Leonard v. Ognio
| Decision Date | 19 September 1991 |
| Docket Number | Nos. A91A1114,A91A1366,s. A91A1114 |
| Citation | 201 Ga.App. 260,410 S.E.2d 814 |
| Parties | LEONARD, et al. v. OGNIO. OGNIO v. LEONARD. |
| Court | Georgia Court of Appeals |
Joseph R. Baker, Jonesboro, for appellants.
Thomas M. Stubbs, Jr., Atlanta, for appellee.
Plaintiff Ognio purchased a house and lot from defendant Gerald Leonard and defendant Jeanette Leonard, former wife of Gerald Leonard. Afterwards, plaintiff discovered certain defects in the house and this action for breach of contract and fraud resulted. Plaintiff alleged that the house contained such latent defects in the sewerage system and foundation as to render the house uninhabitable, that the defects were well known to defendants, that the defects were not revealed by defendants, that the defects were unknown to plaintiff and could not be ascertained by reasonable inspection, and that the defendants concealed the defects from him. Upon the trial of the case, a jury returned a verdict in favor of plaintiff and against defendants in the sum of $20,978.54 actual damages and $6,000 punitive damages. A judgment in this amount was entered and following the denial of their motion for new trial, defendants filed their timely notice of appeal in Case No. A91A1114.
On January 8, 1991, defendants' attorney received a bill of costs for the appellate record from the clerk of the superior court. Subsequently, plaintiff filed his motion to dismiss defendants' notice of appeal on the grounds of defendants' failure to pay the costs. Defendants paid the bill of costs on February 20, 1991, and the trial court subsequently denied plaintiff's motion to dismiss defendants' notice of appeal. Plaintiff appeals in Case No. A91A1366 from the denial of his motion to dismiss defendants' appeal. Held:
OCGA § 5-6-48(c) provides in part that "the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence; provided, however, that no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays, and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail, of the amount of costs." In contrast to the safe harbor of 20 days (exclusive of Saturdays, Sundays, and legal holidays) under the statute for payment of costs, this Court has held that "a delay of more than 30 days in paying costs is prima facie unreasonable and inexcusable (Bouldin v. Parker, 173 Ga.App. 526, 327 S.E.2d 760 (1985))...." Unifund General v. Orr, 191 Ga.App. 836, 837(1), 383 S.E.2d 199. The exclusion of weekends and holidays applicable to the 20 day safe harbor provision has not been mentioned in the case law in connection with the calculation of time for the over 30 day period. Indeed, in Continental Investment Corp. v. Cherry, 124 Ga.App. 863, 865(1), 186 S.E.2d 301, this Court appears to have stated, at least implicitly, that the exclusion of weekends and holidays is not applicable to determination of the over 30 day period. Furthermore, a review of a calendar does not reveal any instances when the two rules so construed will be in conflict.
Applying these principles to the facts of the case sub judice, it is apparent that defendants delayed more than 30 days in paying costs and that such delay is prima facie unreasonable and inexcusable. However, the inference arising from the more than 30 day delay in paying costs is not conclusive and may be rebutted by evidence presented by an opposing party. Unifund General v. Orr, 191 Ga.App. 836, 837(1), 383 S.E.2d 199, supra. The determination of the factual issues thus presented rests...
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Grant v. Grant
...that a party failed to present any evidence to rebut inference that delay was unreasonable and inexcusable); Leonard v. Ognio, 201 Ga.App. 260, 261, 410 S.E.2d 814 (1991) (same). FN10. Rogers v. Norris, 262 Ga.App. 857, 857(1), 586 S.E.2d 747 (2003) (“Although we review the trial court's de......
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Kinson Cook of Georgia, Inc. v. Heery/Mitchell
...than 30 days in paying costs is prima facie unreasonable and inexcusable." (Citations and punctuation omitted.) Leonard v. Ognio, 201 Ga.App. 260, 261, 410 S.E.2d 814 (1991). However, this inference is not conclusive and may be rebutted by evidence presented by the appealing party. Id. "The......
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Logan v. St. Joseph Hosp.
...the hospital's argument fails. See Studard v. Dept. of Transp., 219 Ga.App. 643, 644(1), 466 S.E.2d 236 (1995). Leonard v. Ognio, 201 Ga.App. 260, 410 S.E.2d 814 (1991), which reversed the trial court for abuse of discretion and dismissed the appeal, is distinguishable. Leonard cited the ru......
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McAlister v. Abam–Samson, A12A0862.
...608 S.E.2d 667 (2004) (dismissal upheld when delay attributed to malfunctioning mail system at law firm); Leonard v. Ognio, 201 Ga.App. 260, 261–62, 410 S.E.2d 814 (1991) (reversing trial court's denial of dismissal when delay attributed to interoffice miscommunication); McDonald v. Garden ......