2020 Georgia Code
Title 5 - Appeal and Error
Chapter 6 - Certiorari and Appeals to Appellate Courts Generally
Article 2 - Appellate Practice
§ 5-6-35. Cases Requiring Application for Appeal; Requirements for Application; Exhibits; Response; Issuance of Appellate Court Order Regarding Appeal; Procedure; Supersedeas; Jurisdiction of Appeal; Appeals Involving Nonmonetary Judgments in Custody Cases

1. Appeals in the following cases shall be taken as provided in this Code section:
   1. Appeals from decisions of the superior courts reviewing decisions of the State Board of Workers' Compensation, the State Board of Education, auditors, state and local administrative agencies, and lower courts by certiorari or de novo proceedings; provided, however, that this provision shall not apply to decisions of the Public Service Commission and probate courts and to cases involving ad valorem taxes and condemnations;
   2. Appeals from judgments or orders in divorce, alimony, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony or holding or declining to hold persons in contempt of such alimony judgment or orders;
   3. Appeals from cases involving distress or dispossessory warrants in which the only issue to be resolved is the amount of rent due and such amount is $2,500.00 or less;
   4. Appeals from cases involving garnishment or attachment, except as provided in paragraph (5) of subsection (a) of Code Section 5-6-34;
   5. Appeals from orders revoking probation;

      (5.1) Appeals from decisions of superior courts reviewing decisions of the Sexual Offender Registration Review Board;

      (5.2) Appeals from decisions of superior courts granting or denying petitions for release pursuant to Code Section 42-1-19;

   6. Appeals in all actions for damages in which the judgment is $10,000.00 or less;
   7. Appeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial;
   8. Appeals from orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment or under subsection (e) of Code Section 9-11-60 denying relief upon a complaint in equity to set aside a judgment;
   9. Appeals from orders granting or denying temporary restraining orders;
   10. Appeals from awards of attorney's fees or expenses of litigation under Code Section 9-15-14;
   11. Appeals from decisions of the state courts reviewing decisions of the magistrate courts by de novo proceedings so long as the subject matter is not otherwise subject to a right of direct appeal; and
   12. Appeals from orders terminating parental rights.
2. All appeals taken in cases specified in subsection (a) of this Code section shall be by application in the nature of a petition enumerating the errors to be urged on appeal and stating why the appellate court has jurisdiction. The application shall specify the order or judgment being appealed and, if the order or judgment is interlocutory, the application shall set forth, in addition to the enumeration of errors to be urged, the need for interlocutory appellate review.
3. The applicant shall include as exhibits to the petition a copy of the order or judgment being appealed and should include a copy of the petition or motion which led directly to the order or judgment being appealed and a copy of any responses to the petition or motion. An applicant may include copies of such other parts of the record or transcript as he deems appropriate. No certification of such copies by the clerk of the trial court shall be necessary in conjunction with the application.
4. The application shall be filed with the clerk of the Supreme Court or the Court of Appeals within 30 days of the entry of the order, decision, or judgment complained of and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties as provided by law, except that the service shall be perfected at or before the filing of the application. When a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.
5. The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The response may point out that the decision of the trial court was not error, or that the enumeration of error cannot be considered on appeal for lack of a transcript of evidence or for other reasons.
6. The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 30 days of the date on which the application was filed.
7. Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, shall file a notice of appeal as provided by law. The procedure thereafter shall be the same as in other appeals.
8. The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.
9. This Code section shall not affect Code Section 9-14-52, relating to practice as to appeals in certain habeas corpus cases.
10. When an appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not in subsection (a) of this Code section, is initiated by filing an otherwise timely application for permission to appeal pursuant to subsection (b) of this Code section without also filing a timely notice of appeal, the appellate court shall have jurisdiction to decide the case and shall grant the application. Thereafter the appeal shall proceed as provided in subsection (g) of this Code section.
11. Where an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.

(Ga. L. 1979, p. 619, §§ 3, 6; Ga. L. 1982, p. 3, § 5; Ga. L. 1984, p. 22, § 5; Ga. L. 1984, p. 599, § 2; Ga. L. 1986, p. 1591, § 2; Ga. L. 1988, p. 1357, § 1; Ga. L. 1991, p. 412, § 1; Ga. L. 1994, p. 347, § 2; Ga. L. 1997, p. 543, § 1; Ga. L. 2007, p. 554, § 3/HB 369; Ga. L. 2010, p. 168, § 1/HB 571; Ga. L. 2011, p. 562, § 2/SB 139.)

The 2011 amendment, effective July 1, 2011, added subsection (k). See editor's note for applicability.

- Petitions for alimony or child support when no divorce is pending, §§ 19-6-10,19-6-11.

Filings in clerk's office, Rules of the Supreme Court of the State of Georgia, Rule 1.

Application for leave to appeal final judgment, Rules of the Supreme Court of the State of Georgia, Rule 25.

Leave to appeal interlocutory order, Rules of the Court of Appeals of the State of Georgia, Rule 29.

- Pursuant to Code Section 28-9-5, in 1997, "(a) of this Code section" was substituted for "(a) of this Code Section" in the first sentence of subsection (j).

- Ga. L. 1986, p. 1591, § 3, not codified by the General Assembly, provided that that Act applies to actions filed or presented for filing on or after July 1, 1986, and to any action pending on July 1, 1986, with respect to any claim, defense, or other position which is first raised in the action on or after July 1, 1986.

Ga. L. 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides that: "The General Assembly of Georgia declares that it is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship."

Ga. L. 2007, p. 554, § 8/HB 369, not codified by the General Assembly, provides that the 2007 amendment applies to all child custody proceedings and modifications of child custody filed on or after January 1, 2008.

Ga. L. 2011, p. 562, § 4/SB 132, not codified by the General Assembly, provides that the amendment by that Act shall apply to all notices or applications for appeal filed on or after July 1, 2011.

- For article surveying appellate practice and procedure, see 34 Mercer L. Rev. 3 (1982). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For annual survey of domestic relations law, see 35 Mercer L. Rev. 127 (1983). For article surveying recent developments in administrative law, see 37 Mercer L. Rev. 503 (1985). For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For annual survey of appellate practice and procedure, see 38 Mercer L. Rev. 47 (1986). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986). For article, "Battling the Many-Headed Hydra: Abusive Litigation Law in Georgia," see 25 Ga. St. B.J. 65 (1988). For article, "Intangible Tax Appeals After Blank v. Collins; The Uncertainty Continues," see 27 Ga. St. B.J. 78 (1990). For annual survey on law of domestic relations, see 42 Mercer L. Rev. 201 (1990). For article, "Let's Revise Appellate Procedure in Georgia," see 27 Ga. St. B.J. 135 (1991). For article, "Getting Certiorari Granted", 28 Ga. St. B.J. 90 (1991). For annual survey of appellate practice and procedure, see 43 Mercer L. Rev. 73 (1991). For annual survey of domestic relations, see 43 Mercer L. Rev. 243 (1991). For article, "Appeals, Interlocutory and Discretionary Applications, and Post-Judgment Motions in the Georgia Courts: The Current Practice and the Need for Reform Legislation," see 44 Mercer L. Rev. 17 (1992). For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of Administrative Law, see 57 Mercer L. Rev. 1 (2005). For annual survey of appellate practice and procedure, see 57 Mercer L. Rev. 35 (2005). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For annual survey of criminal law, see 58 Mercer L. Rev. 83 (2006). For survey article on appellate practice and procedure, see 59 Mercer L. Rev. 21 (2007). For survey article on appellate practice and procedure, see 60 Mercer L. Rev. 21 (2008). For annual survey on domestic relations, see 61 Mercer L. Rev. 117 (2009). For annual survey of law on appellate practice and procedure, see 62 Mercer L. Rev. 25 (2010). For article, "Administrative Law," see 63 Mercer L. Rev. 47 (2011). For article, "Appellate Practice and Procedure," see 63 Mercer L. Rev. 67 (2011). For annual survey on domestic relations law, see 64 Mercer L. Rev. 121 (2012). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012). For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012). For article, "Division of Labor: The Modernization of the Supreme Court of Georgia and Concomitant Workload Reduction Measures in the Court of Appeals," see 30 Ga. St. U.L. Rev. 925 (2014). For article, "Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals," see 68 Mercer L. Rev. 1 (2016). For annual survey on administrative law, 68 Mercer L. Rev. 59 (2016). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For annual survey on local government law, see 70 Mercer L. Rev. 177 (2018). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018). For annual survey on domestic relations, see 71 Mercer L. Rev. 83 (2019). For annual survey on local government law, see 71 Mercer L. Rev. 189 (2019). For annual survey on zoning and land use law, see 71 Mercer L. Rev. 363 (2019). For note, "Restrictions on the Right to Direct Appeal under Georgia's Appellate Practice Act," see 21 Ga. St. B.J. 43 (1984).

ANALYSIS

• General Consideration
• Application

General Consideration

Purpose of section.

- Clear purpose of O.C.G.A. § 5-6-35 is to permit the appellate courts to review expeditiously decisions of the superior courts reviewing decisions of administrative agencies without issuing an opinion in every such case. Tri-State Bldg. & Supply, Inc. v. Reid, 251 Ga. 38, 302 S.E.2d 566 (1983).

O.C.G.A. § 5-6-35 was enacted to ameliorate the appellate courts' massive case loads. Scruggs v. Georgia Dep't of Human Resources, 261 Ga. 587, 408 S.E.2d 103 (1991).

- In an action on a credit card contract brought by a creditor, the debtor's voluntary dismissal of an appeal from an order granting the creditor summary judgment before the case was ever docketed served to dismiss the debtor's direct appeal, even though the trial court did not enter a formal dismissal order; thus, the appellate court lacked jurisdiction to hear the case, and a payment of appeal costs became moot. Ghee v. Target Nat'l Bank, 282 Ga. App. 28, 637 S.E.2d 742 (2006), cert. denied, 2007 Ga. LEXIS 62 (Ga. 2007), 552 U.S. 859, 128 S. Ct. 141, 169 L. Ed. 2d 97 (2007).

- Section applies to all appeals specified in subsection (a) whether judgment be final, interlocutory, or summary. Citizens & S. Nat'l Bank v. Rayle, 246 Ga. 727, 273 S.E.2d 139 (1980).

Award of attorney fees need not be appealed through the discretionary application process when a direct appeal from the underlying judgment is pending. Cagle v. Davis, 236 Ga. App. 657, 513 S.E.2d 16 (1999).

Discretionary application requirement of Georgia Prison Litigation Reform Act, O.C.G.A. § 42-12-8, was inapplicable to an injured party's renewed personal injury suit because the injured party was not a prisoner when the de novo action was filed. Baskin v. Ga. Dep't of Corr., 272 Ga. App. 355, 612 S.E.2d 565 (2005).

Because a city could have challenged an agency consent order under O.C.G.A. §§ 12-2-2(c) and50-13-19, but did not, the city's appeal of a judgment to enforce the consent order did not fall under O.C.G.A. § 5-6-35(a)(1), but arose from proceedings under O.C.G.A. § 12-5-189; since the city did not appeal the director's decision, the appellate issue was limited to the propriety of the judgment and not the correctness of the decision. City of Rincon v. Couch, 272 Ga. App. 411, 612 S.E.2d 596 (2005).

Property owners were allowed to file a direct appeal of the dismissal of the owners' two latest lawsuits challenging zoning decisions related to a proposed private school near or contiguous to their property; the property owners' appeal was not one from the decision of a court reviewing the decision of an administrative agency within the meaning of O.C.G.A. § 5-6-35(a)(1), and, thus, the owners were not required to file an application for a discretionary appeal. Harrell v. Fulton County, 272 Ga. App. 760, 612 S.E.2d 838 (2005).

Although a former employer failed to properly serve papers, including a summary judgment motion, on the former employee's counsel at the counsel's new address, despite a change of address having been provided, pursuant to Ga. Ct. App. R. 1(a) and Ga. Ct. App. R. 6, the appellate court denied the employee's motion to dismiss the appeal and, instead, the court reviewed the matter on the merits; the improper service was asserted as a ground for an award of attorney fees, pursuant to O.C.G.A. § 9-15-14, and such award would be subject to appellate review under O.C.G.A. § 5-6-35(a)(10). Whimsical Expressions, Inc. v. Brown, 275 Ga. App. 420, 620 S.E.2d 635 (2005).

While the failure to move for a directed verdict barred a party from contending on appeal that the party was entitled to a judgment as a matter of law because of insufficient evidence, such did not bar the party from contending their entitlement to a new trial on that ground, as fairness dictated that a party who has failed to move for a directed verdict at trial should not be able to obtain a judgment as a matter of law on appeal based on the contention the evidence was insufficient to support the verdict. Aldworth Co. v. England, 281 Ga. 197, 637 S.E.2d 198 (2006).

Clear intent of paragraph (a)(1) is to give appellate courts (particularly Court of Appeals which has jurisdiction of workers' compensation cases not involving constitutionality of a law) discretion not to entertain an appeal when the superior court has reviewed a decision of certain specified lower tribunals (i.e., two tribunals had already adjudicated the case). Citizens & S. Nat'l Bank v. Rayle, 246 Ga. 727, 273 S.E.2d 139 (1980).

Clear intent of paragraph (a)(2) is to give appellate courts (Supreme Court in divorce and alimony cases and Court of Appeals in child custody cases) discretion not to entertain appeal where superior or juvenile court has made a decision as to divorce, alimony, child custody, or contempt, the latter three of which are in large part discretionary and yet frequently appealed by the losing spouse. Citizens & S. Nat'l Bank v. Rayle, 246 Ga. 727, 273 S.E.2d 139 (1980).

- Legislature required the discretionary appeals procedures for appeals from orders or judgments denying relief in cases seeking to set aside judgments. Manley v. Jones, 203 Ga. App. 173, 416 S.E.2d 744, cert. denied, 203 Ga. App. 907, 416 S.E.2d 744 (1992).

- Classification created by paragraph (a)(8) of O.C.G.A. § 5-6-35 is reasonable and does not deny equal protection on the ground that while a party desiring to appeal an order denying a complaint in equity must file an application to appeal, a party desiring to appeal from an order granting a complaint in equity is entitled to a direct appeal. Schiesser v. Ross, 256 Ga. 414, 349 S.E.2d 745 (1986).

§ 5-6-34(b). - O.C.G.A. § 5-6-35 does not allow a party to ignore the interlocutory-application provision of O.C.G.A. § 5-6-34(b), when attempting to obtain appellate review. Scruggs v. Georgia Dep't of Human Resources, 261 Ga. 587, 408 S.E.2d 103 (1991); Collier v. Evans, 205 Ga. App. 764, 423 S.E.2d 704 (1992).

Party seeking appellate review from an interlocutory order must follow the interlocutory-application i subsection, O.C.G.A. § 5-6-34(b), seek a certificate of immediate review from the trial court, and comply with the time limitations therein. Scruggs v. Georgia Dep't of Human Resources, 261 Ga. 587, 408 S.E.2d 103 (1991); Collier v. Evans, 205 Ga. App. 764, 423 S.E.2d 704 (1992).

§ 5-6-34(d). - Phrase "following cases" in the introductory language of subsection (a) of O.C.G.A. § 5-6-35 is construed to exclude those cases in which O.C.G.A. § 5-6-34(d) is applicable; thus, since the appellants filed a motion styled as both a motion for a new trial and a motion to set aside the judgment, but it was clearly only a motion for new trial since it raised issues relating to the verdict but none relating to a motion to set aside under O.C.G.A. § 9-11-60(d), the Court of Appeals erred in dismissing the appeal. Martin v. Williams, 263 Ga. 707, 438 S.E.2d 353 (1994).

Underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal; thus, when a trial court issues a judgment listed in the direct appeal statute in a case whose subject matter is covered under the discretionary appeal statute, the discretionary application procedure must be followed when the party is appealing a judgment or order that is procedurally subject to a direct appeal. Rebich v. Miles, 264 Ga. 467, 448 S.E.2d 192 (1994).

In plaintiff's appeal of the denial of the plaintiff's request for a declaratory judgment, the plaintiff could add issues relating to other rulings which might affect the proceedings below without regard to whether the proceedings were appealable standing alone. Smith v. Department of Human Resources, 214 Ga. App. 508, 448 S.E.2d 372 (1984).

While a judgment or an order denying an application for injunctive relief, mandamus or other extraordinary relief is a judgment or order subject to direct appellate review under O.C.G.A. § 5-6-34, it is subject to discretionary application procedure if the underlying subject matter of the appeal is one contained in O.C.G.A. § 5-6-35. Prison Health Servs., Inc. v. Georgia Dep't of Admin. Servs., 265 Ga. 810, 462 S.E.2d 601 (1995).

Effect of 1986 amendment of § 40-13-28. - The 1986 amendment to O.C.G.A. § 40-13-28 that changed the scope of review in the superior court from a de novo investigation to a review of the record was not also intended to change the method of appeal from the superior court in such cases from discretionary appeals under O.C.G.A. § 5-6-35(a)(1) to direct appeals under O.C.G.A. § 5-6-34(a). Brown v. City of Marietta, 214 Ga. App. 840, 449 S.E.2d 540 (1994).

Two-step appellate review process: (1) initial appellate review of a record which will include copies of such parts of the trial court record or transcript as the appellant or appellee deem appropriate; (2) if the initial appellate review reveals that the appellant's enumerations of error are clearly without merit then the application for appeal is dismissed; if however the initial appellate review reveals that the appellant's enumerations of error are not clearly without merit, then the application for appeal is granted and a final appellate review ensues. Harris v. Harris, 245 Ga. 75, 263 S.E.2d 113 (1980).

- O.C.G.A. § 5-6-35 requires a party to state if the order or judgment is interlocutory, and if it is interlocutory, the party must state "the need for interlocutory appellate review." Scruggs v. Georgia Dep't of Human Resources, 261 Ga. 587, 408 S.E.2d 103 (1991).

