Eric Davis v. Progressive Corporation

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 14, 2015

The Court of Appeals hereby passes the following order: A16D0055. ERIC DAVIS v. PROGRESSIVE CORPORATION.

Eric Davis filed a “Petition for Arbitration (Tort)” in DeKalb County against Progressive Corporation, seeking damages for injuries he sustained in a motorcycle accident. On November 14, 2014, the trial court denied the filing under OCGA § 9- 15-2 (d) after finding that the proposed complaint showed a complete absence of any justiciable issue of law or fact. Davis filed this application for discretionary appeal on August 12, 2015.1 We lack jurisdiction.

An order denying filing under OCGA § 9-15-2 (d) is not in and of itself subject to the discretionary appeal procedure requirements of OCGA § 5-6-35. See In re Lawsuits of Carter, 235 Ga. App. 551 (510 SE2d 91) (1988). Moreover, no provision of subsection (a) of OCGA § 5-6-35 appears to be applicable to this case. The order, therefore, was directly appealable.

Ordinarily, when a party applies for discretionary review of a directly appealable order, we grant the application under OCGA § 5-6-35 (j). To fall within this general rule, however, the application must be filed within 30 days of entry of the order or judgment to be appealed. OCGA § 5-6-35 (d); Hill v State, 204 Ga. App. 582 (420 SE2d 393) (1992). Davis filed his application 271 days after entry of the order at issue here.

1 The application was filed in the Supreme Court, which transferred it to this Court.

Accordingly, the application is untimely, and it is therefore DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 10/14/2015 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.