

§ 11.3.6 Mechanics of the Appeal 

To perfect an appeal to either the Georgia Supreme Court or Court of Appeals, the defendant 

generally must fi le a notice of appeal with the clerk of the trial court within 30 days of the entry of 

the decision or judgment. 104 The notice must set forth: 


• The appellant’s name and his or her attorney’s name and address; 

• A concise statement of the judgment, ruling, or order that forms the basis for the appeal; 

• The court appealed to; 

• A designation of those portions of the record to be omitted from the record on appeal; 

• A concise statement of the appellate court’s jurisdiction; and 

• A brief statement of the offense and punishment prescribed. 105 

If a defendant fi les a motion for new trial or a motion in arrest of judgment, the notice of appeal 

must be fi led within 30 days after the entry of the order granting, overruling, or otherwise disposing 

103 Id. The statute also advises that when feasible and prudent, a fl at fee structure shall be utilized. 

104 O.C.G.A. §§ 5-6-37, 5-6-38; GA. CT. APP. R. 11(a). 

105 O.C.G.A. § 5-6-37. 

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of that motion. 106 In contrast, motions for reconsideration, motions to vacate an order denying a 

motion for new trial, and extraordinary motions for new trial do not extend the time for fi ling a 


Failure to fi le a notice of appeal within the specifi ed time terminates the defendant’s right 

to appeal. 108 Georgia courts may excuse compliance with a statutory requirement for appeal only 

where necessary to avoid or remedy a constitutional violation concerning the appeal. 109 However, 

the court to which the appeal is directed may, without motion or notice to the other party, grant a 

single extension of not more than 30 days for fi ling a notice of appeal. 110 In addition, a defendant 

who is deprived of his right to appeal through no fault of his own may seek leave from a trial court 

to fi le an out-of-time appeal. 111 

For most felony criminal cases, it is the duty of the appellant to cause the transcript to be 

fi led by the court reporter within 30 days after the fi ling of the notice of appeal, which is the same 

rule that applies in civil cases. 112 If necessary for the court reporter to complete the transcript, 

106 O.C.G.A. § 5-6-38(a). Courts have varied in their treatment of the procedural interplay between motions 

for new trial and notices of appeal. A notice of appeal should not be fi led during the time in which 

a motion for new trial is pending before the court, but if it is, courts will look past the procedural 

irregularity and consider the appeal on its merits upon entry of the order denying the motion for a new 

trial. Hall v. State, 282 Ga. 294, 295, 647 S.E.2d 585, 578 (2007); Livingston v. State, 221 Ga. App. 563, 

564, 472 S.E.2d 317, 319 (1996); see also Taylor v. State, 287 Ga. 440, 440 n.1, 696 S.E.2d 652, 653 n.1 

(2010), Krause v. State, 286 Ga. 745, 745 n.1, 691 S.E.2d 211, 213 n.1 (2010). After the time for fi ling 

a motion for new trial has expired, the fi ling of a notice of appeal divests the trial court of jurisdiction 

to hear a motion for new trial. Elrod v. State, 222 Ga. App. 704, 705, 475 S.E.2d 710, 712 (1996). In 

the past, the fi ling of a motion for new trial or motion in arrest of judgment had been held to void the 

previously fi led notice of appeal. See Ponder v. State, 164 Ga. App. 574, 574, 298 S.E.2d 561, 561-62 

(1982). That rule has changed, however, and courts will not dismiss an appeal on that basis. Hendrick 

v. State, 257 Ga. 514, 514 n.1, 361 S.E.2d 169, 170 n.1 (1987); McCants v. State, 222 Ga. App. 75, 75, 

473 S.E.2d 514, 516 (1996). Defense counsel nevertheless should refi le the notice of appeal following 

the court’s decision on the motion for new trial or motion in arrest of judgment. 

107 Segura v. State, 280 Ga. App. 685, 686, 634 S.E.2d 858, 860 (2006); Campbell v. State, 192 Ga. App. 

316, 316, 385 S.E.2d 14, 15 (1989); Knox v. State, 180 Ga. App. 564, 564, 349 S.E.2d 753, 753-54 

(1986). 

108 Mitchell v. State, 157 Ga. App. 181, 182, 276 S.E.2d 864, 866 (1981), partially overruled on other 

grounds by Gable v. State, No. S11A1070, 2011 WL 4905705 (Ga. Oct 17, 2011). 

109 See Gable, 2011 WL 4905705, at *5. 

110 O.C.G.A. § 5-6-39. Note that this extension is only permissible in direct, rather than discretionary, 

appeals. See Gable, 2011 WL 4905705, at *3. 

111 See Moore v. State, 304 Ga. App. 105, 105, 695 S.E.2d 661, 662 (2010) (quoting Dowling v. State, 294 

Ga. App. 413, 413, 669 S.E.2d 198 (2008)). 

112 O.C.G.A. § 5-6-42. 

- 175 -


extensions of time may be obtained. 113 For death penalty appeals under the Unifi ed Appeal 

Procedure Act, different time constraints and extension rules apply. 114 

In misdemeanor cases, the trial judge decides in his or her discretion whether a case will be 

reported or transcribed at the expense of the state. 115 However, the defendant always remains free 

to have the case transcribed at his or her own expense. 116 

All felony trials must be reported, or taken down, by a court reporter. 117 At the conclusion 

of a felony trial, if the defendant is convicted, the court reporter must prepare a transcript of the trial, 

at the expense of the state. 118 The court reporter must fi le an original and one copy of the transcript 

with the clerk of the trial court, along with a certifi cate attesting to the accuracy of the transcript. 119 

If the defendant was convicted of a capital felony, an additional copy of the transcript must be 

prepared for the attorney general. 120 On appeal, the trial court transmits the original transcript to 

the appellate court as part of the record on appeal and retains one copy. 121 Non-indigent petitioners 

must pay to receive a copy of the transcript; indigent petitioners do not. 122 In lieu of a transcript, 

the parties may enter into a stipulation of facts of the case that forms the basis for the appropriate 

legal questions to be presented to the appellate court. 123 

Within fi ve days after the transcript is fi led with the clerk of the trial court, the clerk must 

prepare a complete copy of the entire record of the case and transmit it to the appellate court. 124 

In the appeal of a criminal case in which the defendant is confi ned to jail pending appeal, the trial 

113 Id. 

114 See infra § 11.6. 

115 O.C.G.A. § 5-6-41(b); Johnson v. State, 280 Ga. App. 882, 883, 635 S.E.2d 267, 268 (2006); Ward 

v. State, 188 Ga. App. 372, 373, 373 S.E.2d 65, 68 (1988). The Georgia Supreme Court has ruled, 

however, that a misdemeanor guilty plea must be transcribed if the defendant is sentenced to a term of 

imprisonment. King v. State, 270 Ga. 367, 372, 509 S.E.2d 32, 36 (1998). 

116 O.C.G.A. § 5-6-41(j). 

117 O.C.G.A. § 17-8-5(a). 

118 O.C.G.A. § 5-6-41(d); Ivory v. State, 199 Ga. App. 283, 283, 405 S.E.2d 90, 90 (1991). 

119 O.C.G.A. § 5-6-41(e). 

120 Id. 

121 Id. 

122 Coleman v. State, 293 Ga. App. 251, 252, 666 S.E.2d 620, 621-22 (2008); Carter v. State, 231 Ga. App. 

42, 45, 497 S.E.2d 812, 816 (1998); Hall v. State, 162 Ga. App. 713, 715, 293 S.E.2d 862, 865 (1982). 

123 O.C.G.A. § 5-6-41(i). 

124 O.C.G.A. § 5-6-43(a). If unable to transmit the record and transcript within the time required, the clerk 

“shall state in his certifi cate the cause of the delay and the appeal shall not be dismissed.” Id. 

- 176 -


court clerk must notify the appellate court of the defendant’s incarceration, and the appellate court 

must expedite disposition of the case. 125 

Under certain circumstances, a defendant’s failure to cause the transcript to be fi led in a 

timely fashion may be grounds for dismissal of the appeal. Although the text of O.C.G.A. § 17-8- 

5 provides for the state, through the presiding judge, to cause the transcript in a noncapital felony 

case to be fi led without a request by the defendant, it imposes no requirement that the state do so 

within a particular timeframe. 126 Under O.C.G.A. § 17-8-5, if the defendant fails to order and fi le 

the transcript within reasonable time after the notice of appeal is fi led, the trial judge may order the 

appeal dismissed after notice and opportunity for hearing. 127 

The appellant and, in the event of a cross-appeal, the cross-appellant, are required to fi le 

with the clerk of the appellate court, within 20 days after the case is docketed, an enumeration of 

errors, incorporated as Part 2 of the appellant’s brief, 128 and serve a copy on the opposing party. 129 

The enumeration of errors must concisely describe each error relied upon in the appeal, be thorough 

and complete, and may not be amended after the time for fi ling has expired. 130 Each enumeration 

must contain only one alleged error. 131 Appellate courts will not consider alleged errors raised only 

by brief and not contained in the enumeration of errors, 132 although courts have relaxed the rule for 

pro se criminal appellants. 133 The appellant must fi le a brief, and failure to do so or to appear at 

oral argument of the case could result in abandonment or dismissal of the appeal. 134 Failure of the 

state to fi le a brief does not relieve the defendant of his burden, but simply results in the statement 

of facts as alleged in the appellant’s brief being admitted. 135 

125 O.C.G.A. § 5-6-43(c). 

126 See State v. Hart, 246 Ga. 212, 213, 271 S.E.2d 133, 134-35 (1980). 

127 Id. 

128 O.C.G.A. §§ 5-6-40, 5-6-48(f); GA. CT. APP. R. 22. 

129 O.C.G.A. § 5-6-40. 

130 See MacDonald v. MacDonald, 156 Ga. App. 565, 566, 275 S.E.2d 142, 144 (1980); Burke v. State, 153 

Ga. App. 769, 770, 266 S.E.2d 549, 550 (1980). 

131 Pirkle v. Hawley, 199 Ga. App. 371, 375, 405 S.E.2d 71, 76 (1991); MacDonald, 156 Ga. App. at 566, 

275 S.E.2d at 144. This does not mean, however, that each legal argument pertaining to a single error 

must be separately enumerated. See Felix v. State, 271 Ga. 534, 539, 523 S.E.2d 1, 6 (1999). 

132 Felix, 271 Ga. at 539, 523 S.E.2d at 6; Scott v. State, 302 Ga. App. 111, 112-13, 690 S.E.2d 242, 245 

(2010). 

133 Welch v. State, 207 Ga. App. 27, 29, 427 S.E.2d 22, 25 (1992), overruled on other grounds, Davenport v. 

State, 289 Ga. 399, 402-03, 711 S.E.2d 699, 702 (2011). 

134 GA. CT. APP. R. 16(b). 

135 Colson v. State, 138 Ga. App. 366, 366, 226 S.E.2d 154, 156 (1976). 

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§ 11.3.7 Perfecting the Record for Appeal 

An appellate court will not consider issues that a party fails to preserve for appeal. The 

burden is on the complaining party to perfect the lower court’s record and designate what should 

be included for appeal. 136 In all felony cases, the court reporter must transcribe the evidence 

and proceedings. 137 In misdemeanor cases, the court reporter only transcribes the evidence and 

proceedings at the judge’s discretion. 138 This transcription shall include all reported “motions, 

colloquies, objections, rulings, evidence, whether admitted or stricken on objection or otherwise, 

copies or summaries of all documentary evidence, the charge of the court and all other proceedings 

which may be called in question on appeal or other posttrial procedure.” 139 Other matters, such as 

juror misconduct or objection to oral argument, shall also be transcribed and included as a part of 

the record upon motion of either party. 140 When any party argues that the record does not accurately 

state what happened at trial, the court will hold a hearing to ensure that the record comports with 

the truth. 141 Generally, when there are multiple defendants, a specifi ed evidentiary objection by one 

does not perfect the record as to the other. 142 However, if the other defendant expressly adopts the 

objections made by his co-defendant, then his objections will also be preserved. 143 

To perfect the record for evidentiary appeals, the attorney must “raise the objection at 

trial with the necessary degree of specifi city . . . . [S]tating ‘I object’ without giving grounds is 

insuffi cient . . . .” 144 For example, when objecting on hearsay grounds, the attorney must identify 

any portions of a document that are and are not admissible. 145 Any objection on appeal must be the 

same objection made before the trial court. 146 

136 Macias v. State, 292 Ga. App. 225, 225 n.1, 664 S.E.2d 265, 267 n.1 (2008); Lee v. State Constr. Indus. 

Licensing Bd. of Ga., 205 Ga. App. 497, 498, 423 S.E.2d 26, 27 (1992). 

137 O.C.G.A. §5-6-41(a). 

138 O.C.G.A. §5-6-41(b). 

139 O.C.G.A. §5-6-41(d). 

140 Id. 

141 O.C.G.A. §5-6-41(f). 

142 PAUL S. MILICH, MILICH’S GEORGIA RULES OF EVIDENCE § 3.1 (2011-2012 ed.). 

143 Id. 

144 HON. NEAL W. DICKERT, GEORGIA HANDBOOK ON FOUNDATIONS AND OBJECTIONS § 6:14 (2011). 

145 Id. 

146 Id. 

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An attorney must make evidentiary objections every time his opponent offers the evidence— 

even if the judge overrules his objection. 147 Standing or continuing objections are suffi cient to 

perfect the record, assuming that the grounds and force of the objection remain the same. 148 Such 

objections do not prevent attorneys from examining witnesses on and responding to such disputed 

evidence. 149 

Even when a defendant pleads guilty and does not have a trial, he must still perfect the 

record for appeal. Criminal defendants do not have an “unqualifi ed right to fi le a direct appeal from 

a judgment of conviction and sentence entered on a guilty plea.” 150 The right to direct appeal in 

such cases exists only if “the issue on appeal can be resolved by facts appearing in the record.” 151 

This record includes the transcript of the defendant’s guilty plea hearing. 152 A defendant attempting 

to appeal a guilty plea on the ground of ineffective assistance of counsel, however, “must develop 

those issues in a post-plea hearing and may not fi le a direct appeal if the only evidence in the 

record is the transcript of the guilty plea hearing.” 153 In such a case, the defendant should move to 

withdraw the plea, or if that would be untimely, should petition for a writ of habeas corpus. 154 

§ 11.3.8 Appeal Waivers in Plea Agreements 

Georgia courts have held that a criminal defendant may waive his right to appeal without 

violating public policy. 155 Such waivers are generally constitutional and enforceable and may be 

upheld even when death sentences are imposed. 156 Waivers must be knowing, intelligent, and 

voluntary. 157 Courts will enforce waivers if the government proves either that: (i) the district court 

“specifi cally questioned the defendant about the waiver during the plea colloquy”; or (ii) the record 

147 MILICH, supra note 142, § 3.2; see Turner v. State, 281 Ga. 647, 651-52, 641 S.E.2d 527, 531-32 (2007); 

Werner v. State, 246 Ga. App. 677, 678-79, 538 S.E.2d 168, 170 (2000). 

148 MILICH, supra note 142, § 3.2 (citing Norman v. State, 197 Ga. App. 333, 398 S.E.2d 395 (1990)). 

149 MILICH, supra note 142, § 3.2. 

150 Lee v. State, 277 Ga. App. 887, 889, 627 S.E.2d 901, 903 (2006). 

151 Id. 

152 Shumake v. State, 257 Ga. App. 209, 209, 570 S.E.2d 648, 648 (2002). 

153 Denova v. State, 268 Ga. App. 16, 17, 601 S.E.2d 400, 403 (2004). 

154 Id.; see also Shelton v. State, 307 Ga. App. 599, 600-01, 705 S.E.2d 699, 701 (2011). 

155 Thomas v. State, 260 Ga. 262, 264, 392 S.E.2d 520, 522 (1990); see also Baker v. State, 284 Ga. 280, 

281, 663 S.E.2d 261, 262 (2008). 

156 Gilmore v. Utah, 429. U.S. 1012, 1013 (1976); Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). 

157 Thomas, 260 Ga. at 264, 392 S.E.2d at 522. 

- 179 -


demonstrates that “the defendant otherwise understood the full signifi cance of the waiver.” 158 

Appellate courts commonly uphold waivers of the right to appeal when they are included in a 

negotiated agreement for the defendant to receive a lesser sentence. 159 However, in the context 

of plea negotiations, there must be a real benefi t to the defendant and “[a] prosecutor may not 

induce a plea through a meaningless or illusory promise.” 160 Waivers of the right to seek postconviction 

relief from life imprisonment are treated similarly when challenged via habeas corpus 

proceedings. 161 Both types of waiver are thought to foster the fi nality of proceedings: “‘Only by 

holding the defendant and the state to the bargain is fi nality achieved.’” 162 

§ 11.4 State Habeas Corpus 

The Latin term “habeas corpus” translates literally as “that you have the body.” 163 The 

writ of habeas corpus is a judicial order directing the appropriate governmental offi cial to deliver 

an individual within his or her custody before the court. 164 For this reason, writs of habeas corpus 

are normally directed to the wardens of prisons or sheriffs in charge of jails, because they are 

responsible for maintaining custody. When a writ of habeas corpus is granted, the person to whom 

it is directed must produce the individual detained to inquire into the lawfulness of the detention. 

Thus, a court that grants the writ will not necessarily grant the relief requested. If the detention is 

found to be unconstitutional, the habeas court will grant the relief requested by the petition, usually 

vacating the judgment, and remand the defendant to the court in which he or she was convicted. 

The Habeas Corpus Act makes the writ of habeas corpus available to criminal defendants 

under the following circumstances: (i) when any person is restrained of his liberty under any pretext 

whatsoever, except under sentence of a state court of record; (ii) when a person alleges that another, 

in whom for any cause he is interested, is kept illegally from the custody of the applicant; or 

(iii) when any person is restrained of his liberty as a result of a sentence imposed by any state 

court of record. 165 The writ of habeas corpus is unavailable to a defendant if there are alternative 

adequate remedies that have not been exhausted before the trial court or on appeal. 166 Special 

158 United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997). 

159 Bryan v. State, 296 Ga. App. 341, 342-43, 674 S.E.2d 390, 392 (2009). 

160 Hooks v. State, 284 Ga. 531, 535, 668 S.E.2d 718, 722 (2008) (internal quotation marks and citation 

omitted), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010). 

161 Allen v. Thomas, 265 Ga. 518, 520, 458 S.E.2d 107, 108 (1995). 

162 Id. (quoting Thomas v. State, 260 Ga. at 263, 392 S.E.2d at 522). 

163 BLACK’S LAW DICTIONARY 778 (9th ed. 2009). 

164 Id. 

165 O.C.G.A. § 9-14-1. 

166 Britt v. Conway, 283 Ga. 474, 475, 660 S.E.2d 526, 528 (2008). 

- 180 -


provisions govern writs by or on behalf of those sentenced by any state court. 167 These special 

provisions are discussed below in Section 11.4.2. 

