A collateral order is one that, because it concludes an issue separate from the merits and would later be effectively unreviewable, can immediately be appealed. Courts often describe the appealability of collateral orders as an “exception” to the requirement of a final judgment. See, e.g., Fulton Cnty. v. State, 282 Ga. 570, 571 (651 SE2d 679) (2007) (“the collateral order exception to the final judgment rule”). But some describe the collateral order doctrine not as an exception to but rather an interpretation of the final judgment rule, “reflect[ing] a ‘practical rather than a technical construction’ … that recognizes that a very ‘small class’ of interlocutory rulings are effectively final …, ‘too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred.’” Sosniak v. State, 292 Ga. 35, 44 n.1 (734 SE2d 362) (2012) (Nahmias, J., concurring) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
Georgia courts, relying on a line of United States Supreme Court cases, have described the collateral order doctrine as a three-part test, under which an order is immediately appealable if it: “(1) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it; (2) resolves an issue that is substantially separate from the basic issues in the complaint; and (3) might result in the loss of an important right if review had to await final judgment, making the order effectively unreviewable on appeal.” Murphy v. Murphy, 322 Ga. App. 829, 831 (747 SE2d 21) (2013) (citing Scroggins v. Edmondson, 250 Ga. 430 (297 SE2d 469) (1982)). See also Fulton Cnty. v. State, 282 Ga. at 571 (“The collateral order exception is to be applied if the order (1) resolves an issue that is ‘substantially separate’ from the basic issues to be decided at trial, (2) would result in the loss of an important right if review had to await final judgment, and (3) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it.”) (note use of “would” in place of “might”) (citation omitted).
The collateral order doctrine is judge-made, and the phrase “collateral order” does not appear in the Georgia Code. However, it must be interpreted in connection with three related statutory devices: interlocutory appeals pursuant to OCGA § 5-6-34(b), direct appeals of non-final judgments in the categories listed in OCGA § 5-6-34(a)(2)-(12), and in extraordinary cases, mandamus pursuant to OCGA § 9-6-20. See generally Board of Regents v. Canas, 295 Ga. App. 505 (672 SE2d 471) (2009) (discussing relationship between collateral orders, interlocutory appeals, and direct appeals).
Examples of orders held immediately appealable as collateral:
Denial of double jeopardy plea
In Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982), the Georgia Supreme Court held that the trial court’s denial of a defendant’s plea of double jeopardy was immediately appealable as a collateral order, even if the interlocutory appeal procedure did not apply.
Cancellation of lis pendens notice
In Scroggins v. Edmondson, 250 Ga. 430 (297 SE2d 469) (1982), apparently the first Georgia case to apply the collateral order doctrine in the civil context, the Georgia Supreme Court held that the cancellation of a lis pendens notice was immediately reviewable, in part because “an important right might be lost if review had to await final judgment because the realty might be sold before conclusion of the action, making cancellation ‘effectively unreviewable on appeal.’”
Requiring county to pay defendant’s expenses
In Fulton County v. State, 282 Ga. 570 (651 SE2d 679) (2007), the Georgia Supreme Court held that Fulton County could immediately appeal, as collateral, an order compelling it to pay a portion of the defense expenses in the murder trial of Brian Nichols. This decision is unusual in that it implicitly finds that an order regarding payment of money “would result in the loss of an important right if review had to await final judgment.” Generally, money is considered fungible and orders regarding money are considered correctable by later court action. Cf. In re Lytton’s, 832 F.2d 395, 402 (7th Cir. 1988) (finding order not immediately appealable as collateral, in part because “costs and fees may be appealed after the bankruptcy court has issued a final order regarding those fees”); Saber v. FinanceAmerica Credit Corp., 843 F.2d 697, 703 (3d Cir. 1988) (finding order regarding payment of money not immediately appealable as collateral, and noting, “[t]he defendants … have made no showing that [an opposing party] is insolvent or that the money they have paid may be irretrievable for any other reason should they eventually prevail”).
Denial of motion to dismiss under speedy trial statute
In Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985), the Georgia Supreme Court held that the denial of the defendant’s motion to dismiss based on the Georgia speedy trial demand statute, OCGA § 17-7-170, was immediately appealable even without following the interlocutory appeal statute. As discussed below, however, motions to dismiss based on the constitutional speedy trial right can only be appealed by following interlocutory review procedures.
Examples of orders held not immediately appealable as collateral:
Denial of constitutional speedy trial motion
In Sosniak v. State, 292 Ga. 35 (734 SE2d 362) (2012), the Georgia Supreme Court held that the denial of a criminal defendant’s pre-trial motion for a speedy trial was not immediately appealable as an interlocutory order. Because this decision explicitly overruled two earlier Supreme Court decisions, Callaway v. State, 275 Ga. 332 (567 SE2d 13) (2002), and Boseman v. State, 263 Ga. 730 (438 SE2d 626) (1994), the Court took the unusual step of ruling on the merits of the defendant’s speedy trial motion, despite dismissing the appeal.
Compelling production of purportedly attorney-client privileged material
In Expedia, Inc. v. City of Columbus, 305 Ga. App. 450 (699 SE2d 600) (2010), the Georgia Court of Appeals held that such an order was not an immediately appealable collateral order, because the erroneous disclosure of attorney-client privileged material could be remedied in other ways. An adverse judgment could be vacated and a new trial granted at which the evidence would be excluded, or the party ordered to produce the material could refuse to do and then directly appeal the resulting contempt citation. The court acknowledged that a “fraction” of orders compelling disclosure of privileged material could be effectively unreviewable, but determined that this concern did not justify making such orders immediately appealable in general, citing Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009).
Other discovery orders
In Johnson & Johnson v. Kaufman, 226 Ga. App. 77 (485 SE2d 525) (1997), the Georgia Court of Appeals held that the trial court’s “sweeping” discovery order compelling production of documents was not reviewable as a collateral order, overruling an earlier decision, Department of Transportation v. Hardaway Co., 216 Ga. App. 262 (454 SE2d 167) (1995). Similar to Expedia, discussed above, the court found that the discovery order was not effectively unreviewable, because it could be cured by a later appeal, or defied and the resulting contempt order then appealed.
In Settledown Public Utility, LLC v. Waterscape Utility, LLC, No. A13A0830 (Ga. App. Nov. 13, 2013), the Georgia Court of Appeals held that an order disqualifying a party’s counsel was not immediately appealable as a collateral order. Although recognizing that Massachusetts and Nebraska courts held that such orders were collateral, see PCG Trading v. Seyfarth Shaw, 460 Mass. 265, 269, n.6, 951 N.E.2d 315 (2011), and Jacob North Printing Co. v. Mosley, 279 Neb. 585, 587-88, 779 N.W.2d 596 (2010), the court agreed with “the majority of courts to address this issue” that “because orders granting or denying a motion to disqualify counsel are fully reviewable on appeal from a final judgment, the collateral order doctrine does not apply.” The court further noted that an order disqualifying counsel is appealable as an interlocutory order, citing Redd v. State, 264 Ga. 399 (444 SE2d 776) (1994), but the interlocutory appeal procedures had not been followed.
An order denying a motion to recuse a trial court judge is not immediately appealable as a collateral order. See Murphy v. Murphy, 322 Ga. App. 829 (747 SE2d 21) (2013) (en banc).