Georgia Appeals Law Guide / Appellate Law Treatise

Interlocutory Review

A trial court’s decisions prior to its final judgment are “interlocutory” decisions. Generally, parties in Georgia cannot and need not immediately appeal interlocutory decisions. Instead, interlocutory decisions can be appealed after the final judgment, if they have not become moot. Immediate appeal of interlocutory decisions is also possible, but it requires the permission of both the trial court and the appeals court.

OCGA § 5-6-34(b) establishes the specific procedures for immediate interlocutory appeals in Georgia. First, the trial judge must “certif[y] within ten days of entry” of the decision being appealed that it “is of such importance to the case that immediate review should be had.” Then, “within ten days after such certificate is granted,” the party seeking review must serve and file an “application” to the appropriate appeals court (either the Georgia Supreme Court or the Georgia Court of Appeals). The application “shall be in the nature of a petition and shall set forth the need for such an appeal and the issue or issues involved therein,” and “may” include such parts of the record as the appellant “deems appropriate.” The opposing party has ten days from the filing of the application to file a response, which may also include parts of the record. The appeals court then, in its discretion, “issue[s] an order granting or denying such an appeal within 45 days of the date on which the application was filed.” If the appeals court allows the appeal to proceed, the appellant has ten days to file a notice of appeal, after which the appeal then continues, following procedures “the same as in an appeal from a final judgment.”

Trial judge’s discretion to certify

Generally, any interlocutory review under OCGA § 5-6-34(b) needs the trial judge’s certification of immediate review before the application can even be properly filed in the appeals court. The trial judge’s denial of certification is not itself an appealable decision. See Price v. State, 237 Ga. 352, 352-53 (227 SE2d 368) (1976) (“The denial of a certificate for interlocutory appeal is not reviewable, because the trial judge’s interlocutory ruling can be reviewed upon the appeal of a final judgment.”), cited with approval in Thomas v. State, 276 Ga. 853, 854 n.7 (583 SE2d 848) (2003). The Georgia Supreme Court rejected an attempt to use mandamus to review an order that the trial judge refused to certify for immediate review. Smith & Wesson v. City of Atlanta, 273 Ga. 431, 435 (543 SE2d 16) (2001) (“This Court has clearly stated that in reviewing cases on appeal it will not pass upon questions on which no final ruling has ever been made by the trial judge or where there is no compliance with the requirement of OCGA § 5-6-34(b) that the trial court certify its order for immediate review.”).

Review without certification

The Georgia Supreme Court occasionally considers interlocutory appeals even though the trial judge did not certify the decision for immediate review, and even though the decision is not appealable as a direct appeal or a collateral order. In Waldrip v. Head, 272 Ga. 572, 576 (532 SE2d 380) (2000), a 4-3 decision, the Court found that it had “the power to consider appeals of interlocutory orders when we disagree with the trial court concerning the need for immediate appellate review of an interlocutory order.” Although the Court stated that “strict adherence to the certificate requirement provides no alternative procedure in the event that the appellate court disagrees” with the trial court’s denial of a certificate, the Court described this as a “defect.” Id. at 575. Finding that the “purpose of the certificate requirement … is not to permit trial courts to deprive appellate courts of their jurisdiction,” and citing previous cases in which the Court considered interlocutory appeals without a certificate from the trial court, the Court adopted an exception to the certificate requirement, just as it previously adopted the collateral order exception. Id. at 575-76.

Interaction with other types of appeal

The interlocutory review procedures of Section 5-6-34(b) do not apply to any of the classes of orders subject to direct appeal pursuant to Section 5-6-34(a). Those include not only “final judgments” (OCGA § 5-6-34(a)(1)), but also “orders granting or refusing applications … for interlocutory … injunctions” (Section 5-6-34(a)(4)) and numerous other specific classes of orders or judgments that may not be final. Parties also need not follow the interlocutory review procedures of Section 5-6-34(b) when the decision to be appealed is a “collateral order.” However, it is likely safer, in many collateral order cases, to first attempt the interlocutory review procedure. Interlocutory orders are also subject to the discretionary review procedures of OCGA § 5-6-35 if they fall into any of the classes of cases listed in Section 5-6-35(a). Thus, in some cases it is necessary to comply with both the interlocutory review procedures and the discretionary review procedures before an appeal may be taken.

Summary judgment orders

OCGA § 9-11-56(h) specifies that orders “denying summary judgment” are subject to appeal pursuant to the interlocutory review procedures in OCGA § 5-6-34(b). On the other hand, Section 9-11-56(h) provides that orders granting summary judgment “on any issue or as to any party shall be subject to review by appeal.” The Georgia Supreme Court interprets this language to allow a party against whom summary judgment has been granted to immediately appeal the decision, even if it is not yet appealable as a final judgment or under any other provision. See Mitchell v. Oliver, 254 Ga. 112, 114 (327 SE2d 216) (1985) (“Unlike an OCGA § 5-6-34(b) interlocutory application, which is discretionary with both the trial and appellate courts, OCGA § 9-11-56(h) allows the losing party to secure an interlocutory ruling as a matter of right.”).

Arbitration

Interlocutory orders granting or denying stays of litigation pending arbitration are generally immediately reviewable in Georgia. “Because of the unnecessary delay and expenses to the parties of an incorrect determination of whether judicial proceedings should be stayed pending arbitration, we recommend that the trial courts, except in the clearest cases, certify orders granting or denying such stays. Although our decision that orders granting or denying motions to stay judicial proceedings pending arbitration should be certified for interlocutory review except in the clearest cases runs counter to the principle that piecemeal appeals are to be avoided, we find that judicial economy favors interlocutory appeals in such cases.” Phillips Const. Co. v. Cowart Iron Works, Inc., 250 Ga. 488, 490 (299 SE2d 538) (1983). See also Am. Gen. Fin. Servs. v. Jape, 291 Ga. 637 (732 SE2d 746) (2012) (holding Federal Arbitration Act does not preempt OCGA § 5-6-34(b) with respect to interlocutory review of orders pending arbitration).

Effect of unnecessary certification

Occasionally a party applies for and receives a certificate of immediate review from the trial judge, even though the party has a right of direct appeal. The Georgia appeals courts’ practice is to grant such applications for interlocutory review. See Aiken Dermatology & Skin Cancer Clinic, P.A. v. DavLong Sys., Inc., 314 Ga. App. 699, 705 n.5 (725 SE2d 835) (2012).

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