Court of Appeals
of the State of Georgia

                                         ATLANTA,____________________
                                                  April 05, 2018

The Court of Appeals hereby passes the following order:

A18A1298. NICK STEWART et al. v. MATTHEW SCOTT HARKINS et al.

      Homeowners Matthew Scott Harkins and Laura X. Harkins sued builders James
C. Barnes and Nick Stewart in Bibb County Superior Court.1 On December 1, 2017,
the superior court issued an order that, inter alia, found defendant Barnes in contempt.
33 days later, on Wednesday, January 3, 2018, the defendants filed a notice of appeal
of that order. The defendants assert that their appeal is timely because the Bibb
County Superior Court was closed on January 1 and 2, 2018. We are constrained to
dismiss the appeal because it is untimely.
      OCGA § 5-6-38 (a) provides, in part, that “[a] notice of appeal shall be filed
within 30 days after entry of the appealable decision or judgment complained of[.]”
“The proper and timely filing of the notice of appeal is an absolute requirement to
confer jurisdiction upon the appellate court.” Smith v. McTaggart, 343 Ga. App. 144,
145 (806 SE2d 229) (2017). OCGA § 1-3-1 (d) (3) provides that


      when a period of time measured in days . . . is prescribed for the exercise
      of any privilege or the discharge of any duty, the first day shall not be
      counted but the last day shall be counted; and, if the last day falls on
      Saturday or Sunday, the party having such privilege or duty shall have


      1
         In this case, we previously dismissed the defendants’ appeal of the trial
court’s denial of their request to stay the case. See Case No. A17A1643 (dismissed
May 23, 2017). The defendants’ appeal of the trial court’s denial of their request for
mandamus and injunctive relief is currently pending. See Case No. A18A1278.
      through the following Monday to exercise the privilege or to discharge
      the duty. When the last day prescribed for such action falls on a public
      and legal holiday as set forth in Code Section 1-4-1, the party having the
      privilege or duty shall have through the next business day to exercise the
      privilege or to discharge the duty.


“[H]owever, OCGA § 1-4-1 only pertains to holidays that are designated as public and
legal holidays by the federal government (subsection (a) (1)) and dates that are
designated and proclaimed by the Governor as public and legal holidays (subsection
(a) (2)).” Smith, 343 Ga. App. at 145 (punctuation omitted).
      Here, 30 days after the superior court’s order fell on Sunday, December 31,
2017, and the following day, Monday, January 1, 2018, was a state and federal holiday.
Therefore, unless Tuesday, January 2, 2018, was a state or federal holiday, the
defendants had to file their notice of appeal by that date. As that date was not a
federal holiday2 and was not declared a holiday by the Governor of Georgia,3 the
defendants’ notice of appeal is untimely. See Smith, 343 Ga. App. at 145 (taking
judicial notice of the fact that Good Friday was not a state or federal holiday).
      This Court has dismissed appeals as untimely when the 30-day deadline for
filing the notice of appeal fell on Good Friday and no appeal was filed until the
following Monday, even though the relevant county court was closed on Good Friday.
See Smith, 343 Ga. App. at 146-147; In re Estate of Dasher, 259 Ga. App. 201, 202-
205 (576 SE2d 559) (2002). We reasoned that because Good Friday is not a public
or legal holiday under OCGA § 1-4-1 and because OCGA §§ 1-3-1 (d) (3) and 5-6-38
(a) make no express provision for days falling on county-declared holidays, the county

      2
          See Snow & Dismissal Procedures, Federal Holidays,
https://www.opm.gov/policy-data-oversight/snow-dismissal-procedures/federal-holi
days/#url=2018 (last visited Mar. 28, 2018).
      3
            See     Governor    Nathan      Deal, 2018 State Holidays,
http://team.georgia.gov/wp-content/uploads/2017/07/2018-State-Holidays-memo-07
.12.17.pdf (July 12, 2017).
holiday did not constitute a holiday for purposes of extending the filing deadline.
Smith, 343 Ga. App. at 146; Dasher, 259 Ga. App. at 203. We explained that while
dismissal may have been harsh, it could have been avoided:


      Obviously a document cannot be filed if the clerk’s office is closed and
      no provision is made for filing, but a party is not without recourse even
      in this situation. Under our law, ‘any judge of the trial court or any
      justice or judge of the appellate court to which the appeal is to be taken
      may, in his discretion, and without motion or notice to the other party,
      grant extensions of time for the filing of a notice of appeal.’ OCGA § 5-
      6-39 (a) (1).


Dasher, 259 Ga. App. at 203 (punctuation omitted); see Smith, 343 Ga. App. at 146-
147. As January 2, 2018, was not a state holiday, “the appellate courts of this state
were open and available to consider a request to extend the time” to file a notice of
appeal of the superior court’s order. See Smith, 343 Ga. App. at 147 (punctuation
omitted); Dasher, 259 Ga. App. at 204, n. #3. The record does not reflect that the
defendants made such a request.
      As the defendants’ notice of appeal was untimely, we are “compelled to dismiss
[their] appeal without reaching the merits of [their] enumerations of error.” See Smith,
343 Ga. App. at 146. Accordingly, this appeal is hereby DISMISSED.

                                        Court of Appeals of the State of Georgia
                                        Clerk’s Office, Atlanta,____________________
                                                                  04/05/2018
                                                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.
