CALLAWAY Et Al. v. GARNER Et Al.

FIFTH DIVISION
DILLARD, P. J.,
REESE and BETHEL, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

February 8, 2017

In the Court of Appeals of Georgia
A16A1513. CALLAWAY, et al v. GARNER, et al.

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

1
See Callaway v. Garner, 327 Ga. App. 67 (755 SE2d 526) (2014) (physical
precedent only), affirmed in part and reversed in part by Estate of Callaway v.
Garner, 297 Ga. 52 (772 SE2d 668) (2015).
2
See Estate of Callaway, 297 Ga. at 54-55 (2). We note that although the
Supreme Court found that the trial court erred in awarding prejudgment interest under
OCGA § 13-6-13, it nevertheless remanded the case for the trial court to determine
whether an award of prejudgment interest was authorized by OCGA § 7-4-15. See
Estate of Callaway, 297 Ga. at 52-55 (1), (2). The Supreme Court affirmed this
Court’s holdings as to the merits of the Garners’ underlying specific-performance
claim and the award of attorney fees. See id.

2
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

3
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

3
As an exhibit to its notice of appeal, the Estate attached a document entitled
“Transcript of Tape Recorded Hearing,” which appears to be an incomplete transcript
of a hearing held in this case. There is, however, no indication of when the hearing
occurred. The court reporter who created the transcript included this disclaimer: “The
following transcript has been prepared by the court reporter from a tape[ ]recording.
The court reporter was not present during the above-referenced proceedings. The
speakers are identified based upon representations made by others.” But regardless
of the authenticity of this transcript, the Estate submits it for the first time on appeal,
and we will not consider evidence that was not presented to the trial court. See Givens
v. Ichauway, Inc., 268 Ga. 710, 712 (1) (493 SE2d 148) (1997) (“[A]ppellate courts
will review only evidence presented to the trial court before its ruling on the motion.
Additional evidence will not be admitted on appeal.” (punctuation omitted)); Meade
v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977) (same); RC Cola Bottling Co.
v. Vann, 220 Ga. App. 479, 480 (1) (469 SE2d 523) (1996) (same); see also Jones v.
O’Day, 303 Ga. App. 159, 162 n.4 (692 SE2d 774) (2010) (holding that a deposition
that was not presented to the trial court could not be considered on appeal); Ga. Farm
Bureau Mut. Ins. Co. v. Shook, 215 Ga. App. 66, 67-68 (449 SE2d 658) (1994) (“It
is true this [C]ourt cannot consider evidence not presented to the trial court.”).

4
 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 that

[n]o 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

4
In its order dismissing the Estate’s appeal, the trial court noted that neither
party requested a hearing on the Garners’ motion to dismiss, and the Estate does not
challenge the court’s failure to hold such a hearing. Moreover, although the Estate
does not maintain that it was not given an opportunity to respond to the motion to
dismiss, we reiterate that the motion was pending for over two-and-a-half months
before the trial court issued its ruling, and so long as the party opposing the motion
to dismiss has an opportunity to respond on the record, no hearing is required. See
Mitchell v. 3280 Peachtree 1, LLC, 285 Ga. 576, 576 (1) (678 SE2d 880) (2009)
(affirming the trial court’s grant of a motion to dismiss when it did not hold an oral
hearing on the motion because the appellant was given “ample notice and opportunity
to respond” to the motion such that his due process rights were not violated); Grant
v. Kooby, 310 Ga. App. 483, 486 (713 SE2d 685) (2011) (holding that a hearing on
a motion to dismiss an appeal is not required if the parties are given an opportunity
to respond on the record); Lemmons v. Newton, 269 Ga. App. 880, 882 (605 SE2d
626) (2004) (holding that the trial court did not err by failing to hold an oral hearing
on a motion to dismiss an appeal because the appellant was afforded a full
opportunity to respond to the motion). Regardless, the Estate has abandoned any
claims of error regarding the trial court’s decision not to hold a hearing because the
issue is not addressed in the Estate’s appellate brief, much less supported by

5
 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.