Because a grandparent failed to request review of a custody order through the application procedures of O.C.G.A. § 5-6-35 in a timely manner, the grandparent's application was dismissed. In the Interest of J.R.P., 287 Ga. App. 621, 652 S.E.2d 206 (2007), cert. denied, 2008 Ga. LEXIS 207 (Ga. 2008).

Discretionary application is generally required from the denial of a motion to set aside. Beals v. Beals, 203 Ga. App. 81, 416 S.E.2d 301, cert. denied, 203 Ga. App. 905, 416 S.E.2d 301 (1992).

- Although paragraph (c) of O.C.G.A. § 5-6-35 does not require an applicant for discretionary appeal to include relevant portions of the record or transcript as exhibits to the petition, a prudent applicant should support the assertions of error with relevant parts of the record or transcript so as to adequately demonstrate reversible error, unless the alleged errors are otherwise established as, for instance, by the agreement of the parties on appeal or by a quote or paraphrase from the record or transcript. Harper v. Harper, 259 Ga. 246, 378 S.E.2d 673 (1989).

Trial court judgment finding against the appellant's counterclaim and refusing amendment of the counterclaim was affirmed because the ruling to which the appellant objected was not contained in the record before the appellate court; thus, there was nothing for the court to review and the appellate court must presume the correctness of the ruling by the trial court. Moore v. Childs, 347 Ga. App. 560, 820 S.E.2d 186 (2018).

- When the court of appeals granted a discretionary appeal under O.C.G.A. § 5-6-35, the trial court was without authority to find such appeal to be frivolous and the denial of supersedeas bond on that ground was an abuse of discretion as a matter of law and fact. Farmer v. State, 216 Ga. App. 515, 455 S.E.2d 297 (1995).

- No application for discretionary review by the Court of Appeals need be made pursuant to paragraph (a)(6) of O.C.G.A. § 5-6-35 when the amount placed in controversy exceeds $2,500 (now $10,000.00). Todd v. City of Brunswick, 175 Ga. App. 562, 334 S.E.2d 1 (1985), aff'd, 255 Ga. 448, 339 S.E.2d 589 (1986).

For establishing jurisdiction pursuant to paragraph (a)(6) of O.C.G.A. § 5-6-35, a judgment is comprised of principal, plus costs, plus interest at the legal rate accrued from the date of the filing of the judgment until the date of the filing of the notice of appeal; appeals involving nonmonetary judgments in child custody cases. Castleberry's Food Co. v. Smith, 205 Ga. App. 859, 424 S.E.2d 33 (1992).

- Full board of the state board of workers' compensation neither granted the plaintiff's petition for a change of benefits nor authorized action which is adverse to the defendant; therefore, since the defendant was not aggrieved by the full board's award, the defendant had no standing to appeal to the superior court from the full board's award. Southwire Co. v. Hull, 212 Ga. App. 131, 441 S.E.2d 293 (1994).

- Word "condemnations," as the word appears in the exceptions to the rule of paragraph (a)(1) of O.C.G.A. § 5-6-35, was intended by the legislature to except "inverse" as well as classic condemnation cases therefrom. Brownlow v. City of Calhoun, 198 Ga. App. 710, 402 S.E.2d 788 (1991), overruled on other grounds by West v. City of Albany, 2017 Ga. LEXIS 177 (Ga. 2017).

Timely filing of the notice of appeal is an absolute prerequisite in order to confer jurisdiction on the appellate court. White v. White, 188 Ga. App. 556, 373 S.E.2d 824 (1988); Barnes v. Justis, 223 Ga. App. 671, 478 S.E.2d 402 (1996).

When an application for discretionary review was not filed, and a subsequent notice of direct appeal was filed untimely, there was no jurisdiction conferred on the court to hear the appeal. Boney v. State, 236 Ga. App. 179, 510 S.E.2d 892 (1999).

- While a failure to file a notice of appeal within ten days after the grant of an application will subject an appellant to dismissal, the filing of a notice of appeal after the judgment complained of is entered but before the granting of the application to appeal does not constitute a failure to timely file. Wannamaker v. Carr, 257 Ga. 634, 362 S.E.2d 53 (1987).

When the plaintiff had filed the plaintiff's initial application for discretionary review nearly four months before the trial court's order denying the plaintiff's motion for a new trial, the order was void and a nullity, and provided no jurisdictional basis for an appeal. Department of Human Resources v. Holland, 236 Ga. App. 273, 511 S.E.2d 628 (1999), overruled on other grounds, Cooper v. Spotts, 309 Ga. App. 361, 710 S.E.2d 159 (2011).

Because the order granting a defense motion for summary judgment and denying the plaintiff's motion to withdraw admissions was subject to direct appeal and the plaintiff had initiated the plaintiff's appeal by filing an otherwise timely discretionary application, the appellate court granted the application; furthermore, because the order granting the application was issued on August 1, 2017, and directed the plaintiff to file a notice of appeal within 10 days, but the plaintiff had already filed a notice of appeal on July 13, 2017, the plaintiff's amended notice of appeal was unnecessary as the prematurely filed July 13 notice ripened into a timely notice of appeal upon the appellate court's granting of the discretionary application. Burton v. ECI Mgmt. Corp., 346 Ga. App. 668, 816 S.E.2d 778 (2018).

- Discretionary appeal procedures were applicable to an action for damages not exceeding $2,500.00 (now $10,000.00) which was instituted prior to enactment of paragraph (a)(6) of O.C.G.A. § 5-6-35 but in which judgment was entered after the effective date of that enactment. Crimminger v. Habif, 174 Ga. App. 440, 330 S.E.2d 164 (1985).

When appellant fails to follow appeal procedures required in O.C.G.A. § 5-6-35, appeal must be dismissed. Walker v. City of Macon, 166 Ga. App. 228, 303 S.E.2d 776 (1983); In re J.E.P., 168 Ga. App. 30, 308 S.E.2d 712 (1983), aff'd, 252 Ga. 520, 315 S.E.2d 416 (1984).

When the appellant fails to follow the proper procedures required by law when appealing from a decision of a superior court to which a writ of certiorari has been taken from a decision of a lower court, the appellant's appeal must be dismissed. Crawford v. Goza, 168 Ga. App. 565, 310 S.E.2d 1 (1983).

In appealing from a decision of the superior court reviewing a decision of a state administrative agency, when the appellant fails to obtain an order of the appellate court permitting the filing of the appeal, the appeal must be dismissed. Risner v. Georgia Dep't of Labor, 168 Ga. App. 242, 308 S.E.2d 582 (1983).

When the appellants fail to obtain an order of court permitting the filing of an appeal in a garnishment proceeding, the appeal must be dismissed. Mason v. Osburn Hdwe. & Supply Co., 174 Ga. App. 865, 331 S.E.2d 888 (1985).

- Owners' appeals to the Supreme Court of Georgia were dismissed because the owners actually participated in the administrative process, a superior court ruled on the merits of the owners' challenges to a zoning decision, and the owners failed to follow the discretionary appeal procedures in O.C.G.A. § 5-6-35(a)(1). Hamryka v. City of Dawsonville, 291 Ga. 124, 728 S.E.2d 197 (2012).

- Losing party had the right to bring a direct appeal from the order granting summary judgment and it was not required to follow the discretionary application process under O.C.G.A. § 5-6-35(a)(1) as, given the plenary authority to revise and modify prior rulings, the transferee court was allowed to revisit the prior denial of a motion for summary judgment. Cook Pecan Company, Inc. v. McDaniel, 337 Ga. App. 186, 786 S.E.2d 852 (2016).

When applicable, requirements of this section are jurisdictional and the appellate court had no authority to accept an appeal in the absence of compliance with these statutory provisions. Hogan v. Taylor County Bd. of Educ., 157 Ga. App. 680, 278 S.E.2d 106 (1981); Crews v. State, 175 Ga. App. 300, 333 S.E.2d 176 (1985); Boyle v. State, 190 Ga. App. 734, 380 S.E.2d 57 (1989); Serpentfoot v. Salmon, 225 Ga. App. 478, 483 S.E.2d 927 (1997); Brown v. E.I. du Pont de Nemours & Co., 240 Ga. App. 893, 525 S.E.2d 731 (1999).

Appellant's failure to comply with the discretionary appeals procedure of O.C.G.A. § 5-6-35 deprives the appellate court of jurisdiction, just as if the appellant failed to file a timely notice of appeal. Fabe v. Floyd, 199 Ga. App. 322, 405 S.E.2d 265 (on motion for rehearing), cert. denied, 199 Ga. App. 906, 405 S.E.2d 265 (1991).

Appellate court did not have jurisdiction to consider the county's direct appeal of the trial court's affirmance of the administrative agency's decision against the county, as the county was required to file an application for discretionary review of a trial court's affirmance of an administrative agency's decision, and since the county did not do so, the county's appeal had to be dismissed. Coweta County v. Jackson, 264 Ga. App. 17, 589 S.E.2d 839 (2003).

- When appellant appealed directly to the Supreme Court from the trial court's directed verdict without having made application pursuant to O.C.G.A. § 5-6-35, the attempted appeal was a nullity, and could not supersede the judgment appealed from. Reno v. Reno, 247 Ga. 560, 277 S.E.2d 511 (1981).

- By filing applications for discretionary appeal, the parties divested the trial court of jurisdiction to enter orders on the parties' motions for reconsideration. Nest Inv., Inc. v. Tzavaras, 221 Ga. App. 282, 471 S.E.2d 223 (1996).

Trial court's order determining that the court's prior order dismissing the plaintiff's civil rights complaint against a city for failure to serve the city was in error had no effect pursuant to O.C.G.A. § 5-6-35(h) because the plaintiff had already filed an appeal from the dismissal of the suit. Molette v. City of Forest Park, 335 Ga. App. 222, 780 S.E.2d 780 (2015).

Appeal from an award of attorney's fees in a domestic relations case is subject to the appeal procedures of O.C.G.A. § 5-6-35. Sprague v. Sprague, 253 Ga. 485, 321 S.E.2d 742 (1984).

Temporary protective custody order was subject to appeal by discretionary action under O.C.G.A. § 5-6-35. Williams v. Stepler, 221 Ga. App. 338, 471 S.E.2d 284 (1996).

- O.C.G.A. § 5-6-35 is not inapplicable to an appeal from a superior court decision because the superior court dismissed the decision of a local tribunal without reviewing it on the merits. Brewer v. Board of Zoning Adjustment, 170 Ga. App. 351, 317 S.E.2d 327 (1984).

- Regardless of whether the litigation was subsequently erroneously expanded in state court to include matters beyond the parameters of a de novo investigation, when the litigation reached the state court by means of a de novo appeal from magistrate court, in order to obtain appellate review of the state court judgment in the Court of Appeals, an application for appeal must be sought as required by paragraph (a)(11) of O.C.G.A. § 5-6-35. Handler v. Hulsey, 199 Ga. App. 751, 406 S.E.2d 225, cert. denied, 199 Ga. App. 906, 406 S.E.2d 225 (1991); Strachan v. Meritor Mtg. Corp. E., 216 Ga. App. 82, 453 S.E.2d 119 (1995); Southtowne Hyundai-Isuzu-Suzuki v. Hooper, 216 Ga. App. 214, 453 S.E.2d 756 (1995).

- Enactment of the new zoning code was not a "decision" of a local administrative agency and, thus, an application for discretionary appeal was not required. Schumacher v. City of Roswell, 301 Ga. 635, 803 S.E.2d 66 (2017).

- O.C.G.A. § 5-6-35 applies to all judgments for $2,500.00 (now $10,000.00) or less that arise from an action for damages, and its application is not limited to judgments for plaintiffs. Gardner v. Villa Monte Homes, Inc., 173 Ga. App. 896, 328 S.E.2d 565 (1985).

Paragraph (a)(6) of O.C.G.A. § 5-6-35 requires that an application for discretionary review be filed when the amount placed in controversy by the claimant (plaintiff, counterclaimant or cross-claimant) is $2,500 (now $10,000.00) or less. Brown v. Associates Fin. Servs. Corp., 175 Ga. App. 553, 333 S.E.2d 888 (1985), aff'd, 255 Ga. 457, 339 S.E.2d 590 (1986).

Actions in which only a few hundred dollars was sued for and nothing at all was recovered may be directly appealed. Malloy v. Sexton, 179 Ga. App. 769, 347 S.E.2d 648 (1986).

Appeals from the denial of a motion to set aside the judgment under O.C.G.A. § 9-11-60(d) are subject to the discretionary appeals procedure even when coupled with motions for a new trial or j.n.o.v. Willard v. Wilburn, 203 Ga. App. 393, 416 S.E.2d 798, cert. denied, 203 Ga. App. 908, 416 S.E.2d 798 (1992).

Although the denial of a motion to set aside a judgment was ordinarily subject to the discretionary appeal procedure, O.C.G.A. § 5-6-35(a)(8), the denial of a stepson's motion to set aside was reviewable in conjunction with the stepson's appeal from the superior court's judgment reviewing the probate court's decision because the superior court's judgment reviewing the probate court's decision was directly appealable under O.C.G.A. § 5-6-34(a)(1). Bocker v. Crisp, 313 Ga. App. 585, 722 S.E.2d 186 (2012).

Plaintiff's motion to dismiss the defendants' appeal was denied because the defendants were not required to file an application for discretionary appeal pursuant to O.C.G.A. § 5-6-34(b); the underlying subject of the appeal was not one of those listed in O.C.G.A. § 5-6-35 requiring an application, and the trial court's order was final because there was nothing pending in the trial court. Std. Bldg. Co. v. Schofield Interior Contrs., Inc., 315 Ga. App. 516, 726 S.E.2d 760 (2012).

Denial of a "discretionary" motion to set aside is never appealable in the motion's own right, nor does the filing of such a motion extend the time for filing an appeal. Stone v. Dawkins, 192 Ga. App. 126, 384 S.E.2d 225 (1989).

Order denying discovery is premature in the absence of a certificate of immediate review; therefore, the interlocutory appeal procedure set forth in O.C.G.A. § 5-6-34(b) is mandated. Rogers v. Department of Human Resources, 195 Ga. App. 118, 392 S.E.2d 713 (1990).

All appeals from decisions of the superior court reviewing decisions of the commissioners of the department of revenue, with the exception of cases involving ad valorem taxes, are by discretionary appeal. Bankers Trust Co. v. Jackson, 236 Ga. App. 490, 512 S.E.2d 378 (1999).

- When the auditor did not submit a final report containing separate findings of fact and conclusions of law for the superior court's review, the judgment of the court was directly appealable. McCaughey v. Murphy, 267 Ga. 64, 473 S.E.2d 762 (1996).

- Appeal of an order limiting lead counsel's pro hac vice status and designating two local counsel was dismissed because there was no direct appeal available from the order since the trial court did not disqualify lead counsel and, instead, only limited participation in the case. Fein v. Chenault, 330 Ga. App. 222, 767 S.E.2d 766 (2014).

- Trial court's order upholding the constitutionality of Georgia's Child Support Guidelines was erroneously certified by the trial court since the order did not dispose of any claim. However, since the appellate court had granted a father's application for discretionary appeal, the appellate court proceeded to a consideration of the merits of the constitutional issue. Keck v. Harris, 277 Ga. 667, 594 S.E.2d 367 (2004).

- Because O.C.G.A. § 50-27-4 provided that the Georgia Lottery Corporation (GLC) was not an agency of the state, a superior court order reviewing a decision of the GLC did not fall within the ambit of O.C.G.A. § 5-6-35(a)(1), requiring an application for discretionary review of agency decisions; rather, a licensee of coin-operated amusement machines (COAM) could appeal directly under O.C.G.A. § 5-6-34(a). Amusement Leasing, Inc. v. Ga. Lottery Corp., 352 Ga. App. 243, 834 S.E.2d 330 (2019).