§ 11.4.1 State Habeas Corpus for Non-Sentenced Detainees 

For persons detained for reasons other than the imposition of a sentence, an application 

for a writ of habeas corpus must be by petition signed by the applicant, his attorney, or some other 

person on his behalf, and must contain the following: (i) the name or description of the person whose 

liberty is restrained; (ii) the person restraining, the mode of restraint, and the place of detention; 

(iii) the cause or pretense of restraint; (iv) the alleged illegality in the restraint, distinctly set forth, 

or any other reason why the writ is sought; and (v) a prayer for the writ of habeas corpus. 168 A 

suggested form of the writ appears in the Code. 169 

The petitioner or some other person acting on his behalf must verify the writ and present it 

to the judge of the superior court in the circuit where the defendant is being detained or to the judge 

of the probate court of that county. 170 Service of a writ of habeas corpus on the detaining party 

must be made by an offi cer authorized to make a return of any process or by any other citizen by 

delivering a copy of the writ. 171 If personal service cannot be effected, the applicant may leave the 

writ at the jail or other place at which the defendant is detained. 172 

The return must be made under oath and at the time and place specifi ed by the court. 173 If 

the return admits the custody or detention of the party, the respondent has two days from the time 

of service for every 20 miles which the party has to travel from the place of detention to the place 

appointed for hearing, and must produce the individual “unless prevented by providential cause 

or prohibited by law.” 174 If the return denies custody of the defendant, it must distinctly state the 

latest date of custody and when and to whom custody of the individual was transferred. 175 Failure 

to do so may subject the respondent to punishment for contempt, but does not require release of the 

petitioner. 176 

167 O.C.G.A. §§ 9-14-40 et seq. 

168 O.C.G.A. § 9-14-3(1)-(5). 

169 O.C.G.A. § 9-14-6. 

170 O.C.G.A. § 9-14-4; Dyer v. Allen, 238 Ga. 516, 516, 233 S.E.2d 772, 773 (1977). 

171 O.C.G.A. § 9-14-8. 

172 Id. 

173 O.C.G.A. §§ 9-14-10, 9-14-11. 

174 O.C.G.A. § 9-14-11. 

175 O.C.G.A. § 9-14-12. 

176 Bailey v. Baker, 232 Ga. 84, 85, 205 S.E.2d 278, 279 (1974). 

- 181 -


The court may dismiss the petition without a hearing if “the petition and exhibits attached 

thereto disclose without contradiction that the petition is without merit.” 177 If, however, the judge 

determines that the detention might be illegal, the judge must grant the writ and order the person 

restraining the defendant to deliver the defendant to the court at a specifi ed time to determine the 

cause of the detention. 178 The court must notify the d istrict attorney, if he is in the county. 179 The 

court may not discharge the petitioner if “it appears that the detention is authorized by law,” or if the 

irregularity is minor. 180 Where “the principles of law and justice” require, the court shall discharge 

the petitioner or admit him to bail. 181 

Appeals in preconviction habeas corpus proceedings fall under the laws governing all 

appeals as they relate to the time and manner of signing, fi ling, serving, transmitting, and hearing. 182 

The Supreme Court must “give a speedy hearing and determination” under the applicable appellate 

rules. 183 

§ 11.4.2 State Habeas Corpus for Sentenced Detainees 

The Habeas Corpus Act also provides an exclusive procedure for seeking a writ of habeas 

corpus for individuals in custody by virtue of a sentence imposed by a state court. 184 An individual 

so imprisoned may institute a habeas corpus proceeding by fi ling a petition with “the superior court 

of the county in which the petitioner is being detained” 185 that asserts a “substantial denial” of his 

rights under the United States Constitution or the Georgia Constitution. 186 

177 Daker v. Warren, 288 Ga. 799, 800, 709 S.E.2d 222, 223 (2011) (internal quotation marks and citation 

omitted). 

178 O.C.G.A. § 9-14-5. 

179 O.C.G.A. § 9-14-15. If the district attorney is not in the county, notice shall be given to the prosecutor. 

Id. 

180 O.C.G.A. § 9-14-16; see also O.C.G.A. § 9-14-17. 

181 O.C.G.A. § 9-14-19. 

182 See O.C.G.A. § 9-14-22. 

183 Id. 

184 O.C.G.A. §§ 9-14-40 et seq.; Battle v. Sparks, 211 Ga. App. 106, 106, 438 S.E.2d 185, 185-86 (1993). 

185 O.C.G.A. § 9-14-43. 

186 O.C.G.A. § 9-14-42. Although a mere statutory violation once could provide a predicate for a habeas 

petition, see McDuffi e v. Jones, 248 Ga. 544, 544-45, 283 S.E.2d 601, 602-03 (1981) (Jordan, J., 

concurring), overruled by West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000), habeas corpus now is 

available only to vindicate constitutional rights. Smith v. State, 287 Ga. 391, 403-04, 697 S.E.2d 177, 

188 (2010); Britt v. Smith, 274 Ga. 611, 612, 556 S.E.2d 435, 437 (2001). 

- 182 -


The petition must identify the proceeding in which the petitioner was convicted, provide 

the date of fi nal judgment, set forth the aspect of the proceeding violating the petitioner’s rights, and 

state with specifi city which claims were raised at trial or on direct appeal and provide appropriate 

citations to the record. 187 The applicant should attach all necessary affi davits and other evidence, 

but omit argument and citations of authorities. 188 He or she, however, may fi le a brief in support 

of the petition. 189 The applicant should serve the petition on the person having custody of him or 

her. 190 If custody is with the Department of Corrections, the applicant should serve an additional 

copy on the attorney general by mailing a copy of the petition and a proper certifi cate of service. 191 

The respondent must answer or move to dismiss the petition within 20 days from its fi ling or 

docketing. 192 

If a petition for the fi rst time challenges a state court proceeding that resulted in a death 

sentence, that procedure is governed by O.C.G.A. § 9-14-47.1. Within 10 days from the receipt 

of the petition, the superior court clerk must notify the Council of Superior Court Judges. 193 The 

Council then has 30 days to assign the case to a judge in the circuit where the conviction was 

imposed for further proceedings pursuant to Uniform Superior Court Rules 44.1-44.13. 194 

For all other petitions, the court is required to set a hearing on the petition within a reasonable 

time after the fi ling of the defensive pleadings. 195 Because a habeas corpus proceeding is a civil 

and not a criminal action, the burden of proof lies on the defendant to establish his claim by a 

preponderance of the evidence, 196 which can include depositions, oral testimony, sworn affi davits, 

or other evidence in consideration of the petition. 197 Additionally, the court shall review the trial 

record and transcript and consider whether the petitioner complied with Georgia procedural rules at 

trial and on appeal regarding the timeliness of his motions or objections. 198 If the court determines 

187 O.C.G.A. § 9-14-44. 

188 Id. 

189 Id. 

190 O.C.G.A. § 9-14-45. 

191 Id. 

192 O.C.G.A. § 9-14-47. 

193 O.C.G.A. § 9-14-47.1(b). 

194 Id. 

195 O.C.G.A. § 9-14-47. 

196 Stynchcombe v. Rhodes, 238 Ga. 74, 74, 231 S.E.2d 63, 63-64 (1976). One exception to this rule is that 

the state bears the burden—even on habeas review—of establishing that a guilty plea was voluntarily 

entered. Roberts v. Greenway, 233 Ga. 473, 475, 211 S.E.2d 764, 766 (1975). 

197 O.C.G.A. § 9-14-48(a)-(c). 

198 O.C.G.A. § 9-14-48(d). 

- 183 -


that the defendant has not properly complied with Georgia procedural rules at trial and on appeal, 

it will not grant habeas corpus relief, absent a showing of cause for non-compliance and of actual 

prejudice. 199 The Code, however, specifi cally states that habeas corpus relief shall be granted in all 

cases to avoid a “miscarriage of justice.” 200 After a review of all evidence introduced in the habeas 

corpus proceeding and of the trial record and transcript, the court must make written fi ndings of fact 

and conclusions of law upon which its judgment is based. 201 

Appeals in habeas corpus proceedings regarding sentenced detainees are governed by 

Title 5, Chapter 6 of the Georgia Code, except that orders adverse to the petitioner may not form 

the basis of an appeal unless the Supreme Court certifi es probable cause for the appeal. 202 The 

appellant must apply to the clerk of the Supreme Court for a certifi cate of probable cause within 30 

days from the entry of the order denying relief, and a notice of appeal must also be fi led within that 

time. 203 For a pro se prisoner appealing from a decision on a habeas corpus petition, the application 

for certifi cate of probable cause to appeal and notice of appeal will be deemed fi led “on the date 

he delivers [the notices] to prison authorities for forwarding to the clerk of the superior court.” 204 

Under the Supreme Court Rules, a certifi cate of probable cause to appeal will be granted where 

there is “arguable merit,” provided there has been compliance with Fullwood v. Sivley, 271 Ga. 

248, 517 S.E.2d 511 (1999), and Hicks v. Scott, Warden, 273 Ga. 358, 541 S.E.2d 27 (2001). 205 

Fullwood and Hicks emphasize that the Supreme Court has jurisdiction to consider an application 

199 Id. 

200 O.C.G.A. § 9-14-48(c). Although the courts have not offered a precise defi nition of “miscarriage of 

justice,” the Supreme Court has explained that: 

[T]he term is by no means to be deemed synonymous with procedural irregularity, or even 

with reversible error. To the contrary, it demands a much greater substance, approaching 

perhaps the imprisonment of one who, not only is not guilty of the specifi c offense for 

which he is convicted, but, further, is not even culpable in the circumstances under inquiry. 

Valenzuela v. Newsome, 253 Ga. 793, 796, 325 S.E.2d 370, 374 (1985); see also Perkins v. Hall, 288 Ga. 

810, 824-25, 708 S.E.2d 335, 347-48 (2011). 

201 O.C.G.A. §§ 9-14-48, 9-14-49. 

202 O.C.G.A. § 9-14-52. 

203 Id. 

204 Ferguson v. Freeman, 282 Ga. 180, 182, 646 S.E.2d 65, 67 (2007) (citing Massaline v. Williams, 274 

Ga. 552, 555, 554 S.E.2d 720, 720 (2001)). This is referred to as the “mailbox rule.” The date on the 

certifi cate of service gives rise to a rebuttable presumption that it was delivered to authorities on that date. 

Id. The Supreme Court has clarifi ed that the mailbox rule is a “judicially-created rule of accommodation” 

and that it only applies to appellate jurisdiction, to prisoners not represented by counsel, and in actions 

for habeas relief. Roberts v. Cooper, 286 Ga. 657, 661, 691 S.E.2d 875, 878 (2010). In the Supreme 

Court, all documents sent by pro se prisoners are considered fi led on the date the prisoner delivers them 

to prison offi cials for mailing. GA. S. CT. R. 13. 

205 GA. S. CT. R. 36. 

- 184 -


only if the prisoner timely fi les both an application for a certifi cate of probable cause and a notice 

of appeal as required by O.C.G.A. § 9-14-52(b). 206 

For the 30 days following the entry of the habeas order denying relief to begin running, 

the Georgia Supreme Court has required that the defendant be informed of the proper appellate 

procedure for appealing a denial of habeas relief. 207 Furthermore, “the mere reference to the statute 

outlining the procedure to be followed to appeal the denial of habeas relief is an insuffi cient method 

by which to notify a habeas petitioner.” 208 

As in any other case, the clerk of the superior court from which the case is being appealed 

must provide the court with a copy of the record and transcript when the notice of appeal is fi led 209 

and may not refuse to do so on the grounds that the indigent petitioner has not paid previously 

assessed costs. 210 

§ 11.5 Federal Habeas Corpus 

After a state inmate has exhausted his or her state court remedies, he or she may then seek 

relief through the federal court system. 211 While this chapter focuses on remedies available in state 

court, the potential for federal habeas relief and a brief overview of the key deadlines are included 

herein, because of their importance to many state criminal appellants. 

According to the federal habeas corpus statute, a state prisoner who seeks federal habeas 

corpus relief is required to fi le his or her federal petition within one year after “the date on which 

the [state court conviction] became fi nal by the conclusion of direct review or the expiration of the 

time for seeking such review.” 212 

For example, assume that a petitioner pleaded guilty to a crime on March 25, 1990. Under 

Georgia law, the petitioner would not have an unqualifi ed right to pursue a direct appeal from a 

guilty plea, and if he or she did attempt to appeal the plea, the court could only address those issues 

206 Fullwood, 271 Ga. at 250-51, 517 S.E.2d at 514 (holding that jurisdiction depends on full compliance 

with O.C.G.A. § 9-14-52(b)); Hicks, 273 Ga. at 359, 541 S.E.2d at 28 (suggesting that the habeas court 

must inform pro se petitioner of proper procedure to obtain appellate review). 

207 Thomas v. State, 284 Ga. 327, 327, 667 S.E.2d 375, 376 (2008). 

208 Id. at 327, 667 S.E.2d at 376-77 (emphasis added). 

209 O.C.G.A. § 9-14-52(b). 

210 Brand v. Szabo, 263 Ga. 119, 119, 428 S.E.2d 325, 325-26 (1993). 

211 See King v. Chase, 384 F. App’x 972, 974 (11th Cir. 2010). 

212 28 U.S.C. § 2244(d)(1)(A). 

- 185 -


that could be resolved from the face of the pleadings. 213 Under O.C.G.A. § 5-6-38(a), to seek a 

direct appeal from the guilty plea, the petitioner would need to fi le a notice of appeal within 30 days 

after the plea was entered. If the petitioner did not fi le a petition by April 24, 1990, the conviction 

would be “fi nal” on April 24, 1990, since the time for fi ling a notice of appeal would have expired. 

In theory, then, the petitioner would be required to fi le the federal habeas petition within one year 

of the April 24, 1990, date. The petitioner would be required to exhaust state habeas options before 

seeking federal habeas relief, however, and could toll the one-year period with a “properly fi led 

application for State post-conviction or other collateral review” of the judgment. 214 Importantly, if 

the petitioner allowed the year to pass and then fi led a federal habeas petition without having fi led a 

state habeas petition, the warden or custodian would move to dismiss the petitioner’s federal habeas 

petition for failure to exhaust the potential for state habeas relief. Following such dismissal, the 

petitioner might then pursue state habeas relief but would be unable to re-fi le the federal habeas 

petition because the one-year period of 28 U.S.C. § 2244(d) would have run. 215 

§ 11.6 Unifi ed Appeal Procedure 

The Unifi ed Appeal Procedure Act (“UAP Act”) requires the Supreme Court to establish a 

unifi ed review procedure for the presentation of all possible challenges to the conviction, sentence, 

and detention of defendants sentenced to death. 216 The UAP Act further requires the Supreme Court 

to establish a series of checklists to be utilized by the court and parties in cases where the death 

penalty is sought or imposed. 217 The UAP Act is to “make certain that all possible matters which 

could be raised in defense have been considered . . . and either asserted in a timely and correct 

213 Smith v. State, 266 Ga. 687, 470 S.E.2d 436 (1996). 

214 28 U.S.C. § 2244(d)(2). 

215 The U.S. Supreme Court has explained that such operation of the tolling provision further encourages 

petitioners to begin by seeking relief in state court, as follows: 

By tolling the limitation period for the pursuit of state remedies and not during the pendency 

of applications for federal review, § 2244(d)(2) provides a powerful incentive for litigants 

to exhaust all available state remedies before proceeding in the lower federal courts. But 

if the statute were construed so as to give applications for federal review the same tolling 

effect as applications for state collateral review, then § 2244(d)(2) would furnish little 

incentive for individuals to seek relief from the state courts before fi ling federal habeas 

petitions. The tolling provision instead would be indifferent between state and federal 

fi lings. 

Duncan v. Walker, 533 U.S. 167, 180 (2001). 

216 O.C.G.A. § 17-10-36(a). For an article evaluating the impact of the UAP Act, see Marion T. Pope, Jr., A 

Study of the Unifi ed Appeal Procedure in Georgia, 23 GA. L. REV. 185 (1988). 

217 Id. 

- 186 -


manner or waived in accordance with applicable legal requirements.” 218 Signifi cantly, the UAP Act 

does not limit or restrict the defendant’s customary grounds of review, including a writ of habeas 

corpus. 

The title “Unifi ed Appeal Procedure” may be a misnomer in some respects, because the 

vast majority of the Act pertains to pretrial proceedings and the trial. 219 The Act does, however, 

establish some signifi cant procedures for death penalty appeals, which are set out below. 

§ 11.6.1 Review Proceedings in the Superior Court 

The Unifi ed Appeal Procedure recognizes the absence of any requirement for a death penalty 

defendant to fi le a motion for a new trial as a prerequisite for appellate review. If the superior court 

does not conduct a post-trial review of the case, it must transmit the case to the Supreme Court for 

review, regardless of whether a motion for new trial or direct appeal has been fi led. 220 No provision 

of the Code or the Supreme Court Rules in any way limits a death penalty defendant’s right also 

to proceed by writ of habeas corpus. 221 The criminal death penalty defendant may now choose to 

pursue review by way of a motion for new trial or by direct appeal, or he may just allow the case 

to be presented directly to the Supreme Court for review. 222 However, the Supreme Court must 

review all death penalty cases under the Unifi ed Appeal Procedure, notwithstanding a death penalty 

defendant’s request that all appeal efforts be halted. 223 The Unifi ed Appeal Procedure also does not 

limit the grounds of review available to a defendant. 224 

The trial court reporter must fi le a complete transcript of all phases of the case within 

45 days from the jury verdict. 225 The trial judge may grant one extension for an additional 15 

days. 226 A “complete transcript” includes: (i) all pretrial hearings; (ii) the selection of jurors, 

including challenges for cause; (iii) the voir dire examination and the striking of the jury; (iv) the 

opening statement and closing arguments of counsel; (v) the examination of all witnesses; (vi) all 

218 O.C.G.A. § 17-10-36(b); Gibson v. Turpin, 270 Ga. 855, 858, 513 S.E.2d 186, 189 (1999). 

219 The pretrial and trial procedures set forth under the Unifi ed Appeal Procedure rules have been scrutinized 

and ultimately upheld on numerous constitutional grounds. Sliger v. State, 248 Ga. 316, 317-18, 282 

S.E.2d 291, 292-93 (1981); Meders v. State, 260 Ga. 49, 55, 389 S.E.2d 320, 324 (1990). 

220 UNIFIED APP. P. R. IV.A.1. 

221 O.C.G.A. § 17-10-36(c). 

222 Id. 

223 Patillo v. State, 258 Ga. 255, 255 n.1, 368 S.E.2d 493, 494 (1988). 

224 UNIFIED APP. P. R. IV.A.1.b. 

225 UNIFIED APP. P. R. IV.A.1. But see O.C.G.A. § 17-8-5(a) (providing for 90 days). 

226 

UNIFIED APP. P. R. IV.A.1. But see O.C.G.A. § 17-8-5(a) (authorizing the chief justice to grant an 

extension of up to 60 days). 

