Wilhy Harpo v. Attic Nook Self Storage

• Court: Court of Appeals of Georgia
• Decided: March 22, 2019
• Docket: A19D0353
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ March 21, 2019

The Court of Appeals hereby passes the following order:

A19D0353. WILHY HARPO v. ATTIC NOOK SELF STORAGE et al.

Wilhy Harpo, proceeding pro se, filed a document on February 21, 2019, titled “Appellant’s Petition to Compel Production of Trial Court Appeal Cost Bill & Transmittal [sic] the Appellate Record” and asked that it be docketed as an application for discretionary appeal. Harpo attached an order dated April 28, 2016, in which the trial court dismissed Harpo’s complaint. Harpo seeks an order from this Court compelling the trial court clerk to provide him a bill of costs for his appeal and to transmit the appeal upon payment of costs. Under OCGA § 5-6-35 (d), an application for discretionary appeal must be filed within 30 days of the entry of the order the applicant seeks to appeal. The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989). Because Harpo did not file his application for discretionary appeal within 30 days of the April 2016 order, we lack jurisdiction to consider it as an application for discretionary appeal. In construing pleadings, however, we are governed by substance rather than nomenclature. See Byrom v. Douglas Hosp., 338 Ga. App. 768, 772 n. 2 (792 SE2d 404) (2016). At this juncture, Harpo does not seek reversal of the April 2016 order he attached to his application. Rather, he requests an order compelling the trial court clerk to provide him with costs and to transmit the appeal from the April 2016 order. Under these circumstances, the document Harpo filed is properly construed as an emergency motion. See Court of Appeals Rule 40 (b). Accordingly, this application for discretionary appeal is hereby DISMISSED as improvidently docketed. The Clerk of this Court is DIRECTED to docket Harpo’s filing as an emergency motion.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 03/21/2019 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.