Galletta v. Hillcrest Abbey West, Inc., 75127

• Decision Date: 04 November 1987
• Docket Number: No. 75127,75127
• Citation: 185 Ga.App. 20,363 S.E.2d 265
• Parties: GALLETTA et al. v. HILLCREST ABBEY WEST, INC.
• Court: Georgia Court of Appeals

Page 265

363 S.E.2d 265

185 Ga.App. 20

GALLETTA et al. v. HILLCREST ABBEY WEST, INC.

No. 75127.

Court of Appeals of Georgia.

Nov. 4, 1987.

Rehearing Denied Nov. 20, 1987.

Certiorari Denied Jan. 13, 1988.

[185 Ga.App. 27] Stephen R. Yekel, Savannah, for appellants.

Stanley M. Karsman, David R. Smith, Savannah, for appellee.

BIRDSONG, Chief Judge.

This is a suit for fraud in the sale of a cemetery plot and for desecration of a grave. The appellants purchased a plot from the appellee in 1982 for interment of their infant daughter. In 1983, the appellee began construction of a mausoleum or "feature crypt" in the section where appellants' daughter was buried. Appellants objected vehemently to placement of a mausoleum near the child's grave. The appellants filed suit, contending it had been represented At trial, the court directed a verdict for the defendant cemetery, on the basis that appellants had not rescinded the contract by offering to restore the plot to the cemetery, and that the issue of desecration was not set out in the pre-trial order and the appellants' handwritten motion to amend the pretrial order on the third day of trial came too late.

to them that a statue of a religious figure or similar feature would be erected on the then-existing base in the section where their daughter was buried, and that they bought the plot upon that representation. The appellants also sued for desecration of the child's grave, caused by an 80,000 pound concrete truck being driven over the grave so as to crush the child's casket, and the placement of building material on the grave, so that appellants could not now be sure where the grave is.

The trial court denied appellants' motion for new trial on December 3, 1986. Appellants filed a notice of appeal on December 23. On January 28, six days after the date for filing the transcript as required by OCGA § 5-6-42, appellants moved for an extension of time to file the transcript, but this was outside the time allowed by OCGA § 5-6-39(d) for such a motion. On January 30, the appellee filed an "Emergency Motion to Dismiss" the appeal, which was granted. Held:

1. The trial court found the appellants, though notified in September 1986 of the cost of the transcript and that the transcript was ready, failed to pay the costs and thus caused inexcusable and unreasonable delay in filing the transcript. Although appellants deny having received such notice, the trial court did not abuse its discretion and fact-finding powers in finding otherwise and in finding the delay to be inexcusable.

However, the threshold question whether the delay was unreasonable is a separate matter, and refers principally to the length and effect of the delay. OCGA § 5-6-48(c). See Young v. Climatrol, etc., Distrib. Corp., 237 Ga. 53, 55, 226 S.E.2d 737. As to this question the determination of the trial court is a matter of legal discretion and is subject to review by the appellate courts. Id.

The time requirements of OCGA § 5-6-42 for filing the transcript are not jurisdictional, but are merely a means of avoiding delay so the case can be presented on the earliest possible calendar in the appellate courts. Green v. Weaver, 161 Ga.App. 295, 296, 291 S.E.2d 247. OCGA § 5-6-30 provides that the appellate practice article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case except as may be specifically referred to in the article. The section requiring filing of the transcript within 30 days ( § 5-6-42) is specifically designed to facilitate an appellate decision on the merits at the earliest possible date. Green, supra. Since it is not a jurisdictional requirement, the demand for punctuality should not be so strict as to defeat the very purpose of the requirement by preventing an appeal altogether, unless the delay is unreasonable so as to affect the appeal itself. See Gilland v. Leathers, 141 Ga.App. 680, 234 S.E.2d 338. Thus the policy of the law is to avoid a dismissal of the appeal and reach the merits of the case where it is reasonable to do so. Corbin v. First Nat. Bank, 151 Ga.App. 33, 258 S.E.2d 697.