- 187 -


documentary evidence, including photography; (vii) all oral motions and all hearings on oral and 

written motions; (viii) all oral objections and all hearings on oral and written objections; (ix) all 

conferences and hearings of every description and for every purpose conducted between court 

and counsel, including all bench and chamber conferences; (x) all oral stipulations of counsel; 

(xi) the charges of the court to the jury during the guilt/innocence and sentencing phases of the 

proceedings; (xii) the publication of the verdict and the polling of the jury; (xiii) the pronouncement 

of sentence; and (xiv) all oral comments, instructions, directions, admonitions, rulings, and orders 

of the court. 227 

If the defendant fi les a motion for new trial, the transcript of the motion for new trial must 

be taken down, transcribed by the court reporter, and fi led within 20 days of the hearing. 228 The 

judge who imposed the death sentence may grant an extension in writing, not to exceed 15 days. 229 

§ 11.6.2 Appeal Proceedings in the Supreme Court 

Once a death penalty case is docketed in the Supreme Court, the Supreme Court may direct 

the superior court to conduct additional hearings or conferences or to make additional fi nding of 

facts or conclusions of law regarding issues raised by the parties on appeal or by the Supreme Court 

sua sponte. 230 The Supreme Court, however, retains jurisdiction over the case, notwithstanding any 

matter referred to the superior court for further review. 231 

The Supreme Court determines whether the evidence at trial supports the verdict. 232 The 

court must review each assertion of error timely raised by the defendant during trial proceedings. 

If necessary, the Supreme Court may direct defense counsel and counsel for the state to brief and 

argue any and all additional grounds not previously briefed or argued. 

§ 11.6.3 The Unifi ed Appeal Procedure Checklist 

The checklist for the Unifi ed Appeal Procedure provides an extensive list of categories of 

possible errors at the pretrial, trial, and post-trial stages. 233 Such errors include warrantless arrests, 

failure to preserve evidence, prohibited prosecutorial comments, and faulty jury instructions. The 

227 UNIFIED APP. P. R. IV.A.1. 

228 UNIFIED APP. P. R. IV.A.2.e. 

229 Id. 

230 UNIFIED APP. P. R. IV.B.1. 

231 Id. 

232 UNIFIED APP. P. R. IV.B.2. 

233 A copy of the checklist is available online from the Supreme Court’s website. See http://www. 

georgiacourts.org/fi les/Supreme%20Court%20Rules/UNIFIED+APPEAL_08_10.pdf. 

- 188 -


checklist represents a signifi cant and useful tool for counsel involved in the conduct of a death 

penalty case. 

§ 11.7 Overview of Appellate Options 

The following table provides a quick overview of appellate options available to criminal 

defendants through the Georgia courts. Please also refer to the underlying laws and statutes 

covering these motions. 

Motion Time Limit Procedural 

Requirement 

Motion for New Trial File within 30 days of 

entry of judgment of 

conviction. O.C.G.A. § 

5-5-40 (a). 

Motion in Arrest of 

Judgment 

Motion to Set Aside 

Judgment 

Direction of Verdict of 

Acquittal 

File during term 

of court in which 

judgment is obtained. 

File within three years 

from entry of the 

judgment complained 

of. O.C.G.A. § 9-11- 

60(f). 

Move at the close of 

the evidence offered 

by the prosecuting 

attorney or at the close 

of the case. 

Coram Nobis May be fi led at any 

time. 

- 189 - 

Section of 

Chapter 

Petitioner fi les motion. § 11.2 

Petitioner fi les motion. 

Opposite party must 

have reasonable 

notice. 

If it cannot be legally 

served as any other 

motion, then it may be 

served by any means 

by which an original 

complaint may be 

legally served. 

Defendant makes 

motion. 

§ 11.2.2 

N/A 

N/A 

Petitioner fi les motion. § 11.2.3



Requirement 

Appeal File within 30 days of 

entry of fi nal judgment. 

O.C.G.A. § 5-6-38 (a). 

Interlocutory Appeal File within 10 days 

of the entry of a 

qualifying order. 

O.C.G.A. § 5-7-2. 

State Habeas Corpus File within one 

year in the case of a 

misdemeanor or within 

four years in the case of 

a felony. O.C.G.A. § 

9-14-42 (c). 

Appeals from Habeas 

Corpus Procedures 

File within 30 days 

of the entry of the 

order denying relief. 

O.C.G.A. § 9-14-52. 

- 190 - 

File notice with the 

clerk of the trial court. 

O.C.G.A. §§ 5-6-37, 

5-6-38, Ga. Ct. App. 

R. 11 (a). File appeal 

with appropriate 

appellate court. 

Either party seeks 

certifi cation and if 

granted, the party may 

fi le the application 

with the appropriate 

appellate court. 

Non-Sentenced 

Detainees: File signed 

petition and present to 

judge of the superior 

court in the circuit 

where defendant is 

detained or to the 

judge of the probate 

court in that county 

Sentenced Detainees: 

File signed petition 

attaching necessary 

affi davits and 

evidence. May fi le 

a brief in support of 

petition. 

Appellant must apply 

for a certifi cate of 

probable cause to the 

clerk of the Georgia 

Supreme Court and 

fi le a notice of appeal. 

Section of 

Chapter 

§ 11.3 

§ 11.3.2 

§ 11.4 

§ 11.4.2



Requirement 

Federal Habeas 

Corpus 

File within one year 

of state conviction 

being fi nal. 28 U.S.C. § 

2244(d)(1)(A). 

- 191 - 

Petition is generally 

fi led in United States 

District Court for 

the district in which 

petitioner is in 

custody or the district 

in which petitioner 

was convicted and 

sentenced. 

Section of 

Chapter 

§ 11.5


- 192 -

12 

CIVIL APPEALS INVOLVING PRO SE PARTIES 

Samuel R. Rutherford* 


The Georgia Constitution states: “No person shall be deprived of the right to prosecute 

or defend, either in person or by an attorney, that person’s own cause in any of the courts of this 

state.” 1 This provision has been interpreted to guarantee the right of self-representation. 2 

* Mr. Rutherford is a senior associate at the law fi rm of Alston & Bird LLP. His practice is primarily 

devoted to business litigation. He received his J.D., with honors, in 2005 from the University of Chicago, 

and his A.B., magna cum laude, in 2002 from the University of Georgia. 

1 GA. CONST. art. I, § 1, 12. 

2 Johnston v. Aderhold, 216 Ga. App. 487, 487, 455 S.E.2d 84, 86 (1995). 

- 193 -


The number of pro se cases both at the trial and the appellate level continues to rise. 3 

Cases involving at least one pro se party take place in a broad range of contexts, including disputes 

regarding divorce, child custody, adoption, employment, estate matters, breach of contract, slander, 

libel, and professional malpractice. This chapter provides an outline of appellate procedure as it 

relates to civil cases involving pro se litigants. 

§ 12.2 Pro Se Parties Generally 

§ 12.2.1 No Constitutional Right to Be Represented by an Attorney in a Civil 

Case 

A civil litigant has no constitutional right to effective representation by counsel or 

to appointment of counsel when the party is indigent. “‘The Sixth Amendment to the federal 

Constitution and Art. I, Sec. I, Par. XIV of the Georgia Constitution provide for effective assistance 

of counsel for one charged with a criminal offense, not participants in a civil dispute.’” 4 Georgia 

courts have interpreted this explicit constitutional guarantee of counsel in criminal actions as an 

implicit denial of a right to effective counsel in other contexts. Accordingly, case law holds that 

an indigent’s constitutional right to appointed counsel in criminal actions does not extend to civil 

actions. 5 Moreover, pro se appellants cannot challenge the actions of their chosen trial counsel in 

civil cases by contending they were denied the right of effective assistance of counsel. 6 

3 See Stephan Landsman, The Growing Challenge of Pro Se Litigation, 13 LEWIS & CLARK L. REV. 439, 

440 (2009) (reviewing the limited statistical data available regarding pro se fi lings and observing that 

“America’s courts appear to be facing an inexorably rising tide of pro se litigation”). 

4 Bergmann v. McCullough, 218 Ga. App. 353, 356, 461 S.E.2d 544, 548 (1995) (quoting Calhoun v. 

Maynard, 196 Ga. App. 219, 220, 395 S.E.2d 645, 646 (1990)). 

5 See, e.g., Stegeman v. Heritage Bank, 304 Ga. App. 172, 175, 695 S.E.2d 340, 342 (2010) (recognizing 

that “[a] trial court lacks authority to appoint counsel to represent an indigent civil litigant absent clear 

statutory or constitutional authority allowing appointed counsel to be compensated from state or county 

funds”); Mingledorff v. Stokely, 223 Ga. App. 183, 184, 477 S.E.2d 374, 375 (1996) (observing that pro 

se indigent prisoner was not entitled to appointed counsel in civil proceedings). 

6 See generally Johnson v. Smith, 260 Ga. App. 722, 580 S.E.2d 674 (2003) (fi nding without merit pro 

se appellant’s enumeration of ineffective assistance of counsel where appellant had petitioned the trial 

court for a civil protective order); Finch v. Brown, 216 Ga. App. 451, 452, 454 S.E.2d 807, 809 (1995) 

(holding in declaratory judgment action involving real estate dispute that pro se appellant had not been 

denied effective assistance of trial counsel because the federal and state constitutions only provide such 

guarantees with respect to defense of criminal offenses). 

- 194 -

CHAPTER 12: CIVIL APPEALS INVOLVING PRO SE PARTIES 

While rejecting any claim of a constitutional right to counsel in a civil case, Georgia courts 

repeatedly have recognized the strength of the constitutional right to self-representation. 7 This 

right has been limited in very few circumstances. For example, a party cannot fi le pro se pleadings 

with the court if the party is at the same time represented by counsel of record. 8 Some courts have 

restricted particular pro se litigants’ ability to fi le future lawsuits, in cases in which the court found 

repeated case fi lings by the litigant to be without merit. 9 Generally, though, Georgia courts fi rmly 

have upheld a party’s right to self-representation in civil cases. “[M]eaningful access to the courts 

must be scrupulously guarded, as it is a constitutional right universally respected where the rule of 

law governs.” 10 

§ 12.2.2 Pro Se Parties Are Not Permitted to Violate Georgia Rules 

Regarding the Unauthorized Practice of Law 

It is unlawful for a non-attorney to “practice or appear as an attorney at law for any person 

other than himself in any court of this state or before any judicial body.” 11 Despite attempts by 

pro se parties to circumvent this prohibition, Georgia courts construe the statute strictly and do not 

allow a layperson to represent another individual in a judicial proceeding. 12 

Non-attorneys are likewise prohibited from representing corporations in courts of record. 

Although Georgia courts formerly permitted a corporation to appear pro se in a lawsuit if an 

7 See Johnston, 216 Ga. App. at 487-88, 455 S.E.2d at 85-86 (permitting attorney to represent himself as 

plaintiff in action involving promissory note despite defendant’s allegations of attorney-client privilege 

and violation of bar rules). 

8 See Ervin v. Turner, 291 Ga. App. 719, 723-24, 662 S.E.2d 721, 725 (2008) (holding that a party did not 

have the right to act pro se while represented by counsel of record); Jacobsen v. Haldi, 210 Ga. App. 

817, 819, 437 S.E.2d 819, 821 (1993) (refusing to accept pro se fi lings by litigant represented by counsel 

because “[t]he court is not required to accept random appearance and fi lings by both the client and his 

attorneys”). 

9 See, e.g., Smith v. Adamson, 226 Ga. App. 698, 699-700, 487 S.E.2d 386, 388 (1997) (affi rming order 

which required pro se litigant’s future suits to be approved by a judge and accompanied by two affi davits 

and noting that limitation placed on ability to fi le pro se actions did not deprive litigant of meaningful 

access to the courts); cf. In re Lawsuits of Carter, 235 Ga. App. 551, 554, 510 S.E.2d 91, 94 (1998) 

(vacating order which required pro se party to hire an attorney to gain access to trial court). 

10 In re Lawsuits of Carter, 235 Ga. App. at 554, 510 S.E.2d at 94. 

11 O.C.G.A. § 15-19-51(a)(1) (emphasis added). 

12 See Keith v. Alexander Underwriters Gen. Agency, Inc., 219 Ga. App. 36, 38, 463 S.E.2d 732, 733- 

34 (1995) (holding that father, a non-lawyer, could not fi le pro se answer for defendant daughter and 

defendant business, despite “power of attorney” daughter had previously granted to father to operate 

business); see also O’Kelley v. Skinner, Wilson & Beals, 132 Ga. App. 792, 793, 209 S.E.2d 242, 243 

(1974) (holding trial court correctly refused to allow a non-lawyer to represent the plaintiffs during 

motion hearing). 

- 195 -


individual such as the corporation’s chairman or president fi led pro se pleadings on behalf of the 

corporation, 13 the Supreme Court has now held that “only a licensed attorney is authorized to 

represent a corporation in a proceeding in a court of record, including any proceeding that may be 

transferred to a court of record from a court not of record.” 14 This holding is in accordance with the 

majority of other jurisdictions that have found non-lawyer representation of a corporation contrary 

to the public interest. 15 “Having accepted the benefi ts of incorporation [i.e., protection of individual 

shareholders from personal liability], a corporation must also accept the burdens, ‘including the 

need to hire counsel to sue or defend in court.’” 16 The requirement of representation by a licensed 

attorney has also been extended to limited liability companies under the same reasoning. 17 

§ 12.3 Failure to Follow Procedural Rules Can Be Fatal 

Appellate courts have provided deference to the pro se status of appellants and afforded 

some measure of liberality to their fi lings. 18 As noted by the Court of Appeals in Bennett v. Moody, 

“Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but 

to aid parties in presenting their arguments in a manner most likely to be fully and effi ciently 

comprehended by this Court.” 19 Despite such examples of leniency, failure to comply with the 

rules of appellate procedure can prove fatal to a pro se appellant’s appeal. 

13 Universal Scientifi c, Inc. v. Wolf, 165 Ga. App. 752, 752, 302 S.E.2d 616, 616 (1983), overruled by 

Eckles v. Atlanta Tech. Grp., Inc., 267 Ga. 801, 485 S.E.2d 22 (1997); Knickerbocker Tax Sys., Inc. v. 

Texaco, Inc., 130 Ga. App. 383, 383-84, 203 S.E.2d 290, 291 (1973), overruled by Eckles, 267 Ga. 801, 

485 S.E.2d 22. 

14 Eckles, 267 Ga. at 805, 485 S.E.2d at 26. The Supreme Court has recognized the potential diffi culty 

posed by lack of notice of this requirement to small business owners who may be served with a complaint 

in both their individual capacity and in their capacity as chief executive offi cer or president of the 

corporation. Temp-N-Around Med. Res., Inc. v. Avondale Joint Venture, 248 Ga. App. 231, 546 S.E.2d 

23 (2001). Nevertheless, the requirement has been strictly enforced by the appellate courts. 

15 Eckles, 267 Ga. at 805, 485 S.E.2d at 26. 

16 Id. (quoting Woodford Mfg. Co. v. A.O.Q., Inc., 772 P.2d 652, 654 (Colo. App. 1988)). 

17 See Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 417, 634 S.E.2d 188, 189 (2006) 

(citing Winzer v. EHCA Dunwoody, LLC, 277 Ga. App. 710, 713-14, 627 S.E.2d 426, 430 (2006)). 

18 See Bennett v. Moody, 225 Ga. App. 95, 96, 483 S.E.2d 350, 351 (1997) (considering pro se appellant’s 

contentions despite fact that enumerations of error did not comply with rules of appellate procedure); 

Hickey v. Kostas Chiropractic, P.A., 259 Ga. App. 222, 223, 576 S.E.2d 614, 615 (2003) (applying less 

stringent standards to pro se appellant’s brief, and attempting to address the merits of appeal despite 

noncompliance with rules). 

19 225 Ga. App. at 96, 483 S.E.2d at 351 (citations and internal quotation marks omitted); see also Portee 

v. State, 277 Ga. App. 536, 536, 627 S.E.2d 63, 65 (2006) (exercising discretion in reviewing claims of 

error by pro se appellant despite failure to abide by appellate rule requiring statement of how error was 

preserved for appeal). 

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§ 12.3.1 Failure to Pay Costs 


In the Supreme Court and the Court of Appeals, costs in civil cases are $300. 20 A pro se 

appellant is not excused from payment of such costs unless the pro se party has obtained pauper’s 

status. 21 In the Court of Appeals, absent payment of costs or submission of a pauper’s affi davit, the 

clerk cannot accept the appellant’s brief. 22 

§ 12.3.2 Failure to Appeal to Proper Court or Seek Certifi cate of Immediate 

Review 

Georgia courts frequently dismiss pro se appeals when the court lacks jurisdiction over the 

appeal or the appeal otherwise is not justiciable. For example, the Court of Appeals will dismiss 

a pro se party’s appeal where the appellate court does not have jurisdiction over another court’s 

challenged actions. 23 Likewise, a pro se appeal will be dismissed if the appellant was not a party 

to the lower court’s proceedings. 24 Additionally, a pro se appeal is subject to dismissal if “the 

decision or judgment is not then appealable,” if the issue has been rendered moot, or if the issue 

was specifi cally reserved by the trial judge for later ruling. 25 

Two of the most common reasons for dismissals in the pro se context, however, involve 

a pro se party’s failure to seek a certifi cate of immediate review when required under O.C.G.A. 

§ 5-6-34(b) or to properly to set forth an application for appeal in special cases pursuant to 

O.C.G.A. § 5-6-35. 26 Failure to follow such procedural requirements has resulted in the dismissal 


21 See GA. S. CT. R. 5; GA. CT. APP. R. 5. 

22 GA. CT. APP. R. 5. 

23 See Denson v. Chase Manhattan Mortg. Corp., 219 Ga. App. 320, 320, 464 S.E.2d 906, 906 (1995) 

(dismissing challenge to actions taken by federal bankruptcy court because state appellate court did not 

have jurisdiction over that court). 

24 See Coffi eld v. Kuperman, 269 Ga. App. 432, 604 S.E.2d 288 (2004) (dismissing appeal of pro se 

party based on lack of jurisdiction because appellant failed to follow statutory requirements governing 

intervention in lower court case); Gates v. Rutledge, 151 Ga. App. 844, 844, 261 S.E.2d 757, 757 (1979) 

(dismissing appeal from child custody award by juvenile court because pro se appellant/father was not a 

party to the juvenile court proceeding and did not have standing to appeal that court’s decision). 

25 O.C.G.A. § 5-6-48(b)(2)-(3); St. Clair v. Robert A. McNeil Corp., 151 Ga. App. 876, 877, 261 S.E.2d 

782, 783 (1979) (holding appeal from grant of writ of possession moot because appellant was no longer 

in possession of premises). 

