Postell v. Alfa Ins. Corp., No. A14A2301.

CourtGeorgia Court of Appeals
Writing for the CourtANDREWS, Presiding Judge.
Citation332 Ga.App. 22,772 S.E.2d 793
Docket NumberNo. A14A2301.
Decision Date19 March 2015
PartiesPOSTELL et al. v. ALFA INSURANCE CORPORATION et al.

332 Ga.App. 22
772 S.E.2d 793

POSTELL et al.
v.
ALFA INSURANCE CORPORATION et al.

No. A14A2301.

Court of Appeals of Georgia.

March 19, 2015.
Reconsideration Denied April 13, 2015.


772 S.E.2d 795

Crandall Postell, Sharon E. Davis, for Appellant.

James H. Fisher II, Atlanta, Thomas Peter Allen III, John Dennis Carey, William H. Larsen, Macon, C. Robert Melton, Forsyth, Sherman Eugene Moody III, Perry, Kaycee W. Hopwood, for Appellee.

Opinion

ANDREWS, Presiding Judge.

332 Ga.App. 22

Appellants Crandall Postell and Sharon Davis commenced an action in the trial court asserting tort and breach of contract claims against Alfa Insurance Corporation, Davis' home insurer, American Home Shield Corporation, which provided a home warranty plan for Davis' home, and other defendants (collectively, “Appellees”). The trial court entered an order on February 28, 2013 by which it (1) entered judgment on a jury verdict in Davis' favor on one of her contractual claims against Alfa and (2) granted a directed verdict for Appellees as to all other claims. Appellants filed a notice of appeal, but the trial court thereafter granted Appellees' motion to dismiss the appeal under OCGA § 5–6–48(c). In Postell v. Alfa Ins. Corp., 327 Ga.App. 194, 757 S.E.2d 661 (2014), we vacated the trial court's dismissal order and remanded the case because the trial court failed to make the requisite findings to allow us to determine whether the trial court properly exercised its discretion. Following remand, the trial court entered a more detailed order dismissing the appeal. Appellants appeal pro se, arguing that the trial court abused its discretion in dismissing the appeal and erred in denying their motion to recuse the trial judge. For the reasons that follow, we affirm.

The record shows that Appellants filed a notice of appeal on March 22, 2013 requesting that the trial court clerk “omit nothing” from the record on appeal. On March 26, 2013, the trial court clerk sent an invoice for the cost of preparing the record on appeal to Appellants by certified mail. On April 12, 2013, Appellants filed an amended notice of appeal specifying that the record on appeal should omit nothing and should include the “trial court transcript and all exhibits.” Appellees filed their motion to dismiss the appeal on May 28, 2013 based on Appellants' alleged unreasonable and inexcusable delay in filing the trial transcript and in paying the costs of the appeal. On May 31, 2013, Appellants' counsel wrote to the trial court, stating that she was retained on April 30, 2013 and requesting an extension of time for obtaining the trial transcripts.

Appellants asserted in their response to the motion to dismiss that the court reporter who took down the trial sent an invoice to their

332 Ga.App. 23

trial counsel on February 19, 2013 for the cost of taking down the trial but that their counsel did not forward it to them. Postell contacted the court reporter on his own accord in late February to get an estimate of the cost of a full transcript. A February 26, 2013 letter from the court reporter to Postell, attached as an exhibit to Appellants' response, reflects that Postell had spoken with her that day and that she advised him that she would not begin transcribing the trial until she received a payment of $4,700. The letter stated that her reporting company “requires payment in advance

772 S.E.2d 796

of beginning work on such a time-consuming trial.” Appellants asserted in their response that they were not able to pay that sum up front and that the court reporter was not willing to work out another arrangement. Once they retained new counsel, however, counsel was able to work out a payment arrangement so that Appellants could pay $937 in advance for the transcription of each day of the trial.

At the hearing on the motion to dismiss on July 19, 2013, Appellants' counsel asserted that Appellants' trial counsel had advised Appellants that they would only need certain parts of the transcript but that he would not represent them on appeal. Another attorney they consulted while looking for new counsel, however, “tipped them off” that they would need to have the full transcript prepared. Appellants' counsel advised the trial court that as of the hearing date, the court reporter had completed day one of the four-day trial and was working on day two. Appellants' counsel stated that the March 26, 2013 invoice had been paid the previous week. Counsel for both sides stated that the reason the court reporter initially required advance payment from Appellants was that they were unrepresented.

The trial court granted the motion to dismiss in a summary order entered on August 7, 2013. Appellants' counsel filed a motion for reconsideration and attached thereto email correspondence with the court reporter showing that the transcript of the final day of trial was sent by overnight mail to the trial court clerk so as to be received by August 8, 2013. The trial court denied the motion, and Appellants' counsel thereafter filed a motion to withdraw. Acting pro se, Appellants filed a renewed motion for reconsideration, which the trial court denied in an order entered after Appellants filed their notice of appeal from the dismissal order. The remittitur following the prior appeal was filed in the trial court on May 5, 2014. Prior thereto, on April 21, 2014, Appellants filed a motion to open discovery. On April 23, 2014, the trial court entered an order granting Appellees' motion to dismiss and denying the motion to open discovery. On April 29, 2014, Appellants filed a motion to recuse the trial judge, arguing, among other things, that her April 23 order evidenced her bias against them. On May 5, 2014, the trial court entered orders denying the motion to

332 Ga.App. 24

recuse and the motion to open discovery; an order vacating the April 23 order as void; and an order granting the motion to dismiss, which contained the same findings of fact and conclusions of law as the April 23 order. Appellants filed two motions to recuse before they filed their notice of appeal.

