Georgia Department of Transportation v. Cathy Mixon

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 27, 2019

The Court of Appeals hereby passes the following order:

A20I0013. GEORGIA DEPARTMENT OF TRANSPORTATION v. CATHY MIXON.

On July 22, 2019, the trial court entered an order granting in part and denying in part defendant Georgia Department of Transportation’s motion to dismiss. On July 26, the trial court certified its order for immediate review. An application for interlocutory appeal must be filed within ten days of the date on which a timely certificate of immediate review is entered. OCGA § 5-6-34 (b); Genter v. State, 218 Ga. App. 311, 311 (460 SE2d 879) (1995); Graves v. Dean, 166 Ga. App. 186, 186 (303 SE2d 751) (1983). In this case, the tenth day fell on August 5, 2019. The Department, however, did not file this application for interlocutory appeal until the eleventh day, August 6, 2019. The Department has filed a “Motion to Adopt Filing Date of August 5, 2019 for Application for Interlocutory Appeal.” In the motion, the Department states that it initially submitted its application on the afternoon of August 5 (the deadline), but “inadvertently attached its request for certificate of immediate review rather than the certificate of immediate review[.]” Our Clerk’s office returned the application to the Department on August 6, and later that day the Department resubmitted its application with the certificate of immediate review attached. The Department asks that we excuse this “clerical misstep, akin to a ‘scrivener’s error’” and deem its application to have been filed on August 5. This, however, we are unable to do. This Court’s rules state that applications for interlocutory appeal “shall” contain a stamped “filed” copy of the certificate of immediate review. Court of Appeals Rule 30 (c). Further, “[t]he Court shall return . . . any application not

containing a stamped ‘filed’ copy of the certificate of immediate review.” Id. (emphasis supplied). As the Department acknowledges, its August 5 submission did not contain a certificate of immediate review, an essential component of an application for interlocutory appeal. Accordingly, this Court could not accept the submission for filing and was, instead, required to return it. The Department’s “Motion to Adopt Filing Date of August 5, 2019 for Application for Interlocutory Appeal” is DENIED. Because the application was not filed until the eleventh day following entry of the certificate of immediate review, the application is untimely. It is hereby DISMISSED for lack of jurisdiction. See Genter, 218 Ga. App. at 311; Graves, 166 Ga. App. at 186.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/27/2019 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.