meaningful argument. See Payton v. Johnson, 228 Ga. 810, 812 (1) (188 SE2d 504)
(1972) (deeming two enumerations of error abandoned when they were not supported
in the appellant’s brief by citation to authority or by argument); Caring Hands, Inc.
v. Dep’t of Human Res., 222 Ga. App. 608, 609 (2) (475 SE2d 660) (1996) (“The
failure to support the enumerated errors by citation of authority or argument
constitutes an abandonment of such enumerated errors.” (punctuation omitted));
Hartford Acc. & Indem. Co. v. Taylor, 144 Ga. App. 64, 66 (240 SE2d 575) (1977)
(“The failure to support the enumerated error by citation of authority or argument in
the brief leaves nothing for this court to consider and constitutes an abandonment of
the error enumerated in this appeal.”).
5
HTTP Hypothermia Therapy v. Kimberly Clark Corp., 330 Ga. App. 857,
858-59 (768 SE2d 542) (2015) (punctuation omitted); accord Bush v. Reed, 311 Ga.
App. 328, 331 (715 SE2d 747) (2011); see Propst v. Morgan, 288 Ga. 862, 863 (708
SE2d 291) (2011) (noting that a trial court’s ruling on whether a delay in filing
transcript is inexcusable and caused by the appellant will be reviewed on appeal only
for abuse of discretion); S & S Food Svcs., Inc. v. Dep’t of Transp., 222 Ga. App. 579,
582 (3) (475 SE2d 197) (1996) (“In reviewing a finding of unreasonable and
inexcusable delay in filing a transcript, this court will not disturb the lower court’s
finding absent an abuse of discretion.” (punctuation omitted)).

6
 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

6
HTTP Hypothermia Therapy, 330 Ga. App. at 860 (punctuation omitted);
accord Kelly v. Dawson Cty., 282 Ga. 189, 189 (646 SE2d 53) (2007); In re T.H., 311
Ga. App. 641, 643 (716 SE2d 724) (2011); Adams v. Hebert, 279 Ga. App. 158, 159
(630 SE2d 652) (2006).
7
HTTP Hypothermia Therapy, 330 Ga. App. at 859-60 (punctuation omitted);
accord Pistacchio v. Frasso, 314 Ga. App. 119, 121 (723 SE2d 322) (2012); Am. Nat.
Prop. & Cas. Co. v. Potts, 243 Ga. App. 645, 646 (534 SE2d 123) (2000); see Propst,
288 Ga. at 863 (“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.”); Sellers v. Nodvin, 262 Ga. 205, 206 (1) (b) (415
SE2d 908) (1992) (“The threshold question whether the delay was unreasonable
refers principally to the length and effect of the delay.” (punctuation omitted)).

7
 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

8
HTTP Hypothermia Therapy, 330 Ga. App. at 860 (punctuation omitted);
accord Mercer v. Munn, 321 Ga. App. 723, 726 (1) (742 SE2d 747) (2013);
Pistacchio, 314 Ga. App. at 121-22; Vaughn v. Faulkner, 288 Ga. App. 798, 798-99
(655 SE2d 686) (2007); Adams, 279 Ga. App. at 159.
9
HTTP Hypothermia Therapy, 330 Ga. App. at 860 (punctuation omitted);
accord Ashley v. JP Morgan Chase Bank, N.A., 327 Ga. App. 232, 237 (1) (758 SE2d
135) (2014); Mercer, 321 Ga. App. at 727 (1); Bush, 311 Ga. App. at 332 (a); Morrell
v. W. Servs., LLC, 291 Ga. App. 369, 374 (2) (662 SE2d 215) (2008); Adams, 279 Ga.
App. at 159.

8
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

10
Propst, 288 Ga. at 863; accord Grant, 310 Ga. App. at 485; see Baker v. S.
Ry. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990) (“[T]he trial court has discretion
to dismiss an appeal for failure to timely file a transcript only if 1) the delay in filing
was unreasonable; 2) the failure to timely file was inexcusable in that it was caused
by some act of the party responsible for filing the transcript.” (punctuation omitted)
(emphasis supplied)); Gruner v. Thacker, 320 Ga. App. 146, 148 (1) (739 SE2d 440)
(2013) (“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” (punctuation omitted) (emphasis supplied)).
11
See Grant, 310 Ga. App. at 485-86 (vacating the trial court’s order
dismissing an appeal when there was nothing in the record to show that the trial court
engaged in the analysis required by OCGA § 5-6-48 (c) and remanding the case with
direction that findings of fact be issued); Rogers v. Norris, 262 Ga. App. 857, 857-58
(1) (586 SE2d 747) (2003) (“Failure to make [findings of fact] mandates that we
vacate the order dismissing the appeal and remand the case with the direction that
findings of fact be entered on these issues.”); Crenshaw v. Ga. Underwriting Ass’n,
202 Ga. App. 610, 611 (1) (414 SE2d 915) (1992) (reversing and remanding the
denial of a motion to dismiss an appeal when the trial court failed to make findings
of fact, and instead, ruled on the motion “without elaboration”).

