Georgia Appeals Law Guide / Appellate Law Treatise

Notice of Appeal

A notice of appeal is a document filed with the lower court that notifies all parties to the lower court action, the lower court itself, and the appeals court of the existence of an appeal. The notice of appeal starts the appeal process. In Georgia, the notice of appeal also tells the clerk of the trial court what, if anything, to leave out of the record, which the trial court will transmit to the appeals court, and whether any transcript should be transmitted. The clerk of the trial court, not the appellant, sends the notice of appeal to the appeals court, along with the record and transcript as directed by the appellant.

The notice of appeal serves a jurisdictional function. The filing of the notice of appeal marks the point at which the lower court loses jurisdiction with respect to the decision appealed, and the appeals court takes jurisdiction (if the appeal is proper).

The statutory section governing notices of appeal is OCGA § 5-6-37, which provides in full: “Unless otherwise provided by law, an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal. The notice shall set forth the title and docket number of the case; the name of the appellant and the name and address of his attorney; 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 to be omitted from the record on appeal; a concise statement as to why the appellate court appealed to has jurisdiction rather than the other appellate court; and, if the appeal is from a judgment of conviction in a criminal case, a brief statement of the offense and the punishment prescribed. The appeal shall not be dismissed nor denied consideration because of failure to include the jurisdictional statement or because of a designation of the wrong appellate court. In addition, the notice shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal. Approval by the court is not required as a condition to filing the notice. All parties to the proceedings in the lower court shall be parties on appeal and shall be served with a copy of the notice of appeal in the manner prescribed by Code Section 5-6-32.”

OCGA § 5-6-38(a) further provides that “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of,” or within 30 days of any order on certain post-trial motions.

Jurisdictional for appeals court

“The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Jordan v. Caldwell, 229 Ga. 343, 344 (191 SE2d 530) (1972). Thus, an appeals court must dismiss an appeal of a civil case if the notice of appeal is not timely filed. See Bell v. Cohran, 244 Ga. App. 510, 510 (536 SE2d 187) (2000) (“Because Bell’s notice of appeal was untimely, we lack jurisdiction to consider the merits of her case and must dismiss it.”). In criminal cases, however, dismissal of a represented defendant’s notice of appeal as untimely raises constitutional concerns. In Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995), the Georgia Supreme Court clarified the procedures applicable to untimely notices of appeal filed by criminal defendants. The untimely appeal should be dismissed by the appeals court, but the order of dismissal should “make the defendant and counsel aware of the option of applying for an out-of-time appeal.” Id. at 875. If the defendant seeks an out-of-time appeal, and the trial court finds “that the appellate procedural deficiency was due to appellate counsel’s failure to perform routine duties, appellant is entitled to an out-of-time appeal.” Id. at 876.

Dismissal by trial court

The appellant files the notice of appeal in the trial court, and the trial court generally may dismiss an improper or moot appeal as provided by OCGA § 5-6-48. “[A] trial court’s order dismissing a properly filed direct appeal is itself subject to a direct appeal,” while “a trial court’s order dismissing an improperly filed direct appeal should be considered an interlocutory order and is not subject to a direct appeal.” American Med. Sec. Group, Inc. v. Parker, 284 Ga. 102 (663 SE2d 697, 699) (2008).

Function as supersedeas

Under OCGA §§ 5-6-45 and 5-6-46, the filing of a notice of appeal in the trial court functions as a supersedeas, meaning that it suspends the trial court’s jurisdiction to act with respect to the decision being appealed. “The supersedeas of a filed application or notice of appeal deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” Avren v. Garten, 289 Ga. 186, 190 (710 SE2d 130) (2011) (citation and quotation marks omitted). “The supersedeas that stems from the filing of an application or notice of appeal is limited in that it supercedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal…. Essentially, the supersedeas that results from the filing of an application to appeal or a notice of appeal deprives the trial court of jurisdiction to take action in the case that would affect the judgment on appeal, but it does not deprive the trial court of entering an order that might be affected by the outcome of the appeal of the underlying judgment, subject to the peril that any decision reached which conflicts with the decision of the appellate court when rendered will thereby be made nugatory.” Id.

Interaction with OCGA § 5-6-48(f)

Section 5-6-48(f), together with OCGA § 5-6-30, require the courts to construe the notice of appeal liberally, together with the enumeration of errors and the record, to avoid dismissal where it is “apparent … what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal.” See Foundations > Statutes; Review & Error > Enumeration of Error.

Furthermore, “pursuant to OCGA §§ 5-6-37 and 5-6-34(d), an appellant need only include in the notice of appeal the single judgment that entitles the appellant to take an appeal, and an appellate court must review other orders raised on appeal that may affect the proceedings below regardless of whether or not those orders are expressly included in the notice of appeal.” Mateen v. Dicus, 281 Ga. 455, 456 (637 SE2d 377) (2006).

Designation of record to be omitted

OCGA § 5-6-37 instructs the appellant to designate “those portions of the record to be omitted from the record on appeal.” (Emphasis added.) This requirement “is designed to allow appellate courts to determine if the record before them contains the same evidence that was before the trial court at the time it ruled.” Moulton v. Wood, 265 Ga. App. 389, 389 (593 SE2d 911) (2004). This scheme is somewhat counterintuitive, and occasionally, appellants in their notices of appeal instead designate only those portions of the record to be included, instead of omitted. See, e.g., id.; Regency Exec. Plaza Unit Owner’s Assoc. v. Wilmock, Inc., 237 Ga. App. 193 (514 SE2d 446) (1999); also cf. A Citizen’s Guide to Filing Appeals in the Court of Appeals of Georgia (Aug. 2012), available online at http://www.gaappeals.us/cguide/citizens_guide_2012.pdf (“In a Notice of Appeal, a party must designate the portions of the record to be prepared for review by the Court of Appeals.”). At least in the context of appeals from grants of summary judgment, “appellants who omit portions of the record which they view as not pertaining to any issue on appeal create a probably fatal defect in their appeals,” because the appellant cannot meet its burden of showing error. Wilmock, 237 Ga. App. at 194-95.

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