Appeals from non-Article 6 Courts are to the Superior Court for the County where the case was heard. Except as agreed by the parties, the appeal is de novo, meaning the entire case is tried as if the Probate Court action never happened. O.C.G.A. § 29-4-70; O.C.G.A. § 29-5-110. Appeals from Article 6 Courts are governed by O.C.G.A. § 15-9-123 and go to the Georgia Court of Appeals.
The Georgia Appellate Jurisdiction Reform Act of 2016 (Ga. Laws 2016, p. 883) altered the appeals path for appeals from probate court. Formerly, all cases involving Wills were appealed to the Georgia Supreme Court. Now, O.C.G.A. § 15-3-3.1 (Section 3-1 of the Act), the Court of Appeals has jurisdiction over:
- Cases involving title to land
- All equity cases, except those cases concerning proceedings in which a
sentence of death was imposed or could be imposed and those cases
concerning the execution of a sentence of death - All cases involving wills
- All cases involving extraordinary remedies, except those cases concerning
proceedings in which a sentence of death was imposed or could be imposed
and those cases concerning the execution of a sentence of death - All divorce and alimony cases
- All other cases not reserved to the Supreme Court or conferred on other
courts
O.C.G.A. § 5-6-34(a)(1) provides: Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the Georgia State-wide Business Court, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state …All 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
O.C.G.A. § 5-6-34(a)(7) provides: Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the Georgia State-wide Business Court, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state …All judgments or orders sustaining motions to dismiss a caveat to the probate of a will.
In most instances, appeals to the Georgia Supreme Court are now by writ of certiorari from the Court of Appeals. “A petition for the writ will be granted only in cases of great concern, gravity, or importance to the public.” Rule 40 of the Rules of the Georgia Supreme Court. The requirements governing a petition for writ of certiorari begin at Rule 38.
Once a timely notice of appeal is filed, the trial court is divested of jurisdiction. See In re Estate of T.M.N., 364 Ga. App. 267 (2022) (“A notice of appeal divests the trial court of jurisdiction to supplement, amend, alter, or modify the judgment while the appeal of that judgment remains pending”).
Standard of Review
“[A] petition for the appointment of a conservator requires the lower court to make legal, factual, and discretionary determinations[,] each of which requires a different standard of review. [Cit.]. On appeal, a trial court’s factual findings are presumed to be correct, and we will not overturn those factual findings unless the evidence preponderates against them. [Cit.]. For the evidence to preponderate against a trial court’s finding of fact, it must support another finding of fact with greater convincing effect. [Cit.]. We review a trial court’s conclusions of law under a de novo standard upon the record with no presumption of correctness. [Cit.]. We review discretionary determinations under an abuse of discretion standard.” In re Conservatorship of Carnahan, 2011 Tenn. App. 113 (2011). In the context of a dispute over the validity of a Will, the Supreme Court held: “Where a probate court’s findings in a non-jury trial are supported by any evidence, this Court is bound to affirm them on appeal.” Amerson v. Pahl, 292 Ga. 79 (2012), citing Tuttle v. Ryan, 282 Ga. 652 (653 SE2d 50) (2007).
In Georgia, the following persons are entitled to an appeal: the ward, and the petitioner. (Note 1). O.C.G.A. § 29-4-70. The ward’s counsel, representative or guardian ad litem may appeal for the ward. Id. Appeals to superior court are de novo unless the parties agree to limit the issues presented. Id. An emergency guardian may be appointed during the pendency of the appeal. Decisions within the court’s discretion, such as selection of the guardian after finding that one is needed, are reviewed under the abuse of discretion standard. In re Moses, 273 Ga. App. 501 (2005). (Note 2).
There Must be an Error to Correct
“[A]n appellate court is, among other things, a court for the correction of errors of law,” and “[a]n error of law has as its basis a specific ruling made by the trial court.” (Citation and punctuation omitted.) City of Gainesville v. Dodd, 275 Ga. 834, 837 (573 SE2d 369) (2002). Because there has been no definitive ruling by the trial court on this issue, there is no ruling to review for legal error. See id.; see also Findley v. City of Atlanta, 345 Ga. App. 649, 652 (2) (814 SE2d 781) (2018) (when the trial court has not ruled on an issue, we will not address it). This issue must be resolved before the second medical narrative can be admitted, and we therefore remand the case for the trial court to make a definitive ruling on this issue that can be reviewed if necessary. See Owensby v. Williams, 355 Ga. App. 695 (2020).
Review of Evidentiary Rulings
“We review a trial court’s decision on the admissibility of evidence under an abuse of discretion standard.” Lott v. Ridley, 285 Ga. App. 513, 514 (1) (647 SE2d 292) (2007). “An abuse of discretion occurs where a ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law.” (Citation and punctuation omitted.) Eagle Jets v. Atlanta Jet, 347 Ga. App. 567, 576 (2) (c) (820 SE2d 197) (2018). See Owensby v. Williams, 355 Ga. App. 695 (2020).
Waiver
In Williams v. Estate of Cole, 393 Ill. App.3d 771 (2009), a daughter filed a petition to impose a conservatorship over her mother. She also filed a motion to compel an independent medical exam and to produce documents. Her mother promptly presented her own medical reports, supporting an absence of disability. The trial court accepted those reports, denied the daughter’s discovery requests and dismissed the petition. On appeal, the daughter was deemed to have waived her right to appeal the discovery issue by failing to cite any supportive case law in her brief. See also Frey v. State, 338 Ga. App. 583, 587 (3) (790 SE2d 835) (2016).
Resources:
- A Citizen’s Guide to Filing Appeals in the Court of Georgia (2017)
- Rules in Georgia Appellate and Trial Courts (Georgia Supreme Court)
- B. Janflone & M. Williford, HB 927 – Supreme Court, Appellate Court Efficiencies, 33 Georgia State L. R. 205 (2016) discussing changes in Georgia appellate jurisdiction.
Notes:
- See Twitty v. Akers, 218 Ga. App. 467 (1995), dismissing appeal of adult children who did not file a petition.
- See also Phillipy v. O’Reilly, 95 Ark. App. 264 (2006) finding that a nonparty to the proceeding below had no standing to appeal the guardianship order.