Cited in Jackson v. Stuldivant, 151 Ga. App. 784, 262 S.E.2d 642 (1979); Cale v. Cale, 244 Ga. 796, 264 S.E.2d 21 (1979); Brown v. Brown, 245 Ga. 44, 263 S.E.2d 438 (1980); Hathcock v. Hathcock, 245 Ga. 141, 263 S.E.2d 440 (1980); Godbold v. Godbold, 245 Ga. 121, 263 S.E.2d 440 (1980); Sullins v. Bishop, 245 Ga. 130, 263 S.E.2d 442 (1980); Wilson v. Crosby, 245 Ga. 140, 263 S.E.2d 442 (1980); Cale v. Cale, 245 Ga. 62, 264 S.E.2d 22 (1980); Ritchie v. Ritchie, 245 Ga. 199, 264 S.E.2d 230 (1980); Martinez v. Martinez, 245 Ga. 211, 264 S.E.2d 231 (1980); Seymour v. Seymour, 245 Ga. 211, 264 S.E.2d 232 (1980); Horne v. Horne, 245 Ga. 300, 265 S.E.2d 3 (1980); McDonald v. McDonald, 245 Ga. 355, 265 S.E.2d 57 (1980); Austin v. Austin, 245 Ga. 487, 265 S.E.2d 788 (1980); Hilsman v. Hilsman, 245 Ga. 555, 266 S.E.2d 173 (1980); Mabry v. Mabry, 245 Ga. 512, 266 S.E.2d 799 (1980); Moore v. Employers Ins., 153 Ga. App. 589, 266 S.E.2d 811 (1980); Reno v. Reno, 245 Ga. 792, 267 S.E.2d 221 (1980); Copeland v. Copeland, 245 Ga. 656, 267 S.E.2d 253 (1980); Cobb v. Cobb, 245 Ga. 646, 267 S.E.2d 623 (1980); Russell v. Hughes, 154 Ga. App. 398, 268 S.E.2d 440 (1980); Hendley v. Auto Owners Ins. Co., 154 Ga. App. 316, 268 S.E.2d 722 (1980); Kiser v. Kiser, 246 Ga. 153, 269 S.E.2d 860 (1980); Tennis v. Hinch, 246 Ga. 188, 269 S.E.2d 861 (1980); Morgan v. Morgan, 154 Ga. App. 595, 270 S.E.2d 94 (1980); Myers v. Netherland, 155 Ga. App. 153, 270 S.E.2d 407 (1980); Brown v. Brown, 246 Ga. 330, 272 S.E.2d 75 (1980); Zusmann v. Zusmann, 246 Ga. 341, 272 S.E.2d 75 (1980); Yawn v. Yawn, 246 Ga. 817, 272 S.E.2d 717 (1980); Biggs v. Biggs, 246 Ga. 520, 273 S.E.2d 403 (1980); Waters v. Waters, 246 Ga. 547, 273 S.E.2d 404 (1980); Bradfield v. Jackson, 156 Ga. App. 81, 274 S.E.2d 164 (1980); Porter v. Marcus, 156 Ga. App. 368, 274 S.E.2d 168 (1980); Walker v. City of Atlanta, 156 Ga. App. 223, 274 S.E.2d 668 (1980); Shepherd v. Shepherd, 247 Ga. 273, 275 S.E.2d 317 (1981); Hanes v. Hanes, 247 Ga. 305, 276 S.E.2d 4 (1981); Chesser v. Chesser, 247 Ga. 168, 276 S.E.2d 45 (1981); Hanes v. Hanes, 247 Ga. 305, 276 S.E.2d 4 (1981); Tison v. Tison, 247 Ga. 246, 276 S.E.2d 247 (1981); Keeter v. State ex rel. Keeter, 247 Ga. 256, 276 S.E.2d 247 (1981); Fields v. Fields, 247 Ga. 437, 276 S.E.2d 614 (1981); Larson v. Gambrell, 157 Ga. App. 193, 276 S.E.2d 686 (1981); Camp v. Camp, 247 Ga. 533, 277 S.E.2d 55 (1981); Dunn v. Dunn, 247 Ga. 327, 277 S.E.2d 241 (1981); Shepherd v. Epps, 247 Ga. 545, 277 S.E.2d 686 (1981); Alday v. Alday, 247 Ga. 663, 277 S.E.2d 914 (1981); Levison v. Levison, 247 Ga. 667, 278 S.E.2d 409 (1981); Neal v. Washington, 158 Ga. App. 39, 279 S.E.2d 294 (1981); Robertson v. Robertson, 247 Ga. 810, 280 S.E.2d 335 (1981); Field Developers, Inc. v. City of Atlanta, 158 Ga. App. 388, 280 S.E.2d 364 (1981); McCrary v. City of Atlanta, 158 Ga. App. 406, 280 S.E.2d 906 (1981); Woodall v. Woodall, 248 Ga. 172, 281 S.E.2d 619 (1981); Foy v. Lewis, 248 Ga. 234, 282 S.E.2d 295 (1981); Robbins v. Robbins, 248 Ga. 273, 282 S.E.2d 340 (1981); Bedingfield v. Bedingfield, 248 Ga. 147, 282 S.E.2d 641 (1981); Hunnicutt v. Hunnicutt, 248 Ga. 516, 283 S.E.2d 891 (1981); Yarbrough v. Yarbrough, 248 Ga. 282, 283 S.E.2d 898 (1981); Walsh Constr. Co. v. Frawley, 248 Ga. 151, 284 S.E.2d 434 (1981); Keller v. Berger, 248 Ga. 552, 285 S.E.2d 188 (1981); Mills v. Pepsi-Cola Bottlers, 160 Ga. App. 349, 287 S.E.2d 41 (1981); Southwire Co. v. Sweet, 160 Ga. App. 625, 287 S.E.2d 635 (1981); Tallman v. Tallman, 161 Ga. App. 447, 287 S.E.2d 703 (1982); Farmer v. Union County Dep't of Family & Children Servs., 162 Ga. App. 66, 290 S.E.2d 163 (1982); Zamora v. Coffee Gen. Hosp., 162 Ga. App. 82, 290 S.E.2d 192 (1982); DeLoach v. DeLoach, 162 Ga. App. 185, 290 S.E.2d 292 (1982); Gordin v. Gordin, 249 Ga. 371, 290 S.E.2d 921 (1982); Prentice v. Prentice, 249 Ga. 27, 291 S.E.2d 553 (1982); Wigley v. Nance, 163 Ga. App. 185, 293 S.E.2d 369 (1982); Moon v. Habersham County Dep't of Family & Children Servs., 162 Ga. App. 694, 293 S.E.2d 402 (1982); Sutton v. Burousas, 164 Ga. App. 553, 293 S.E.2d 566 (1982); Fender v. Fender, 249 Ga. 773, 294 S.E.2d 474 (1982); Chattooga County v. Bruce, 163 Ga. App. 478, 294 S.E.2d 712 (1982); Young v. Hinton, 163 Ga. App. 692, 295 S.E.2d 150 (1982); Webster v. Webster, 250 Ga. 57, 295 S.E.2d 828 (1982); McCannon v. City of Atlanta, 163 Ga. App. 844, 296 S.E.2d 363 (1982); Steele v. Steele, 250 Ga. 101, 296 S.E.2d 570 (1982); Geron v. Calibre Cos., 250 Ga. 213, 296 S.E.2d 602 (1982); Wiggins v. City of Millen, 165 Ga. App. 18, 299 S.E.2d 191 (1983); Johnson v. Smith, 164 Ga. App. 611, 299 S.E.2d 387 (1982); Johnson v. Smith, 251 Ga. 1, 302 S.E.2d 542 (1983); Buckholts v. Buckholts, 251 Ga. 58, 302 S.E.2d 676 (1983); Wren v. Harrison, 165 Ga. App. 847, 303 S.E.2d 67 (1983); In re M.K.C., 166 Ga. App. 261, 304 S.E.2d 430 (1983); In re M.R., 166 Ga. App. 360, 304 S.E.2d 736 (1983); In re M.G., 167 Ga. App. 38, 306 S.E.2d 40 (1983); Fowler v. City of East Point, 166 Ga. App. 872, 306 S.E.2d 431 (1983).

Elrod v. Sunflower Meadows Dev., LLC, 322 Ga. App. 666, 745 S.E.2d 846 (2013); Williamson v. Williamson, 293 Ga. 721, 748 S.E.2d 679 (2013); Bibb County v. Monroe County, 294 Ga. 730, 755 S.E.2d 760 (2014); Beringer v. Emory, 326 Ga. App. 260, 756 S.E.2d 329 (2014); Wright v. Burch, 331 Ga. App. 839, 771 S.E.2d 490 (2015); Granite Loan Solutions, LLC v. King, 334 Ga. App. 305, 779 S.E.2d 86 (2015); Adewumi v. Amelia Grove/Ashland Park Homeowners Ass'n, 337 Ga. App. 275, 787 S.E.2d 761 (2016); Collins v. State, 338 Ga. App. 886, 792 S.E.2d 134 (2016); Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020); Frett v. State Farm Emple. Workers' Comp., Ga. , 844 S.E.2d 749 (2020); Lemcon USA Corp. v. Icon Tech. Consulting, Inc., 301 Ga. 888, 804 S.E.2d 347 (2017); Bruno v. Light, 344 Ga. App. 799, 811 S.E.2d 500 (2018); C&M Enters. of Ga., LLC v. Williams, 346 Ga. App. 79, 816 S.E.2d 44 (2018), cert. denied, No. S18C1407, 2019 Ga. LEXIS 52 (Ga. 2019); Valley v. S. Atl. Conf. of Seventh-day Adventist, 347 Ga. App. 131, 817 S.E.2d 704 (2018); In the Interest of E. M., 347 Ga. App. 351, 819 S.E.2d 505 (2018); Duke v. State, 306 Ga. 171, 829 S.E.2d 348 (2019); In the Interest of T. S., 351 Ga. App. 297, 830 S.E.2d 789 (2019); Hunt v. Callahan, 353 Ga. App. 488, 838 S.E.2d 133 (2020); Sponsler v. Sponsler, 353 Ga. App. 627, 838 S.E.2d 921 (2020);.

Application

1. In General

Appeal from the denial of an extraordinary motion for new trial is separate from any original appeal, and must be made by application. Turner v. Binswanger, 203 Ga. App. 319, 417 S.E.2d 221 (1992).

Appeals from the denial of extraordinary motions for new trial, when separate from an original direct appeal, are subject to the discretionary appeal procedure of O.C.G.A. § 5-6-35. Hooks v. State, 210 Ga. App. 171, 435 S.E.2d 617 (1993).

Procedure for discretionary appeals applied to an appeal from the denial of an extraordinary motion for a new trial. Balkcom v. State, 227 Ga. App. 327, 489 S.E.2d 129 (1997), overruling Walls v. State, 204 Ga. App. 348, 419 S.E.2d 344 (1992).

- Party aggrieved by a post-judgment O.C.G.A. § 9-15-14 award is required to comply with the discretionary appeal procedure of paragraph (a)(10) of O.C.G.A. § 5-6-35 only in those instances where no direct appeal has been otherwise taken from the underlying judgment. However, in those instances where a direct appeal has been taken from the underlying judgment, a party may also appeal directly from the § 9-15-14 post-judgment award without regard to the discretionary appeal procedures of paragraph (a)(10) of O.C.G.A. § 5-6-35. Rolleston v. Huie, 198 Ga. App. 49, 400 S.E.2d 349 (1990), cert. denied, 198 Ga. App. 898, 400 S.E.2d 349 (1991).

Construction with O.C.G.A. § 5-6-34. - While O.C.G.A. § 5-6-35(h) provides that the filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as a supersedeas, that section applies only to discretionary appeals. O.C.G.A. § 5-6-34(b), which applies to interlocutory appeals, does not so provide, but states that if the appellate court issues an order granting an appeal, the applicant may then timely file a notice of appeal and the notice of appeal shall act as a supersedeas, as provided in O.C.G.A. § 5-6-46. Nelson v. Haugabrook, 282 Ga. App. 399, 638 S.E.2d 840 (2006).

- Because the plaintiffs' claim under the Declaratory Judgment Act was independent of their claim under the Administrative Procedure Act (APA) and was directly appealable, plaintiffs could include their APA claim in the plaintiffs' appeal under O.C.G.A. § 5-6-34(d) and were not required to file an application for appeal under O.C.G.A. § 5-6-35(a)(1). Zitrin v. Ga. Composite State Bd. of Med. Examiners, 288 Ga. App. 295, 653 S.E.2d 758 (2007), cert. denied, No. S08C0500, 2008 Ga. LEXIS 285 (Ga. 2008).

- Because the homeowner's action against the homeowner's association was for declaratory judgment, not damages, O.C.G.A. § 5-6-35(a), did not apply and the homeowner had a right to a direct appeal from final judgment. Abdullah v. Winslow at Eagle's Landing Homeowners Ass'n, 349 Ga. App. 615, 823 S.E.2d 872 (2019).

- O.C.G.A. § 5-5-41(c)(13) emphasizes the Georgia General Assembly's intent that the denial of a motion seeking DNA testing that is made as part of an extraordinary motion for a new trial be recognized as an appealable issue, but the filing of an application for discretionary appeal is the proper form of appeal in such a case. Concluding otherwise would yield the absurd result that the denial of an extraordinary motion for a new trial would be appealable only as a discretionary appeal while the denial of a motion seeking DNA testing filed as part of that extraordinary motion for new trial would be appealable directly. Crawford v. State, 278 Ga. 95, 597 S.E.2d 403, cert. denied, stay denied, 542 U.S. 954, 125 S. Ct. 5, 159 L. Ed. 2d 837 (2004).

- Non-prisoner defendant is required to follow the discretionary application procedures when appealing an action filed by a prisoner. Ray v. Barber, 273 Ga. 856, 548 S.E.2d 283 (2001).

- Court of Appeals was deprived of jurisdiction over appeal from a prisoner's civil action concerning medical treatment the prisoner received when the prisoner failed to comply with the discretionary procedures as required by O.C.G.A. § 42-12-8. Botts v. Givens, 223 Ga. App. 139, 476 S.E.2d 816 (1996).

Appeal seeking review of a trial court's declaratory judgment which extended the term of a charter school from the charter issued by a county board of education was required to follow the discretionary appeal requirements of O.C.G.A. § 5-6-35; because the appeal was not made by application as required, the appeal was subject to dismissal. Cox v. Academy of Lithonia, Inc., 280 Ga. App. 626, 634 S.E.2d 778 (2006).

Trial court erred by failing to conduct a hearing on a prisoner's claim of indigence as the plain language of O.C.G.A. § 9-15-2(b) required a hearing before the court could order costs to be paid and there was nothing in the statute that allowed the court, on the court's own, to inquire into the truth of a pauper's affidavit to order the payment of court costs without a hearing. Lee v. Batchelor, 345 Ga. App. 559, 814 S.E.2d 416 (2018).

Prisoner's failure to comply with discretionary appeal procedures in appealing from the trial court's denial of the prisoner's pro se petition for mandamus required dismissal of the action. Jones v. Townsend, 267 Ga. 489, 480 S.E.2d 24 (1997).

- Appeal of a superior court decision reviewing a decision of an agency denying a request to expunge criminal records requires the discretionary appeal procedures of O.C.G.A. § 5-6-35. Strohecker v. Gwinnett County Police Dep't, 182 Ga. App. 853, 357 S.E.2d 305 (1987).

Appeals from decisions of superior courts reviewing decision of state and local administrative agencies must be by application pursuant to O.C.G.A. § 5-6-35; the words "by certiorari or de novo proceedings" in paragraph (a)(1) relate only to the category "lower courts" and not to the category "state and local administrative agencies"; since no application for appeal was made from the superior court's order affirming the decision of the administrative law judge of the Department of Natural Resources, the appellate court was without jurisdiction to entertain the application. St. Simons Island Save the Beach Ass'n. v. Glynn County Bd. of Comm'rs., 205 Ga. App. 428, 422 S.E.2d 258 (1992).

When the underlying subject matter was the decision of a trial court reviewing the decision of a state administrative agency, appellate review was required to be secured by the grant of an application for discretionary appeal. Prison Health Servs., Inc. v. Georgia Dep't of Admin. Servs., 265 Ga. 810, 462 S.E.2d 601 (1995).

Decision of the local school board in this case to appeal the State Board's decision to the superior court constituted a decision of a local administrative agency within the meaning of O.C.G.A. § 5-6-35. As such, a direct appeal to the appellate court from the superior court's final disposition was not authorized. Gurley v. Gordon County Bd. of Educ., 231 Ga. App. 481, 498 S.E.2d 64 (1998).

Georgia Supreme Court could only review the decision of a superior court involving the review of a local zoning board decision by granting an application to appeal to the party seeking to have such superior court decision reviewed; it did not have jurisdiction to review a direct appeal. Powell v. City of Snellville, 275 Ga. 207, 563 S.E.2d 860 (2002).

Corporation's direct appeal of a trial court order compelling the corporation to comply with an investigative demand issued by the Governor's Office of Consumer Affairs was dismissed because under binding Georgia Supreme Court authority, an investigative demand constitutes the decision of an administrative agency for the purpose of the discretionary appeal provisions of O.C.G.A. § 5-6-35(a)(1) and, consequently, the corporation was required to apply for a discretionary appeal. Financial Education Services, Inc. v. State of Ga., 336 Ga. App. 606, 785 S.E.2d 544 (2016), cert. denied, 197 L. Ed. 2d 465 (U.S. 2017).

Appeal from a decision of the superior court reviewing a decision of a magistrate court by a de novo proceeding was subject to the discretionary appeal procedures of O.C.G.A. § 5-6-35. Dean's Catering v. Sturm & Assocs., 231 Ga. App. 202, 498 S.E.2d 786 (1998).

Revenue department assessment is a decision of a state administrative agency within the meaning of paragraph (a)(1), and an application must be filed. Miles v. Collins, 259 Ga. 536, 384 S.E.2d 630 (1989).

Appeal from a ruling on a declaratory judgment action that was essentially an appeal from an administrative decision to suspend a driver's license was dismissed since the driver was required to proceed by application for discretionary appeal. Miller v. Georgia Dep't of Pub. Safety, 265 Ga. 62, 453 S.E.2d 725 (1995); Greenburg v. Griffith, 226 Ga. App. 818, 487 S.E.2d 411 (1997).

- Although paragraph (a)(9) of O.C.G.A. § 5-6-35 makes appeals from temporary restraining orders subject to the procedural requirements of § 5-6-35, such an order may be directly appealable if the order is entered following a lengthy adversary hearing and effectively grants plaintiff all of the relief he or she seeks. Dolinger v. Driver, 269 Ga. 141, 498 S.E.2d 252 (1998).

- Under the plain language of O.C.G.A. § 5-6-35, no application for appeal is required for decisions of superior courts reviewing judgments of the probate courts. The statute mandates that a direct appeal is available from the superior court affirmance of a probate court case. Phillips v. State, 261 Ga. 190, 402 S.E.2d 737 (1991).

- An appeal in a case involving the board of county commissioners' removal from office of a person appointed to that office by the board required compliance with discretionary appeal procedure; overruling Parsons v. Chatham County Bd. of Comm'rs, 204 Ga. App. 139(1), 418 S.E.2d 459 (1992) and Geron v. Calibre Cos., 250 Ga. 213(1), 296 S.E.2d 602 (1982). Swafford v. Dade County Bd. of Comm'rs, 266 Ga. 646, 469 S.E.2d 666 (1996).

- The 1984 amendment requiring applications to appeal orders denying extraordinary motions for new trial applies to criminal cases as well as civil cases. Pitts v. State, 254 Ga. 298, 328 S.E.2d 732 (1985).

- County board of education member's appeal of a judgment denying a request to reverse the governor's order removing the member from office under O.C.G.A. § 45-10-4 for violating O.C.G.A. § 45-10-3 was dismissed because the term to which the member had originally been elected expired. Roberts v. Deal, 290 Ga. 705, 723 S.E.2d 901 (2012).

