Propst v. Morgan.

• Decision Date: 18 March 2011
• Docket Number: No. S10G0615.,S10G0615.
• Citation: 288 Ga. 862,708 S.E.2d 291
• Parties: PROPST, et al.v.MORGAN.
• Court: Georgia Supreme Court

288 Ga. 862

708 S.E.2d 291

11 FCDR 749

PROPST, et al.

v.MORGAN.

No. S10G0615.

Supreme Court of Georgia.

March 18, 2011.

Bobby Lee Cook, Cook & Connelly, Summerville, Preyesh Kantilal Maniklal, Maniklal & Dennis, Duluth, Terry Dale Jackson, Terry D. Jackson, PC, Atlanta, for appellant.John Thomas Margan, J. Tom Morgan, LLC, Decatur, Louis Levenson, Dylan Littlejohn, Levenson & Associates, Atlanta, for appellee.NAHMIAS, Justice.

We granted certiorari in this case to determine whether the Court of Appeals erred by considering the merits of Robin Morgan's motion to recuse the trial judge before considering whether the trial judge properly dismissed Morgan's appeal of the final judgment in the case under OCGA § 5–6–48(c). See Morgan v. Propst, 301 Ga.App. 402, 403–404(2)(a), 688 S.E.2d 357 (2009). For the reasons that follow, we affirm the Court of Appeals.

In this litigation between estates to set aside a real estate deed, Morgan filed a motion to recuse the trial judge based on her alleged personal bias against one of Morgan's attorneys. See generally Uniform Superior Court Rules 25.1 to 25.6 (providing the procedures and standards for seeking the disqualification of a trial judge). The trial judge denied the motion, finding it untimely and the affidavit that accompanied it legally insufficient. Morgan did not seek an interlocutory appeal. See Chandler v. Davis, 269 Ga. 727, 728, 504 S.E.2d 440 (1998) (holding that a party desiring to appeal a pre-trial ruling on a recusal motion has the option to seek an interlocutory appeal or to appeal directly after an adverse final judgment). After a jury returned a verdict in favor of Floyd Propst, Morgan filed a notice of appeal. The trial judge, however, later dismissed the appeal pursuant to OCGA § 5–6–48(c), finding that Morgan had unreasonably and inexcusably caused a delay in transmitting the record to the Court of Appeals due to the failure to pay costs.

On appeal, the Court of Appeals first rejected Propst's argument that it could decide the merits of the recusal motion only if it first held that the trial court erred in dismissing the appeal. See Morgan, 301 Ga.App. at 403–404, 688 S.E.2d 357. The Court of Appeals then held that the recusal motion was timely filed and sufficient to require the trial judge to assign the motion to another judge for decision. See id. at 404–405, 688 S.E.2d 357. The Court of Appeals therefore vacated the trial court's judgment and remanded the case for further proceedings. See id. at 405, 688 S.E.2d 357. We granted certiorari to determine whether the Court of Appeals erred by considering the recusal issue before the dismissal issue.

Under OCGA § 5–6–48(c) provides that a trial court may dismiss a party's appeal

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 like manner, 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....

Thus, 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, and then to exercise discretion in deciding whether to dismiss the appeal. The trial court's ruling will be reversed on appeal only for abuse of discretion. See Kelly v. Dawson County, 282 Ga. 189, 189, 646 S.E.2d 53 (2007). Here, the trial court exercised significant discretion after holding an evidentiary hearing on the motion to dismiss, entering a 13–page order containing detailed findings of fact (including findings regarding the credibility of Morgan's attorney) and conclusions of law. In this appeal, Morgan disputes many of those findings and conclusions.

As Propst points out, when a trial court dismisses an appeal under OCGA § 5–6–48(c), an appellate court typically will not address the merits of the case before deciding whether the trial court properly dismissed the appeal. See, e.g., Durden v. Griffin, 270 Ga. 293, 294, 509 S.E.2d 54 (1998) (holding that, because the Court affirmed the trial court's dismissal of the appeal under OCGA § 5–6–48(c), it was unnecessary to resolve the enumerations of error regarding the merits of the case); Hatfield v. Great American Management & Investment, 258 Ga. 640, 640, 373 S.E.2d 367 (1988) (stating that “only if the [trial] court's dismissal of the notice of appeal” was overturned could any questions regarding the merits of the case be raised on appeal). Propst acknowledges, however, that none of those cases involved a recusal issue.

Another line of appellate decisions holds that, if a party files a motion to recuse a trial judge and the motion is denied, but it is later determined that the judge should have been...