THERIAN WIMBUSH v. GWINNETT JUVENILE COURT ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 29, 2020
The Court of Appeals hereby passes the following order:
A21A0369. THERIAN WIMBUSH v. GWINNETT JUVENILE COURT et al.
Therian Wimbush, whose parental rights have been terminated as to numerous
children and who is presently incarcerated for child cruelty, filed a petition for
mandamus asserting that the order terminating her parental rights, as well as her
criminal conviction and sentence, are void because the courts that entered those
orders were divested of jurisdiction when Wimbush filed notices of appeal in the
pending cases. In three separate orders, the trial court dismissed her mandamus
petition as to all defendants. Wimbush, proceeding pro se, then filed both an
application for discretionary appeal and the instant direct appeal from the superior
court’s orders.1 We denied her application for discretionary appeal. See Case No.
A20D0343 (denied April 1, 2020). That denial bars our consideration of the instant
direct appeal.
It is well settled that the denial of an application for discretionary appeal
constitutes a decision on the merits. See Elrod v. Sunflower Meadows Dev., LLC, 322
Ga. App. 666, 670 (4) (745 SE2d 846) (2013) (“[W]hen this Court examines a request
for a discretionary appeal, it acts in an error-correcting mode such that a denial of the
application is on the merits, and the order denying the application is res judicata with
respect to the substance of the requested review.”) (punctuation omitted). Thus, the
1
Both the application and direct appeal were filed in the Georgia Supreme
Court, which transferred them to this Court after concluding that the case did not
invoke its jurisdiction. See Case Nos. S20D0824 (Feb. 27, 2020); S20A1544 (Aug.
24, 2020)
doctrine of res judicata bars this direct appeal from the same orders. See Northwest
Social & Civic Club v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003); Hook v.
Bergen, 286 Ga. App. 258, 261 (1) (649 SE2d 313) (2007).
In addition, 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
Wimbush is incarcerated, she was required to file an application for discretionary
appeal in order to appeal the trial court order. See Brock v. Hardman, 303 Ga. 729,
731 (2) (814 SE2d 736) (2018).
Based on the foregoing, we lack jurisdiction over this appeal. The appellees’
motion to dismiss is hereby GRANTED, and this direct appeal is hereby
DISMISSED. The appellees’ request for the imposition of frivolous appeal penalties
is hereby DENIED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/29/2020
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.