- Appeal from judgment for costs entered in an action for damages in the amount of $1,951.00 must be dismissed when the discretion of the Court of Appeals is not invoked by application. Gardner v. Villa Monte Homes, Inc., 173 Ga. App. 896, 328 S.E.2d 565 (1985).

Failure to file an application for a discretionary appeal pursuant to paragraph (a)(7) of O.C.G.A. § 5-6-35 leaves the appellate court without jurisdiction over a direct appeal. Ibietatorremendia v. State, 174 Ga. App. 786, 332 S.E.2d 20 (1985).

When a father's petition for legitimation was denied, the appellate court did not have jurisdiction to review the order because the father had failed to follow the discretionary procedures to appeal pursuant to O.C.G.A. § 5-6-35(a)(2), nor did he file his application for such review within the time period allowed by § 5-6-35(d); his appeal from an order terminating his parental rights and allowing adoption of the minor by the stepfather, pursuant to O.C.G.A. § 19-8-1 et seq., was also denied when the issues that the father raised related to the lack of a hearing on his legitimation proceeding, which was already determined to be not reviewable. In the Interest of C.M.L., 260 Ga. App. 502, 580 S.E.2d 276 (2003).

Defendant's direct appeal from a trial court's grant of partial summary judgment in favor of the plaintiff was dismissed for lack of jurisdiction because an application to appeal under O.C.G.A. § 5-6-35(a) was required but not submitted. Bullock v. Sand, 260 Ga. App. 874, 581 S.E.2d 333 (2003).

Application is required to appeal a domestic relations case in which a "judgment" or an "order" has been entered. Any party who seeks to appeal a "judgment" or an "order" entered in a domestic relations case must follow the procedure set out in paragraph (a)(2) of O.C.G.A. § 5-6-35. Horton v. Kitchens, 259 Ga. 446, 383 S.E.2d 871 (1989).

- Provisions of O.C.G.A. § 5-6-35(a)(5) and (d) do not apply to appeals from orders revoking juveniles' probation because orders of disposition under O.C.G.A. § 15-11-65(a) are final judgments, directly appealable under O.C.G.A. § 5-6-34(a)(1); therefore, an order of disposition entered upon the revocation of a juvenile's probation was directly appealable and the Court of Appeals of Georgia had jurisdiction over such an appeal. In the Interest of N.M., 316 Ga. App. 649, 730 S.E.2d 127 (2012).

- Defendant's motion for new trial filed more than 30 days after the entry of judgment was untimely under O.C.G.A. § 5-5-40(a), void, and did not toll the 30-day time to file a notice of appeal provided by O.C.G.A. § 5-6-38(a). Because the defendant failed to show good cause for the untimely motion, it could not be construed as an extraordinary motion under O.C.G.A. § 5-5-41(b), and even if it were so construed, the defendant did not follow the discretionary appeal procedure of O.C.G.A. § 5-6-35. Davis v. State, 330 Ga. App. 711, 769 S.E.2d 133 (2015).

Failure to file application to appeal results in dismissal of appeal in domestic relations cases. Bedford v. Bedford, 246 Ga. 780, 273 S.E.2d 167 (1980).

- In an action for repayment of child support expended by the Department of Human Resources, the failure to file an application for appeal required under paragraph (a)(2) of O.C.G.A. § 5-6-35 did not result in dismissal of the appeal. An action for repayment under O.C.G.A. § 19-11-5 is one for collection of a debt and requires discretionary appeal procedures only when the judgment is $2,500 (now $10,000.00) or less, pursuant to paragraph (a)(6) of O.C.G.A. § 5-6-35. Department of Human Resources v. Johnson, 175 Ga. App. 610, 333 S.E.2d 845 (1985).

Appeals from orders awarding support for minor children are domestic relations cases which require compliance with the discretionary appeal procedure of paragraph (a)(2) of O.C.G.A. § 5-6-35. Jackson v. Roach, 199 Ga. App. 653, 405 S.E.2d 712, cert. denied, 199 Ga. App. 906, 405 S.E.2d 712 (1991); Davis v. Welch, 205 Ga. App. 462, 422 S.E.2d 323 (1992).

Father's appeal from superior court's order under O.C.G.A. § 19-11-12, modifying the amount of his child support obligation, should have been brought as a discretionary appeal. Fitzgerald v. Department of Human Resources, 231 Ga. App. 129, 497 S.E.2d 659 (1998).

- Although a notice of appeal must be filed in the court "wherein the case was determined" putting that court on notice that its jurisdiction is affected according to O.C.G.A. § 5-6-37, there is no such requirement regarding an application, since subsection (d) of O.C.G.A. § 5-6-35 only requires the application to be filed with the clerk of the appellate court. In re A.R.B., 209 Ga. App. 324, 433 S.E.2d 411 (1993).

When an application is transferred from one appellate court to the other, the 30-day time period is to be computed from the date of the filing in the court to which that application has been transferred. Marr v. Georgia Dep't of Educ., 264 Ga. 841, 452 S.E.2d 112 (1995).

- In a case governed by the appeal procedures of O.C.G.A. § 5-6-35, the trial court has the authority to dismiss the appeal when the appellant fails to file timely an application to appeal. Tobitt v. Tobitt, 249 Ga. 245, 290 S.E.2d 49 (1982).

When no application for review was filed with the Court of Appeals within 30 days of the lower court's judgment denying the claim for unemployment compensation, an attempted direct appeal was a nullity requiring dismissal. Depass v. Board of Review, 172 Ga. App. 561, 324 S.E.2d 505 (1984).

- Subsection (a)(7) of O.C.G.A. § 5-6-35 does not purport to confer direct appellate jurisdiction to consider the merits of issues that could and should have been raised in a timely motion for new trial, an extraordinary motion for new trial is properly denied and will be affirmed on appeal if the motion raises only issues that could and should have been raised in a timely motion for new trial. Bohannon v. State, 203 Ga. App. 783, 417 S.E.2d 679 (1992).

Appeal of denial of motion to set aside arising out of divorce case will be dismissed for failure to comply with O.C.G.A. § 5-6-35. Steele v. Niggelie, 163 Ga. App. 98, 293 S.E.2d 368 (1982).

O.C.G.A. § 5-6-35 cannot be construed to expand the jurisdiction of the Court of Appeals over direct orders of lower courts granting or denying motions whose substance and function are to obtain the set-aside of a judgment, including one based upon equitable grounds. Cain v. Moore, 207 Ga. App. 726, 429 S.E.2d 135 (1993).

O.C.G.A. § 5-6-35(a)(8) requires that review of an order denying a motion to set aside be preceded by an application for discretionary review. When both O.C.G.A. §§ 5-6-34(a) and5-6-35(a) are involved, an application for appeal is required when the underlying subject matter of the appeal is listed in § 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, 710 S.E.2d 130 (2011).

- Brown v. Rutledge, 263 Ga. 474, 435 S.E.2d 187 (1993).

Appeal from legitimation proceeding is required to be made by application to the appropriate appellate court, rather than by direct appeal. Brown v. Williams, 174 Ga. App. 604, 332 S.E.2d 48 (1985).

Legitimation proceeding is a type of domestic relations case, and an application for permission to appeal must be made in accordance with paragraph (a)(2) of O.C.G.A. § 5-6-35. Hill v. Adams, 182 Ga. App. 848, 357 S.E.2d 300 (1987).

Direct appeal of an order terminating putative father's parental rights was proper, even when the relief he sought was expressed in terms of overturning the denial of his petition to legitimate. In re D.S.P., 233 Ga. App. 346, 504 S.E.2d 211 (1998).

Although an order denying a putative father's petition to legitimate his minor child was subject to the discretionary appeal procedure under O.C.G.A. § 5-6-35(a)(2), it was directly appealable under O.C.G.A. § 5-6-34(d) when the father filed the appeal together with an appeal from the trial court's decision to terminate his parental rights. In the Interest of T.A.M., 280 Ga. App. 494, 634 S.E.2d 456 (2006).

Appellate court dismissed an alleged biological father's appeal to a trial court's denial of a petition for legitimation because the alleged father was required to file a discretionary application for appeal under O.C.G.A. § 5-6-35(a)(12) and since no such application was filed, the appellate court was without jurisdiction to hear the merits of the appeal. Numanovic v. Jones, 321 Ga. App. 763, 743 S.E.2d 450 (2013).

- Although it had its roots in the parties' divorce action, an action for an equitable partition to enforce the separation agreement which was part of the divorce decree is a new action and not merely a continuation of the divorce action. For this reason, O.C.G.A. § 5-6-35 does not apply to this situation, and the husband's direct appeal from the partition order is proper. Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71 (1982).

- Subsection (g) of Ga. L. 1979, p. 619, §§ 3, 6 (see O.C.G.A. § 5-6-35(g)), read in conjunction with Ga. L. 1978, p. 1986, § 1 (see O.C.G.A. § 5-6-48(b)(1)), requires that notice of appeal from judgment in contempt of alimony judgment shall be dismissed if the appellant fails to file the notice within ten days after order is issued granting application for such appeal. Harris v. Harris, 245 Ga. 75, 263 S.E.2d 113 (1980).

Notice of appeal is subject to dismissal if the appellant fails to file the notice within ten days after an order is issued granting an application for such appeal. Caldwell v. Elbert County School Dist., 247 Ga. 359, 276 S.E.2d 43 (1981).

- Defendant's appeal of the denial of the defendant's post-conviction motion requesting production of a trial transcript at government expense was dismissed as untimely. Coles v. State, 223 Ga. App. 491, 477 S.E.2d 897 (1996), overruled on other grounds, Henderson v. State, 303 Ga. 241, 2018 Ga. LEXIS 145 (2018).

- Although a parent argued that the trial court erred in denying the parent a copy of the termination hearing transcript to submit with the parent's application for discretionary review, there was no requirement under O.C.G.A. § 5-6-35(c) or Ga. Ct. App. R. 31 that the transcript be filed with the application. In re D. R., 298 Ga. App. 774, 681 S.E.2d 218 (2009), overruled on other grounds, In re A.C., 285 Ga. 829, 686 S.E.2d 635 (2009).

- When an auditor is appointed in an equity case and renders a report which contains findings of fact and conclusions of law which are approved by the trial court, judgment entered on such report or summary judgment entered in case where there are no genuine issues as to material facts set forth in the report is subject to the application requirement of this section. Citizens & S. Nat'l Bank v. Rayle, 246 Ga. 727, 273 S.E.2d 139 (1980).

When an auditor is appointed in an equity case and renders a report which contains findings of fact and conclusions of law which are approved by the trial court, a judgment rendered on such report is subject to the application requirement of O.C.G.A. § 5-6-35. Ravan v. Stephens, 248 Ga. 289, 282 S.E.2d 312 (1981).

- Notice of appeal from judgment of contempt regarding a domestic relations decree is subject to dismissal if the appellant fails to file the notice within ten days after an order is issued granting an application for such appeal. Walters v. Walters, 245 Ga. 695, 266 S.E.2d 507 (1980).

- When the court entered an order adjudicating a former spouse in contempt, and after time for appealing the contempt order had expired, former spouse brought action seeking to vacate and set aside the judgment for contempt on ground that judgment in the divorce case was void, for legal purposes this was the same as an appeal from the order holding the appellant in contempt. Failure to file an application to appeal made dismissal proper. Chandler v. Cochran, 247 Ga. 171, 275 S.E.2d 657 (1981).

- Tenants' action was not one that required an application for discretionary appeal when the action was not filed as a renewal of claims made in a de novo appeal to a superior court from a dispossessory action brought in a magistrate court and when the superior court had denied the tenants' motion to add counterclaims before dismissing the appeal in the dispossessory action. Slone v. Myers, 288 Ga. App. 8, 653 S.E.2d 323 (2007), cert. denied, 555 U.S. 881, 129 S. Ct. 196, 172 L. Ed. 2d 140 (2008).

- Denial of application to appeal nonfinal order is perhaps persuasive but is not res judicata in appellate court when later reviewing final order in same case. Citizens & S. Nat'l Bank v. Rayle, 246 Ga. 727, 273 S.E.2d 139 (1980).

- Court of Appeals is without jurisdiction to entertain a direct appeal from a decision of a city manager approving the termination of a city employee. Salter v. City of Thomaston, 200 Ga. App. 536, 409 S.E.2d 88 (1991).

- Whern the taxpayer did not file an application for discretionary appeal from a decision of the superior court reviewing a decision of the Department of Revenue, but chose to appeal directly to the O.C.G.A. Supreme Court pursuant to § 5-6-34(a), such appeal was dismissed for failure to comply with procedure for appeal from decisions of administrative agencies required by O.C.G.A. § 5-6-35. Plantation Pipe Line Co. v. Strickland, 249 Ga. 829, 294 S.E.2d 471 (1982).

- When plaintiff commenced a dispossessory proceeding against the defendant in the Small Claims Court of Putnam County and received a dispossessory warrant against the defendant, who appealed to the Superior Court of Putnam County where a jury found for defendant, and plaintiff appealed to the Court of Appeals and the defendant cross-appealed, when the appeal was not brought under paragraph (a)(1) of O.C.G.A. § 5-6-35, the appeal and cross-appeal will be dismissed. Manley v. Williams, 166 Ga. App. 298, 304 S.E.2d 468 (1983).

When appeal deals with dismissal of garnishment proceeding for delinquent payments under divorce decree directing payment on installment notes and the divorce is only incidental thereto, a motion to dismiss the appeal for failure to file an application for appeal will be denied. Kile v. Kile, 165 Ga. App. 321, 301 S.E.2d 289 (1983).

Appeal arising out of superior court's dismissal of appeal from judgment by recorder's court should be brought under the provision pertaining to discretionary appeals and the failure to do so subjects the appeal to dismissal. Wimbish v. State, 166 Ga. App. 223, 303 S.E.2d 766 (1983).

Appeal from superior court's review of use and enforcement of investigative powers of the board of medical examiners required discretionary appeal procedures. Rankin v. Composite State Bd. of Medical Exmrs., 220 Ga. App. 421, 469 S.E.2d 500 (1996).

- Direct appeal from the recorder's court to the Supreme Court was not available in a case challenging the constitutionality of an ordinance. Instead, the proper method of review was by certiorari to the superior court. Russell v. City of E. Point, 261 Ga. 213, 403 S.E.2d 50 (1991), cert. denied, 502 U.S. 971, 112 S. Ct. 448, 116 L. Ed. 2d 466 (1991).

- Dismissal by Supreme Court of direct appeal for lack of application as required by O.C.G.A. § 5-6-35 invokes doctrine of res judicata when judgment appealed was final and on merits. Byrd v. Byrd, 248 Ga. 163, 281 S.E.2d 617 (1981).

Denial of discretionary appeal under O.C.G.A. § 5-6-35 by Supreme Court invokes doctrine of res judicata when judgment appealed was final and on the merits. Steele v. Niggelie, 163 Ga. App. 98, 293 S.E.2d 368 (1982).

- When the affirmance of the local board of education by the State Board of Education is a decision of a state administrative agency acting in a quasi-judicial capacity and the order of the superior court is itself an appellate decision, reviewing the decision of the state board, the appeal is from a decision of a superior court reviewing a decision of a state administrative agency, within the meaning of O.C.G.A. § 5-6-35. Accordingly, failure to obtain an order of the Court of Appeals permitting the filing of such an appeal must result in the appeal's dismissal. Hogan v. Taylor County Bd. of Educ., 157 Ga. App. 680, 278 S.E.2d 106 (1981).

- Considering the statutory text, its relevant context, the judicial precedents, and the usual understanding of American courts generally about administrative determinations of different sorts, the Georgia Supreme Court concludes that "decision," as the term is used in O.C.G.A. § 5-6-35(a)(1) with reference to administrative agencies, is most naturally and reasonably understood to refer to an administrative determination of an adjudicative nature. State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016).

Trial court erred by reversing a decision denying the claim for workers' compensation benefits because the award was not legally erroneous and was supported by some evidence that the claimant failed to carry the burden of proving by a preponderance of competent and credible evidence that the former employer was the employer when last injuriously exposed to asbestos. McKenney's, Inc. v. Sinyard, 350 Ga. App. 260, 828 S.E.2d 639 (2019), cert. denied, No. S19C1348, 2020 Ga. LEXIS 25 (Ga. 2020).

- Requirements of O.C.G.A. § 5-6-35 must be followed as a necessary prerequisite to secure discretionary appellate review of decisions of superior courts reviewing decisions of state administrative agencies. Heiny v. Department of Pub. Safety, 169 Ga. App. 37, 311 S.E.2d 848 (1983).

Appeals from decisions of superior courts reviewing decisions of state and local administrative agencies shall be by application in nature of a petition, enumerating errors to be urged on appeal and stating why the appellate court has jurisdiction. Wheeler v. Strickland, 248 Ga. 85, 281 S.E.2d 556 (1981); City of Atlanta Bd. of Zoning Adjustment v. Midtown N., Ltd., 257 Ga. 496, 360 S.E.2d 569 (1987).

- Under O.C.G.A. § 5-6-35, the superior courts have all of the authority and all of the responsibilities which the appellate courts formerly had in workers' compensation cases. Southeastern Aluminum Recycling, Inc. v. Rayburn, 251 Ga. 365, 306 S.E.2d 240 (1983).

- An appeal which, standing alone, would be subject to discretionary appeal procedures, is appealable as a matter of right if it is classifiable as a cross-appeal to an appealable order. Buschel v. Kysor/Warren, 213 Ga. App. 91, 444 S.E.2d 105 (1994).

- In a workers' compensation case, even though no application was made by the employer as required by O.C.G.A. § 5-6-35, since the claimant had taken direct appeal, the employer's cross appeal could be filed also. Linder v. Alterman Foods, Inc., 162 Ga. App. 786, 292 S.E.2d 900 (1982).

