Callaway v. Garner

• Decision Date: 08 February 2017
• Docket Number: A16A1513
• Citation: 340 Ga.App. 176,796 S.E.2d 906
• Parties: CALLAWAY et al. v. GARNER et al.
• Court: Georgia Court of Appeals

340 Ga.App. 176

796 S.E.2d 906

CALLAWAY et al.

v.GARNER et al.

A16A1513

Court of Appeals of Georgia.

February 8, 2017

Ken Hodges Law, Kenneth B. Hodges III, Andre T. Tennille III, for Appellant.

Waldrep Mullin & Callahan, C. Morris Mullin ; Mateer & Harbert, Chad K. Alvaro ; Johnson Marlowe, Spence Johnson, Dustin R. Marlowe ; Buchanan & Land, Benjamin A. Land ; Pope McGlamry, Wade H. Tomlinson III, for Appellee.

Dillard, Presiding Judge.

The Estate of Cason J. Callaway, Jr. (the "Estate"), through its executor, Ken Callaway, appeals the trial court's dismissal of its notice of appeal from the court's entry of final judgment in favor of Larry Garner, Sr., and Larry Garner, Jr. (the "Garners"), in their civil action against the Estate, which sought specific performance of Cason Callaway's agreement to purchase stock from the Garners. On appeal, the Estate argues that the trial court erred in (1) dismissing its appeal without making a finding that it caused an unreasonable and inexcusable delay in the docketing of the appeal, and (2) finding the Estate forfeited the supersedeas collateral that it posted during the litigation (i.e. , the stock) because it was worthless. For the reasons set forth infra , we affirm.

In 2014, this Court affirmed the trial court's order requiring the Estate to perform an agreement made by Cason Callaway prior to his death to purchase shares of Callaway Blue Springs Water Company from the Garners for $1,200,000 and awarding the Garners prejudgment interest and attorney fees (" Callaway I ").¹ While that appeal was pending, the Estate posted certain supersedeas collateral, including the stock that was the subject of the lawsuit. Subsequently, the Supreme Court of Georgia reversed Callaway I , in part, only as to this Court's approval of the prejudgment-interest award and remanded the case for the trial court to resolve certain questions involving that award (" Callaway II ").² Upon remand, on October 1, 2015, the trial court issued a final judgment that, as authorized by Callaway I and Callaway II , the Garners were entitled to recover $1,200,000 from the Estate for the sale of the stock. In addition, the trial court found that, based on the evidence presented at a September 30, 2015 hearing, the Estate forfeited the stock that it posted as collateral because it had become worthless.

On October 9, 2015, the Estate filed a timely notice of appeal from the trial court's final judgment, which noted, inter alia , that "[t]he clerk shall omit nothing from the record on appeal" and "[a] transcript of evidence [should] be filed for inclusion in the record on appeal." Then, on November 4, 2015, the Estate filed a motion to reconstruct the record. And in that motion, the Estate acknowledged that no court reporter was present during the September 30, 2015 hearing, but also alleged that its counsel had recorded the hearing with the permission of the court. Further, the Estate asserted that this recording had since been transcribed by a certified court reporter and that counsel for the Estate still possessed the original recording. Finally, the Estate contended that, upon the grant of its motion to reconstruct the record, it would "forward the original transcript and recording to the Clerk for inclusion in the record."

On November 20, 2015, the Garners filed a motion to dismiss the Estate's notice of appeal, arguing that, despite the Estate's representation in its notice of appeal that it would file a transcript for inclusion in the record, it had failed to do so. Furthermore, as to the Estate's request to reconstruct the record, the Garners noted that its counsel had yet to provide the court or anyone else with a copy of the recording of the hearing or any transcript of that recording. Additionally, the Garners claimed that the Estate's counsel only recorded the second half of the hearing. Thus, the Garners maintained that because the Estate indicated in its notice of appeal that it would file a nonexistent transcript, the trial court was required to dismiss the appeal. Then, just over two-and-a-half months later (on February 10, 2016), the trial court denied the Estate's motion to reconstruct the record and granted the Garners' motion to dismiss the Estate's appeal. This appeal by the Estate follows.³

1. The Estate first argues the trial court erred in dismissing its appeal without making the necessary findings that it caused an unreasonable and inexcusable delay in the appellate process. We disagree.

