Joshua Auld v. Minerva Rosario ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 12, 2019
The Court of Appeals hereby passes the following order:
A20E0003. AULD v. ROSARIO.
Appellant Joshua Auld’s emergency motion for an extension of time to file his
application for discretionary appeal in the above-styled action is before this Court for
consideration.
On June 26, 2019, the Superior Court of Athens-Clarke County issued a “Final
Order and Order of Contempt.” On July 17, 2019, Auld submitted to this Court a pro
se emergency motion for an extension of time to file his application for discretionary
appeal.1 Because Auld failed to include a certificate of service with the motion as
required by Court of Appeals Rule 40 (b) (4),2 this Court returned the motion to him
on July 25, 2019.3 On July 29, 2019, Auld submitted a second emergency motion for
extension of time to file his application for discretionary appeal,4 explaining that he
1
The initial emergency motion was received by this Court on July 19, 2019.
Pursuant to Court of Appeals Rule 4 (c), his motion is deemed accepted on July 17,
2019, the date shown by the postmark.
2
Court of Appeals Rule 40 (b) (4) requires that an emergency motion “[s]how
that service was perfected upon the opposing party before filing the motion with the
Court.”
3
On July 19, 2019, the Court of Appeals Clerk’s office called and left a voice
mail for Auld at the number he provided about his failure to include a certificate of
service.
4
Auld’s second motion was received by this Court on August 5, 2019, but
deemed accepted on the date of the postmark.
had provided a copy of the motion and the attachments thereto to counsel for the
appellee on July 16, 2019; the certificate of service attached to the second motion is
dated July 17, 2019.5
Pursuant to OCGA § 5-6-35 (d), a discretionary application must be filed
within 30 days of the entry of the order sought to be appealed. “Any application to
any court, justice, or judge for an extension must be made before expiration of the
period for filing as originally prescribed or as extended by a permissible previous
order.”6 Here, because Auld submitted his initial emergency motion for an extension
of time to file a discretionary application within 30 days of the order he sought to
appeal, and he subsequently demonstrated that he had in fact notified Rosario of the
motion at the time he submitted his initial emergency motion, his motion is deemed
timely.
Auld’s emergency motion to extend the time to file a discretionary application
is hereby GRANTED. Auld shall file his application for discretionary appeal within
ten days of this order.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/12/2019
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.
5
Auld alleges in the motion that the court reporter has not yet completed the
contempt hearing transcript.
6
OCGA § 5-6-39 (d). See also Court of Appeals Rule 31 (i) (“No extensions
of time will be granted to file a discretionary application unless a motion for
extension is filed on or before the application due date. The motion for an extension
of time shall be submitted pursuant to Rule 40 (b), Emergency Motions.”); Gable v.
State, 290 Ga. 81, 84-85 (2) (a) (720 SE2d 170) (2011).