Robert L. Clark v. Gary C. McCorvey ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 03, 2019
The Court of Appeals hereby passes the following order:
A20A0346. ROBERT L. CLARK v. GARY C. MCCORVEY et al.
In May 2019, prison inmate Robert L. Clark filed a mandamus petition, arguing
that the superior court judge to whom his “case” had been assigned had taken no
action in the case in over a year. Clark sought to compel the judge to schedule a
hearing and rule on his claims. The judge against whom mandamus was sought
assigned the action to a new judge. On June 7, 2019, the newly appointed judge filed
an order granting Clark permission to proceed in forma pauperis. On June 27, 2019,
Clark filed a notice of appeal in the trial court in which he appears to seek mandamus
relief from this Court. We, however, lack jurisdiction.
First, to the extent Clark seeks mandamus relief from this Court, his failure to
comply with OCGA § 9-10-14 precludes our consideration of an original mandamus
petition. Although this Court may, in rare cases, exercise original mandamus powers,
in most cases, a litigant must first obtain a ruling from the superior court. See Brown
v. Johnson, 251 Ga. 436, 436 (306 SE2d 655) (1983); Expedia, Inc. v. City of
Columbus, 305 Ga. App. 450, 455 (2) (b) (699 SE2d 600) (2010) (“Except in the
rarest of cases, litigants seeking to invoke this Court’s original jurisdiction . . . must
first petition the superior court for such relief.”). This is not a case in which the
exercise of original mandamus powers is warranted. Since Clark had obtained no
ruling on his mandamus petition at the time he filed his notice of appeal, there is no
basis for this Court to exercise jurisdiction.1
1
We note that the newly appointed judge subsequently dismissed the
mandamus petition as moot. But the case remained pending when the notice of appeal
Even if Clark had obtained a ruling prior to filing a notice of appeal, we would
lack jurisdiction. While judgments and orders granting or refusing to grant mandamus
relief are generally directly appealable, see OCGA § 5-6-34 (a) (7), under the Prison
Litigation Reform Act, any appeal in a civil case that was initiated by a prisoner must
come by discretionary application. See OCGA § 42-12-8; Jones v. Townsend, 267 Ga.
489, 490 (480 SE2d 24) (1997). Because Clark is incarcerated, he is required to file
an application for discretionary appeal in order to appeal a mandamus ruling. See
Brock v. Hardman, 303 Ga. 729, 731 (2) (814 SE2d 736) (2018).
For these reasons, we lack jurisdiction over this direct appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/03/2019
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.
was filed, and the notice of appeal failed to specify any appealable judgment, which
deprives us of jurisdiction to consider the appeal. See Whiddon v. Stargell, 192 Ga.
App. 826, 828 (386 SE2d 884) (1989).