26 See, e.g., Amaechi v. Lib Props., Ltd., 254 Ga. App. 74, 561 S.E.2d 137 (2002) (dismissing appeal by pro 

se appellant where appellant failed to timely apply for discretionary appeal). 

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of pro se appeals in a wide range of proceedings. 27 Likewise, under the Prison Litigation Reform 

Act, 28 Georgia courts will dismiss prisoners’ appeals in civil actions when they do not adhere to 

discretionary appeal procedures set forth in O.C.G.A. § 5-6-35. 29 As noted in Jarallah v. Pickett 

Suite Hotel, while pro se litigants are entitled to avail themselves of the courts in civil matters to 

the same degree as litigants represented by counsel, “where one elects to use the court system, court 

orders and rules may not be totally ignored with impunity.” 30 

§ 12.3.3 Failure to File Notice of Appeal in Timely Manner 

The requirements for timely fi ling an appeal pose another frequent pitfall for pro se litigants. 

Under Georgia law, a party must fi le a notice of appeal within 30 days of the entry of an appealable 

decision or judgment, or within 30 days following entry of an order disposing of a motion for new 

trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict. 31 

Although pro se parties’ pleadings are construed liberally, the Court of Appeals consistently 

has dismissed appeals by pro se parties if those appellants do not timely fi le a notice of appeal or 

seek an extension of time for fi ling, even when the fi ling is only one day late. 32 Moreover, a court 

can properly deny a motion to extend the deadline to fi le a notice of appeal when the appellant 

27 Kappelmeier v. Homer, 226 Ga. App. 379, 380, 486 S.E.2d 612, 613 (1997) (dismissing pro se party’s 

appeal of trial court’s refusal to set aside judgment in libel action because appellant did not obtain order 

allowing discretionary appeal); Ware v. Handy Storage, 222 Ga. App. 339, 339, 474 S.E.2d 240, 240 

(1996) (dismissing appeal in conversion action due to appellant’s failure to comply with interlocutory 

appeal procedures); Brown v. Dep’t of Human Res., 204 Ga. App. 27, 28, 418 S.E.2d 404, 404 (1992) 

(dismissing appeal from paternity petition because pro se appellant did not follow discretionary appeal 

procedures set forth in O.C.G.A. § 5-6-35(a)(2)); Jarallah v. Pickett Suite Hotel, 193 Ga. App. 325, 326- 

27, 388 S.E.2d 333, 335 (1989) (dismissing appeal in employment dispute because pro se appellant did 

not adhere to discretionary appellate procedures); Calloway v. Calloway, 161 Ga. App. 752, 753, 289 

S.E.2d 559, 559 (1982) (dismissing appeal of denial of a recusal motion because pro se appellant failed 

to obtain a certifi cate of immediate review or grant of permission to appeal from Court of Appeals). 

28 O.C.G.A. § 42-12-8. 

29 Syms v. West, 234 Ga. App. 674, 674, 507 S.E.2d 530, 530 (1998) (dismissing pro se appeal because 

inmate failed to comply with discretionary appeal procedure); Gates v. Yeager, 232 Ga. App. 91, 91, 498 

S.E.2d 372, 372 (1998) (same). 

30 193 Ga. App. at 327, 388 S.E.2d at 335. 

31 O.C.G.A. §§ 5-6-38, 5-6-48(b)(1). 

32 See Banks v. Green, 205 Ga. App. 589, 423 S.E.2d 31 (1992) (dismissing appeal where pro se appellant 

fi led notice of appeal 33 days after entry of order); Jones v. Perkins, 192 Ga. App. 343, 343, 384 S.E.2d 

927, 927 (1989) (dismissing pro se party’s appeal when notice of appeal was fi led one day late, reasoning 

that party had not requested an extension of time pursuant to O.C.G.A. § 5-6-39); see also In re Doe, 

188 Ga. App. 255, 255-56, 372 S.E.2d 822, 823 (1988) (upholding dismissal of appeal because notice of 

appeal was fi led 33 days after entry of judgment). 

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does not fi le the motion in a timely manner. 33 Motions for reconsideration of the grant or denial 

of a motion for summary judgment or motion for new trial do not operate to extend the deadline 

for fi ling the notice of appeal. 34 Likewise, an order of the trial court granting a pro se appellant an 

extension of time to fi le the transcript does not extend the time to fi le the notice of appeal. 35 

§ 12.3.4 Defi ciencies in or Lack of Record on Appeal 

The failure to hire a court reporter at the trial court level often causes additional diffi culty 

in litigation involving pro se parties. Although, in such cases, Georgia statutory law allows the 

parties to prepare a transcript in narrative form that is based on the collective recollection of the 

parties, this substitute for a transcript is rarely used and requires mutual agreement or resolution 

by the trial judge. 36 Just like any other litigant, a pro se party is obligated “to compile a complete 

record of what happened at the trial level which, at a minimum, includes a transcript of that portion 

of the proceedings in which the error is alleged to have occurred or alternatively, a stipulation of the 

case approved by the judge who conducted the proceeding.” 37 Accordingly, when a pro se appellant 

fails to fi le a transcript or its statutorily-authorized substitute, the appeal will fail. 38 

In cases where the proceedings are reported, a pro se appellant’s failure to transmit any 

or all of the needed transcripts to the Court of Appeals may preclude appellate review. “Where 

no transcript is provided, it is presumed that the fi ndings of the trial court were supported by the 

33 Grovnor v. Bd. of Regents of the Univ. Sys., 231 Ga. App. 120, 121, 497 S.E.2d 652, 653 (1998) (affi rming 

denial of motion for extension of time within which to fi le notice of appeal where motion for extension 

was fi led three months after order dismissing lawsuit). 

34 See Majeed v. Randall, 279 Ga. App. 679, 680, 632 S.E.2d 413, 415 (2006) (“A motion for reconsideration 

does not extend the time for fi ling a notice of appeal.” (citation and internal quotation marks omitted)); 

Tel. Adver. Corp. of Am. v. Aaron Rents, Inc., 206 Ga. App. 493, 494, 426 S.E.2d 54, 54 (1992) (holding 

that pro se party’s motion for reconsideration did not operate to extend the 30-day period for fi ling the 

notice of appeal). 

35 Campbell v. McLarnon, 265 Ga. App. 87, 593 S.E.2d 21 (2003). 

36 O.C.G.A. § 5-6-41(c), (d), (g), (i); see also, e.g., Woods v. Gatch, 272 Ga. App. 642, 642 n.1, 613 S.E.2d 

187, 188 n.1 (2005) (refusing to consider narrative transcript prepared by pro se appellant because of 

failure to adhere to requirements set forth in O.C.G.A § 5-6-40). 

37 Ueal v. AAA Partners in Adoption, Inc., 269 Ga. App. 258, 260, 603 S.E.2d 672, 674 (2004) (affi rming 

trial court’s decision where neither the trial transcript nor an approved stipulation was included by pro se 

appellant in record on appeal) (quoting Alexander v. Mosley, 271 Ga. 2, 2, 515 S.E.2d 145, 146 (1999)). 

38 See McKinney v. Alexander Props. Grp., Inc., 228 Ga. App. 77, 77-78, 491 S.E.2d 131, 132 (1997) 

(affi rming grant of writ of possession and noting that court could not consider merits of pro se party’s 

claims without transcript of proceedings or attempt to recreate the record through a statutorily-authorized 

substitute for a transcript). 

- 199 -


evidence.” 39 Georgia courts do not allow a pro se appellant to rely on factual allegations in a brief 

instead of transmitting and relying on the transcript. 40 Even in cases in which appellants have 

attached specially-prepared affi davits to their briefs, the Court of Appeals has held that it could not 

consider the merits of their contentions. 41 

§ 12.3.5 Unreasonable Delay in Transmitting Record or Failure to Pay 

Transcription Costs 

The procedural requirements for transmitting the record to the appellate court apply equally 

to pro se parties and those represented by counsel. 42 After notice and an opportunity for hearing, 

the trial court may order an appeal dismissed “where there has been an unreasonable delay in the 

transmission of the record to the appellate court, and it is seen that the delay was inexcusable and 

was caused by the failure of [the appellant] to pay costs in the trial court or fi le an affi davit of 

indigence.” 43 A pro se appellant’s failure to pay transcription costs or communicate with the court 

39 Butler v. First Family Mortg. Corp. of Fla., 191 Ga. App. 360, 361, 381 S.E.2d 551, 552 (1989) (rejecting 

pro se appeal because failure to provide Court of Appeals with a transcript provides no basis to reverse 

trial court’s judgment); see also Lamb v. T-Shirt City, Inc., 272 Ga. App. 298, 302, 612 S.E.2d 108, 112 

(2005) (declining to review pro se appellant’s assertion of error where appellant specifi cally requested 

that transcript of lower court hearing be excluded from the the record on appeal); Thomas v. RGL Assocs., 

200 Ga. App. 283, 283, 407 S.E.2d 420, 421 (1991) (affi rming trial court where facts alleged by pro se 

appellant in her brief as errors did not appear in any record transmitted on appeal, despite the fact that 

the court was “conscious of [its] responsibility to ensure access to the courts, particularly to pro se 

litigants”). 

40 See GA. CT. APP. R. 25(c)(2)(i); see also Keita v. K&S Trading, 292 Ga. App. 116, 119, 663 S.E.2d 362, 

364 (2008) (acknowledging sympathy for pro se appellant, but stating “we have made no exceptions to 

the rule where the defi ciency [in the record] is attributable to the fact that the responsible party is pro 

se or unfamiliar with appellate procedure”); Williams v. Lemon, 194 Ga. App. 249, 252, 390 S.E.2d 89, 

92 (1990) (affi rming trial court’s grant of a directed verdict against pro se party because contested “off 

the record” remarks by judge were not refl ected in the record on appeal and could not be established by 

appellant’s brief alone). 

41 Leathers v. Timex Corp., 174 Ga. App. 430, 431, 330 S.E.2d 102, 103 (1985) (holding that Court of 

Appeals must take its evidence from the record and could not consider brief and attached affi davits 

specifi cally prepared by the pro se appellant as part of the appeal); see also Jones v. Powell, 190 Ga. App. 

619, 620, 379 S.E.2d 529, 530 (1989) (affi rming trial court’s grant of summary judgment to defendant 

and holding that pro se appellant could not supplement the record on appeal by attaching documents to 

brief). 

42 See Ware v. Vaughn, 225 Ga. App. 303, 305-06, 483 S.E.2d 698, 700 (1997) (dismissing appeal due to 

pro se appellant’s unreasonable and deliberate delays in fi ling transcript); Gerdes v. Dziewinski, 189 

Ga. App. 802, 803-04, 377 S.E.2d 550, 551-52 (1989) (dismissing appeal due to pro se appellant’s 

unreasonable delay in forwarding transcript despite appellant’s contention of communication problems 

with court reporter). 

43 O.C.G.A. § 5-6-48(c). 

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reporter charged with transcribing and transmitting the record to the appellate court will not be 

excused. 44 

§ 12.3.6 Defi ciencies in or Lack of Enumeration of Errors, Citation of 

Authority 

A pro se appellant’s complete failure to fi le any form of a brief or enumeration of errors 

may cause the appeal to be dismissed. 45 Even when an enumeration of errors and a brief are 

fi led, the failure to accurately or clearly enumerate errors on appeal or provide citations to support 

arguments may be fatal for an appeal. The Court of Appeals has shown some willingness, however, 

to be more lenient with pro se appellants’ attempts to enumerate error and support their arguments 

with legal authority. 46 

§ 12.3.6.1 Failure to Properly Enumerate Error 

All appellants have the burden of showing error affi rmatively by the record. 47 In the case of 

pro se appellants, however, Georgia courts may look beyond the appellant’s enumeration of errors 

(or lack thereof) and examine the entire record on appeal to determine whether the pro se appellant 

has met his or her burden. 48 

Under O.C.G.A. § 5-6-48(f): 

Where it is apparent from the notice of appeal, the record, the enumeration of errors, 

or any combination of the foregoing . . . what errors are sought to be asserted upon 

44 Gerdes, 189 Ga. App. at 803-04, 377 S.E.2d at 551-52. 

45 See GA. S. CT. R. 10; GA. CT. APP. R. 23(a); see also Florence v. Green Acres Mobile Home Estates, Inc., 

230 Ga. App. 91, 91, 495 S.E.2d 346, 347 (1998) (dismissing appeal in possession action where pro se 

appellant failed to comply with order directing her to fi le an enumeration of errors and brief); Trimble v. 

Colonial Fin. Servs., Inc., 163 Ga. App. 193, 193, 293 S.E.2d 404, 404 (1982) (dismissing pro se appeal 

for failure to fi le brief or enumeration of errors by deadline ordered by court even though appellant fi led 

a request for a continuance on date of deadline). 

46 See, e.g., Cotton v. Bank S., N.A., 212 Ga. App. 1, 3, 440 S.E.2d 704, 706 (1994) (noting that as a general 

matter “[p]ro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers” 

(quoting Thompson v. Long, 201 Ga. App. 480, 481, 411 S.E.2d 322, 323 (1991))). 

47 Collier v. S.C. Ins. Co., 205 Ga. App. 323, 324, 422 S.E.2d 52, 53 (1992). 

48 See Jorisch v. Rhythm Festival, Inc., 247 Ga. App. 470, 472, 544 S.E.2d 459, 461-62 (2001) (noting that 

pro se pleadings are held to less stringent standards than those drafted by attorneys and looking beyond 

enumeration of errors to notice of appeal and entire record in considering appeal); McHaffi e v. Decatur 

Fed. Sav. & Loan Ass’n, 214 Ga. App. 368, 369, 448 S.E.2d 36, 36-37 (1994) (noting that although pro 

se appellant’s “brief” and “enumerations of error” did not assert alleged errors by trial court, deference 

to appellant’s pro se status required Court of Appeals to examine the record to ascertain whether the 

evidence generally supported the judgment). 

- 201 -


appeal, the appeal shall be considered in accordance therewith notwithstanding . . . 

that the enumeration of errors fails to enumerate clearly the errors sought to be 

reviewed. 49 

Georgia courts have frequently interpreted this provision more liberally in the case of pro 

se appellants out of deference to their status and a concern for due process. However, when review 

of the record in its entirety shows the allegations “to be so defi cient in specifi city, clarity, and 

substance as not to present any colorable issue upon which reversal of the judgment below might 

be predicated,” the court will dismiss the appeal despite the leniency afforded pro se pleadings. 50 

§ 12.3.6.2 Abandonment of Enumerated Errors 

When a pro se appellant does enumerate error, but the enumeration is not argued or 

addressed in the appellant’s brief, the matter will be deemed abandoned. 51 As noted by the court in 

Sulejman v. Marinello, “[a]ppellate judges should not be expected to take pilgrimages into records 

in search of error without the compass of citation and argument.” 52 Attempts by pro se appellants 

to fi le supplemental briefs or other documents to rectify failure in the initial brief to address an 

enumerated error have been rejected. 53 

With respect to the preservation or abandonment of error in the trial court proceeding, the 

appellate courts have not accorded pro se litigants a high degree of latitude. If a pro se party fails 

to object at trial or fails to preserve an alleged error by perfecting the record for appeal, the courts 

49 O.C.G.A. § 5-6-48(f); see also Hopkinson v. Labovitz, 231 Ga. App. 557, 558, 499 S.E.2d 338, 339 

(1998) (noting that pro se appellant’s misnomers in enumerations of error did not require dismissal). 

50 Seligman v. Milam Builders, Inc., 191 Ga. App. 224, 224-25, 381 S.E.2d 401, 402 (1989); see also Riley 

v. Ga. Dep’t of Revenue, 295 Ga. App. 656, 657, 673 S.E.2d 49, 49-50 (2009) (dismissing appeal where 

pro se appellant “failed completely to follow the rules”); Moss v. Rutzke, 223 Ga. App. 58, 59, 476 

S.E.2d 770, 771-72 (1996) (dismissing pro se appellant’s appeal where in response to court order to fi le 

enumeration of errors, appellant merely re-fi led verbatim 20 pages of his original appellate brief). 

51 GA. S. CT. R. 22; see also GA. CT. APP. R. 25(c)(2). 

52 217 Ga. App. 319, 320, 457 S.E.2d 251, 252 (1995); see also Bennett v. Quick, 305 Ga. App. 415, 416- 

17, 699 S.E.2d 539, 540-41 (2010). 

53 See, e.g., Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 897, 328 S.E.2d 564, 565 (1985) (holding 

that pro se appellant’s supplemental brief did not “resurrect from abandonment enumerations not 

addressed in the initial brief”). 

- 202 -


will fi nd a subsequent enumeration of error as to that ground to be without merit. 54 Similarly, if a 

pro se party objects to a matter in the proceeding below, but does not argue the matter on appeal, 

the courts consider the matter abandoned. 55 

§ 12.3.6.3 Citation of Authorities 

Georgia courts have held enumerations of error not supported by citations of authority 

to be abandoned, even if such omissions are committed by pro se appellants. 56 “Any enumerated 

error not supported by argument or citation of authority in the brief shall be deemed abandoned.” 57 

Citations of authority that are unrelated to the enumerations of error set forth by an appellant or 

irrelevant to matters at issue in the trial below are likewise insuffi cient, even when fi led by a pro 

se litigant. 58 

54 See, e.g., Williams v. Lemon, 194 Ga. App. 249, 252, 390 S.E.2d 89, 92 (1990) (affi rming trial court’s 

grant of directed verdict and fi nding no error in trial court’s exclusion of a certifi ed copy of the defendant’s 

prior conviction when pro se party failed to tender the document into evidence in order to perfect the 

record for appeal); In re J.E.L., 189 Ga. App. 203, 205, 375 S.E.2d 490, 492 (1988) (holding that pro se 

appellant/father could not challenge on appeal the trial court’s admission of a deposition in a juvenile 

court proceeding where the deposition was admitted without objection). 

55 See Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550-51, 340 S.E.2d 207, 210-11 (1986). 

56 Sulejman, 217 Ga. App. at 320, 457 S.E.2d at 252; Ehlers, 177 Ga. App. at 550, 340 S.E.2d at 210 

(noting that “[i]t is basic appellate practice that . . . error enumerated but neither argued in the brief nor 

supported by citation of authority is considered abandoned”). 

57 GA. S. CT. R. 22; see also GA. CT. APP. R. 25(c)(2); Hall v. Hall, 281 Ga. App. 256, 257, 635 S.E.2d 

847, 848 (2006) (affi rming trial court’s grant of writ of possession in dispossessory action where pro se 

appellant failed to support arguments by citation to the record or citation of authority). 

58 See Leroy v. Atlanta Protective Assocs., Inc., 255 Ga. App. 849, 849, 567 S.E.2d 93, 93-94 (2002) 

(affi rming trial court in appeal in which brief was comprised of less than three pages and contained 

only a single citation of authority to a Code section of general application); McHaffi e v. Decatur Fed. 