- To conclude that, following review by the superior court, a decision of the administrator of the Office of Consumer Affairs to issue an investigative demand is appealable as a matter of right, but the administrator's decision on the merits is appealable only by application would be contrary to the clear purpose of O.C.G.A. § 5-6-35. The agency's decision to issue an investigative demand is a "decision" of an administrative agency within the meaning of subsection (a) of § 5-6-35 and an appeal from a grant of summary judgment by the superior court to the administrator should be dismissed for failure to comply with the requirements of § 5-6-35. Tri-State Bldg. & Supply, Inc. v. Reid, 251 Ga. 38, 302 S.E.2d 566 (1983).

Atlanta Bureau of Zoning Adjustment is "local administrative agency" within meaning of paragraph (a)(1) of O.C.G.A. § 5-6-35, thereby requiring discretionary-appeal applications from decisions of the superior court reviewing decisions of the Bureau of Zoning Adjustment. Rybert & Co. v. City of Atlanta, 258 Ga. 347, 368 S.E.2d 739 (1988), overruled on other grounds, Southern States Landfill, Inc. v. City of Atlanta Bd. of Zoning Adjustments, 261 Ga. 759, 410 S.E.2d 721 (1991).

- When the appellant files a direct appeal from a superior court order affirming the Department of Labor's denial of the appellant's claim for unemployment compensation without first obtaining an order from the appellate court granting permission for such an appeal pursuant to paragraph (a)(1) of O.C.G.A. § 5-6-35, the appeal will be dismissed. Cook v. Caldwell, 166 Ga. App. 452, 305 S.E.2d 187 (1983).

- Direct appeal from an order affirming a decision of the State Personnel Board which reversed the termination of the appellee's employment as a correctional officer which was not brought under the discretionary appeal provisions of O.C.G.A. § 5-6-35 must be dismissed for lack of jurisdiction. Department of Offender Rehabilitation v. Meeks, 165 Ga. App. 269, 299 S.E.2d 757 (1983).

Appeal from an order of a superior court affirming a decision of the State Personnel Board which denies an appeal from the sustaining of a dismissal from employment as a correctional officer by a hearing officer must be brought under the discretionary provisions of O.C.G.A. § 5-6-35. When that procedure is not followed, the Court of Appeals has no jurisdiction over the appeal and, accordingly, it must be dismissed. Summerset v. Department of Offender Rehabilitation, 167 Ga. App. 730, 307 S.E.2d 678 (1983).

Appeals of an action, labeled "tort-negligence," which a state prisoner, brought against officials of a correctional institute, were not dismissed under subdivision (a)(1) of O.C.G.A. § 5-6-35 because the defendant filed separate tort actions seeking damages for official actions which could have been the subject of administrative grievances. McBride v. Zant, 204 Ga. App. 183, 418 S.E.2d 781 (1992).

- Order imposing a monetary sanction for wilfully failing to attend a scheduled post-judgment deposition was in the nature of an award for frivolous litigation and required an application for discretionary appeal. Bonnell v. Amtex, Inc., 217 Ga. App. 378, 457 S.E.2d 590 (1995).

Order imposing a sanction for unnecessarily expanding a proceeding was in the nature of an award for frivolous litigation within the purview of O.C.G.A. § 9-15-14(b) and, as such, was not directly appealable, but required an application for discretionary appeal. Hill v. Doe, 239 Ga. App. 869, 522 S.E.2d 471 (1999).

- Finding of wilful contempt of a court order entering judgment on a jury verdict not dealing with alimony or child custody is directly appealable notwithstanding the denial of a simultaneously filed application for discretionary appeal. Stephens v. Stephens, 184 Ga. App. 538, 362 S.E.2d 118 (1987).

Supreme court had no jurisdiction to consider a trial court's order holding a common law husband in contempt because the enumeration that addressed the contempt order was not predicated upon a proper and timely appeal from that order or from any other appealable order that encompassed that subsequent ruling since the contempt order was not prior to or contemporaneous with that final judgment such that it can be enumerated in the case pursuant to O.C.G.A. § 5-6-34(d) but was a subsequent ruling that the husband was not entitled to enumerate; a separate appeal was not proper in the absence of compliance with the discretionary appeal procedures set forth in O.C.G.A. § 5-6-35(a)(2), no application seeking discretionary review of the contempt order had ever been filed, and the record did not contain any transcript of the contempt hearing. Norman v. Ault, 287 Ga. 324, 695 S.E.2d 633 (2010).

- Probate court order finding a decedent's son in contempt of court for violating its orders to preserve and return certain specified property of the father's estate was vacated because the appellate record was incomplete since the co-administrators did not file any brief disputing the son's claim that the evidence showed compliance with the probate court's order was impossible. In re Estate of Banks, 339 Ga. App. 144, 793 S.E.2d 451 (2016).

- Since a contempt order itself cannot be appealed directly, neither the denial of a motion to stay incarceration for contempt nor the denial of a motion for discharge from confinement can be appealed directly. The procedure for taking such appeals, if allowable at all, is governed by O.C.G.A. § 5-6-35. Strickland v. Strickland, 252 Ga. 218, 312 S.E.2d 606 (1984).

- Matter before the state revenue commissioner (the proposed termination by a liquor producer of four of its designated wholesalers) was a "contested case" within the meaning of the Administrative Procedure Act, not involving the suspension or cancellation of licenses, and the trial court was thus correct in treating the review of the commissioner's order denying the proposal as a petition for judicial review pursuant to the APA; there having been no application to appeal the decision of the superior court affirming the commissioner's order, as required by O.C.G.A. § 5-6-35, the motion to dismiss the appeal was granted. Schieffelin & Co. v. Strickland, 253 Ga. 385, 320 S.E.2d 358 (1984).

- Supreme Court of Georgia holds that when the underlying subject matter of an appeal prevails over the relief sought when both the direct and discretionary appeal statutes are implicated, such appeals must be brought under the discretionary appeals statute, O.C.G.A. § 5-6-35; accordingly, the trial court's grant of a liquor license applicant's writ of mandamus petition against a county commission that had denied the applicant's request for a license should have been by such procedure. Augusta-Richmond County v. Lee, 277 Ga. 483, 592 S.E.2d 71 (2004).

- Although the nightclub had a right pursuant to O.C.G.A. § 5-6-35 to seek a discretionary review of the trial court's judgment affirming an administrative agency's decision to deny the nightclub's application for renewal of the nightclub's liquor license, the nightclub did not have a right to directly appeal that judgment after the Supreme Court reviewed and rejected the nightclub's discretionary appeal, as the denial of the discretionary appeal was a ruling on the merits; thus, the nightclub was not entitled to have the Supreme Court review those same claims again. Northwest Soc. & Civic Club, Inc. v. Franklin, 276 Ga. 859, 583 S.E.2d 858 (2003).

- Effective July 1, 1986, applications to appeal awards of attorney's fees or expenses of litigation under O.C.G.A. § 9-15-14 are required, and a direct appeal will be dismissed for failure to comply with O.C.G.A. § 5-6-35. Martin v. Outz, 257 Ga. 211, 357 S.E.2d 91 (1987).

When the appellee city sought to dismiss the appellant's appeal from the award of attorney fees because the appellant did not file an application as required by subsection (a)(10) of O.C.G.A. § 5-6-35 for an appeal from an award of attorney fees pursuant to O.C.G.A. § 9-15-14, an application was not necessary to appeal the award of attorney fees, since this was appealed along with other matters directly appealable. Stancil v. Gwinnett County, 259 Ga. 507, 384 S.E.2d 666 (1989).

- Order enforcing an executed settlement agreement and denying the motion to dismiss the appeal was upheld because it was undisputed that the only attorney fees in question were those sought by the brother in a post-judgment motion under O.C.G.A. § 9-15-14 and the trial court's reservation of the issue did not render the judgment non-final but, rather, that judgment enforcing the settlement agreement was final and directly appealable. Miller v. Miller, Ga. App. , 846 S.E.2d 429 (2020).

Appeal that is created by O.C.G.A. § 40-13-28 (traffic offenses) is "de novo proceeding," whereby the superior court reviews the certified record below and makes a new determination as to guilt or innocence. An appeal to the Court of Appeals must comply with the discretionary appeal provisions of O.C.G.A. § 5-6-35. Anderson v. City of Alpharetta, 187 Ga. App. 148, 369 S.E.2d 521 (1988).

Appeal from an order denying a motion to recuse requires an application for interlocutory review. In re Booker, 186 Ga. App. 614, 367 S.E.2d 850 (1988).

- When the original motion for a new trial, as amended, had been denied and was no longer before the trial court, the motion to amend the motion for a new trial was in reality an extraordinary motion for new trial and appeal from the denial of such a motion must be by application when separate from the original appeal. Martin v. State, 185 Ga. App. 145, 363 S.E.2d 765 (1987).

- In a case involving a white supremacist organization being denied a permit for the Adopt-A-Highway program administered by the Georgia Department of Transportation (Department), the court dismissed the Department's appeal for lack of jurisdiction because the Department sought review of a decision of a state administrative agency and was required under O.C.G.A. § 5-6-35(a)(1) to bring the Department's appeal by way of an application for discretionary review, but failed to do so. State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016).

- Construing O.C.G.A. §§ 5-6-35(a)(1) and 40-13-28 according to their real intent and meaning and not so strictly as to defeat the legislative purpose, the General Assembly did not intend to remove traffic appeals under § 40-13-28 from the discretionary appeals procedures. Brown v. City of Marietta, 214 Ga. App. 840, 449 S.E.2d 540 (1994).

All appeals from judgments of superior courts in traffic cases under O.C.G.A. § 40-13-28 must follow the procedures in subsection (a) of O.C.G.A. § 5-6-35. Accordingly, 30 days after the date this decision is published in the official advance sheets any direct appeals in these cases filed under O.C.G.A. § 5-6-34(a) will be dismissed. Brown v. City of Marietta, 214 Ga. App. 840, 449 S.E.2d 540 (1994).

Any appeal from a superior court review under O.C.G.A. § 40-13-28 of any lower court, except the probate court, shall be under subsection (a) of O.C.G.A. § 5-6-35; however, an appeal from the superior court review under § 40-13-28 of a traffic case from the probate court shall be by direct appeal under O.C.G.A. § 5-6-34(a)(1). Power v. State, 231 Ga. App. 335, 499 S.E.2d 357 (1998).

- Even though appellant doctor sought review of a decision by the appellee board of medical examiners by filing a mandamus action, and even though a judgment in a mandamus action was subject to direct appeal under O.C.G.A. § 5-6-34, the doctor was required to file an application to appeal pursuant to O.C.G.A. § 5-6-35 because the underlying subject matter of the doctor's appeal was covered by O.C.G.A. § 5-6-35. Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 564 S.E.2d 715 (2002).

If a request for mandamus relief attacks or defends the validity of an administrative ruling and seeks to prevent or promote the enforcement thereof, the trial court must necessarily "review" the administrative decision within the meaning of O.C.G.A. § 5-6-35(a)(1) before ruling on the request for mandamus relief. Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 564 S.E.2d 715 (2002).

Intermediate court properly transferred an application for discretionary review filed by a limited liability limited partnership (LLLP), seeking review of the denial of the LLLP's request for a writ of mandamus, to the Georgia Supreme Court, as cases involving the grant or denial of mandamus are within the exclusive jurisdiction of the Georgia Supreme Court without regard to the underlying subject matter or the legal issues raised. As the case involved permitting requirements for landfills, it concerned a statutory scheme requiring a permit from the state for a land use that was regulated by the state, and the LLLP was entitled to a direct appeal from the denial of the LLLP's mandamus action. Mid-Georgia Envtl. Mgmt. Group, L.L.L.P. v. Meriwether County, 277 Ga. 670, 594 S.E.2d 344 (2004).

- Appeal by county board of education members of a judgment denying the members' request to reverse the governor's order removing the members from office under O.C.G.A. § 45-10-4 for violating O.C.G.A. § 45-10-3 was not dismissed due to the doctrine of laches; the members were required by § 45-10-4 to proceed under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq., and no delay warranted the imposition of the doctrine of laches; the governor's order was signed on August 6, 2010, and the members filed the members' petition for judicial review on August 12, 2010. Roberts v. Deal, 290 Ga. 705, 723 S.E.2d 901 (2012).

Orders dealing with child custody are subject to discretionary appeal procedures. In re L.W., 216 Ga. App. 222, 453 S.E.2d 808 (1995).

- As a parent's petition to modify a visitation schedule was a "child custody case" for purposes of O.C.G.A. § 5-6-34(a)(11), and as the legislature intended to remove child custody cases from the operation of O.C.G.A. § 5-6-35(a)(2) when the legislature excised references to such cases from that statute, the parent was entitled to file a direct appeal from the trial court's final judgment on the petition. Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009).

- Appellate court could consider a constitutional challenge to O.C.G.A. § 5-6-35(a)(12), which required an application for appeal from an order terminating parental rights, for the first time on appeal because the statutory procedure at issue did not come into play until after an adverse decision in the trial court and a decision to take an appeal. In re A.C., 285 Ga. 829, 686 S.E.2d 635 (2009).

- Discretionary appeal process of O.C.G.A. § 5-6-35(a)(12) did not violate a mother's due process rights following the termination of her parental rights to her child. In re A.B., 311 Ga. App. 629, 716 S.E.2d 755 (2011).

Child custody orders include those entered as part of divorce case or pursuant to O.C.G.A. Art. 3, Ch. 9, T. 19 (Uniform Child Custody Jurisdiction Act) or O.C.G.A. Art. 2, Ch. 9, T. 19 (Georgia Child Custody Intrastate Jurisdiction Act). Bryant v. Wigley, 246 Ga. 155, 269 S.E.2d 418 (1980), overruled on other grounds, 247 Ga. 487, 277 S.E.2d 247 (1981).

Cases involving termination of parental rights must be made by direct appeal as those cases are not within the purview of paragraph (a)(2) of O.C.G.A. § 5-6-35 requiring certain appeals to be made by discretionary application. In re S.N.S., 182 Ga. App. 803, 357 S.E.2d 127 (1987).

Appeal from an adoption proceeding was not an appeal from a child custody proceeding, which would require the discretionary appeal procedure. Moore v. Butler, 192 Ga. App. 882, 386 S.E.2d 678 (1989).

- In an appeal from a contempt order entered in a child custody case, the parent and the parent's counsel were not required to follow the interlocutory appeal procedure, O.C.G.A. § 5-6-34(a)(11), but the court had jurisdiction over the appeal even though the appellants were entitled to follow the direct appeal procedure, pursuant to O.C.G.A. § 5-6-35(j). Murphy v. Murphy, 330 Ga. App. 169, 767 S.E.2d 789 (2014).

Orders terminating parental rights are directly appealable. In re L.W., 216 Ga. App. 222, 453 S.E.2d 808 (1995).

- Mother was permitted to appeal a temporary order changing custody of the parties' children to the father without complying with O.C.G.A. §§ 5-6-34(b) and5-6-35 because § 5-6-34 provided that all modifications of child custody orders filed on or after January 1, 2008, were directly appealable and were no longer subject to the interlocutory appeal procedures. Taylor v. Curl, 298 Ga. App. 45, 679 S.E.2d 80 (2009).

- Appeals from orders dealing with child custody which are not filed pursuant to O.C.G.A. § 5-6-35 must be dismissed for lack of jurisdiction. Hamilton v. Deutscher, 201 Ga. App. 883, 412 S.E.2d 875 (1991); In re A.M.D., 212 Ga. App. 291, 444 S.E.2d 166 (1994).

When the discretionary application procedures set out in O.C.G.A. § 5-6-35 were not followed, the parties' appeal in a child custody case was appropriately dismissed. Voyles v. Voyles, 301 Ga. 44, 799 S.E.2d 160 (2017).

- O.C.G.A. § 5-6-35(a)(12), which required an application for appeal from an order terminating parental rights, did not violate a parent's equal protection rights by treating that parent differently from other parents whose custody was interrupted, because termination cases and custody interruption cases were not similar, and the classification created by § 5-6-35(a)(12) was reasonable and supported by the state's legitimate interest in not permitting a deprived child to languish in temporary care. In re A.C., 285 Ga. 829, 686 S.E.2d 635 (2009).

Habeas corpus order returning child to lawful custodian is not an order "awarding child custody" within meaning of section. Bryant v. Wigley, 246 Ga. 155, 269 S.E.2d 418 (1980), overruled on other grounds, 247 Ga. 487, 277 S.E.2d 247 (1981).

- Subsection (g) of Ga. L. 1979, p. 619, §§ 3, 6 (see O.C.G.A. § 5-6-35) read in conjunction with Ga. L. 1978, p. 1986, § 1 (see O.C.G.A. § 5-6-48(b)(1)), provides that notice of appeal from judgment granting child custody is subject to dismissal if the appellant fails to file the notice within ten days after order is issued granting application for such appeal. Evans v. Davey, 154 Ga. App. 269, 267 S.E.2d 875 (1980).

- Supreme Court does not have jurisdictional basis for entertaining appeals involving child custody questions unless appeal also involved judgment for divorce; all other child custody cases are, accordingly, within jurisdiction of Court of Appeals. Evans v. Davey, 154 Ga. App. 269, 267 S.E.2d 875 (1980).

- One parent filed an application for discretionary review of a trial court's order, which the Supreme Court of Georgia granted under O.C.G.A. § 5-6-35(j) inasmuch as the parent had a right under O.C.G.A. § 5-6-34(a)(11) to appeal directly from a judgment or order in a child custody case that refused to change custody and that held the parent in contempt of a child custody judgment or order. Furthermore, that parent, acting pursuant to § 5-6-35(a)(8), filed a timely application seeking review of the denial of a motion to set aside an order requiring that parent to pay the other parent's attorney fees and reasonable expenses, which application the court granted. Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011).

