GEORGIA APPELLATE PRACTICE HANDBOOK

1 - 1 - GEORGIA APPELLATE PRACTICE HANDBOOK7th EditionGEORGIA APPELLATEPRACTICE HANDBOOK 7th edition 2012 CONTRIBUTORSC hief EditorsDaniel F. Diffl eyJeffrey J. SwartAssociate EditorsM. Scott OrrellL. Boone ParkMelissa Mahurin WhiteheadPrincipal Chapter EditorsVan A. AndersonDebra D. BernsteinNowell D. BerrethAdam J. BiegelDerin B. DickersonStephanie B. DriggersChristina Hull EikhoffGregory B. MauldinWade Pearson MillerDaniel C. NorrisT. C. Spencer PryorChristopher A. RileySamuel R. RutherfordDouglas G. ScribnerBrian R. StimsonJudicial ContributorsJustice David E. NahmiasJudge Christopher J. McFaddenCo-Chapter EditorsAngela AdamsLisa K. BojkoBennett D. BryanMeredith Jones Kacy McCaffreyKimyatta E. McClaryEllen H. PersonsJason D. PoppAllison S. ThompsonAndrew J. Tuck 2012 Alston & Bird LLPAll rights reservedCover photograph: Doors to GEORGIA Judicial Building (detail)Photography by Louis M.

2 Lindic FOREWORDA lston & Bird LLP is pleased to provide this Seventh Edition of the GEORGIA APPELLATE PRACTICE HANDBOOK to the institute of Continuing Legal Education in 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 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 .

3 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 Sparrow, Clerk of the Court of Appeals, in reviewing and commenting on relevant portions of this 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 hope that the HANDBOOK will continue to be a valuable resource for all who PRACTICE in the GEORGIA APPELLATE F. Diffl eyJeffrey J. SwartChief Editors- i - 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.

4 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 - ii -CHAPTER ONE: APPEAL TIMETABLE SUMMARY Introduction .. 1 General Information .. 2 Direct Appeals .. 4 Notice of Appeal and Cross-Appeal.

5 4 Time for Filing .. 4 Extensions of Time for Filing 4 Filing of Transcript .. 5 Record .. 5 Docketing .. 6 Closing of the Docket .. 7 Supersedeas .. 7 Payment of Costs .. 7 Oral Argument .. 8 Briefs and Enumerations of Error .. 9 Briefs, Generally .. 9 Supplemental Briefs .. 9 Amicus Curiae Briefs .. 9 Discretionary Appeals of Final Order or Judgment .. 10 Application for Leave, Response, and Decision on Application .. 10 Application .. 10 Costs .. 10 Response .. 10 Decision by Court on Application .. 11- iii - Notice of Appeal .. 11 Interlocutory Appeals .. 11 Automatic Stay .. 11 Certifi cate of Immediate Review .. 11 Application for Interlocutory Appeal, Response, and Decision .. 12 Application.

6 12 Costs .. 12 Response .. 12 Decision by Court on Application .. 12 Notice of Appeal .. 12 Motion For Reconsideration .. 13 Motion in Supreme Court .. 13 Motion in Court of Appeals .. 13 Responding to a Motion for Reconsideration .. 14 Certiorari Petitions .. 14 Petition for Certiorari to GEORGIA Supreme Court .. 14 Record .. 14 Response .. 15 Briefs .. 15 Petition for Certiorari to United States Supreme Court .. 15 Stay of Remittitur Pending Petition for Certiorari to the United States Supreme Court .. 15- iv -CHAPTER TWO: JURISDICTION, AVAILABILITY, AND DISMISSALS OF APPEALS Introduction .. 17 Right of Appeal Generally .. 18 Appeals from Superior and State Courts Generally .. 18 Appeals from Magistrate, Probate, and Juvenile Courts Generally.

7 19 Jurisdiction of the GEORGIA APPELLATE Courts .. 19 Jurisdiction of the GEORGIA Supreme Court .. 19 Jurisdiction of the GEORGIA Court of Appeals .. 21 Appealability of Judgments and Orders .. 22 Direct Appeals Generally .. 22 Direct Appeals from Final Judgments .. 23 Direct Appeals from Non-Final Orders and Judgments .. 24 Motions for Summary Judgment .. 25 Final Orders Appealable Only by Application .. 26 Orders Requiring Interlocutory Application for Appeal .. 29 Basis for Granting Interlocutory Appeal .. 29 Orders Requiring Interlocutory Appeal .. 30 Procedure for Filing Appeal .. 32 Procedure for Direct Appeal .. 32 Procedure for Appeal by Application .. 33 Appeal of Final Order by Application .. 33 Appeal of Non-Final Order by Application .. 34 Nature of Review on Appeal.

8 35- v - Appeals Generally Limited to Corrections of Errors of Law .. 35 Issue Must Have Been Raised In and Ruled Upon by Trial Court .. 36 Scope of Review of Jury Verdicts .. 36 Dismissal of Appeals .. 37 Statutory Grounds for Dismissal .. 37 Failure to File a Timely Notice of Appeal .. 38 Appealability of Non-Final Orders or Judgments; Issues That Are Moot .. 38 Dismissals for Delays in Transmitting the Transcript or Record .. 38 Non-Statutory Grounds for Dismissal .. 39 CHAPTER THREE:POST-TRIAL MOTIONS AS PART OF THE APPEALS PROCESS Introduction .. 41 Post-Judgment Motions for New Trial or JNOV Are Not Ordinarily a Prerequisite to Appeal .. 42 Tolling of Time for Appeal .. 43 To Warrant Post-Judgment Relief, Any Error Must Be Harmful .. 43 Filing of Post-Trial Motions as Supersedeas.

9 44 Trial Court Jurisdiction When Both a Motion for New Trial and Notice of Appeal Are Filed .. 44 Methods for Attacking Civil Judgments .. 45 New Trial .. 46 General Nature .. 46 Grounds for New Trial .. 46 Insuffi cient Grounds for New Trial .. 49- vi - Procedure for Filing a Motion for New Trial .. 49 Extraordinary Motions for New Trial .. 51 Effect of a Motion for New Trial Upon the Time for Filing a Notice of Appeal .. 53 Motions to Set Aside a 53 Statutory Grounds .. 53 Procedure .. 55 Relationship to Appeals .. 55 Motions for Judgment Notwithstanding the Verdict .. 55 General Nature .. 55 Procedure for Filing a Motion for JNOV .. 57 Combining a Motion for New Trial with a Motion for JNOV .. 57 Effect of Motion for JNOV on Time for Appeal.

10 59 Motions to Amend or Modify a Judgment .. 59 General Provisions .. 59 Form of the Order .. 59 Effect of Motion to Amend or Modify on Running of Time Limitations .. 61 The Inherent Power of the Court Over Its Own Orders During the Term of Court .. 61 Motions for Supersedeas Bond .. 62 General Provisions .. 62 Time for Filing .. 62 Penalties for Failure to Post a Supersedeas Bond .. 63 Motions for Attorneys Fees Under 9-15-14 .. 63 Pauper s Affi davit .. 64- vii -CHAPTER FOUR:COMMENCING THE APPEAL: NOTICE OF APPEAL, TRANSCRIPT, AND RECORD Notice of Appeal .. 65 Time to File .. 65 Extensions of Time to File .. 66 Automatic Extensions .. 66 Extensions by Motion .. 67 Contents .. 68 Cross-Appeal: Time to File and Contents .. 69 Transcript and Record.