Sav. & Loan Ass’n, 214 Ga. App. 368, 369, 448 S.E.2d 36, 36 (1994) (affi rming trial court where pro se 

appellant supported his “statement of the issues” with citations of authority completely irrelevant to the 

enumerations of error or the issues at trial). 

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§ 12.4 Frivolous Appeal 

§ 12.4.1 The Appellate Courts May Impose Monetary Sanctions Against Pro 

Se Appellants for Frivolous Appeals 

Pursuant to statutory authority and appellate court rules, litigants fi ling frivolous appeals 

are subject to the imposition of monetary penalties or sanctions. 59 In cases in which a judgment 

for a sum certain has been affi rmed, the Georgia Code permits courts to assess a penalty of 10 

percent of the damages against appellants who pursue appeals solely for the purpose of delay. 60 

This statutory provision has been applied to appeals by pro se appellants in cases in which the court 

determines that there was “no valid reason to anticipate reversal of the trial court’s judgment.” 61 

In addition to the statutory penalty provided in O.C.G.A. § 5-6-6, the rules of both the 

Supreme Court and the Court of Appeals provide for monetary sanctions against appellants for 

frivolous appeals. Under those rules, the courts may impose a penalty not to exceed $2,500 against 

any party in a civil case in which the appeal is determined to be frivolous. 62 This penalty may be 

imposed with or without motion. 63 

§ 12.4.2 Sanctions Are Generally Limited to Egregious Cases 

Georgia courts typically have limited monetary penalties against pro se appellants to cases 

in which appellants acted egregiously in pursuing frivolous appeals. For example, the Court of 

Appeals has assessed monetary penalties against pro se appellants when they have fi led multiple 

59 See, e.g., Popham v. Garrow, 275 Ga. App. 499, 500, 621 S.E.2d 468, 469-70 (2005) (imposing penalty 

of $1,000 in favor of appellees where pro se appellant failed to support any of the enumerated errors 

in his appellate brief with citations to the record or legal authority). For a more complete discussion of 

frivolous appeal issues, see Chapter 13 of this Handbook. 

60 See O.C.G.A. § 5-6-6. 

61 See, e.g., Holland v. Tri-City Hosp. Auth., 162 Ga. App. 256, 256, 291 S.E.2d 107, 108 (1982) (awarding 

10 percent damages for frivolous appeal where pro se appellant had no reason to anticipate reversal of 

the trial court’s decision because appellant had not fi led any response to motion for summary judgment). 

62 GA. S. CT. R. 6; GA. CT. APP. R. 15(b); see also, e.g., Rolleston v. Kennedy, 277 Ga. 541, 542, 591 S.E.2d 

834, 836 (2004) (assessing $2,500 frivolous appeal penalty against pro se appellant under Supreme 

Court Rule 6); Hightower v. Kendall Co., 225 Ga. App. 71, 73, 483 S.E.2d 294, 297 (1997) (assessing 

$500 penalty for frivolous appeal against pro se appellant pursuant to Court of Appeals Rule 15(b)). 

63 GA. S. CT. R. 6; GA. CT. APP. R. 15(b). 

- 204 -


frivolous pro se lawsuits and appeals, 64 proceeded with an appeal despite assessment of costs and 

attorneys’ fees by the trial court on grounds that the original action constituted frivolous litigation, 65 

or intentionally delayed appellate proceedings by failing to include a transcript from the lower 

court ruling. 66 

Notwithstanding these instances, the Court of Appeals has often declined to impose monetary 

penalties against pro se parties when the circumstances were less egregious. For example, in cases 

in which a pro se appellant has failed to present enumerations of error clearly or has presented 

arguments without proper legal citations or support, the Court of Appeals has acknowledged a 

reluctance to impose monetary penalties. 67 Likewise, when an appeal by a pro se appellant lacks 

merit, but the appellate court cannot conclude that the appeal was undertaken solely for purposes of 

delay or harassment, the Court of Appeals has declined to impose monetary sanctions. 68 

64 Dean v. Nationsbank, 226 Ga. App. 370, 372-73, 486 S.E.2d 647, 648 (1997) (assessing $1,000 penalty 

to discourage pro se party from fi ling further frivolous appeals); King v. Gilman Paper Co., 184 Ga. 

App. 228, 229, 361 S.E.2d 390, 391-92 (1987) (assessing $500 frivolous appeal penalty against pro se 

appellant in second suit against same employer, asserting same allegations, and noting that the appellant 

“apparently has impressed no one but himself with the logic of his arguments”). 

65 Hightower, 225 Ga. App. at 73, 483 S.E.2d at 297 (holding that “[pro se appellant’s] pursuit of the claim 

after having been apprised of the law constituted frivolous litigation” and imposing monetary penalty). 

66 Trevino v. Flanders, 231 Ga. App. 782, 782, 501 S.E.2d 13, 14 (1998) (imposing $500 penalty for 

frivolous appeal in dispossessory proceeding where appellant intentionally failed to include hearing 

transcript or statutorily authorized substitute); Kulkov v. Botvinik, 230 Ga. App. 204, 204, 495 S.E.2d 

662, 663 (1998) (assessing $500 penalty for frivolous appeal in suit between father and son where 

appellant intentionally failed to include hearing transcript or statutorily authorized substitute). 

67 See Antonone v. Atl. Mut. Fire Ins. Co., 191 Ga. App. 457, 457, 382 S.E.2d 126, 128 (1989) (refusing 

to impose penalty against pro se appellant for frivolous appeal and noting that court was “reluctant to 

penalize a pro se litigant for what may have been a defi ciency in his brief rather than a defi ciency in the 

merits of his case in the court below”). 

68 Seligman v. Milam Builders, Inc., 191 Ga. App. 224, 224, 381 S.E.2d 401, 402 (1989) (declining to 

impose 10 percent penalty on pro se appellant under O.C.G.A. § 5-6-6 when court did not fi nd that 

appeal was undertaken solely for purposes of delay or harassment). 

- 205 -


- 206 -

13 

FRIVOLOUS APPEALS 

Christopher A. Riley* 

Lisa K. Bojko** 

[W]e must remember that a frivolous appeal is a grave injustice, not only to the 

opposite party to the case, but to the state itself; for every case brought to this 

court entails an expense upon the state greater than the sum which it receives from 

the maximum costs collectible. 1 

* Mr. Riley is a partner with the law fi rm of Alston & Bird LLP focusing on complex commercial litigation 

with an emphasis on fi nancial services litigation. He received a B.S. from Florida State University in 1995, 

and a J.D. from Vanderbilt University School of Law in 1998. 

** Ms. Bojko is a senior associate in the Litigation & Trial Practice Group at Alston & Bird LLP and 

focuses on civil litigation. She received her undergraduate degree from Vanderbilt University in 2003 

and her J.D. from Syracuse University in 2006. 

1 Moore & Jester v. H.B. Smith Mach. Co., 4 Ga. App. 151, 154, 60 S.E. 1035, 1036 (1908). 

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Georgia appellate courts police the fi ling of frivolous appeals with three provisions. One is 

statutory; the other two are rules of court. 2 Although some overlap exists, particularly in the central 

determination of when an appeal has been taken solely for delay, these three provisions differ in 

several respects. Most signifi cantly, O.C.G.A. § 5-6-6 applies only to cases in which there has been 

a money judgment. 3 In contrast, Supreme Court Rule 6 and Court of Appeals Rule 15(b) may be 

invoked regardless of whether there has been a money judgment. 4 Additionally, when a sum certain 

has been awarded, Rule 15(b) may be invoked simultaneously with O.C.G.A. § 5-6-6. 5 These and 

other distinctions are discussed in the sections that follow. 

Aside from the potential pecuniary losses the offending party may incur, there are ethical 

considerations an attorney contemplating fi ling an appeal should keep in mind. The Rules and 

Regulations of the State Bar of Georgia provide guidelines for ethical considerations associated 

with fi ling an appeal. 6 

§ 13.2 Statutory Damages for Frivolous Appeals 

Section 5-6-6 of the Georgia Code provides as follows: 

When in the opinion of the court the case was taken up for delay only, 10 percent 

damages may be awarded by the appellate court upon any judgment for a sum 

certain which has been affi rmed. The award shall be entered in the remittitur. 7 

Section 5-6-6 penalizes appellants who bring baseless appeals to delay paying money 

judgments. For this provision to apply, the judgment must be affi rmed; a dismissal of the appeal 

cannot serve as a basis for an award under the statute. 8 Once a decision is affi rmed by the appellate 

court, the case is remitted and the damages award is increased by 10 percent. To impose this 

2 See O.C.G.A. § 5-6-6; GA. CT. APP. R. 15(b); GA. S. CT. R. 6. 

3 Shepherd v. Epps, 242 Ga. 322, 323, 249 S.E.2d 33, 33 (1978). 

4 See GA. S. CT. R. 6 (permitting imposition of penalty “in any civil case”); GA. CT. APP. R. 15(b) (same). 

5 See, e.g., Kent v. David G. Brown, P.E., Inc., 248 Ga. App. 447, 450, 545 S.E.2d 598, 600 (2001), aff’d, 

274 Ga. 849, 561 S.E.2d 89 (2002). 

6 The Rules appear in the current State Bar of Georgia Directory & Handbook. See http://www.gabar.org/ 

handbook/. 

7 O.C.G.A. § 5-6-6. 

8 Noaha, LLC v. Vista Antiques & Persian Rugs, Inc., 306 Ga. App. 323, 326, 702 S.E.2d 660, 663 (2010) 

(“We are unable to assess damages under OCGA § 5-6-6 because that Code section does not authorize 

damages when an appeal is dismissed.”); Scott v. McLaughlin, 192 Ga. App. 230, 230, 384 S.E.2d 212, 

213 (1989). 

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CHAPTER 13: FRIVOLOUS APPEALS 

sanction, the appellate court must fi nd that there is a judgment for a sum certain and that the appeal 

was fi led only for delay. 9 

This last requirement, the intent to delay, is at the core of the frivolous appeal statute: it 

determines whether the appeal is in fact frivolous. Likewise, courts determining whether penalties 

are appropriate under Court of Appeals Rule 15 or Supreme Court Rule 6 will also consider whether 

the appeal has been brought “solely for delay” and frequently rely on case law applying O.C.G.A. 

§ 5-6-6 when imposing penalties under these rules. 10 

§ 13.2.1 Requirement of Judgment for a Sum Certain 

A money judgment for a sum certain is an essential element of O.C.G.A. § 5-6-6. 11 Thus, 

even where the court concludes that the appeal was taken only for delay, if there is no defi nite 

money judgment, a motion for statutory sanctions must be denied. 12 Without a money judgment, 

the aggrieved appellee turns to court rules. In the Court of Appeals, one looks to Rule 15; in the 

Supreme Court, to Rule 6. 

In certain situations, only part of a judgment can be determined as a sum certain. For 

instance, in Refrigerated Transport Co. v. Kennelly, 13 the defendant employer took a frivolous 

appeal of the trial court’s affi rmance of an award of damages by the Workers’ Compensation 

Board. 14 Because the award was for continuing payments for partial disability and a period of total 

disability, the Court of Appeals instructed that 10-percent damages be computed against only the 

compensation that was defi nitely ascertainable at the date of judgment. 15 

§ 13.2.2 “Solely for Delay”: What Makes an Appeal Frivolous 

Determining whether an appeal is frivolous and therefore subject to penalties under any 

of the three provisions requires an assessment of the appellant’s motive in seeking review. The 

9 Hatchett v. Hatchett, 240 Ga. 103, 103, 239 S.E.2d 512, 513 (1977). 

10 See, e.g., Powell v. Bank S., N.A., 202 Ga. App. 852, 854, 415 S.E.2d 543, 544 (1992). 

11 Shepherd v. Epps, 242 Ga. 322, 323, 249 S.E.2d 33, 34 (1978) (denying motion to assess damages under 

predecessor statute in appeal from summary judgment for defendants because appeal was not taken from 

a judgment for a sum certain). 

12 See Fawcett v. Fawcett Contracting, Inc., 252 Ga. 242, 243, 312 S.E.2d 790, 791 (1984) (holding that 

even if defendants’ appeal of trial court decision fi nding an implied trust was brought only for delay, 

award of 10-percent damages under O.C.G.A. § 5-6-6 would not lie without judgment for sum certain). 

13 144 Ga. App. 713, 242 S.E.2d 352 (1978). 

14 Id. at 714-15, 242 S.E.2d at 353-54. 

15 Id. at 714-15, 242 S.E.2d at 354.


hallmark of the frivolous appeal is that it is brought merely to stave off the inevitable, with the 

attendant waste of judicial resources and frustration of the process for the appellee and the court. 

Such an appeal is brought “solely for delay.” 

The relevant language appears in O.C.G.A. § 5-6-6, which requires a court to determine 

that “the case was taken up for delay only” before adding 10-percent damages to the judgment 

below. 16 The determination that an appeal was taken “solely for delay” is frequently applied in 

the context of Court of Appeals Rule 15 and Supreme Court Rule 6 as well. 17 To make an award 

under the statute, however, the court must be completely satisfi ed that the appeal was initiated for 

no purpose other than delay. 18 

In the often-quoted case of Moore & Jester v. H.B. Smith Machine Co., 19 the Court of 

Appeals provides a framework for determining whether an appeal has been brought solely for 

delay: 

[W]hen a motion for damages is fi led, [the court] will carefully examine the record, 

and will pass upon the motion in the light of the entire history of the case as there 

presented. If, after reviewing the whole matter, [the court] believe[s] that the 

plaintiff in error is presenting a bona fi de contest over a colorable matter, though 

his view of the law may not in fact be well founded, or that he is seeking a ruling 

upon an open or doubtful question, damages will be refused. But, when the record 

discloses that the plaintiff in error has no just case, that no new question of law is 

involved, and the record is full of those things which every judge and every lawyer 

recognizes as indicia of an attempt to fi ght merely for time, justice demands that 

[the court] overcome any personal hesitancy [that it] may have, and that [it] add an 

award of damages to the judgment of affi rmance. 20 

As might be expected, it is diffi cult to articulate a precise standard for such a context-driven 

inquiry. Instead of a rigid formulation, however, the Moore & Jester passage presents a cogent 

method for resolving the question. First, the court is to determine, based upon the whole record, 

whether the matter argued on appeal is in fact “colorable.” If it is, the appeal is not frivolous, and 

no sanction is imposed. 

16 O.C.G.A. § 5-6-6. 

17 See, e.g., Powell v. Bank S., N.A., 202 Ga. App. 852, 854, 415 S.E.2d 543, 544 (1992). 

18 Realty Lenders, Inc. v. Levine, 286 Ga. App. 326, 330-31, 649 S.E.2d 333,337 (2007) (“While we 

ultimately have found no merit to this appeal, we cannot conclude that [appellant] has pursued it for 

purposes of delay only.”); Rackard v. Merritt, 114 Ga. App. 743, 744, 152 S.E.2d 701, 702 (1966); Stone 

v. Cook, 190 Ga. App. 11, 14, 378 S.E.2d 142, 145 (1989). 

19 4 Ga. App. 151, 60 S.E. 1035 (1908). 

20 Id. at 154, 60 S.E. at 1036. 

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If the fi rst question is answered in the negative, the court looks to what might be called 

“badges of delay”—i.e., those indicators “which every judge and every lawyer recognize[]” as an 

attempt to “fi ght merely for time.” 21 In some cases, a particularly baseless appellate issue may 

alone provide suffi cient indicia of delay. 22 More frequently, though, the reviewing court will fi nd 

additional factors that evidence the appellant’s intent to forestall enforcement of the judgment. 

§ 13.2.2.1 “Colorable” Issues: Distinguishing the Frivolous Appeal 

A frivolous appeal is not merely an argument that lacks merit: “Even slight grounds for 

bringing the case up will prevent the award of damages for frivolous exception.” 23 As the Court of 

Appeals has noted: 

This question is often quite diffi cult for an appellate court to determine, for the 

reason that good attorneys often, in good faith, have differences of opinion in 

applying facts to the law, and we are therefore reluctant to impute bad motives to 

an attorney for fear that he might have been honestly mistaken in his application of 

the facts to the proper legal principles governing the same. 24 

Doubtful cases do not support imposing sanctions for a frivolous appeal. 25 

A meritless argument may not be frivolous if it is based on arguable logic, 26 if it is not 

specious, 27 or if appellant’s counsel has made a cogent argument predicated on diligent research 

efforts. 28 Even when the legal issue is itself not in doubt, the argument may be colorable because 

there is no prior decision on the precise question raised. 29 Notably, the merits of an appeal must be 

21 Id. (noting that “[t]his case is full of badges of intention to fi ght for time only”). 

22 See, e.g., Davita, Inc. v. Othman, 270 Ga. App. 93, 96, 606 S.E.2d 112, 115 (2004) (concluding appeal 

was frivolous where tenant pursued appeal to remain in possession where foreign authority cited on 

appeal was neither controlling nor suggestive of result sought); Hatchett v. Hatchett, 240 Ga. 103, 103, 

239 S.E.2d 512, 513 (1977). 

23 Stripling v. Calhoun, 98 Ga. App. 354, 359, 105 S.E.2d 923, 927 (1958) (citing Maxelbaum v. Limberger, 

78 Ga. 43, 46, 3 S.E. 257, 259 (1887)). 

24 Roach v. Roach, 68 Ga. App. 10, 11-12, 21 S.E.2d 859, 860 (1942). 

25 Hargett v. Dickey, 304 Ga. App. 387, 389-90, 696 S.E.2d 335, 338 (2010) (denying motion for sanctions 

where the “question [was] close as to whether [appellant] had any reasonable basis to believe that she 

could prevail” on appeal); Almond v. Bentley Gray, Inc., 138 Ga. App. 508, 508, 226 S.E.2d 776, 777 

(1976). 

26 Benchmark Carpet Mills, Inc. v. Fiber Indus., Inc., 168 Ga. App. 932, 935, 311 S.E.2d 216, 219 (1983). 

27 Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506, 509, 305 S.E.2d 14, 17 (1983). 

28 Prattes v. Se. Ceramics, Inc., 132 Ga. App. 584, 587, 208 S.E.2d 600, 602 (1974). 

29 Schnuck v. Riales, 106 Ga. App. 647, 648, 127 S.E.2d 825, 826 (1962).


judged solely on the arguments raised on appeal; the appellee cannot show an appeal is frivolous 

by pointing to a meritless position the appellant took in the court below. 30 

An argument is not “colorable,” however, if the law is so indisputably clear that there is 

simply no room for argument on the subject. 31 This is particularly so when the issues raised on 

appeal have been settled by previous decisions in the same case, 32 or when the court made it clear 

to the party in previous cases that the argument presented on appeal has no merit. 33 If an appellant 

knows or should know from a careful reading of the facts and relevant law that the argument 

advanced on appeal is without foundation, the reviewing court may impose a penalty under one of 

the three frivolous appeals provisions. 34 

§ 13.2.2.2 Badges of Delay 

Because the court reviews the whole record to determine whether an appeal has been 

brought solely for delay, 35 dilatory conduct in the proceeding below may support a frivolous appeal 

award. 36 Thus, when the trial court has imposed discovery sanctions 37 or awarded attorneys’ fees 

30 Brown v. Rooks, 139 Ga. App. 770, 770, 229 S.E.2d 548, 549 (1976), overruled on other grounds by 

Miller Grading Contractors, Inc. v. Ga. Fed. Sav. & Loan Ass’n, 247 Ga. 730, 279 S.E.2d 442 (1981). 