- Appellate court erred in considering the merits of the termination of parental rights case because the appellate court lacked jurisdiction over the case since the mother's application for discretionary review was untimely; and any initial determinations as to whether the mother was constitutionally entitled to the appointment of appellate counsel for the purpose of filing a discretionary application, whether the mother's due process rights were frustrated by ineffective assistance of counsel, and whether the mother was entitled to a remedy in the form of an out-of-time application for discretionary review were for the juvenile court to decide, which the court had not done; thus, the mother's application should have been dismissed. In the Interest of B.R.F., 299 Ga. 294, 788 S.E.2d 416, appeal dismissed, 338 Ga. App. 762, 791 S.E.2d 859 (2016).

- General Assembly did not intend to include child custody habeas corpus actions brought by the custodial parent within the classes of cases enumerated in O.C.G.A. § 5-6-35. Wright v. Hanson, 248 Ga. 523, 283 S.E.2d 882 (1981), (decided prior to 1984 amendment).

Application for appeal in accordance with the procedures set forth in O.C.G.A. § 5-6-35 is not necessary in child custody habeas corpus proceedings brought by the custodial parent, whether the custodial parent prevails or loses in the trial court. Wright v. Hanson, 248 Ga. 523, 283 S.E.2d 882 (1981), (decided prior to 1984 amendment).

- Addition (by Ga. L. 1984, p. 599, § 2) of the term "child custody, and other domestic relations cases including, but not limited to" in paragraph (a)(2) of O.C.G.A. § 5-6-35 was intended to add child custody habeas corpus actions to the purview of § 5-6-35. Leonard v. Benjamin, 253 Ga. 718, 324 S.E.2d 185 (1985).

Failure to file notice of appeal pursuant to § 5-6-38. - When the custodial parent in a child custody habeas corpus proceeding unnecessarily files an application for appeal in accordance with O.C.G.A. § 5-6-35, and the Supreme Court grants the application, and a notice of appeal then is timely filed, the Supreme Court has jurisdiction of the appeal even though no notice of appeal was filed in accordance with O.C.G.A. § 5-6-38 within 30 days from entry of judgment in the trial court. Wright v. Hanson, 248 Ga. 523, 283 S.E.2d 882 (1981).

Appeal involving change of custody falls within provisions of paragraph (a)(2) and subsection (d) of O.C.G.A. § 5-6-35, which require an application to be filed directly with the Court of Appeals within 30 days of the filing of the order changing visitation rights. On failing to follow these requirements, § 5-6-35 precludes vesting of jurisdictional powers either in the trial court based on an appeal to a final judgment or in the Court of Appeals as a discretionary appeal. Jones v. Warrenfells, 166 Ga. App. 519, 305 S.E.2d 147 (1983); Dudai v. Spisak, 170 Ga. App. 744, 318 S.E.2d 501 (1984); Brandenburg v. Brandenburg, 175 Ga. App. 18, 332 S.E.2d 665 (1985).

Order modifying custody, issued following a "temporary" hearing under USCR 24.5, was final. In a post-decree custody modification action authorized by a prior version of O.C.G.A. § 19-9-3(b), the trial court was without authority to enter a "temporary" custody award. Hightower v. Martin, 198 Ga. App. 855, 403 S.E.2d 862 (1991), but see Massey v. Massey, 227 Ga. App. 906, 490 S.E.2d 205 (1997).

There is nothing in O.C.G.A. § 5-6-35 which excludes custody cases involving the state. In re J.E.P., 252 Ga. 520, 315 S.E.2d 416 (1984).

Motion for modification of a juvenile court order terminating parental rights is similar to a motion to set aside under O.C.G.A. § 9-11-60(d), which is appealable but does not sustain an appeal from the underlying judgment. In re H.A.M., 201 Ga. App. 49, 410 S.E.2d 319 (1991).

Denial of stepfather's petition to adopt his ten-year old stepdaughter was directly appealable, as all petitions for adoption, whether granted or denied, whether terminating parental rights, or not, do not come within paragraph (a)(2) of subsection (a). In re J.S.J., 180 Ga. App. 873, 350 S.E.2d 843 (1986).

- Judgment holding mother in contempt of an order which granted visitation rights to father was not directly appealable since the order constituted a child custody order for purposes of paragraph (a)(2) of O.C.G.A. § 5-6-35. Burnett v. Coleman, 170 Ga. App. 394, 317 S.E.2d 546 (1984).

Denial of a petition to hold the mother in contempt of the final judgment and decree of divorce which granted the father visitation rights to the parties' child can be reviewed only by application for discretionary appeal, because visitation privileges are a part of custody. Hosch v. Hosch, 184 Ga. App. 370, 361 S.E.2d 686 (1987), cert. denied, 484 U.S. 1067, 108 S. Ct. 1030, 98 L. Ed. 2d 994 (1988).

- Appeal from a judgment on the pleadings in an action to set aside a judgment awarding delinquent child support payments is not an appeal concerning those issues as enumerated in paragraph (a)(2) of O.C.G.A. § 5-6-35. Karsman v. Portman, 170 Ga. App. 194, 316 S.E.2d 819 (1984).

- When the appellants failed to file an application for appellate review following the denial of the appellant's petition by the juvenile court which sought to have legal custody of a foster child changed from the county department of family and children services to themselves, the appeal was dismissed. In re C.P.H., 169 Ga. App. 122, 311 S.E.2d 850 (1983).

Grandparents seeking appellate review of an unfavorable ruling regarding visitation privileges are, like parents, required to follow the procedure necessary to secure a discretionary appeal. Tuttle v. Stauffer, 177 Ga. App. 112, 338 S.E.2d 544 (1985).

- Because deprivation cases are neither child custody nor domestic relations cases within the purview of O.C.G.A. § 5-6-35, a right of direct appeal lies from such orders. Balkcom v. State, 227 Ga. App. 327, 489 S.E.2d 129 (1997); In re J.P., 267 Ga. 492, 480 S.E.2d 8 (1997), overruling In re D.S., 212 Ga. App. 203, 441 S.E.2d 412 (1994); In re M.D.S., 211 Ga. App. 706, 440 S.E.2d 95 (1994); In re N.A.B., 196 Ga. App. 819, 397 S.E.2d 301 (1990); In re M.A.V., 206 Ga. App. 299, 425 S.E.2d 377 (1992).

- Court of Appeals had jurisdiction to consider a father's appeal from the juvenile court's judgment in a deprivation proceeding. In re A.L.L., 211 Ga. App. 767, 440 S.E.2d 517 (1994).

Appeals from a deprivation proceeding do not involve child custody and therefore do not require an application to appeal. In re J.P., 220 Ga. App. 895, 470 S.E.2d 706 (1996), aff'd, 267 Ga. 492, 480 S.E.2d 8 (1997).

- Appeal from a declaratory judgment action brought by an adoption agency to determine the validity of the surrender of parental rights and the adoption procedure was not subject to the discretionary appeal procedures of O.C.G.A. § 5-6-35. Families First v. Gooden, 211 Ga. App. 272, 439 S.E.2d 34 (1993).

- Trial court did not err when the court denied a custodial parent's motion to set aside an award of attorney fees because the court's underlying judgment was final and the trial court's award of attorney fees did not supplement, amend, alter, or modify an order and judgment which were the subjects of the pending discretionary application and notice of appeal. Thus, the supercedeas of the application and notice of appeal did not deprive the trial court of jurisdiction to enter the award of attorney fees. Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011).

When the "underlying subject matter" of the case is divorce, the General Assembly intends the case to be brought to the Supreme Court by application pursuant to O.C.G.A. § 5-6-35 rather than by direct appeal. Rolleston v. Rolleston, 249 Ga. 208, 289 S.E.2d 518 (1982).

Where the issue sought to be appealed clearly arises from divorce proceedings, the appeal procedures of O.C.G.A. § 5-6-35 control. Tobitt v. Tobitt, 249 Ga. 245, 290 S.E.2d 49 (1982).

Appeal from denial of superior court petition seeking separate maintenance and equitable division of property and to enjoin matters pending in juvenile court was dismissed for failure to comply with paragraph (a)(2) of O.C.G.A. § 5-6-35. Floyd v. Floyd, 250 Ga. 208, 296 S.E.2d 607 (1982).

When the underlying subject matter was divorce, the appellant was required to file an application for appeal as provided in O.C.G.A. § 5-6-35; the appellant could not avoid the discretionary review procedure by challenging the trial court's rulings via writ of prohibition. Self v. Bayneum, 265 Ga. 14, 453 S.E.2d 27 (1995).

Right to a direct appeal in child custody cases in O.C.G.A. § 5-6-34(a)(11) did not apply to a divorce decree in which child custody was an issue, even though the only relief sought on appeal pertained to the custody decision; the underlying subject matter was still the divorce action. Therefore, a parent was required to follow the discretionary appeal procedure of O.C.G.A. § 5-6-35, and the parent's direct appeal was dismissed. Todd v. Todd, 287 Ga. 250, 696 S.E.2d 323 (2010).

Mother's appeal of a judgment vacating an award of physical custody of a child to her and revising the decree to award physical custody of the child to the father was properly before the supreme court because the mother followed the required application procedures, and the timing of her notice of appeal did not deprive her of the appeal; because it was not a child custody case but a divorce case in which child custody was an issue; O.C.G.A. § 5-6-35(a)(2) required an application for discretionary appeal, and a direct appeal was not authorized by O.C.G.A. § 5-6-34(a)(11). Todd v. Todd, 287 Ga. 250, 696 S.E.2d 323 (2010).

- Trial court had jurisdiction to grant a divorce, as opposed to the State of New York trial court wherein the wife petitioned for a divorce, because there was some evidence to support the trial court's findings on domicile of the parties, including that the husband was stationed in the military in Georgia, they lived in military housing then purchased a home, and continued to live in that home until their separation. Black v. Black, 292 Ga. 691, 740 S.E.2d 613 (2013).

Final contempt order against a wife in a divorce proceeding was vacated because the trial court was without jurisdiction to enter a final contempt order while her direct appeal from the initial contempt order still was pending in the appellate court as the wife triggered an automatic supersedeas of that order under O.C.G.A. § 5-6-46(a) when the appeal was filed. Rollins v. Rollins, 300 Ga. 485, 796 S.E.2d 721 (2017).

Case involving a "domestic relations" issue wherein the appellant sought domestication and "correction" of a foreign divorce decree, normally within the jurisdiction of the Court of Appeals, also involved claims based upon an unincorporated settlement agreement which raised no "domestic relations" issue and, therefore, the Supreme Court had jurisdiction over the direct appeal from the grant of summary judgment in favor of the former husband as to the former wife's claims for specific performance of the settlement agreement and jurisdiction over the rulings on all the former wife's claims, including the "domestic relations" claim. Eickhoff v. Eickhoff, 263 Ga. 498, 435 S.E.2d 914 (1993).

- When an agreement purporting to resolve all matters arising out of marriage is incorporated into a final decree of divorce, the rights of the parties are based on the final decree and not the underlying agreement and appeal is within O.C.G.A. § 5-6-35. Paul v. Paul, 250 Ga. 54, 296 S.E.2d 48 (1982).

- Appellate court lacked jurisdiction over the ex-wife's appeal from the trial court's dismissal of the complaint seeking a declaratory judgment and asserting a claim for tortious interference with business relations against her ex-husband because the wife failed to file an application for discretionary review. Duffy v. Sanders, 354 Ga. App. 684, 841 S.E.2d 415 (2020).

- Party seeking appellate review of an order awarding temporary alimony must comply with the interlocutory appeal procedure of O.C.G.A. § 5-6-34. Bailey v. Bailey, 266 Ga. 832, 471 S.E.2d 213 (1996).

Appeals arising out of paternity petitions are domestic relations cases which require compliance with the discretionary appeal procedure of O.C.G.A. § 5-6-35. Brown v. Department of Human Resources, 204 Ga. App. 27, 418 S.E.2d 404 (1992).

- As a former spouse previously filed an application for discretionary review under O.C.G.A. § 5-6-35(a)(2), based on the spouses' claim that the spouse should have been credited as to the spouse's education expense obligation for the son's college tuition and expenses with the amount withdrawn by the son from a Uniform Transfer to Minor Account, and the application was dismissed as untimely filed, the former spouse was barred under res judicata from appealing that issue. Norris v. Norris, 281 Ga. 566, 642 S.E.2d 34 (2007).

- In a direct appeal by appellant, the former wife of the appellee, upon an action for breach of a contract entered into by the parties contemporaneous with the divorce settlement and judgment, when the appellee argued that the suit (enforcement of divorce or domestic relations settlement or agreement) was subject only to discretionary appeal under paragraph (a)(2) of O.C.G.A. § 5-6-35, and that the direct appeal should be dismissed, the court found that a former husband and wife may enter into contractual agreements separate from any decreed by the court upon a divorce and that the action was for a breach of contract, and directly appealable. Scott v. Mohr, 191 Ga. App. 825, 383 S.E.2d 190 (1989).

- When the jury specifically designates a property transfer as alimony in a divorce case, the Court of Appeals does not have jurisdiction of an appeal of a contempt order entered therein, which by law is subject to application for discretionary appeal to the Supreme Court. Cale v. Byrdwell, 166 Ga. App. 901, 305 S.E.2d 468 (1983).

Notice of appeal from a judgment of contempt regarding a domestic relations decree (finding violations by harassment, abuse, threats, assaults, annoyances, and willful refusal to make house payments as ordered), which judgment imposed a 20-day unconditional imprisonment, was dismissed for failure to file an application for appeal pursuant to paragraph (a)(2) of O.C.G.A. § 5-6-35. Russo v. Manning, 252 Ga. 155, 312 S.E.2d 319 (1984).

Trial court erred by dismissing an ex-spouse's motion for contempt for failure to pay child support, which was filed along with a motion to modify the parties' divorce decree because when one court has rendered a divorce decree and a second court later acquires jurisdiction to modify the decree, the second court also has jurisdiction to entertain a motion for contempt of the original decree as a counterclaim to the petition to modify. Ford v. Hanna, 292 Ga. 500, 739 S.E.2d 309 (2013).

Because the husband never filed the application for discretionary appeal of the June 27th contempt order finding that the husband failed to comply with the terms of the parties' divorce decree, that appeal was dismissed; thus, the husband's current appeal, to the extent that it challenged the previously appealed June 27th contempt order, was dismissed. Massey v. Massey, 294 Ga. 163, 751 S.E.2d 330 (2013).

- Federal district court could not enjoin enforcement of a state court judgment in a divorce proceeding that had been allegedly obtained by fraud and which, therefore, allegedly deprived the plaintiff of property without due process of law, in that the plaintiff failed to state a claim under the federal civil rights statute, because the existence of adequate review procedures under Georgia law accorded the plaintiff sufficient due process. Collins v. Collins, 597 F. Supp. 33 (N.D. Ga. 1984).

- An action by a former wife against the state retirement system, seeking an order compelling the system to pay, directly to her, her share of her former husband's retirement benefits under a divorce judgment, was not a divorce case and an application to appeal was not required. Bryant v. Employees Retirement Sys., 264 Ga. 125, 441 S.E.2d 757 (1994).

Because an ex-wife and the children sought damages for a decedent's alleged failure to comply with an insurance provision in a divorce decree, and not a recovery of alimony or child support, the Supreme Court lacked jurisdiction to hear a discretionary appeal under Ga. Const. 1983, Art. VI, Sec. VI, Para. III(6) and the orders appealed from were subject to the discretionary appeal requirements of O.C.G.A. § 5-6-35(a)(2); therefore, the Court of Appeals correctly dismissed their direct appeal. Walker v. Estate of Mays, 279 Ga. 652, 619 S.E.2d 679 (2005).

By failing to complain in the application for discretionary review of the provisions of the decree concerning child support, a mother forfeited any appellate review of those provisions, and the Georgia Supreme Court declined to consider that additional enumeration of error. Zekser v. Zekser, 293 Ga. 366, 744 S.E.2d 698 (2013).

Suit brought against former spouse seeking to domesticate out-of-state judgment in divorce proceeding and to have spouse attached for contempt and ordered to pay arrearages was a suit on a foreign judgment, not a divorce or alimony case within the meaning of Georgia's Constitution, and jurisdiction of appeal was in the Court of Appeals. Lewis v. Robinson, 254 Ga. 378, 329 S.E.2d 498 (1985).

Suit to domesticate Ohio divorce judgment and have husband held in contempt was a "contempt" or "other domestic relations case" under paragraph (a)(2) of O.C.G.A. § 5-6-35 for direct versus discretionary appeal purposes. Lewis v. Robinson, 176 Ga. App. 374, 336 S.E.2d 280 (1985).

- In a divorce action, because a husband sought a discretionary appeal within 30 days of the date the trial court made the parties' settlement agreement the judgment of the court, thereby terminating the litigation, the husband's application for a discretionary appeal was timely filed. Underwood v. Underwood, 282 Ga. 643, 651 S.E.2d 736 (2007).

- Trial court erred in ruling that a husband was not obligated for temporary alimony amounts that had come due before the entry of remittitur in the trial court, but the court correctly ruled that as to child support, the temporary award remained in effect until the date the remittitur was entered because a temporary award continued in effect until the entry of the remittitur in the trial court, and it was from that date forward that any permanent award in a final judgment and decree of divorce had effect. Nicol v. Nicol, 240 Ga. 673, (1978), and cases following its reasoning on this issue are overruled. Robinson v. Robinson, 287 Ga. 842, 700 S.E.2d 548 (2010).

4. Garnishment

None due to time limitation expiration.

- When an owner of a brokerage service account that was garnished failed to timely appeal the garnishment judgment within 30 days, pursuant to the time limitations contained in O.C.G.A. § 5-6-35(a)(4), the assignee of the owner's rights had no right to appeal that judgment after such time had expired; the assignee had the same rights as the owner, and the owner's time had ran on such an appeal. Lamb v. First Union Brokerage Servs., 263 Ga. App. 733, 589 S.E.2d 300 (2003).