OCGA § 5–6–48 (c) provides:

No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but the trial court may, after notice and opportunity for hearing,^{[4 ]} order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party....

In applying this statutory framework, the determination of whether the delay in the filing of the transcript was unreasonable, inexcusable, and caused by the appellant is "a fact issue for the trial court and will not be disturbed on appeal absent an abuse of discretion."⁵ With this deferential standard of review in mind, we turn now to the Estate's first enumeration of error.

As to a trial court's dismissal of an appeal, our Supreme Court has held that a delay in excess of 30 days in filing a transcript after a notice of appeal is filed is prima facie unreasonable and inexcusable, but this presumption is "subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable."⁶ And in evaluating the threshold question of whether the delay was unreasonable, we consider both the length and effect of the delay.⁷ This Court will also consider any delay in transmitting the appellate record unreasonable when it may affect an appeal by:

(a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.⁸

Indeed, we have repeatedly recognized that "justice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed."⁹

On appeal, rather than arguing that its conduct did not constitute an unreasonable and inexcusable delay in filing a transcript of the September 30, 2015 hearing, the Estate argues that the trial court erred by dismissing the appeal without making certain "necessary findings" regarding the delay. In relevant part, the Supreme Court of Georgia has emphasized that OCGA § 5–6–48 (c)"requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable" before exercising its discretion in "deciding whether to dismiss the appeal."¹⁰ And when there is no indication in the record that a trial court made such determinations, we must vacate the dismissal order and remand the case with direction that the requisite findings of fact be entered.¹¹

Here, to support its claim that the trial court erred by dismissing its appeal without making the requisite findings of fact, the Estate relies solely on cases in which the trial court essentially ruled on a motion to dismiss in a summary order without any findings of fact or further elaboration.¹² But in this case, although the trial court's order does not use the words "unreasonable" or "inexcusable," the court made sufficient findings of fact to demonstrate that it considered the relevant factors delineated in OCGA § 5–6–48 (c). And Georgia courts have affirmed dismissal orders under such circumstances, even when the trial court did not use the specific terminology outlined in the statute.¹³ To do otherwise would be to elevate form over substance, and that is not something OCGA § 5–6–48 (c) requires.

Specifically, the trial court's dismissal order first noted that the September 30, 2015 hearing was not taken down by a certified court reporter, but the Estate's attorney recorded a portion of it with a smart phone. The court further found that, in its notice of appeal filed on October 9, 2015, the Estate indicated that "[a] transcript of evidence will be filed for inclusion in the record on appeal," but as of February 10, 2016 (the date of the dismissal order), the parties had not agreed to reconstruct a transcript nor had the Estate provided the court or the Garners with a recording of the hearing or a complete certified transcript of the hearing. In light of the foregoing, the court found that it was authorized to dismiss the Estate's appeal under Teston v. Mills ,¹⁴ a case in which this Court set forth the factors to be considered under OCGA § 5–6–48 (c) and affirmed the trial court's dismissal of an appeal when, as here, the delay was directly attributable to the appellant's designation in his notice of appeal that a nonexistent transcript would be filed for inclusion in the record on appeal.¹⁵ We agree with the trial court that Teston is controlling in the case sub judice .

In sum, given the trial court's factual findings regarding the Estate's failure to file a nonexistent transcript, and the court's express reliance on Teston , which detailed the required factual findings under OCGA § 5–6–48 (c) and was decided based on circumstances nearly identical to this case, the court provided sufficient findings of fact to show that it considered the factors set forth in that statute (i.e. , the length of the delay, the reasons for the delay, whether the Estate...