However, as discussed infra, the conduct of the litigation in the lower court may serve as an indicator 

that the appeal was brought solely for delay. 

31 See Henderson v. Schklar, 303 Ga. App. 875, 877, 695 S.E.2d 323, 326 (2010) (imposing the maximum 

$2,500 penalty under Court of Appeals Rule 15(b) where “the law [was] indisputably clear concerning 

the issues raised on appeal”); Pacheco v. Charles Crews Custom Homes, Inc., 289 Ga. App. 773, 776 

658 S.E.2d 396, 399 (2008) (imposing $1,000 penalty under Court of Appeals Rule 15(b) where release 

executed by appellant clearly barred her claims); Baxley v. Baldwin, 287 Ga. App. 245, 246, 651 S.E.2d 

172, 174 (2007) (assessing $500 penalty against appellant’s counsel under Court of Appeals Rule 15(b) 

where claim was plainly time-barred on its face); Hightower v. Kendall Co., 225 Ga. App. 71, 73, 483 

S.E.2d 294, 297 (1997) (assessing $500 penalty against pro se appellant pursuant to Court of Appeals 

Rule 15(b) where, prior to appeal, appellant was apprised of clear Georgia law on at-will employment). 

32 Pinkerton & Laws Co. v. Robert & Co. Assocs., 129 Ga. App. 881, 885, 201 S.E.2d 654, 658 (1973). 

33 Crane v. Poteat, 282 Ga. App. 182, 183-85, 638 S.E.2d 335, 336-37 (2006). 

34 See, e.g., Golden Atlanta Site Dev., Inc. v. R. Nahai & Sons, Inc., 299 Ga. App. 654, 656, 683 S.E.2d 627, 

629 (2009); Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369, 375, 601 S.E.2d 842, 848 

(2004); Marchelletta v. Seay Constr. Servs., Inc., 265 Ga. App. 23, 29, 593 S.E.2d 64, 69 (2004); Ray v. 

Standard Fire Ins. Co. of Ala., 168 Ga. App. 116, 118, 308 S.E.2d 221, 223-24 (1983). 

35 See Moore & Jester v. H.B. Smith Mach. Co., 4 Ga. App. 151 at 154, 60 S.E. 1035, 1036 (1908). 

36 See Revels v. Wimberly, 223 Ga. App. 407, 409, 477 S.E.2d 672, 674 (1996) (fi nding indicia of delay in 

conduct of litigation); Suchnick v. S. Gen. Ins. Co., 196 Ga. App. 687, 688, 396 S.E.2d 609, 609 (1990) 

(granting motion for $500 penalty pursuant to precursor of Rule 15(b)). 

37 See Revels, 223 Ga. App. at 409, 477 S.E.2d at 674; Suchnick, 196 Ga. App. at 688, 396 S.E.2d at 609. 

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for litigating in bad faith, 38 the presentation of a less-than-colorable argument on appeal may result 

in sanctions. 

Additionally, if the litigant fails to prosecute her case at the appellate stage, the reviewing 

court may conclude that the case has been taken up solely for delay. For example, when a claim 

is totally dependent on the appellate court’s review of a trial court proceeding, and no transcript is 

forwarded, the court may deduce that the appellant is stalling for time. 39 A similar conclusion may 

be warranted when the appellant fails to appear for oral argument, 40 the submitted brief gives only 

cursory treatment to the issues, 41 there is no factual support in the record for the appellant’s position 

on appeal, 42 or the appeal was plainly improper as a procedural matter. 43 In addition, a party who 

attempts to relitigate matters already settled by a binding settlement agreement may be subject to 

sanctions for pursuing a frivolous appeal. 44 

38 See Thompson Enters., Inc. v. Coskrey, 168 Ga. App. 181, 187, 308 S.E.2d 399, 403-04 (1983). 

39 See Malin Trucking, Inc. v. Progressive Cas. Ins. Co., 212 Ga. App. 273, 274, 441 S.E.2d 684, 686 

(1994) (fi nding argument wholly devoid of support in the record when appellant failed to supply record); 

see also Webb v. Sheu, 201 Ga. App. 769, 770-71, 412 S.E.2d 289, 291 (1991) (rejecting claim of error 

in trial court’s fi nding on alleged ex parte contact when no record was forwarded with appeal). 

40 See Craton v. Hackney, 91 Ga. 192, 192, 17 S.E. 124, 124 (1893). 

41 See Popham v. Garrow, 275 Ga. App. 499, 500, 621 S.E.2d 468, 469 (2005); Med. Ctr. of Cent. Ga., 

Inc. v. Landers, 274 Ga. App. 78, 88, 616 S.E.2d 808, 816 (2005); Arnold v. Gwinnett Cnty. Bd. of Tax 

Assessors, 207 Ga. App. 759, 760, 429 S.E.2d 146, 147 (1993). 

42 See Farr v. Rice, 300 Ga. App. 247, 248, 684 S.E.2d 370, 371 (2009) (assessing $130,000 penalty 

under O.C.G.A. § 5-6-6 where appellants “failed to cite to any evidence demonstrating that they had a 

meritorious defense”); Katz v. Crowell, 302 Ga. App. 763, 767, 691 S.E.2d 657, 660 (2010) (assessing the 

maximum $2,500 penalty under Court of Appeals Rule 15(b) where record was devoid of any evidence 

supporting appellant’s position). 

43 See Noaha, LLC v. Vista Antiques & Persian Rugs, Inc., 306 Ga. App. 323, 326, 702 S.E.2d 660, 663 

(2010) (imposing $1,000 penalty under Court of Appeals Rule 15(b) where appellant “admit[ted] that it 

had no grounds to collaterally attack [the subject] judgment[s]”). 

44 See Ruskin v. AAF-McQuay, Inc., 294 Ga. App. 842, 844, 670 S.E.2d 517, 520 (2008) (assessing $2,000 

penalty against appellants, and another $2,000 penalty against their appellate counsel, under Court of 

Appeals Rule 15(b)).


§ 13.3 Court Rules 

§ 13.3.1 Supreme Court Rule 6 

Supreme Court Rule 6 provides as follows: 

The Court may, with or without a motion, impose a penalty not to exceed $2,500 

against any party and/or party’s counsel in any civil case in which there is a direct 

appeal, application for discretionary appeal, application for interlocutory appeal, 

petition for certiorari, or motion which the Court determines to be frivolous. 

The party or party’s counsel may respond to such a motion or, if no motion was 

fi led, fi le a motion for reconsideration within 10 days of receipt of the order. The 

imposition of such penalty shall constitute a money judgment in favor of appellee 

against appellant or appellant’s counsel or in favor of appellant against appellee 

or appellee’s counsel, as the Court directs. Upon fi ling of the remittitur in the trial 

court, the penalty may be collected as are other money judgments. 

Rule 6 penalties may be assessed against a party or its counsel. Both Rule 6 and O.C.G.A. 

§ 5-6-6 may be raised by motion or by the court. While O.C.G.A. § 5-6-6 imposes a penalty of 10 

percent of the damages awarded below, the maximum penalty under Rule 6 is $2,500. 

§ 13.3.2 Court of Appeals Rule 15 

Court of Appeals Rule 15, subparts (b) and (c), provides as follows: 

(b) The panel of the Court ruling on a case, with or without motion, may by 

majority vote impose a penalty not to exceed $2,500.00 against any party and/ 

or party’s counsel in any civil case in which there is a direct appeal, application 

for discretionary appeal, application for interlocutory appeal, or motion which is 

determined to be frivolous. 

(c) The imposition of such penalty shall constitute a money judgment in favor 

of appellee against appellant or appellant’s counsel or in favor of appellant against 

appellee or appellee’s counsel, as the Court directs. Upon fi ling of the remittitur in 

the trial court, the penalty may be collected as are other money judgments. 

Court of Appeals Rule 15 provides for a penalty of up to $2,500 against any party or 

party’s counsel when there is a direct appeal, application for discretionary appeal, application for 

interlocutory appeal, or motion that is deemed frivolous. Court of Appeals Rule 15 applies to “any 

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civil case,” including appeals from money judgments. Thus, in money judgment cases, Rule 15 

may be invoked simultaneously with O.C.G.A. § 5-6-6. 45 

§ 13.4 Unavailability of Other Provisions 

In civil cases, a party may recover attorneys’ fees in the trial court under O.C.G.A. § 9-15-14 

when the opposing party has asserted frivolous claims, defenses or other positions. 46 Section 9-15- 

14 is not available in proceedings before an appellate court, however. 47 Furthermore, a trial court 

may not award attorneys’ fees and litigation expenses under O.C.G.A. § 9-15-14 for conduct that 

occurred before the appellate court. 48 

Georgia Code Section 13-6-11 also allows for the award of litigation expenses when the 

plaintiff specially pleads and the defendant “has acted in bad faith, has been stubbornly litigious, or 

has caused the plaintiff unnecessary trouble and expense.” 49 The conduct that authorizes an award 

under O.C.G.A. § 13-6-11, however, relates to the transaction underlying the cause of action, not 

conduct during the litigation itself. 50 Necessarily, O.C.G.A. § 13-6-11 is not an available remedy 

for the appellant’s conduct on appeal. 51 

45 See Ferdinand v. City of East Point, 301 Ga. App. 333, 340, 687 S.E.2d 617, 623 (2009); Austin v. Austin, 

292 Ga. App. 335, 335-36; 664 S.E.2d 780 (2008); Kent v. David G. Brown, P.E., Inc., 248 Ga. App. 447, 

450, 545 S.E.2d 598, 600 (2001), aff’d, 274 Ga. 849, 561 S.E.2d 89 (2002). 

46 See O.C.G.A. § 9-15-14(a). 

47 Dep’t of Transp. v. Franco’s Pizza & Delicatessen, Inc., 200 Ga. App. 723, 409 S.E.2d 281 (1991), 

overruled on other grounds by White v. Fulton Cnty., 264 Ga. 393, 444 S.E.2d 734 (1994). 

48 See Castro v. Cambridge Square Towne Houses, Inc., 204 Ga. App. 746, 420 S.E.2d 588 (1992). 

49 O.C.G.A. § 13-6-11. 

50 David G. Brown, P.E., Inc. v. Kent, 274 Ga. 849, 850, 561 S.E.2d 89, 90 (2002). 

51 Id.


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14 

TIPS ON EFFECTIVE ORAL ARGUMENT 

Hon. David E. Nahmias* 


I appreciate the opportunity to offer some tips on effective oral argument, because good 

oral advocacy improves the quality of Georgia’s appellate courts and the decisions that they issue. 

Let me make three points at the outset. First, I will offer below, in fairly short form, my views on 

what is effective, but there are many other sources you can consult for more comprehensive tips, 

some of which may diverge from mine. 1 

* Justice Nahmias was appointed to the Supreme Court of Georgia in August 2009 and elected to a full 

term in November 2010. Before joining the court, he served as the U.S. Attorney for the Northern 

District of Georgia, having previously practiced law as a federal prosecutor, government lawyer, and in 

private practice. Justice Nahmias clerked for Judge Laurence H. Silberman of the U.S. Circuit Court for 

the District of Columbia and Justice Antonin Scalia of the U.S. Supreme Court. He graduated from Duke 

University in 1986 and Harvard Law School in 1991. 

1 A recent and, I think, particularly good guide to appellate advocacy is ANTONIN SCALIA & BRYAN A. 

GARNER, MAKING YOUR CASE: THE ART OF PERSUADING JUDGES (2008). 

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Second, while I learned and taught much of what I say below at appellate advocacy classes 

and seminars when I was in practice, I believe it much more now that I have seen my Court actually 

decide cases based in part on the advocacy of the lawyers that appear before us. 

Finally, I would like to make a point that I fi rst heard made at an appellate practice seminar 

by Judge J.D. Smith of the Court of Appeals. If you are reading this chapter and the rest of this 

book, you are probably already a pretty good appellate advocate, because you care enough to take 

the time to study appellate practice. But I hope I can at least remind you of some tips, and I also 

hope you will share your interest and knowledge—and perhaps even this book—with colleagues 

and friends who may not be as motivated to improve their appellate skills. 

§ 14.2 Oral Argument Matters, Especially for My Court—But It Doesn’t Matter 

that Much 

During my two years on the bench, I have found that oral arguments produce more changes 

in the views of the justices on the Georgia Supreme Court than I saw during the year I clerked at the 

U.S. Supreme Court. This may be due to the much higher volume of cases we have to decide (about 

350 a year, including cases that are not orally argued, compared to fewer than 100 at the High 

Court) which means that we are rarely as immersed in the facts and the law—and fi xed in our view 

of the right result—going into the oral argument. This uncertainty provides more opportunities 

for good appellate advocates to affect the outcome of their cases, especially noting that my Court 

usually takes its initial vote on the case just after the oral argument. 

But don’t get too optimistic. No matter how skilled the advocate, the outcome of most 

appeals is driven not by the lawyers but by the facts, the law, and what happened in the trial court. 

§ 14.3 Your Argument Starts, and Often Ends, with Your Brief 

Oral argument can be important, but it is rarely as important as your brief. The briefs frame 

the judges’ view of the case (and of the lawyers); when drafting an opinion, I rarely will go back 

and review the tape of the oral argument, but I often will go back and re-read key portions of the 

briefs. A bad brief is hard to salvage at oral argument. 

This is not a chapter on brief-writing, but I do want to emphasize three critical points. First, 

focus and brevity are essential. You would not believe how much paper comes across the desk of 

a Georgia appellate judge; it is humanly impossible to read every word. So if you bury your best 

argument on the thirtieth page of your thirty-fi ve-page brief (which really should have been edited 

down to a twenty-fi ve-page brief), it will not get the focus it deserves. Second, write correctly, 

and try to write well. With all the reading we do, a beautifully written brief stands out and gets 

more attention; a brief with grammatical and spelling errors may make a judge wonder if you paid 

the same attention to the quality of your statements about the facts and the law. Finally, and most 

importantly, be entirely honest and forthright about the facts and the law. I will discuss this point 

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CHAPTER 14: TIPS ON EFFECTIVE ORAL ARGUMENT 

again below, but remember that fudging is easier to catch and harder to forgive in a brief, where it’s 

written down instead of said on the fl y. 

§ 14.4 Oral Argument Is for the Judges, Not the Lawyers (or Your Clients) 

There is some dispute among judges on this point, but I fi rmly believe that oral argument 

is most important for the judges. Lawyers have the opportunity to make their points in the briefs, 

so conscientious judges should be familiar with your arguments and do not need to hear you simply 

read them out loud. But judges want to hear what your best points are and, even more important, 

judges want to have their questions about the case answered. So be prepared to make your key 

points, but don’t expect to get very far into your prepared remarks. Your goal should be to make 

sure you know if any issue in the case is troubling one of the judges, and then to help the judge and 

his or her colleagues resolve that issue in your client’s favor. 

So don’t be stuck to your notes or the order you planned to present issues. When he 

was preparing for an oral argument, now-Chief Justice John Roberts would write the questions he 

expected on index cards and then shuffl e them, to work on being able to answer the questions in 

the random order they might actually be asked, while still blending in his key arguments. Focus 

on your strongest arguments and respond to your opponent’s best points, especially as the appellee. 

Appellants should also try to save time for rebuttal, because it can help to have the last word. 

But don’t count on having rebuttal time, because in Georgia’s appellate courts, the lawyers are 

responsible for preserving any time for rebuttal. If your time is being eaten up by questions, you 

may need to remind the court, politely, that you were hoping to save a little time for rebuttal. 

Finally, if you are not getting questions, especially as the appellee, summarize your key 

points, ask if there are any questions, and then say you will rely on your brief and sit down. I have 

seen little good come to lawyers who simply drone on reading their briefs to the court. 

§ 14.5 It Is an Appellate Argument to Judges, Not a Trial Argument to a Jury 

The rule of law is about independent judges applying the law to the facts without passion 

or prejudice. So if you try to be dramatic or appeal to emotion, for example by focusing on the 

horrible facts of a case and ignoring the applicable law, it may backfi re, because you are implicitly 

telling the judge that passion rather than law should dictate the result. As Scalia and Garner have 

explained, you want to show the judges that you are a reasonable, smart, careful, and pleasant 

lawyer—just like most judges believe they are—and together you and the court will work through 

any concerns and see that the facts and the law favor your client. This also means not playing to 

your clients. They have had their “day in court”—the trial court. They may attend the appellate 

argument, but they should be spectators, not your audience. 

- 219 -


§ 14.6 Answer the Questions 

As I mentioned earlier, questions are almost always good for you, even when they are hard, 

because they let you know what the judge is thinking and give you the opportunity to respond, 

instead of leaving the judge to guess at your answer (which, if the judge is not inclined to your 

position, may not be a guess you like). So listen carefully and answer directly. Don’t ever evade or 

dismiss a question; remember that however irrelevant or even stupid you may think a question is, it 

was important enough for a judge to ask you. You will naturally be on guard for tough questions, 

but remember that some questions will be softballs, and try to recognize them and knock them out 

of the park. Be careful about conceding issues; it is one way to lose an otherwise winnable case. 

Have a prepared response to ward off requests for concessions that will defeat your position—“I 

don’t know that I would concede that point, but it’s not necessary to decide this case . . . .” On the 

other hand, if a point cannot be fairly defended, don’t be stubborn about acknowledging that fact; 

again, it is important to show you are reasonable. 

§ 14.7 Know How Your Case Fits into the Law as a Whole and How the Result You 

Seek Will Affect the Next Case 

Trials are about a particular case. Appeals are about that case but also about setting 

precedent for future cases. This is not so much true if the appellate court is simply applying binding 

precedent to clear facts and will not even write or publish an opinion, but that is rare in any case 

for the Georgia Supreme Court and rare in the Court of Appeals for cases in which oral argument 

has been granted. 

Because appellate judges will be thinking about the precedent the case will set, you need 

to do the same, and be prepared to answer lots of questions about it. Think about how the opinion 

you seek will affect the existing precedent in the area. Will it be consistent or will some prior 

decisions need to be reconciled, distinguished, or overruled? If it is the latter, be prepared to answer 

questions about stare decisis. Think about what related areas of the law your case may affect. For 

example, will a ruling on an issue in your criminal case apply equally to the same issue in civil 

cases? Think about the logical extension of the decision you are seeking—the slippery slope. If a 

related area or slippery slope leads to problems, think about how the rationale might be limited to 

avoid those problems. Also think about whether the result you seek seems to make sense applied to 

other scenarios; the law sometimes requires a result the judge believes is nonsensical, but that may 

also suggest to the court that it is not analyzing the matter correctly. Finally, know exactly what you 

want the court to do—how you want the judgment line at the end of the opinion to read, especially 

whether a remand is needed and on what issues. 