The date the transcript was to have been filed in this case was January 22. When the trial court dismissed the appeal on February 3, upon the appellee's "emergency" motion to dismiss, the transcript was thus eleven days late. It was filed February 3. There is no intimation that the appellee suffered any prejudice by this 11-day delay. The appeal was not stale; justice was not delayed nor had any inequity resulted, nor was there any intermediate change in conditions. See Hornsby v. Rodriquez, 116 Ga.App. 234, 156 S.E.2d 830. There is no indication the 11-day delay in filing the transcript prevented the placement of the case on the earliest possible calendar in this court ( Green, supra) or delayed the docketing of the appeal and the hearing of the case in this court. See The appellee contends this case is similar to In re G.W.H., 168 Ga.App. 845, 310 S.E.2d 573. However, in that case the delay in filing the transcript was more than four months; obviously this delayed the docketing necessarily, and appellant was found responsible for that unreasonable and inexcusable delay of the filing of the transcript. In this case the delay in filing the transcript was 11 days and did not discernibly delay the docketing of the record in this court. (In re G.W.H., in dictum, ascribes to the appellant the duty to file the record under OCGA §§ 5-6-41 and 5-6-42; in fact, this is the clerk's duty (OCGA § 5-6-43(a)), and the appeal may be dismissed under OCGA § 5-6-48(c) for unreasonable delay in filing the record only when such delay is caused by appellant's failure to pay costs within 20 days of notice by registered or certified mail.)

                American Oil Co. v. McCluskey, 116 Ga.App. 706, 708-709, 158 S.E.2d 431.   The record from the clerk below was in fact not docketed in this court until May 26, three and one-half months after the transcript was filed.  Under these circumstances, it is difficult to conclude appellants' 11-day delay in paying for and filing the transcript, however inexcusable, was so unreasonable as to utterly remove their right of appeal
                

The trial court further erred in dismissing this appeal under an error of law. The trial court stated in its finding of unreasonable delay that the transcript could have been filed in September 1986 when the reporter completed it, and that the case "languished ... without benefit of a transcript" until the trial court denied appellant's motion for new trial on December 3. Thus, "[f]rom the date the transcript was ready for filing to the date the court ruled on the motion [for new trial] without a transcript, the [appellants] had a period exceeding two months within which they should have filed the transcript. This in itself is inexcusable and unreasonable delay." The trial court therefore adjudged the 11-day delay in filing of the transcript within 30 days of the notice of appeal to be unreasonable because appellants failed to file the transcript in September, three months before the notice of appeal was filed. This was error. The appellant had no obligation to file the transcript until his motion for new trial was disposed of. Whitton v. State, 174 Ga.App. 634, 635-636, 331 S.E.2d 10. The discretion granted in OCGA § 5-6-48 to the trial court to dismiss an appeal for unreasonable and inexcusable delay in filing the transcript within 30 days of notice of appeal cannot hark back to whether in the trial court's estimation the appellant should have filed the transcript for consideration of a motion for new trial or at some other earlier point. There is no mandatory requirement to file a transcript for motion for new trial (see OCGA § 5-5-40), and the failure to do so or the failure to pay for and file the transcript as soon as it is ready (in this case, September) has no controlling bearing on the question of unreasonable delay in filing the transcript after notice of appeal as required by OCGA § 5-6-42.

We therefore conclude the trial court erred in dismissing this appeal.

2. The trial court did not err in directing a verdict for the appellee on the fraud issue. The record clearly shows the appellants did not rescind the contract, that is, did not restore or offer to restore their benefit of the contract to the appellee. OCGA § 13-4-60. The reason for the rescission requirement is well expressed in Brown v. Ragsdale Motor Co., 65 Ga.App. 727, 729-732, 16 S.E.2d 176. See also Brown v. Techdata Corp., 238 Ga. 622, 625-627, 234 S.E.2d 787; City Dodge v. Gardner, 232 Ga. 766, 208 S.E.2d 794.

The decision in Rountree v. Davis, 90 Ga.App. 223, 82 S.E.2d 716, does not require a different result; it was founded upon the peculiar facts in that case, which were that the plaintiff no longer had the property to tender back, and in any case is against the grain of the law. Similarly, the decision in National Old Line Ins. Co. v. Lane, 172 Ga.App. 519, 323 S.E.2d 707, was based upon the more pertinent fact that the subject property was worthless and therefore the plaintiff did not retain an unconscionable benefit while suing for fraud in the inducement.

The appellants contend the cemetery plot is worthless to them; but it obviously would have some value to the appellee and therefore the appellants could not sue for fraud while retaining the benefit of the contract. And, while it seems that as a matter of fairness the appellants should not have had to disinter their child's body and re-bury it in order to plead that they were damaged by the appellee's fraud, still the rescission statute and the cases (see Brown v. Techdata, supra) do not require actual restoration but only a tender, which would have been very appropriate in this case. Appellants did not do this, and thus the trial court did not err in directing a verdict for the appellee on the fraud issue.

3. The trial court erred in...