- When the appellant files a direct appeal from an order granting defendant-garnishee's motion to open a default judgment but the appellant has failed to obtain an order of the appellate court permitting the filing of an appeal pursuant to paragraph (a)(4) of O.C.G.A. § 5-6-35, the appeal must be dismissed. Wallace v. Saks Fifth Ave., Atlanta, Inc., 180 Ga. App. 679, 350 S.E.2d 308 (1986); Easley, McCaleb & Stallings, Ltd. v. Gateway Mgt., 191 Ga. App. 588, 382 S.E.2d 373 (1989); Maloy v. Ewing, 226 Ga. App. 490, 486 S.E.2d 708 (1997).

Pursuant to O.C.G.A. § 5-6-35 (a)(5) and (d), appeals from orders revoking probation are discretionary and require that an application be filed with the clerk of the appropriate court within 30 days of the date of the revocation order. Todd v. State, 236 Ga. App. 757, 513 S.E.2d 287 (1999).

- Appeal from an order revoking probation is one of the type of cases which must follow the procedure set forth in O.C.G.A. § 5 -6-35. Yellock v. State, 179 Ga. App. 250, 345 S.E.2d 897 (1986).

Appeals from orders revoking probation must be made by application filed directly with the appropriate court within 30 days of the date of the revocation order. Scriven v. State, 179 Ga. App. 513, 346 S.E.2d 906 (1986).

Trial court erred in revoking the defendant's probation on a basis that was not alleged in the state's revocation petition as the state's petition to revoke sought to do so on the ground that the defendant committed a new offense of misdemeanor stalking, but the trial court's order provided that it was revoking probation on the ground that the defendant committed a new felony offense, presumably the offense of aggravated stalking mentioned by the state during the revocation hearing. Ponder v. State, 341 Ga. App. 276, 800 S.E.2d 19 (2017).

- Proper method of appeal from an order of adjudication of guilt and sentence which serves to revoke the probationary status granted under the First Offender Act is by discretionary appeal, as provided in paragraph (a)(5) of O.C.G.A. § 5-6-35, rather than direct appeal. Dean v. State, 177 Ga. App. 123, 338 S.E.2d 711 (1985); Anderson v. State, 177 Ga. App. 130, 338 S.E.2d 716 (1985); Merciers v. State, 212 Ga. App. 424, 444 S.E.2d 416 (1994); Zamora v. State, 226 Ga. App. 105, 485 S.E.2d 214 (1997); Freeman v. State, 245 Ga. App. 333, 537 S.E.2d 763 (2000).

- Although the discretionary appeal procedures apply to an order revoking probation and all appeals from such orders must be by application, a discretionary appeal is not the exclusive method of seeking reconsideration or review of orders and judgments enumerated in subsection (a) of O.C.G.A. § 5-6-35, thus barring any motion to set aside or for new trial. Wells v. State, 236 Ga. App. 607, 512 S.E.2d 711 (1999).

- When following the revocation of the appellant's probation, the appellant filed a "Petition for Appeal" with the trial court, which the trial court dismissed, following which the appellant filed an "Out-of-Date Appeal" to the court of appeals, as no application was filed directly in time, the appeal must be dismissed for lack of jurisdiction. Scriven v. State, 179 Ga. App. 513, 346 S.E.2d 906 (1986).

Appeal by the state from the grant of probationer's motion to suppress was dismissed since a revocation of probation hearing is not a criminal proceeding for purposes of a direct appeal; jurisdiction would lie upon application only. State v. Wilbanks, 215 Ga. App. 223, 450 S.E.2d 293 (1994).

Defendant's filing of an application for discretionary appeal from a revocation of probation acted as a supersedeas to the same extent as a notice of appeal and deprived the trial court of jurisdiction to enter an amended revocation order. Bryson v. State, 228 Ga. App. 84, 491 S.E.2d 184 (1997).

Statute applied when the appellant challenged the sentence imposed upon the revocation of the appellant's probation, but did not challenge the revocation itself, since the underlying subject matter of the appeal was still the revocation of probation and, therefore, the appellant was required to apply for a discretionary appeal. White v. State, 233 Ga. App. 873, 505 S.E.2d 228 (1998).

- When the defendant was sentenced after unsuccessful participation in an O.C.G.A. § 16-13-2(a) drug court program, the defendant's appeal was heard despite failing to comply with the discretionary appeal procedure of O.C.G.A. § 5-6-35(a)(5); in such cases, hearing appeals was discretionary, but that had not been clear prior to the instant case, so the appellate court heard the defendant's case. Andrews v. State, 276 Ga. App. 428, 623 S.E.2d 247 (2005).

Because the drug court program under O.C.G.A. § 16-13-2(a) is similar to the first offender statute of O.C.G.A. § 42-8-60 and because § 42-8-60 appeals are discretionary under O.C.G.A. § 5-6-35(a)(5), the discretionary appeal procedures of § 5-6-35(a)(5) must be followed when appealing after violation of the conditions of the drug court program. Andrews v. State, 276 Ga. App. 428, 623 S.E.2d 247 (2005).

6. Damages Where Judgment Is $10,000.00 or Less

Editor's notes.

- Many of the cases cited below were decided prior to the 1991 amendment, which increased the amount from $2,500.00 to $10,000.00.

- Discretionary appeal provisions of paragraph (a)(6) of O.C.G.A. § 5-6-35 apply to judgments in the amount of $2,500.00 or less (now $10,000.00 or less) obtained by verdict following a bench or jury trial as well as by summary judgment, so that the court of appeals would be unable to exercise jurisdiction to review the merits on a direct appeal of a summary judgment in a suit on an account for the principal sum of $546.19 plus $43.70 interest and court costs in the amount of $28.00. Perryman v. Georgia Power Co., 180 Ga. App. 259, 348 S.E.2d 762 (1986), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).

Paragraph (a)(6) of O.C.G.A. § 5-6-35 is applicable to judgments in the amount of $2,500 or less (now $10,000.00 or less) obtained by a verdict following a bench or jury trial, as well as by summary judgment. Covrig v. Campbell, 187 Ga. App. 39, 369 S.E.2d 293, cert. denied, 187 Ga. App. 907, 369 S.E.2d 762 (1988).

Defendant's direct appeal from summary judgment entered against the defendant in the amount of $1,451.13 principal, plus $87.07 interest was dismissed since the judgment was for $2,500 or less, and the discretionary appeal procedures of O.C.G.A. § 5-6-35 were required. Batchelor v. ISFA Corp., 191 Ga. App. 238, 382 S.E.2d 434 (1989).

Paragraph (a)(6) of O.C.G.A. § 5-6-35 does not apply to appeal from judgment in favor of a defendant.

- When damages of less than $10,000 were entered on a counterclaim against a limited liability company, the company's appeal of the counterclaim judgment had to be dismissed for failure to comply with the mandatory provision for discretionary appeal in O.C.G.A. § 5-6-35(a)(6). Harpagon Co., LLC v. Davis, 283 Ga. 410, 658 S.E.2d 633 (2008).

- Dicta in Motor Finance Co. v. Davis, 188 Ga. App. 291, 372 S.E.2d 674 (1988), that was subsequently repeated in Robinwood, Inc. v. Baker, 206 Ga. App. 202, 424 S.E.2d 353 (1992), is disapproved as indicating that the provisions of O.C.G.A. § 5-6-35(a)(6) do not apply to an appeal from a judgment in favor of a defendant. The language is disapproved to the extent it suggests a right of direct appeal in cases in which a judgment for less than $10,000 was rendered in favor of a defendant. Pathfinder Payment Sols., Inc. v. Global Payments Direct, Inc., 344 Ga. App. 490, 810 S.E.2d 653 (2018).

- Paragraph (a)(6) of O.C.G.A. § 5-6-35 is applicable only when the appellant is seeking to appeal a money judgment for an amount ranging from 1 through $2,500.00 (now $10,000.00), and not when the appellant has sought a money judgment but has obtained no recovery whatever. Whatley v. Bank S., 185 Ga. App. 896, 366 S.E.2d 182, cert. denied, 185 Ga. App. 911, 366 S.E.2d 182 (1988); Department of Human Resources v. Prince, 198 Ga. App. 329, 401 S.E.2d 342 (1991).

Paragraph (a)(6) of O.C.G.A. § 5-6-35 does not apply when action and judgment are for writ of possession. Brown v. Associates Fin. Servs. Corp., 255 Ga. 457, 339 S.E.2d 590 (1986).

"Judgment" relates to the final result of an action for damages. City of Brunswick v. Todd, 255 Ga. 448, 339 S.E.2d 589 (1986).

- Under paragraph (a)(6) of O.C.G.A. § 5-6-35 subsection (a), it is the amount of the underlying final judgment from which an appeal is taken, not the enumerations of error, which determines the direct or discretionary appealability of any given case. Ostrom v. Kapetanakos, 185 Ga. App. 728, 365 S.E.2d 849 (1988).

Direct appeal should have been filed by application from the state court's judgment awarding plaintiff $5,000 following the defendant's appeal to the state court from the magistrate court's judgment entered in plaintiff's favor. Salaam v. Nasheed, 220 Ga. App. 43, 469 S.E.2d 245 (1996).

Direct appeal was not authorized from an order denying the plaintiff's motion for new trial, motion to set aside the judgment, and motion to reopen default when the underlying judgment awarded to the defendant on the defendant's counterclaim was less than $10,000. Khan v. Sanders, 223 Ga. App. 576, 478 S.E.2d 615 (1996).

When the plaintiff failed to follow the procedure for discretionary appeal in a case where the plaintiff was awarded $1,500 in damages, the plaintiff's direct appeal was dismissed. Jennings v. Moss, 235 Ga. App. 357, 509 S.E.2d 655 (1998).

Appellate court properly dismissed an attorney's direct appeal in a case wherein the attorney sued a client for attorney fees because the judgment the attorney recovered was one for damages in an amount under $10,000, and as such, the judgment was subject to appeal as a matter of discretion under O.C.G.A. § 5-6-35(a)(6), rather than of right. The failure of the attorney to recover on the claims of prejudgment interest or attorney fees did not transform the judgment into a finding on liability adverse to the attorney so as to render appeal of the matter outside the ambit of § 5-6-35(a)(6). Cooney v. Burnham, 283 Ga. 134, 657 S.E.2d 239 (2008).

- Plaintiff was authorized to file direct, rather than discretionary, appeal as to "zero" award on main claim, and portion of judgment pertaining to counterclaim on which less than $10,000 was awarded would also be reviewable on direct appeal.

- Application to appeal is required when a party seeking a money judgment prevails, that is, a judgment for some sum is obtained but the award is $2,500.00 or some lesser sum. The use of the amount of the judgment would apply whether the issues are decided by the court or by a jury. Brown v. Associates Fin. Servs. Corp., 255 Ga. 457, 339 S.E.2d 590 (1986).

Paragraph (a)(6) of O.C.G.A. § 5-6-35 applies to judgments in the amount of $2,500.00 or less (now $10,000.00 or less) obtained by verdict following a bench or jury trial as well as by summary judgment. Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600, 344 S.E.2d 440 (1986).

Awards for bad faith are within the category of "damages" as contemplated by paragraph (a)(6) of O.C.G.A. § 5-6-35, requiring an application to appeal in all actions in which the judgment is $2,500.00 or less. MTW Inv. Co. v. Vanguard Properties Fin. Corp., 179 Ga. App. 403, 346 S.E.2d 575, aff'd, 256 Ga. 318, 349 S.E.2d 749 (1986); Landor Condominium Consultants, Inc. v. Colony Place Condominium Ass'n, 195 Ga. App. 840, 395 S.E.2d 25 (1990).

When the judgment was a determination of nonliability on the part of the defendant, as such it is a matter of direct appeal and not controlled by the requirements for discretionary appeal in paragraph (a)(6) of O.C.G.A. § 5-6-35. Consequently, appellee's motion to dismiss for failure to comply with paragraph (a)(6) must be denied. Turner v. Taylor, 179 Ga. App. 574, 346 S.E.2d 920 (1986).

When trial court entered judgment for $800.00, after jury returned verdict of $5,800.00, but the parties had stipulated that any jury verdict would be reduced by $5,000.00, as that amount had already been received by the plaintiff under the plaintiff's insurance coverage, plaintiff was required to follow the discretionary appeal procedure of paragraph (a)(6) of O.C.G.A. § 5-6-35. Barikos v. Vanderslice, 177 Ga. App. 884, 341 S.E.2d 513 (1986), overruled on other grounds, Bales v. Shelton, 260 Ga. 335, 391 S.E.2d 394 (1990).

- In a case on an insurance contract, the total damages at stake in the case, not the damages remaining after set-offs, determined jurisdiction under this section; when total damages before set-offs were over $10,000, O.C.G.A. § 5-6-35 did not apply and direct appeal was proper. Eberhardt v. Georgia Farm Bureau Mut. Ins. Co., 223 Ga. App. 478, 477 S.E.2d 907 (1996).

- In a tort action, set-offs to the judgment that arise from some collateral source - such as prior payments, or pre-existing debts - should not be considered when deciding whether an application for appeal is necessary under paragraph (a)(6) of O.C.G.A. § 5-6-35. Bales v. Shelton, 260 Ga. 335, 391 S.E.2d 394 (1990).

Prospective application of Bales v. Shelton, 260 Ga. 335, 391 S.E.2d 394 (1990) applies only to those pending appeals in which the appellant had relied on the prior holdings in City of Brunswick v. Todd, 255 Ga. 448, 339 S.E.2d 589 (1986) and Barikos v. Vanderslice, 177 Ga. App. 884, 341 S.E.2d 513 (1986). It was not intended in Bales to require the dismissal of an appeal of a judgment that exceeds $2,500 (now $10,000), prior to set-offs from a collateral source, on the ground that, at the time the notice of appeal was filed, an appeal application was required under Barikos. Lee v. Britt, 260 Ga. 757, 400 S.E.2d 5 (1991).

Judgment entitling landlord to retain a $2,500 earnest money deposit as liquidated damages, and requiring tenants to pay $1,200 as increased rent, exceeded $2,500, and, accordingly, was subject to direct appeal. Alexander v. Steining, 197 Ga. App. 328, 398 S.E.2d 390 (1990).

- Application for discretionary appeal pursuant to O.C.G.A. § 5-6-35(a)(3) was not required because applications for discretionary appeal were required in appeals from cases involving distress or dispossessory warrants in which the only issue to be resolved was the amount of rent due and such amount was $2,500.00 or less; the tenant's notice of appeal showed that the tenant sought to raise issues other than the amount of rent due. Smith v. R. James Props., Inc., 292 Ga. App. 317, 665 S.E.2d 19 (2008).

- O.C.G.A. § 5-6-35 is applicable only to dispossessory actions in which the only issue to be resolved is rent due of $2,500 or less. Housing Auth. v. Bigsby, 200 Ga. App. 878, 410 S.E.2d 44 (1991).

- Although the judgment for one plaintiff was less than $10,000, the judgment was appealable without application, since no application was required for appeal of a zero award judgment to a coplaintiff. Smith v. Curtis, 226 Ga. App. 470, 486 S.E.2d 699 (1997).

- Denial of the application for discretionary review could have been based merely on a determination that the application was rendered redundant and unnecessary by the pendency of a present appeal and did not constitute a prior adjudication of the merits of the present appeal. Berger & Washburne Ins. Agency, Inc. v. Commercial Ins. Brokers, Inc., 204 Ga. App. 146, 418 S.E.2d 640 (1992).

As a hotel owner's application for discretionary appeal of the trial court's denial of the court's motion to set aside a default judgment and to open the default had been denied, the owner was estopped from seeking further judicial review of those orders. PHF II Buckhead LLC v. Dinku, 315 Ga. App. 76, 726 S.E.2d 569 (2012), cert. denied, No. S12C1257, 2012 Ga. LEXIS 1041 (Ga. 2012).

- While the denial of a motion to set aside may be considered appealable in its own right when the motion is filed pursuant to O.C.G.A. § 9-11-60(d), the right of appeal is conditioned, under such circumstances, upon compliance with the application procedures set forth in O.C.G.A. § 5-6-35. North Carolina Constr. Co. v. Action Mobilplatform, Inc., 187 Ga. App. 507, 370 S.E.2d 800 (1988).

Appeals from the denial of a motion to set aside the judgment under O.C.G.A. § 9-11-60(d) are subject to the discretionary appeals procedure even when coupled with motions for a new trial or judgment n.o.v. Fabe v. Floyd, 199 Ga. App. 322, 405 S.E.2d 265, cert. denied, 199 Ga. App. 906, 405 S.E.2d 265 (1991).

Unless tied to a directly appealable order, an appeal from the denial of a motion to set aside a judgment requires a timely application to the appellate court for permission to pursue a discretionary appeal. Thierman v. Thierman, 234 Ga. App. 716, 507 S.E.2d 489 (1998).

Appeal from an order denying a motion to set aside filed pursuant to O.C.G.A. § 9-11-60(d) is subject to the application procedures set forth in subsection (b) of O.C.G.A. § 5-6-35. Agency Mgt. Servs. v. Escape Travel/Tour Servs., 199 Ga. App. 882, 406 S.E.2d 285 (1991).

Since, regardless of how appellant's motion was denominated, the basis of the motion was that the consent judgment was entered in violation of the settlement agreement, the proper vehicle through which to take exception to the judgment was a motion to set aside and not a motion for new trial. Accordingly, appellant failed to follow the discretionary appeal procedures of O.C.G.A. § 5-6-35(b). Magnum Communications, Ltd. v. IBM, 206 Ga. App. 131, 424 S.E.2d 379 (1992).

Order which simultaneously denies both a motion for new trial and a motion to vacate or set aside a judgment is not directly appealable. Gooding v. Boatright, 211 Ga. App. 221, 438 S.E.2d 685 (1993).

Denial of the defendant's motion to set aside the judgment required an application for discretionary appeal. Bonnell v. Amtex, Inc., 217 Ga. App. 378, 457 S.E.2d 590 (1995).