- 220 -


§ 14.8 Know the Standards of Review and How They Affect Your Arguments—and 

Make Sure the Case and the Issues Are Properly Before the Appellate Court 

For each issue you raise on appeal, make sure you understand the standard and burden of 

proof on that issue at trial and the standard of appellate review that will apply given the ruling of 

the trial court. As the appellant, for example, if the “any evidence” standard of review applies and 

there was some evidence supporting the trial court’s ruling, don’t waste a lot of time recounting 

all the evidence you believe weighs against that ruling; that’s a loser argument. Your strongest 

arguments are about legal errors that are subject to de novo review or that demonstrate an abuse of 

discretion. But also make sure you can explain why the error was not harmless. For appellees, the 

standard of review is often your best friend, allowing you to acknowledge that there was evidence 

going both ways, or that the trial judge might have ruled the other way, but you still win because 

the factual ruling was not clearly erroneous or the evidentiary ruling was not an abuse of discretion. 

And when you need to concede or sense that the court will fi nd an error, be ready to explain why it 

was harmless and does not require reversal. 

Appellants must also make sure they know how each issue was properly preserved for 

review on appeal (timely and specifi c objection with a ruling by the trial court, etc.) and how the 

issue and the case as a whole is within the particular appellate court’s jurisdiction. Waiver and lack 

of jurisdiction may be raised sua sponte by the court, and you don’t want to be standing there with 

a deer-in-the-headlights look when a judge asks you why the court even needs to decide the case 

or the issue. 

§ 14.9 Always Be Accurate and Forthcoming About the Facts and the Law and Be 

Prepared to Discuss Them in Detail 

In both your brief and at oral argument, you must be honest and forthright about the record 

and the legal authority in the case. This requires that you know the record cold, even if you were 

not the lawyer who tried the case. If you didn’t try the case, you should also talk to trial counsel, 

if possible, about any “atmospherics” not evident from the record that may help you understand 

and present an issue in context. If you did try the case, please don’t rely on your memory of what 

happened perhaps several years and many other trials ago—re-read the record. 

Make sure you re-read your brief before the oral argument, because the argument will be 

an extension of what you have said before. But because oral argument sometimes occurs months 

after your brief was fi led, make sure that you don’t just re-read your brief to prepare. You also need 

to re-read the key authorities that you—and your opponent—cited. You want to be able to answer 

fl uently when a judge asks you what a particular precedent held, or whether the facts were different 

in that case, or if subsection (d) of the statute should be read in conjunction with subsection (a). 

You should also read the advance sheets and remember to cite-check your main cases again shortly 

before the oral argument to make sure you are aware of recent related decisions. Recent decisions 

are often at the forefront of the judges’ minds, since their court just issued them. 

- 221 -


But always keep this at the forefront of your mind: if you don’t know or can’t recall the 

answer to a factual or legal question, don’t fudge a response. Just admit it and ask permission to 

fi le a supplemental brief. Both Georgia appellate courts are generous about allowing supplemental 

briefs, and indeed the court will often ask on its own for a supplemental brief on a question that 

arose unexpectedly during oral argument. 

§ 14.10 It’s Worth Repeating One More Time: Be Accurate and Forthcoming 

Appellate judges are too busy to double-check everything they are told by the lawyers; 

we rely on you to be ethical and professional and to state with complete reliability the facts in the 

record and the relevant legal authorities. If we catch you in a misstatement about the record or the 

law, we may need to confi rm everything else you say. And the damage to your credibility will not 

be limited to that particular case; it will carry over to other cases you handle on appeal, and even to 

your work in other courts. Like lawyers, judges talk amongst themselves, and we often talk about 

the quality of the lawyers who appear before us. 

§ 14.11 Moot Your Case at Least Once 

Many lawyers hate moot courts. They don’t like asking other lawyers to take the time to 

help them prepare for an oral argument; they don’t like feeling dumb when they can’t answer a 

question from a colleague; and they feel silly “play acting” the argument. But as with anything 

else in life, practice makes perfect. Not mooting your argument at least once, under conditions 

as realistic as possible (standing up behind a podium, multiple judges, time limits, etc.), means 

you have never really practiced it, and that will show when game day comes. In the moot court, 

you need to answer the questions as you would in real court, meaning as clearly, succinctly, and 

persuasively as you can. No “I’ll need to think about what I’d say if I get asked that” or “how about 

this . . . .” or asking for a do-over or mumbling for several minutes. You won’t be able to get away 

with that in the real argument. It’s fi ne to test-drive different answers, but do it in a brainstorming 

session before the formal moot court. Finally, always try to include at least one lawyer who isn’t 

an expert on the case or the area of the law at issue, to make sure your argument will make sense 

and be persuasive to the court —generalist judges who deal with hundreds of cases a year and likely 

will hear several other oral arguments on the day you present yours. 

§ 14.12 During Oral Argument, Use the ELMO Device 

Unlike the federal appellate courts, both of Georgia’s appellate courts have available and 

encourage the use of an ELMO digital display device, which projects onto monitors built into the 

bench in front of each judge. Appeals have no live witnesses; the judges will decide the appeal 

based on paper—what’s in the record and the law books. So fi gure out what paper is key to your 

position, be it the text of a constitutional provision or a statutory subsection, a passage from a 

precedent, a paragraph in a contract or deed, a crime scene photo or copy of a land plat, or a page 

- 222 -


of the transcript or court order; and display it to the court when you discuss it. You can blow up 

the size for emphasis, or present the key words in bold or color. This is much more powerful than 

simply trying to describe the document or read it to the judges; legalese can be particularly hard 

to read and comprehend orally. Likewise, if you get a question that can be answered by reference 

to a document—exactly what the trial court order said on a point or where in the contract it says 

something—don’t hesitate to put that document on the ELMO, even if it is your working copy 

with your underlining all over it. As good lawyers learned long ago with jurors in a television 

age, the spoken word is much more persuasive when coupled with a visual image. Judges grew up 

watching TV, too. 

§ 14.13 Be Professional 

Make sure you look and act like a professional: (i) be on time; (ii) dress conservatively 

(don’t let your appearance draw the judges’ attention away from what you are saying); (iii) 

enunciate clearly and speak into the microphone (the judges may not all have perfect hearing); 

and (iv) turn off your cell phone and other electronic devices. Don’t waste time complaining about 

things that don’t matter to the merits of your case; if the court cares that your opponent’s brief was 

in the wrong font or two pages too long, the court will deal with it. The court may be strict about 

compliance with its rules, and even if it lets a violation pass, the judges may make a mental note 

that they are dealing with a lawyer who doesn’t know or bother to follow rules. Finally, unless it is 

truly important to your case and you can support your claim without equivocation and by reference 

to objective evidence, don’t accuse the opposing lawyers or the judges below of misconduct or bad 

faith. 

§ 14.14 Spread the Word 

As I noted at the outset, if you are reading this, you are probably already a decent appellate 

advocate. I hope you still picked up something new from these tips, or at least reminded yourself 

to do (or avoid doing) something the next time you have an oral argument. I also hope that you 

will help teach and mentor other lawyers about how to better handle their appeals. I’ll thank you in 

advance for doing that, because Georgia’s appellate courts rely heavily on the members of our bars 

to make the justice system work in our state. 

- 223 -


- 224 -

15 

Professionalism in Appellate Practice: The Importance of 

Selectivity 

Hon. Christopher J. McFadden* 

This essay discusses professionalism in appellate practice, offering a few observations 

from the perspective of a long-time appellate practitioner and short-time appellate judge. 

Among the most important principles of professionalism for appellate lawyers is selectivity. 

Abraham Lincoln urged lawyers to “[d]iscourage litigation. Persuade your neighbors to 

compromise whenever you can . . . . As a peacemaker the lawyer has a superior opportunity of 

being a good man. There will still be business enough.” 1 

That admonition applies with particular force to appellate litigation. Indeed, the fi rst thing 

prospective appellants are entitled to receive from appellate lawyers is discouragement. 

* Judge McFadden was elected to the Georgia Court of Appeals in November 2010. Before joining the 

court, he practiced appellate litigation as a solo practitioner in Decatur, Georgia. Judge McFadden 

graduated from Oglethorpe University in 1980 and from the University of Georgia School of Law in 

1985. 

1 

ABRAHAM LINCOLN, Notes for a Law Lecture, in 2 COLLECTED WORKS OF ABRAHAM LINCOLN 81 (Roy P. 

Basler ed., 1953). 

- 225 -


Prospective appellants should be advised that, in our system, the trial is the main event; 

the appeal is a sideshow. That arrangement is refl ected in preservation-of-error requirements, 

presumptions of regularity, standards of review, and—most signifi cantly—reversal rates. 

A prospective appeal should be evaluated in light of those realities. Was the alleged error 

preserved? Can the error be shown on the record? Can the error be presented as a mistake of law 

rather than an exercise of the trial court’s discretion or fact-fi nding authority? If the issue is one of 

law, is the law favorable? 

In my appellate practice, I tried to help prospective clients weigh and evaluate those 

considerations by setting them out harshly. I would tell prospective appellants that appellants 

usually lose. Of course those considerations should be weighed against the importance of the case 

to the prospective appellant. So I would explain that there were, from my perspective, three types 

of prospective appeals: 

(i) There were some cases in which an appeal would be a sound, and perhaps the best 

decision. (I was never willing to say that I would encourage an appeal—but in 

some cases I would come close.) The best argument an appellant can make is that a 

well-settled, straightforward, plainly-controlling rule has been violated. The most 

promising appeals are cases where the appellant’s task is simply to set out facts so 

as to make clear the applicability of a settled rule and then set out authority for that 

rule. If the appellant’s task is to advocate an extension or disapproval of existing 

law, the prospects are less bright. 

(ii) Other cases involved claims with arguable merit, but dim prospects. In such 

instances, I would offer strong discouragement. In such cases, it is most essential 

that prospective clients understand the harsh reality. So I would tell them that, if I 

could not talk them out of an appeal, I would take their money, but perhaps there 

were better things they could do with that money. 

(iii) Finally, of course, there were some occasions when the claims lacked even arguable 

merit; and I would simply refuse to take the case. 

Even if indications as to those considerations are favorable, reversal rates are daunting. 

My own experience representing appellants before the Georgia appellate courts was marked by a 

number of unpleasant surprises. On such occasions, I was very glad that I had not overpromised. 

Candor at the beginning of an appellate representation made a diffi cult telephone call at the end less 

diffi cult. Of course, the dynamic is different in appointed criminal cases. In such cases, the client 

has a right to a free appeal, nothing to lose, and a great deal to gain. But even there, candor is in 

order. We should not offer false hope. 

Once the decision is made to appeal, selectivity is again important as to the issues raised. 

At a national appellate practice conference a few years ago, I heard a well-respected senior federal 

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CHAPTER 15: PROFESSIONALISM IN APPELLATE PRACTICE: THE IMPORTANCE OF SELECTIVITY 

circuit judge declare that an appellate lawyer who raises a single issue is akin to a king or queen. A 

lawyer who raises only two issues is a duke or duchess. Three, a knight. Four or more, a peasant. 

As an appellate lawyer in solo practice, I came to believe that one of my advantages was 

often that the opposing party was represented by a team of lawyers, more of whom had the authority 

to add than to their brief than to cut from it. Now, as an appellate judge, when I read the briefs in a 

case I start with the appellant’s brief. Sometimes I read it through before turning to the appellee’s. 

Sometimes I fl ip back and forth. An appellant should prefer the former. One of the things that 

cause me to fl ip from brief to brief is a multiplicity of issues. While I had long understood the 

importance of brevity as an advocate, I have been surprised by the extent to which my attention, as 

a judge, is riveted by a brief that raises a single issue. As an appellate judge I sometimes wonder, 

when I see briefs enumerating seven or eight errors, if I am in fact the principal target audience. 

Of course there are cases in which it is necessary to raise multiple issues. And a decision 

to forgo issues entails risk. One can never be sure what a particular appellate panel will do, so one 

might argue that it is safer to include every conceivable argument. Law is not mathematics. If a 

case has any complexity at all, no two people will see it exactly the same way. 

But a brief is like a short story or a poem. Every word that does not add, detracts. And the 

process is not random. As noted above, suffi ciency of the record, preservation of error, standards 

of review, and existing substantive law provide a basis for sound exercise of professional judgment. 

There are no guarantees, and selectivity entails risk. But the risk is worth taking. 

To illustrate my point, I cite in closing to that great font of wisdom, Star Trek. In the 

fi lm Star Trek III: The Search for Spock, 2 Captain Kirk fi nds himself piloting the Enterprise with 

a skeleton crew. They are set upon by a much smaller, but fully-manned, Klingon ship. Soon the 

Enterprise is gravely damaged, and Kirk is faced with a demand to surrender. So Kirk tricks the 

Klingons. He invites them to board, sets the auto destruct, and beams down with his crew to the 

planet below. He has evened the odds, but at a high price. Watching the iconic starship burning 

as it falls, Kirk turns to Dr. McCoy and asks, “My God Bones . . . what have I done?” 3 McCoy 

answers, “What you had to do, what you always do: turn death into a fi ghting chance to live.” 4 

Professor Alan Dershowitz has described appellate lawyers as “lawyers of last resort.” 5 

Appellate lawyers are in the last-chance business. That requires courage. 

2 STAR TREK III: THE SEARCH FOR SPOCK (Paramount Pictures 1984). 

3 Memorable Quotes for Star Trek III: The Search for Spock, INTERNET MOVIE DATABASE, http://www.imdb. 

com/title/tt0088170/quotes (last visited Nov. 23, 2011). 

4 Id. 

5 See, e.g., Tom Goldstein, The Lawyer of Last Resort, N.Y. TIMES (June 13, 1982), http://www.nytimes. 

com/1982/06/13/books/the-lawyer-of-last-resort.html (describing Dershowitz himself as a “lawyer of 

last resort”). 

- 227 -


- 228 -

16 

FORMS 

Stephanie B. Driggers* 

Andrew J. Tuck** 

Note: The forms included in this chapter are for illustrative purposes only. Due to the 

confi guration of the forms for inclusion in this publication, the forms do not conform to the typeface/ 

font size or margin requirements of the Georgia appellate courts. 

* Ms. Driggers is a senior associate with the law fi rm of Alston & Bird LLP. She received a B.A. from 

Stetson University in 2000, and a J.D. from Vanderbilt University School of Law in 2003. 

** Mr. Tuck is a senior associate with the law fi rm of Alston & Bird LLP. He received a B.E. from Vanderbilt 

University in 2000, and a J.D. from the University of Georgia School of Law in 2006. 

- 229 -


FORM 1 

NOTICE OF APPEAL: CIVIL 

(O.C.G.A. § 5-6-51(1) - Statutory Form) 

IN THE __________ COURT OF __________ COUNTY 

STATE OF GEORGIA 

____________________, ] 

] 

Plaintiff[s], ] 

] Civil Action 

vs. ] File No. ___________ 

] 

____________________, ] 

] 

Defendant[s]. ] 

] 

NOTICE OF APPEAL 

Notice is hereby given that ______________ and _______________, [Plaintiff(s)/ 

Defendant(s)] above-named, hereby appeal[s] to the _____________ [Court of Appeals/Supreme 

Court] from the _____________________ [describe order or judgment] entered in this action on 

__________, 20__. 

Motion for new trial [or motion for judgment n.o.v., etc.] was fi led and overruled [or 

granted, etc.] on __________, 20____. 

The Clerk will please omit the following from the record on appeal: 

1. 

2. 

3. 

Transcript of evidence and proceedings [in its entirety/certain portion] [will/will not] be 

fi led for inclusion in the record on appeal. 

- 230 -

- 231 - 

CHAPTER 16: FORMS 

This Court, rather than the [Court of Appeals/Supreme Court], has jurisdiction of 

this case on appeal for the reason that ________________________________________. 

This ____ day of _________, 20___. 

[FIRM] 

[Address] 

[City, State, Zip] 

[Telephone] 

Attorney[s] for Appellant[s] 

______________________________ 

[NAME] 

Georgia Bar No. _______ 

[Certifi cate of Service]


FORM 2 

NOTICE OF CROSS-APPEAL: CIVIL 




____________________, ] 

] 



vs. ] File No. ___________ 

] 

____________________, ] 

] 


] 

NOTICE OF CROSS-APPEAL 

Notice is hereby given that ______________, one of the [Plaintiff(s)/Defendant(s)] above- 

named, hereby cross-appeal[s] to the _____________ [Court of Appeals/Supreme Court] from the 

_____________________ [describe order or judgment] entered in this action on __________, 

20____. 

Notice of Appeal was heretofore fi led on ________________, 20____. 

The Clerk will please include the following from the record on appeal, all of which were 

designated for omission by Appellant: 

1. 

2. 

3. 

Transcript of evidence and proceedings [in its entirety/certain portion] [will be fi led] [will 

not be fi led] [has already been designated to be fi led by Appellant] for inclusion in the record on 

appeal. 

- 232 -

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 

Attorney[s] for Cross-Appellant[s] 

______________________________ 

[NAME] 


[Certifi cate of Service] 

- 233 - 

CHAPTER 16: FORMS


FORM 3 

NOTICE OF APPEAL: CRIMINAL 




The State, ] 

] [Indictment] 

vs. ] [Accusation] 

] No. ___________ 

____________________, ] 

] 

Defendant. ] 

] 


Notice is hereby given that ______________, Defendant above-named, hereby appeals to 

the _____________ [Court of Appeals/Supreme Court] from the judgment of conviction and sen- 

tence entered herein on __________, 20____. 

The offense[s] for which Defendant was convicted [is/are] __________________, and the 

sentence[s] imposed [is/are] as follows: ________________________________. 

Motion for new trial [or motion in arrest of judgment, etc.] was fi led and overruled on 

__________, 20____. 

The Clerk will please omit the following from the record on appeal: 

1. 

2. 

3. 

Transcript of evidence and proceedings [in its entirety/certain portion] [will/will not] be 

fi led for inclusion in the record on appeal. 

