Wilhy Harpo v. Attic Nook Self Storage ( 2019 )

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.