Plaintiffs' notice of direct appeal did not confer appellate jurisdiction on the court to consider the trial court's denial of plaintiffs' motion to set aside a judgment which incorporated an arbitration award in the absence of a proper and timely order granting permission to pursue a discretionary appeal. Anderson v. GGS Hotel Holdings, Ga., Inc., 234 Ga. App. 284, 505 S.E.2d 572 (1998).

Court lacked jurisdiction to hear the caveator's appeal of the probate court's order denying the caveator's motion to set aside the court's previous orders granting letters of dismission to the executrix when the caveator's direct appeal was untimely and the caveator's application to the appellate court for a discretionary appeal also was untimely. Thierman v. Thierman, 234 Ga. App. 716, 507 S.E.2d 489 (1998).

In an action in which an appellant sought review of the denial of a motion to vacate and set aside a consent order, the appellate court lacked jurisdiction over the appeal; the appellant did not file a timely application for a discretionary appeal under O.C.G.A. § 5-6-35, as was required under § 5-6-35(a)(8) for orders under O.C.G.A. § 9-11-60(d) denying a motion to set aside a judgment. Rogers v. Estate of Harris, 276 Ga. App. 898, 625 S.E.2d 65 (2005).

Parent's appeal from the imposition of attorney's fees against the parent in a contempt finding was dismissed as untimely under O.C.G.A. § 5-6-38(a); the parent's motion for new trial was improper and did not toll the time for filing the appeal. Even if the motion were construed as a motion to set aside under O.C.G.A. § 9-11-60, the denial was not directly appealable, but required the filing of an application for discretionary appeal under O.C.G.A. § 5-6-35(b). Parker v. Robinson, 337 Ga. App. 362, 787 S.E.2d 317 (2016).

- Court of Appeals lacks jurisdiction to consider a direct appeal from a trial court's order denying a motion to set aside a default judgment when the court previously held that a discretionary appeal was the only appellate remedy available and the application for a discretionary appeal was denied. Lewis v. Sun Mgt., Inc., 187 Ga. App. 591, 370 S.E.2d 840 (1988).

Although the Court of Appeals had jurisdiction to consider the grant of appellee's O.C.G.A. § 9-11-60(g) motion to correct a clerical mistake in a default judgment, the court had no jurisdiction to address the denial of appellants' § 9-11-60(d) motion to set aside the default judgment, because an application must be filed to appeal from an order denying a motion to set aside a judgment. Brooks v. Federal Land Bank, 193 Ga. App. 591, 388 S.E.2d 704 (1989); TMS Ins. Agency, Inc. v. Galloway, 205 Ga. App. 896, 424 S.E.2d 71 (1992).

Appeal from denial of motion for relief from foreign judgment based on the foreign state's lack of personal jurisdiction was subject to O.C.G.A. § 5-6-35. Okekpke v. Commerce Funding Corp., 218 Ga. App. 705, 463 S.E.2d 23 (1995).

Appeal of an order denying the appellants' motion to vacate a foreign judgment was dismissed because the appellants never filed a motion to set aside the judgment under O.C.G.A. § 9-11-60(d), which was the proper method for attacking a foreign judgment filed under the Uniform Enforcement of Foreign Judgments Law, O.C.G.A. § 9-12-130 et seq.; the underlying subject matter of the appellants' motions was an attempt to set aside a judgment, and the denial of the appellants' motions was subject to discretionary appeal because the underlying subject matter generally controlled over the relief sought in determining the proper procedure to follow to appeal. Noaha, LLC v. Vista Antiques & Persian Rugs, Inc., 306 Ga. App. 323, 702 S.E.2d 660 (2010).

Because a trial court was authorized only to address the merits of a motion to set aside a foreign default judgment under O.C.G.A. § 9-11-60(d), and the judgment debtor failed to file an application for discretionary appeal as required by O.C.G.A. § 5-6-35(a)(8), (b), (f), the court lacked jurisdiction over the appeal. Lemcon USA Corp. v. Icon Tech. Consulting, Inc., 338 Ga. App. 459, 789 S.E.2d 832 (2016).

- Although, basically, the import and result of motions to set aside and to correct judgments are in most instances identical, and logically the legislature probably did not contemplate allowing direct appeals from orders under O.C.G.A. § 9-11-60(g) (correcting clerical mistakes) while mandating a discretionary approach for those under § 9-11-60(d) (motion to set aside judgment), the clear language of the statute prevents an interpretation which would render both motions subject to subsection (b) of this section, and, therefore, § 9-11-60(g) motions do not require applications to appeal. Crawford v. Kroger Co., 183 Ga. App. 836, 360 S.E.2d 274, cert. denied, 183 Ga. App. 905, 360 S.E.2d 274 (1987).

- When consideration of an issue raised in a motion for limited remand is not necessary to the disposition of an appeal, it is appropriate that the normal procedure for motions under O.C.G.A. § 9-11-60(d)(2) be followed, including procedures for appellate review if necessary. Fabe v. Floyd, 199 Ga. App. 322, 405 S.E.2d 265, cert. denied, 199 Ga. App. 906, 405 S.E.2d 265 (1991).

- Husband's application to vacate an arbitration award under O.C.G.A. § 9-9-13 should have been dismissed rather than denied since the trial court's divorce decree in which the court approved the arbitration award was final on the date that the court issued the decree even though the arbitration award had, in fact, not been issued on that date; thus, the husband should have filed an application for a discretionary appeal from the trial court's final judgment within 30 days of the entry of the judgment and decree under O.C.G.A. § 5-6-35(d) or filed a motion to set aside the judgment and decree under O.C.G.A. § 9-11-60. Since, pursuant to O.C.G.A. § 9-9-15 the order confirming the arbitration award became the judgment of the trial court on the date that the trial court issued the court's divorce decree, all matters in litigation in the action were final on that date, including those submitted for arbitration, and the later purported arbitration award was of no effect. Ciraldo v. Ciraldo, 280 Ga. 602, 631 S.E.2d 640 (2006).

8. Attorney's Fees or Expenses

When application not required.

- Judgment awarding attorney's fees and costs of litigation pursuant to O.C.G.A. § 9-15-14 may be reviewed on direct appeal, when it is appealed as part of a judgment that is directly appealable. The application required by O.C.G.A. § 5-6-35 need not be filed on the separate costs and fees issue. Haggard v. Board of Regents, 257 Ga. 524, 360 S.E.2d 566 (1987); Mitcham v. Blalock, 268 Ga. 644, 491 S.E.2d 782 (1997). But see Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

Appeal from an award of expenses of litigation under O.C.G.A. § 9-15-14 is discretionary when not appealed as part of a judgment that is directly appealable. Cheeley-Towns v. Rapid Group, Inc., 212 Ga. App. 183, 441 S.E.2d 452 (1994).

- Because a driver seeking review of an order of attorney's fees against the driver, entered under O.C.G.A. § 9-15-14, after the driver opposed a motion to transfer venue, properly followed O.C.G.A. § 5-6-35(a)(10) in seeking discretionary review, but did not comply with O.C.G.A. § 5-6-34(b) governing interlocutory appeals, the appeal was dismissed. Eidson v. Croutch, 337 Ga. App. 542, 788 S.E.2d 129 (2016).

Direct appeal from an award of attorney fees under O.C.G.A. § 9-15-14 was not properly before the Court of Appeals after the directly appealable judgment was dismissed. Roberts v. Pearce, 232 Ga. App. 417, 501 S.E.2d 555 (1998). See Burns v. Howard, 239 Ga. App. 315, 520 S.E.2d 491 (1999).

When an attorney and law firm appealed an award to a hospital of attorney fees and expenses incurred in resisting a subpoena issued in a medical malpractice case, to which the hospital was not a party, by the attorney, the attorney's and law firm's petition for discretionary review was timely under O.C.G.A. § 5-6-35(d) because: (1) the petition was filed within 30 days of the trial court's amended award of attorney fees and expenses; and (2) the appellate court's dismissal of the attorney's and law firm's attempt to appeal the original award by notice of appeal, which found the original award was interlocutory, was the law of the case. Reeves v. Upson Reg'l Med. Ctr., 315 Ga. App. 582, 726 S.E.2d 544 (2012).

Because the main case was before the Court of Appeals of Georgia, Third Division on direct appeal, under O.C.G.A. § 5-6-35(j) the court granted an attorney's application for discretionary appeal of the denial by the trial court of the attorney's motion for attorney fees pursuant to O.C.G.A. § 9-15-14(a) and (b). After considering the record under the appropriate standards as to each subsection of § 9-15-14, the court held that the trial court did not abuse the court's discretion and that the evidence supported the court's denial of the motion. Kilgore v. Sheetz, 268 Ga. App. 761, 603 S.E.2d 24 (2004).

- Employer's failure to follow the requisite discretionary appeals procedures of O.C.G.A. § 5-6-35 deprived the appellate court of jurisdiction to consider the claim that the trial court erred in granting the employee attorney fees on the employee's claim against the employer for past wages. Capricorn Sys. v. Godavarthy, 253 Ga. App. 840, 560 S.E.2d 730 (2002).

- Because a judgment was an award under O.C.G.A. § 9-11-37 for $1,875 in attorney's fees as a discovery sanction, the defendant's failure to invoke the court's discretion by filing an application to appeal as required by O.C.G.A. § 5-6-35(a)(6) for judgments $10,000 or less required that the court dismiss the appeal for lack of jurisdiction. Pathfinder Payment Sols., Inc. v. Global Payments Direct, Inc., 344 Ga. App. 490, 810 S.E.2d 653 (2018).

- Appeals from awards of attorney fees or expenses of litigation under O.C.G.A. § 9-15-14 require application for appellate review. Lacking such an application, the appellate court is without jurisdiction to entertain the appeal and the appeal must be dismissed. Loveless v. Pickering, 187 Ga. App. 49, 369 S.E.2d 281, cert. denied, 187 Ga. App. 908, 369 S.E.2d 281 (1988); Morris v. Morris, 226 Ga. App. 799, 487 S.E.2d 528 (1997).

- Defendant's challenge of award of attorney's fees to the plaintiff based on the frivolous nature of the defendant's adverse possession defense to an ejectment action was not properly before the Court of Appeals since the defendant's appeal was from the dismissal of the defendant's prior appeal rather than from the underlying claim. Boveland v. YWCA, 227 Ga. App. 241, 489 S.E.2d 35 (1997).

§ 5-6-34(a). - Even though the amount of attorney fees awarded by a trial court was less than $10,000, a petition for inspection and copying of records was not an action for damages necessitating a discretionary appeal under O.C.G.A. § 5-6-35(a)(6). Motor Whse., Inc. v. Richard, 235 Ga. App. 835, 510 S.E.2d 600 (1998).

9. Zoning Cases

Paragraph (a)(1) applicable to appeals in zoning cases.

- All zoning cases appealed either to the Court of Appeals or the Supreme Court of Georgia must come by application, since in neither case is the appeal direct because it is an appeal from the decision of a court reviewing a decision of an administrative agency within the meaning of O.C.G.A. § 5-6-35. Trend Dev. Corp. v. Douglas County, 259 Ga. 425, 383 S.E.2d 123 (1989).

- Appeals from decisions in zoning cases require an application to the Court of Appeals for permission to pursue a discretionary appeal, pursuant to paragraph (a)(1) of O.C.G.A. § 5-6-35. City of Byron v. Betancourt, 242 Ga. App. 71, 528 S.E.2d 841 (2000).

- Appeal by property owners from a superior court's decision rejecting the owners' complaint seeking relief from a city zoning decision was an appeal from the review of a local government zoning decision, requiring appeal by discretionary application under O.C.G.A. § 5-6-35(a)(1); because the owners appealed directly, dismissal was required. Schumacher v. City of Roswell, 337 Ga. App. 268, 787 S.E.2d 254 (2016).

A stand-alone lawsuit challenging an ordinance as facially invalid - unconnected to any individualized determination about a particular property - is not a "zoning case" and does not require an application under O.C.G.A. § 5-6-35. Schumacher v. City of Roswell, 301 Ga. 635, 803 S.E.2d 66 (2017).

In a landowner's suit against a county challenging the denial of the owner's motion to rezone the property from commercial to multifamily residential, the owner was required to file a discretionary application for appeal pursuant to O.C.G.A. § 5-6-35(a)(1) because the local authority's decision was administrative, pertaining to the particular parcel of property, rather than legislative. Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597, 807 S.E.2d 876 (2017).

- Paragraph (a)(1) of O.C.G.A. § 5-6-35 is applicable to appeals from a decision of a superior court reviewing a decision of a local zoning tribunal when the superior court dismissed the appeal based on the appellants' failure to serve the appellee with a copy of the petition in a timely manner. Ross v. Mullis Tree Serv., Inc., 183 Ga. App. 627, 360 S.E.2d 288 (1987).

- Landfill company's direct appeal was properly before the appellate court because the case was not a zoning case that required an application for discretionary appeal as it was challenging a change in the ordinance overall, which was an exercise of legislative power and not an adjudicative decision of an administrative agency, as opposed to appealing a land use decision specific to it. Sweet City Landfill, LLC v. Elbert County, 347 Ga. App. 311, 818 S.E.2d 93 (2018).

Trial court did not err by dismissing a landfill company's action as moot because its challenge to the zoning ordinance changes made by the county involved a situation wherein there was no likelihood that the prior ordinances would be reinstated if the suit was terminated; thus, in the absence of evidence indicating that the county intended to return to the prior ordinances, the landfill company's legal challenge to it was moot. Sweet City Landfill, LLC v. Elbert County, 347 Ga. App. 311, 818 S.E.2d 93 (2018).

Court was without jurisdiction to hear the appeal of a zoning case since appellants failed to file an application as required by Trend Dev. Corp. v. Douglas County, 259 Ga. 425, 383 S.E.2d 123 (1989). Pruitt v. Fulton County, 210 Ga. App. 873, 437 S.E.2d 861 (1993); OS Adv. Co. v. Rubin, 267 Ga. 723, 482 S.E.2d 295 (1997).

- Appeal from denial of injunction filed to enforce a zoning ordinance was not a superior court review of an administrative decision; it was therefore directly appealable under O.C.G.A. § 5-6-34(a)(4), and did not fall under the purview of paragraph (a)(1) of O.C.G.A. § 5-6-35 so as to require the grant of an application for discretionary appeal. Harrell v. Little Pup Dev. & Constr., Inc., 269 Ga. 143, 498 S.E.2d 251 (1998).

Direct appeal was proper when zoning case did not involve superior court review of an administrative decision. White v. Bd. of Comm'rs, 252 Ga. App. 120, 555 S.E.2d 45 (2001).

Developer could directly appeal the dismissal of the developer's claim for mandamus against county planning officials under O.C.G.A. § 5-6-34(a)(7); the officials did not make an administrative "decision" for purposes of a discretionary appeal under O.C.G.A. § 5-6-35(a)(1) when the officials simply "released" the developer's permit application due to a moratorium and requested further information from the developer. Carson v. Brown, 348 Ga. App. 689, 824 S.E.2d 605 (2019).

Construction with O.C.G.A. § 5-6-34. - Underlying subject matter of a resident's suit seeking a writ of mandamus and other relief arising from the issuance of a building permit for the construction of a school building in the neighborhood concerned the review of an administrative zoning decision and, therefore, the appellate court had jurisdiction to address the merits only in the context of a discretionary appeal; while the trial court's order ruling against the resident was appealable under O.C.G.A § 5-6-34(a), the resident was required to obtain permission to file the appeal, and could not circumvent the discretionary application requirements of O.C.G.A. § 5-6-35. Ladzinske v. Allen, 280 Ga. 264, 626 S.E.2d 83 (2006).

10. Criminal Cases

Motion to set aside considered in context of all circumstances.

- Petitioner's case was remanded to the habeas court for it to consider the motion to set aside in a manner that takes into account the affidavit of habeas counsel in the context of all the circumstances of the case because the habeas court did not make a finding as to whether habeas counsel received notice of the final habeas hearing based on a consideration of the affidavit of habeas counsel, thus, the habeas court's analysis was incomplete. Case v. State, 300 Ga. 208, 794 S.E.2d 93 (2016).

- Writ of habeas corpus granted to a prisoner was reversed because the prisoner presented the same issues raised in the habeas petition to the trial court and relief had been denied, and the prisoner's appeal of that decision was rejected by the appellate courts; thus, the prisoner's claim was procedurally barred. Thompson v. Stinson, 279 Ga. 196, 611 S.E.2d 29 (2005).

- Although extensions of time could be granted for applications for discretionary appeal, pursuant to O.C.G.A. § 5-6-39(a)(5), a trial court did not have the authority to grant an out-of-time discretionary appeal in a criminal case as a remedy for counsel's failure to timely file the application under O.C.G.A. § 5-6-35(d) absent a violation of the appellant's constitutional rights. Gable v. State, 290 Ga. 81, 720 S.E.2d 170 (2011).

- Even if an inmate's motion for non-DNA forensic testing of a semen sample could be construed as an extraordinary motion for new trial based upon a claim that the results would constitute newly discovered evidence, the denial of the motion could not have served as a basis for the direct appeal the inmate filed because the appeal would be separate from the inmate's original appeal of the inmate's conviction; in that case, an application for discretionary appeal was required. Bradberry v. State, 315 Ga. App. 434, 727 S.E.2d 208 (2012).

- Compliance with O.C.G.A. § 5-6-35 cannot be excused for failure to abide by a judicially imposed rule that the habeas petitioner be informed of that statute's requirements. Crosson v. Conway, 291 Ga. 220, 728 S.E.2d 617 (2012).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 252 et seq.

- 4 C.J.S., Appeal and Error, § 40, 401 et seq., 477 et seq.

- Coram nobis on ground of newly discovered evidence, 33 A.L.R. 84.

Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422.

Retrospective increase in allowance for alimony, separate maintenance, or support, 52 A.L.R.3d 156.

Validity, construction, and application of State Prison Litigation Reform Acts, 85 A.L.R.6th 229.