- 234 -

- 235 - 


This Court, rather than the [Court of Appeals/Supreme Court], has jurisdiction of this case 

on appeal for the reason that ________________________________________. 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 


______________________________ 

[NAME] 




FORM 4 

APPELLEE’S DESIGNATION OF RECORD 

(Based on O.C.G.A. § 5-6-42) 



____________________, ] 

] 



vs. ] File No. ___________ 

] 

____________________, ] 

] 


] 

APPELLEE’S DESIGNATION OF RECORD 

[Plaintiff(s)/Defendant(s)] hereby designate[s] [all/part] of the omitted matters in the 

record on appeal, [including the transcript of (date, etc.)]. 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 


______________________________ 

[NAME] 



- 236 -

FORM 5 

APPELLANT’S/APPELLEE’S BRIEF: COVER PAGE 

(Based on SUPREME COURT RULE 18) 

IN THE SUPREME COURT 


- 237 - 


____________________, ] 

] 


] 

vs. ] 

] Case No. ___________ 

___________________, ] 

] 


] 

[FIRM] 

[Address] 


[Telephone] 

Attorney[s] for _____________ 

BRIEF OF [APPELLANT/APPELLEE] 

______________________________ 

[NAME] 

Georgia Bar No. _______


FORM 6 

APPELLANT’S/APPELLEE’S BRIEF: BODY 

(Based on SUPREME COURT RULES 18-20) 



____________________, ] 

] 


] 

vs. ] Case No. ___________ 

] 

__________________, ] 

] 


] 

BRIEF OF [APPELLANT/APPELLEE] 

I. [Statement describing the type of case within the Supreme Court’s jurisdiction, the judg- 

ment appealed, and the date of entry.] 

II. [Brief statement of facts showing the general nature of the case.] 

III. [Enumeration of errors.] 

IV. [Argument in sequence with the enumeration of errors, including additional facts where 

essential and citation of authorities.] 

- 238 -

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 


______________________________ 

[NAME] 



- 239 - 

CHAPTER 16: FORMS


FORM 7 

APPELLANT’S BRIEF: BODY 

(Based on COURT OF APPEALS RULE 25(a)) 

IN THE COURT OF APPEALS 


____________________, ] 

] 


] 

vs. ] Case No. ___________ 

] 

____________________, ] 

] 


] 

Part I – 

Part II – 

Part III – 

BRIEF OF APPELLANT[S] 

[Part I must contain a succinct and accurate statement of the proceedings below 

and the material facts relevant to the appeal and the citation of such parts of the 

record or transcript essential to a consideration of the errors complained of, and 

a statement of a method by which each enumeration of error was preserved for 

consideration.] 

[Part II must contain an enumeration of errors.] 

[Part III must contain the argument and citation of authorities, including a concise 

statement of the applicable standard of review with supporting authority for each 

issue presented in the Brief.] 

- 240 -

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 


______________________________ 

[NAME] 



- 241 - 

CHAPTER 16: FORMS


FORM 8 

APPELLEE’S BRIEF: BODY 

(Based on COURT OF APPEALS RULE 25(b)) 



____________________, ] 

] 


] 

vs. ] Case No. ___________ 

] 

____________________, ] 

] 


] 

Part I – 

Part II – 

BRIEF OF APPELLEE[S] 

[Part I must point out any material inaccuracy or incompleteness of Appellant’s 

statement of facts and any additional statement of facts deemed necessary, plus 

such additional parts of the record or transcript deemed material. Failure to do 

so shall constitute consent to a decision based upon the Appellant’s statement of 

facts. Except as controverted, Appellant’s statement of facts may be accepted by 

this Court as true.] 

[Part II must contain the Appellee’s argument and citation of authorities as to each 

enumeration of error. It shall also include the standard of review if different from 

that contended by the Appellant(s).] 

- 242 -

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 

Attorney[s] for Appellee[s] 

______________________________ 

[NAME] 



- 243 - 

CHAPTER 16: FORMS


FORM 9 

MOTION FOR NEW TRIAL: CIVIL 

(O.C.G.A § 5-5-42(b) - Statutory Form) 



____________________, ] 

] 



vs. ] File No. ___________ 

] 

____________________, ] 

] 


] 

MOTION FOR NEW TRIAL 

[Plaintiff(s)/Defendant(s)] move[s] the Court to set aside the verdict returned herein on 

____________, 20____, and the judgment entered thereon on ____________, 20____, and to grant 

a new trial on the following grounds: 

1. The verdict is contrary to law. 

2. The verdict is contrary to the evidence. 

3. The verdict is strongly against the weight of the evidence. 

4. The Court erred in permitting Witness _________ to testify as follows: 

_____________________________. 

5. The Court erred in failing to charge the jury on ____________________ as 

requested in writing by [Plaintiff(s)/Defendant(s)]. 

- 244 -

- 245 - 


6. The Court erred in charging the jury as follows: __________________________ 

_______________________. 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 


______________________________ 

[NAME] 


[Here set forth Rule Nisi and Certifi cate of Service]


FORM 10 

MOTION FOR NEW TRIAL: CRIMINAL 

(O.C.G.A § 5-5-42(d) - Statutory Form) 



The State ] 

] [INDICTMENT] 

vs. ] [ACCUSATION] 

] FILE NO. ___________ 

____________________, ] 

] 

Defendant. ] 

] 

MOTION FOR NEW TRIAL 

Defendant moves the Court to set aside the verdict returned herein on _________, 20____, 

and the sentence entered thereon on _________, 20____, and to grant a new trial on the following 

grounds: 

1. The Defendant should be acquitted and discharged due to the State’s failure to 

prove guilt beyond a reasonable doubt. 

2. Although the State proved the Defendant’s guilt beyond a reasonable doubt, the 

evidence was suffi ciently close to warrant the trial judge to exercise [his/her] 

discretion to grant the Defendant a retrial. 

3. The Court committed an error of law, warranting a new trial. 

- 246 -

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 


______________________________ 

[NAME] 


[Here set forth Rule Nisi and Certifi cate of Service] 

- 247 - 

CHAPTER 16: FORMS


FORM 11 

REQUEST FOR ORAL ARGUMENT 

(Based on COURT OF APPEALS RULE 28(a)) 



____________________, ] 

] 


] 

vs. ] Case No. ___________ 

] 

____________________, ] 

] 


] 

To: Clerk 

Court of Appeals of the State of Georgia 

47 Trinity Avenue S.W., Sutie 501 

Atlanta, Georgia 30334 


[Appellant/Appellee], _______________, hereby requests oral argument pursuant to 

Rule 28 of this Court. 

The undersigned counsel for [Appellant/Appellee] hereby certifi es that counsel for [Ap- 

pellee/Appellant] has been notifi ed of the [Appellant’s/Appellee’s] request to argue the case orally, 

and inquiry has been made of said counsel of the intent to request oral argument, and counsel 

for [Appellee/Appellant] [desires/does not desire] to argue the case orally. Appellant’s counsel, 

___________________, will make oral argument. Appellee’s counsel, ________________, will 

make oral argument. 

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[Brief specifi c statement demonstrating that the decisional process will be signifi cantly 

aided by oral argument. The request should be self-contained and should convey the specifi c rea- 

son or reasons oral argument would be benefi cial to the Court.] 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 

Attorney[s] for 

[Appellant(s)/Appellee(s)] 

______________________________ 

[NAME] 




Clerk 

Supreme Court of Georgia 

244 Washington Street 

Room 572, State Offi ce Annex Building 


Dear [Clerk’s Name]: 

FORM 12 


(Based on SUPREME COURT RULE 51) 

RE: [Case Name and Number] 

[Appellant/Appellee], _______________, requests that this case be placed on the Court’s 

calendar for oral argument pursuant to Rule 51 of this Court. 

The undersigned counsel for [Appellant(s)/Appellee(s)] certifi es that counsel for [Appellee/ 

Appellant] has been notifi ed of the [Appellant’s(s’)/Appellee’s(s’)] intention to argue the case orally, 

and that inquiry has been made whether said counsel intends also to argue the case orally. Counsel 

for [Appellee(s)/Appellant(s) ] [does/does not] desire to argue the case orally. Thank you for your 

assistance in this matter. 

cc: [Opposing Counsel] 

- 250 - 

Sincerely, 

[NAME]

FORM 13 

PETITION FOR LEAVE TO APPEAL 

(Based on O.C.G.A. § 5-6-35 and COURT OF APPEALS RULE 31) 



- 251 - 


____________________, ] 

] 


] 


vs. ] File No. ___________ 

] 

____________________, ] 

] 


] 

I. [Enumeration of errors.] 

II. [Statement of jurisdiction.] 

APPLICATION FOR LEAVE TO APPEAL 

III. [Specifi cation of the order or judgment being appealed and, if interlocutory, the 

need for interlocutory appellate review.] 

IV. [Argument regarding (a) error and (b) why establishment of precedent would be 

desirable.]


This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 

Attorney[s] for Petitioner[s] 

[Exhibits to Attach: 

______________________________ 

[NAME] 


- Stamped “fi led” copy of the order or judgment being appealed bearing the signature 

of the trial court judge. 

- A copy of the petition or motion which led directly to the order or judgment being 

appealed, and a copy of any responses to the petition or motion. 

- Copies of other parts of the record or transcript the Applicant(s) deem(s) appropriate. 

- All exhibits must be tabbed, indexed and securely bound at the top with staples or 

fasteners (round head or Acco).] 

[Certifi cate of Service (averring that service perfected at or prior to fi ling)] 

- 252 -

- 253 - 


FORM 14 

APPLICATION FOR LEAVE TO APPEAL INTERLOCUTORY ORDER 

(Based on O.C.G.A. § 5-6-34(b) and COURT OF APPEALS RULE 30) 



____________________, ] 

] 



vs. ] File No. ___________ 

] 

____________________, ] 

] 


] 


I. [Statement of jurisdiction.] 

II. [Statement of the need for such an appeal and the issues involved therein. This 

section must show that: (a) the “issue to be decided appears to be dispositive of the 

case”; (b) the “order appears erroneous and will probably cause a substantial error 

at trial or will adversely affect the rights of the appealing party until entry of fi nal 

judgment in which case the appeal will be expedited”; or (c) “the establishment of 

precedent is desirable.”]


This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 

Attorney[s] for Applicant[s] 


______________________________ 

[NAME] 


- Stamped “fi led” copy of the order or judgment being appealed and the certifi cate of 

immediate review bearing the signature of the trial court judge. 

- A copy of the petition or motion that led directly to the order or judgment being 

appealed, and a copy of any responses to the petition or motion. 

- Copies of other parts of the record or transcript needed to suffi ciently apprise the 

Court of the appellate issues, in context, and support the arguments advanced. 

- All exhibits must be tabbed, indexed, and securely bound at the top with staples or 

fasteners (round head or Acco).] 


- 254 -

FORM 15 

APPLICATION FOR DISCRETIONARY APPEAL 

(Based on O.C.G.A. § 5-6-35 and SUPREME COURT RULE 33) 



- 255 - 


____________________, ] 

] 



vs. ] File No. ___________ 

] 

____________________, ] 

] 


] 

I. [Enumeration of errors.] 

II. [Statement of jurisdiction.] 

APPLICATION FOR DISCRETIONARY APPEAL 

III. [Description of the order or judgment appealed from and the issues involved. Also, 

if the order is interlocutory, a description of the need for interlocutory appellate 

review.] 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 


______________________________ 

[NAME] 




- Stamped copy of the trial court’s order or judgment being appealed showing the 

date of fi ling and the certifi cate of immediate review. 

- A transcript is not necessary, but affi davits, exhibits, and relevant portions of the 

transcript should be attached to the application to demonstrate to the Court what 

the record will show if the application is granted.] 


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- 257 - 


FORM 16 

APPLICATION FOR LEAVE TO APPEAL AN INTERLOCUTORY ORDER 

(Based on O.C.G.A. § 5-6-34(b) and SUPREME COURT RULE 30) 



____________________, ] 

] 



vs. ] File No. ___________ 

] 

____________________, ] 

] 


] 


I. [Statement of jurisdiction.] 

II. [Enumeration of errors and statement specifying order or judgment being appealed 

from and why interlocutory review is necessary.] 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 


______________________________ 

[NAME] 




- Copies of the trial court’s order to be appealed and stamped copy of certifi cate for 

immediate review showing the date of fi ling. 

- A transcript is not necessary, but affi davits, exhibits, and relevant portions of the 

transcript should be attached to the application to demonstrate to the Court what 

the record will show if the application is granted.] 


- 258 -

- 259 - 


FORM 17 

NOTICE OF INTENTION TO APPLY FOR CERTIORARI 

(Based on SUPREME COURT RULE 38 and COURT OF APPEALS RULE 38) 



____________________, ] 

] 


] 

vs. ] Case No. ___________ 

] 

____________________, ] 

] 


] 

NOTICE OF INTENTION TO APPLY FOR CERTIORARI 

To: Clerk 

Court of Appeals of the State of Georgia 

47 Trinity Avenue S.W., Sutie 501 


Notice is hereby given that [Appellant(s)/Appellee(s)], _____________________, intend(s) 

to apply to the Supreme Court for a writ of certiorari to review the judgment of the Court of Appeals 

rendered in the above-styled case on ___________, 20____ [in which case a motion for rehearing 

was denied on ____________, 20____].


This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 


______________________________ 

[NAME] 



- 260 -

FORM 18 

APPLICATION FOR WRIT OF HABEAS CORPUS* 

(Based on O.C.G.A. § 9-14-44) 

IN THE SUPERIOR COURT OF _________ COUNTY 


____________________, ] 

] 

Petitioner, ] 

____________________ ] 

Inmate Number ] 


vs. ] File No. __________ 

____________________, ] 

] 

Respondent. ] 

] 

APPLICATION FOR WRIT OF HABEAS CORPUS 

I. [Identify the proceeding in which the Petitioner was convicted.] 

II. [Date of rendition of the fi nal judgment.] 

III. [Clearly set forth the respects in which the Petitioner’s[s’] rights were violated.] 

- 261 - 


IV. [State with specifi city which claims were raised at trial or on direct appeal, 

providing appropriate citations to the trial or appellate record.] 

* Some Superior Courts have prepared forms that must be used. This form is based on the requirements 

contained in O.C.G.A. § 9-14-44. Note that under O.C.G.A. § 9-14-45, service of a petition of habeas 

corpus shall be made upon the person having custody of the Petitioner[s]. If Petitioner[s] is being 

detained under the custody of the Department of Corrections, an additional copy of the Petition must be 

served on the Attorney General. If Petitioner[s] is being detained under the custody of some authority 

other than the Department of Corrections, an additional copy of the Petition must be served upon the 

District Attorney of the county in which the Petition is fi led. Service upon the Attorney General or the 

District Attorney may be had by mailing a copy of the Petition and a proper Certifi cate of Service.


V. [Identify any previous proceedings that the Petitioner may have taken to secure 

relief from his or her conviction and, in the case of prior habeas corpus petitions, 

state which claims were previously raised.] 

VI. [Attach to the petition affi davits, records, or other evidence supporting the 

allegations or state why the same are not attached.] 

VII. [Argument and citation of authorities shall be omitted from the petition. A brief 

may be submitted in support of the petition, setting forth any applicable argument.] 

WHEREFORE, Petitioner prays that the Court grant Petitioner relief to which [he/she] 

may be entitled in this proceeding. 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 

Attorney[s] for Petitioner 

______________________________ 

[NAME] 


I [declare certify, verify or state] under penalty of perjury that the foregoing is true and 

correct. Executed this _____ day of ______________, 20____. 

______________________________ 

Signature of Petitioner 


- 262 -

- 263 - 


FORM 19 

MOTION FOR RECONSIDERATION 

(Based on SUPREME COURT RULE 27 and COURT OF APPEALS RULE 37) 

IN THE [COURT OF APPEALS/SUPREME COURT] 


____________________, ] 

] 



vs. ] File No. ___________ 

] 

____________________, ] 

] 


] 

MOTION FOR RECONSIDERATION 

Pursuant to [Court of Appeals Rule 37/Supreme Court Rule 27], [Appellee(s)/Appellant(s)] 

hereby move[s] this Court to reconsider its Order entered on _____________, 20____ in the above- 

referenced case. A copy of that Order is attached hereto as Exhibit “A.” 

[Brief in support of motion]. 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 



______________________________ 

[NAME] 




FORM 20 

APPLICATION FOR CERTIFICATE OF PROBABLE CAUSE TO APPEAL 

FROM ORDER DENYING WRIT OF HABEAS CORPUS 

(Based on O.C.G.A. § 9-14-52(b) and SUPREME COURT RULE 36) 



____________________, ] 

] 

Petitioner, ] 

___________________ ] 

Inmate Number ] 


vs. ] File No. __________ 

____________________, ] 

] 

Respondent. ] 

] 

APPLICATION FOR CERTIFICATE OF PROBABLE CAUSE 

[Neither statute nor Supreme Court Rules dictate the required contents of this 

application. The Court will grant such an application “where there is arguable merit.”] 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 



______________________________ 

[NAME] 



- 264 -

FORM 21 

NOTICE OF APPEAL WHEN USING RECORD APPENDIX* 

(Based on O.C.G.A § 5-6-51(1) and SUPREME COURT RULE 67) 



- 265 - 


____________________, ] 

] 



vs. ] File No. ___________ 

] 

____________________, ] 

] 


] 


Notice is hereby given that ______________ and _______________, 

[Plaintiff(s)/Defendant(s)] above-named, hereby appeal[s] to the Supreme Court from 

the _____________________ [describe order or judgment] entered in this action on 

__________, 20__. 

Motion for new trial [or motion for judgment n.o.v., etc.] was fi led and overruled 

[or granted, etc.] on __________, 20____. 

Because [Plaintiff(s)/Defendant(s)] will fi le a Record Appendix pursuant to 

Supreme Court Rule 67, the Clerk will please include the Notice of Appeal in the appellate 

* Note that the Court of Appeals has rescinded its practice of accepting record appendices. See Important 

Notice – Termination of Record Appendix Rule in the Court of Appeals of Georgia (Nov. 21, 2011), 

http://www.gaappeals.us/termination_of_record.pdf; see also Chapter 4 of this Handbook.


record, but omit everything else. A designation of the record on appeal follows this notice, 

to be served contemporaneously on opposing counsel. 

Transcript of evidence and proceedings [in its entirety/certain portion] [are/are 

not] to be transmitted for inclusion in the record on appeal. 

The Supreme Court, rather than the Court of Appeals, has jurisdiction of this case 

on appeal for the reason that ________________________________________. 

This ____ day of _________, 20____. 

[FIRM] 

[Address] 


[Telephone] 

Attorney[s] for Appellant [s] 

[Designation of Record on Appeal: 

______________________________ 

[NAME] 


Plaintiff(s)/Defendant(s)] hereby designate[s] to [Plaintiff(s)/Defendant(s)] that the 

following parts of the record will be included in the Record Appendix: 

(a) The Notice of Appeal; 

(b) If applicable, the order granting the right to an interlocutory or discretionary 

appeal; 

- 266 -

- 267 - 


(c) The relevant portions of the pleadings, charge, fi ndings, or opinion, including the 

Complaint and Answer (or Charge and Sentence in a criminal case), any Motion 

for New Trial, and any order disposing of a Motion for New Trial; 

(d) All judgments, orders, or decisions in question, all of which must be reduced to 

writing; and 

(e) Other parts of the record to which the parties wish to direct the Court’s attention.] 



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Washington, DC 20004-1404 

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www.alston.com 

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