Although the 1983 Georgia Constitution in Article VI establishes the basic framework for the judicial branch in Georgia, the Constitution also gives power to the General Assembly to provide more specifically for the jurisdiction of and procedure in Georgia courts, including the appeals courts. See, e.g., Ga. Const. Art. VI, Sec. VI, Para. III (“Unless otherwise provided by law, the Supreme Court shall have appellate jurisdiction of the following classes of cases: … Review of all cases shall be as provided by law.”). The General Assembly has so provided, most importantly for appellate procedure in Title 5 of the Georgia Code and the Appellate Practice Act of 1965.
The Appellate Practice Act “was passed to simplify the procedure for bringing a case to the appellate court, and to secure speedy and uniform justice in a uniform and well-ordered manner; … not … to set traps and pitfalls by way of technicalities for unwary litigants. A principal objective of the Act was to get away from the harsh practice of treating every minor departure from prescribed procedures as a jurisdictional defect on the same level as a violation of the Bill of Rights.” Felix v. State, 271 Ga. 534, 534-35 (523 SE2d 1) (1999) (citation and quotation marks omitted). To that end, OCGA § 5-6-30 provides that “this article shall 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 specifically referred to in this article.”
In addition to Title 5, other sections of the Georgia Code significantly impact appellate procedure, including Title 9 governing civil practice, Title 17 governing criminal procedure, and Title 15 governing the courts. Furthermore, some statutes governing areas of substantive law contain provisions affecting appellate procedure. For example, the workers’ compensation statute, Chapter 9 of Title 34, contains specific provisions applicable to appeal of workers’ compensation decisions from the State Board of Workers’ Compensation to the superior court and then to the Court of Appeals. OCGA § 34-9-40.
Broad General Right of Appeal
OCGA § 5-6-33 provides on its face a very broad right of appeal, for “[e]ither party in any civil case and the defendant in any criminal proceeding,” “from any sentence, judgment, decision or decree.” Taken alone, this section would allow appeal of any order by any party, other than the prosecution in a criminal proceeding. Section 5-6-33, however, must be read together with OCGA §§ 5-6-34, 5-6-35, and other sections providing for appeals in specific categories of cases. Although Sections 5-6-34 etc. are phrased permissively rather than exclusively, they have generally been interpreted exclusively: that is, if a case does not fit into one of the categories provided in OCGA §§ 5-6-34 etc., it is not appealable, even though it satisfies Section 5-6-33. Otherwise, Sections 5-6-34 etc. would be meaningless.
Given that OCGA §§ 5-6-34 etc. do the real work of establishing the right to any appeal, is Section 5-6-33 surplusage or can it be interpreted to have any independent purpose? The Court of Appeals has cited Section 5-6-33 in support of the proposition that “nonparties to the underlying case” have no right to appeal. E.g., Rice v. Champion Bldgs., Inc., 288 Ga. App. 597, 602 (654 SE2d 390) (2007). Although Section 5-6-33 might imply that, it does not say it; it too is phrased permissively, not exclusively. Moreover, applying the same interpretive logic to all of Section 5-6-33 could lead to the conclusion that the prosecution has no right of appeal in a criminal proceeding, which is not so. See OCGA §§ 5-7-1 et seq. Furthermore, as the court noted in Rice,non-parties can appeal in at least one situation: where an application to intervene has been denied. See Leone Hall Price Found. v. Baker, 276 Ga. 318, 319 (577 SE2d 779) (2003) (“A party who sought unsuccessfully to intervene in a proceeding can appeal from the final judgment entered therein.”). Indeed, OCGA § 5-6-34(a) itself does not contain the word “party,” and is phrased in the passive voice (“Appeals may be taken….”). The question of whether other non-parties might have a right to appeal has been hotly debated in the Supreme Court. See In re Stroh, 272 Ga. 894, 899 (534 SE2d 790) (2000) (Hunstein, J., dissenting) (“There is no legal, factual, equitable or moral justification for the majority’s callous refusal to entertain the [non-party foster parents’] appeal.”).