1. We first address Appellants' argument that the trial court erred in denying their first motion to recuse the trial judge. See Propst v. Morgan, 288 Ga. 862, 864–865, 708 S.E.2d 291 (2011). “Once a motion to recuse is filed with the trial judge, ... that judge must make three threshold determinations regarding the legal sufficiency of the motion: whether it was timely filed; whether the affidavit made in support of it ... is legally sufficient; and whether, if some or all of the facts set forth in the affidavit are true, recusal would be authorized.” (Citations omitted.) Henderson v. State, 295 Ga. 333, 334(1), 759 S.E.2d 827 (2014) ; see also Uniform Superior Court Rule 25.3. If any one of the conditions is not met, the trial court does not err in denying the motion without referring it to another judge. Henderson, supra, 295 Ga. at 334(1), 759 S.E.2d 827.

Appellants submitted a purported joint affidavit in support of their motion to recuse in which they contended that the judge exhibited bias because her April 23, 2014 dismissal order (that was later vacated) contained an erroneous finding regarding one of the reasons the court reporter would not begin transcribing the trial without payment in full. They further cite as evidence of bias the judge's...

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9 practice notes
  • State v. Brienza, A19A0698
    • United States
    • United States Court of Appeals (Georgia)
    • 20 Junio 2019
    ...v. Hebert , 279 Ga. App. 158, 159, 630 S.E.2d 652 (2006) (punctuation omitted; emphasis supplied); accord Postell v. Alfa Ins. Corp. , 332 Ga. App. 22, 25 (2) (a) (i), 772 S.E.2d 793 (2015) ; Ashley v. JP Morgan Chase Bank, N.A. , 327 Ga. App. 232, 235 (1), 758 S.E.2d 135 (2014) ; Bush v. R......
  • State v. Brienza, A19A0698
    • United States
    • United States Court of Appeals (Georgia)
    • 20 Junio 2019
    ...notes 14-15 & accompanying text.27 Adams v. Hebert , 279 Ga. App. 158, 159, 630 S.E.2d 652 (2006) ; accord Postell v. Alfa Ins. Corp. , 332 Ga. App. 22, 25 (2) (a) (i), 772 S.E.2d 793 (2015) ; Ashley v. JP Morgan Chase Bank, N.A. , 327 Ga. App. 232, 235 (1), 758 S.E.2d 135 (2014) ; Bush v. ......
  • SDM Invs. Grp., LLC v. HBN Media, Inc., A20A1775
    • United States
    • United States Court of Appeals (Georgia)
    • 28 Enero 2021
    ...203 (punctuation omitted); accord State v. Brienza , 350 Ga. App. 672, 679 (1), 829 S.E.2d 894 (2019) ; Postell v. Alfa Ins. Corp. , 332 Ga. App. 22, 25 (2) (a) (i), 772 S.E.2d 793 (2015) ; Ashley , 327 Ga. App. at 235 (1), 758 S.E.2d 135 ; Bush , 311 Ga. App. at 331-32 (a), 715 S.E.2d 747 ......
  • Moore v. Hullander, A18A0592
    • United States
    • United States Court of Appeals (Georgia)
    • 25 Abril 2018
    ...where the court’s ruling on attorney fees was predicated on "an erroneous factual finding"); Postell v. Alfa Insurance Corp. , 332 Ga. App. 22, 28 (2) (a) (iii), 772 S.E.2d 793 (2015) ("An abuse of discretion occurs where the trial court ... clearly errs in a material factual finding.") (ci......
  • Request a trial to view additional results
9 cases
  • State v. Brienza, A19A0698
    • United States
    • United States Court of Appeals (Georgia)
    • 20 Junio 2019
    ...v. Hebert , 279 Ga. App. 158, 159, 630 S.E.2d 652 (2006) (punctuation omitted; emphasis supplied); accord Postell v. Alfa Ins. Corp. , 332 Ga. App. 22, 25 (2) (a) (i), 772 S.E.2d 793 (2015) ; Ashley v. JP Morgan Chase Bank, N.A. , 327 Ga. App. 232, 235 (1), 758 S.E.2d 135 (2014) ; Bush v. R......
  • State v. Brienza, A19A0698
    • United States
    • United States Court of Appeals (Georgia)
    • 20 Junio 2019
    ...notes 14-15 & accompanying text.27 Adams v. Hebert , 279 Ga. App. 158, 159, 630 S.E.2d 652 (2006) ; accord Postell v. Alfa Ins. Corp. , 332 Ga. App. 22, 25 (2) (a) (i), 772 S.E.2d 793 (2015) ; Ashley v. JP Morgan Chase Bank, N.A. , 327 Ga. App. 232, 235 (1), 758 S.E.2d 135 (2014) ; Bush v. ......
  • SDM Invs. Grp., LLC v. HBN Media, Inc., A20A1775
    • United States
    • United States Court of Appeals (Georgia)
    • 28 Enero 2021
    ...203 (punctuation omitted); accord State v. Brienza , 350 Ga. App. 672, 679 (1), 829 S.E.2d 894 (2019) ; Postell v. Alfa Ins. Corp. , 332 Ga. App. 22, 25 (2) (a) (i), 772 S.E.2d 793 (2015) ; Ashley , 327 Ga. App. at 235 (1), 758 S.E.2d 135 ; Bush , 311 Ga. App. at 331-32 (a), 715 S.E.2d 747 ......
  • Moore v. Hullander, A18A0592
    • United States
    • United States Court of Appeals (Georgia)
    • 25 Abril 2018
    ...where the court’s ruling on attorney fees was predicated on "an erroneous factual finding"); Postell v. Alfa Insurance Corp. , 332 Ga. App. 22, 28 (2) (a) (iii), 772 S.E.2d 793 (2015) ("An abuse of discretion occurs where the trial court ... clearly errs in a material factual finding.") (ci......
  • Request a trial to view additional results

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