Faye Spicer v. Mark Butler, Commissioner Ga Dol.

Court of Appeals of the State of Georgia

ATLANTA,__________________ June 11, 2014

The Court of Appeals hereby passes the following order: A14D0378. FAYE SPICER v. MARK BUTLER.

After Faye Spicer’s employment was terminated in 2009, she applied for and received unemployment compensation benefits. In 2013, the Department of Labor (“DOL”) notified Spicer that it had overpaid her $355 because she had failed to report certain income. An administrative hearing officer affirmed the decision, but the DOL’s board of review remanded the matter to the DOL for further consideration. On January 31, 2014, the DOL rendered a final decision rescinding the overpayment notice. Meanwhile, on January 2, 2014, Spicer filed a complaint in superior court against DOL commissioner Mark Butler and her former employer, alleging five counts of fraud in connection with the overpayment notice. The trial court dismissed the complaint, and Spicer filed this application for discretionary appeal. Under OCGA § 5-6-34 (a) (1), a party may file a direct appeal from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35.” The order to be appealed is a final order, and no provision of OCGA § 5-6-35, the discretionary appeal statute, appears to apply.1 This Court will grant an otherwise timely discretionary application pursuant to OCGA § 5-6-35 (j) if the order is subject to direct appeal and the applicant has not

1 Although Spicer claims that the complaint was actually an administrative appeal pursuant to OCGA § 34-8-223, the superior court properly found that it was not. Among other things, when Spicer filed the complaint, she had not yet exhausted her administrative remedies because the DOL had not issued a final decision. See Reid v. City of Albany, 276 Ga. App. 171, 173 (3) (622 SE2d 875) (2005). Thus, OCGA § 5-6-35 (a) (1) does not apply here.

timely filed a notice of appeal. As it does not appear that Spicer has filed a notice of appeal, this application is hereby GRANTED. Spicer shall have ten days from the date of this order to file a notice of appeal with the superior court. The superior court is instructed to include a copy of this order in the record transmitted to this Court.

Court of Appeals of the State of Georgia 06/11/2014 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.