Eric Davis v. Progressive Corporation ( 2015 )

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.