Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 November 21, 2017

The Court of Appeals hereby passes the following order:

A18D0162. WELLSTAR NORTH FULTON HOSPITAL, INC. f/k/a NORTH
    FULTON MEDICAL CENTER, INC. et al. v. HEALTHSOUTH
    REHABILITATION HOSPITAL OF FORSYTH COUNTY, LLC.

      This Court granted an application for discretionary appeal filed by Wellstar
North Fulton Hospital, Inc., Gwinnett Hospital System, Inc., and Northeast Georgia
Medical Center, Inc. (collectively, “the Applicants”) seeking review of a superior
court order in this certificate of need case. See Case No. A17D0315 (decided March
16, 2017).1 The Applicants then filed a timely notice of appeal in the superior court.
See OCGA § 5-6-35 (g). The superior court subsequently dismissed the appeal, citing
the Applicants’ unreasonable delay in causing a hearing transcript to be filed. See
OCGA § 5-6-48 (c). The Applicants now seek discretionary review of the order
dismissing their appeal.
      Under OCGA § 5-6-35 (a) (1), a discretionary application is required to appeal
“decisions of the superior courts reviewing decisions of . . . state and local
administrative agencies,” but this provision applies only when the superior court
order to be appealed actually reviews an agency decision. See City of Rincon v.
Couch, 272 Ga. App. 411, 411-412 (612 SE2d 596) (2005). Although the underlying
litigation arose out of an administrative appeal, the order at issue in this application
did not review the agency’s decision; rather, it resolved an issue – delay in

      1
         The Georgia Department of Community Health (“the Department”) separately
applied for discretionary review of the same superior court order, and we also granted
its application. See Case No. A17D0313 (decided March 16, 2017). The Department
is not involved in the instant application, however.
transmitting a transcript – that could only have arisen for the first time in the superior
court. Thus, OCGA § 5-6-35 (a) (1) does not apply here.
      “[A] trial court’s order dismissing a properly filed direct appeal is itself subject
to a direct appeal.” American Medical Security Group v. Parker, 284 Ga. 102, 103
(2) (663 SE2d 697) (2008). Ordinarily, we will grant a timely application for
discretionary appeal when the lower court’s order is subject to direct appeal. See
OCGA § 5-6-35 (j). The Applicants, however, have already filed a notice of appeal
from the superior court’s order dismissing their appeal.2 Accordingly, this application
is superfluous, and it is therefore DISMISSED.

                                         Court of Appeals of the State of Georgia
                                                Clerk’s Office, Atlanta,____________________
                                                                          11/21/2017
                                                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.




      2
        The Applicants attached a file-stamped copy of their notice of appeal as an
exhibit to this application.
