Michelle Kenney v. Almas Kabani

Court of Appeals of the State of Georgia

ATLANTA,__________________ March 20, 2014

The Court of Appeals hereby passes the following order: A14D0254. MICHELLE KENNEY et al. v. ALMAS KABANI.

On January 14, 2014, the trial court entered an award of attorney fees in favor of Almas Kabani. On February 20, 2014, Michelle and Keyana Kenney filed this application for discretionary appeal. We, however, lack jurisdiction. To be timely, a discretionary application must be filed within 30 days of entry of the order to be appealed. OCGA § 5-6-35 (d). The requirements of OCGA § 5-6- 35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. See Crosson v. Conway, 291 Ga. App. 220 (1) (728 SE2d 617) (2012); Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989). Because the Kenneys filed their application 37 days after entry of the order they seek to appeal, the application is not timely, and we lack jurisdiction to consider it. The Kenneys ask us to excuse their untimeliness because it was caused by a combination of inclement weather and clerical error. Ordinarily, the Kenneys’ application would have been due on February 13, 2014, but the Clerk’s Office was closed that day due to inclement weather. Thus, the application was due on February 14. The Kenneys attempted to file their application that day, but we could not accept it because it did not include a copy of the trial court’s order to be appealed. See OCGA § 5-6-35 (c) (“The applicant shall include as exhibits to the petition a copy of the order or judgment being appealed . . .”) (emphasis supplied); Court of Appeals Rule 31 (b). The Kenneys then tried to “amend” their application on February 17, but no amendment could be accepted because no application had been filed in the first

place.1 The Kenneys finally filed their application, including the requisite trial court order, on February 20. We are unable to excuse the late filing, as it did not result from inclement weather or any error on the part of this Court. This untimely application is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 03/20/2014 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.

1 We note that the Clerk’s Office does permit amendments to applications, but only to applications that were previously accepted for filing with, at a minimum, the trial court’s order and a filing fee or pauper’s affidavit.