Direct appeals under OCGA § 5-6-34(a)
The Supreme Court has divided Section 5-6-34(a) analytically into two parts: final judgments under Section 5-6-34(a)(1), and in Sections 5-6-34(a)(2) through (12), the “11 specific types of trial court rulings that the General Assembly has deemed important enough to the case, or dispositive enough of the case, to warrant an immediate appeal, even though such rulings are often interlocutory rather than final judgments.” Sosniak v. State, 292 Ga. 35, 37 (734 SE2d 362) (2012). The provision for appeal of “final judgments,” OCGA § 5-6-34(a)(1), is discussed in more detail under In the Trial Court > Final Judgment. Other direct appeals under OCGA §§ 5-6-34(a)(2) through (12) are discussed under Review & Error > Direct Appeal.
OCGA § 5-6-35 provides that in certain categories of cases, the appellant must petition the appeals court for the opportunity to appeal, and only after and if such petition is granted may the appellant pursue an appeal using the procedures elsewhere provided. This section is discussed in more detail under Review & Error > Discretionary Review.
Under OCGA § 5-6-34(d), if an appeal is well-taken as to any one particular order, the appeals court “shall” review any other non-moot orders in the case “which are raised on appeal and which may affect the proceedings below,” without regard to whether the other orders would be appealable standing alone. In other words, if one decision is appealable and is in fact appealed, all decisions in the case become appealable by any party with standing to assert error.
An implication of this section is that a party with a right to appeal a particular decision must think strategically about other appeals that might become possible. Say, for example, the trial court granted Party A’s motion in limine to exclude certain evidence, that this decision was most likely wrong on the law, and that Party B sought interlocutory review of this decision but the trial court denied a certification of immediate review. Now imagine that Party B moves for an interlocutory injunction against Party A, and that the trial court grants this motion. Party A has the option of directly appealing the order granting the interlocutory injunction pursuant to OCGA § 5-6-34(a)(4). But by doing so, Party A would give Party B the option of immediately cross-appealing the order in limine. Although the order in limine would also be appealable after a final judgment, there are many reasons Party A might prefer not to allow Party B to appeal the in limine order immediately. Notably, a post-trial appeal of a denial of a motion to exclude evidence will be subject to harmless error review, while a pre-trial appeal will not. Thus, Party A must evaluate whether the benefit of immediately appealing the interlocutory injunction outweighs the downside risk of opening the in limine order to appellate challenge.
Interaction of Sections 5-6-34(a) and 5-6-35(a)
OCGA § 5-6-35, the discretionary appeal provision, requires court approval to appeal in certain enumerated categories of cases. An appellant whose case falls into one of the OCGA § 5-6-35(a) categories must follow the discretionary appeal procedure, even if the order also falls into one of the OCGA § 5-6-34(a) direct appeal categories. “Where both OCGA § 5–6–34(a) and OCGA § 5–6–35(a) are involved, an application for appeal is required when ‘the underlying subject matter’ of the appeal is listed in OCGA § 5–6–35(a), even though the party may be appealing a judgment or order that is procedurally subject to a direct appeal under § 5–6–34(a).” Avren v. Garten, 289 Ga. 186, 192 (710 SE2d 130) (2011) (citation omitted). In other words, if both statutory sections apply, Section 5-6-35 takes precedence.
Interaction of Sections 5-6-34(d) and 5-6-35
There is some tension between the discretionary appeal statute, OCGA § 5-6-35, and the comprehensive review provision, OCGA § 5-6-34(d), in that the discretionary appeal statute by its own terms applies to all the “following cases” listed in it, while the comprehensive review provision allows the appeals court to consider all orders rendered in the case, regardless of whether they would have been appealable independently. In Martin v. Williams, 263 Ga. 707 (438 SE2d 353) (1994), the Supreme Court resolved this tension by holding effectively that Section 5-6-34(d) trumps Section 5-6-35.“[T]he tension between § 5-6-34(d) and § 5-6-35 should be resolved by construing the phrase ‘following cases’ in § 5-6-35 to exclude those cases in which § 5-6-34(d) is applicable.” Martin, 263 Ga. at 710. In other words, if one order is being appealed to which Section 5-6-35 does not apply (meaning that discretionary review procedure is not required), then other orders in the case to which Section 5-6-35 does apply may also be reviewed on appeal without following the discretionary review procedure.
Interaction of Sections 5-6-34(b) and 5-6-35
“The discretionary appeal statute does not excuse a party seeking appellate review of an interlocutory order from complying with the additional requirements of OCGA § 5-6-34(b).” Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213) (1996). So, in an interlocutory appeal of a matter subject to discretionary review, the appellant must comply with both the interlocutory review procedure of Section 5-6-34(b) and the discretionary review procedure of Section 5-6-35.