9
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

12
See Postell v. Alfa Ins. Corp., 327 Ga. App. 194, 196 (757 SE2d 661) (2014)
(vacating a trial court’s order that “summarily dismissed the notice of appeal” and
remanding for the trial court to make factual findings as to its basis for the dismissal);
Rogers, 262 Ga. App. at 857 (1) (vacating a trial court’s dismissal of an appeal and
remanding the case when “[t]he trial court simply granted the motion without
elaboration and failed to make the necessary findings as to whether the delay was
unreasonable, inexcusable, and caused by [the appellant]”); Wood v. Notte, 238 Ga.
App. 748, 749 (1) (519 SE2d 923) (1999) (reversing the trial court’s dismissal order
and remanding the case for the trial court to make factual findings when the order
“merely granted the motion to dismiss” without making findings as to the
reasonableness and excusability of the delay as well as on the issue of causation).

10
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

13
See Mitchell, 285 Ga. at 577 (2) (holding that the trial court made sufficient
findings of fact to support its dismissal of an appeal when the order set forth the
circumstances surrounding the appealing party’s 16-month delay in paying court costs
and the appellee had moved to dismiss the appeal based on an inexcusable delay
caused by the appellant’s failure to pay costs); Cooper v. State, 235 Ga. App. 66, 67
(2) (508 SE2d 447) (1998) (holding that “[a]lthough OCGA § 5-6-48 (c) sets forth the
conditions upon which the trial court may dismiss an appeal for delay, it does not by
its terms require the court to make a formal recitation of those conditions in its
order,” and affirming a trial court’s dismissal order, which found that the delay was
unreasonable but had no express finding that the delay was inexcusable (punctuation
omitted)); A. Roberts Corp. v. Roberts, 207 Ga. App. 663, 664 (428 SE2d 671) (1993)
(“Although the trial court did not use the specific terminology delineated in [OCGA
§ 5-6-48 (c)], the trial court’s order indicate[d] that the court considered those factors
in concluding that the dismissal of the appellants’ appeal was proper.”).

11
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

14
203 Ga. App. 20 (416 SE2d 133) (1992).

12
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

15
See id. at 20. We note that Georgia courts have repeatedly affirmed dismissal
orders that were issued due to the appellant’s designation in the notice of appeal that
a nonexistent transcript would be included in the appellate record. See, e.g., HTTP
Hypothermia Therapy , 330 Ga. App. at 861 (2) (affirming the trial court’s dismissal
of an appeal when the appellant’s inadvertent reference to a nonexistent transcript in
its notice of appeal resulted in a 15-month delay between when the notice of appeal
was filed and when the case was dismissed and holding that the delay was
unreasonable, inexcusable, and caused by the appellant); Pirkle v. Bell, 270 Ga. 438,
438 (510 SE2d 814) (1999) (affirming the trial court’s dismissal of an appeal when
three-month delay was caused by appellant’s designation in the notice of appeal that
a nonexistent transcript would be included in the record and on appellant’s failure to
check on the status of the appeal); Lindstrom v. Forsyth Cty., 221 Ga. App. 581, 582
(472 SE2d 106) (1996) (affirming dismissal of an appeal when two-month delay was
caused by a mistaken designation in the notice of appeal that a nonexistent transcript
would be included in the record and appellant made no efforts to expedite the appeal);
Devins v. Leafmore Forest Condo. Ass’n of Owners, 213 Ga. App. 823, 823 (446
SE2d 531) (1994) (affirming the trial court’s dismissal of an appeal when appellant
caused a delay in the docketing of the appeal by mistakenly designating a nonexistent
transcript as part of the record and by failing to take any steps to expedite the appeal);
Johnston v. Ga. Pub. Serv. Comm’n, 209 Ga. App. 224, 225 (433 SE2d 65) (1993)
(affirming dismissal of an appeal when the sole reason for the delay in transmitting
the record to this Court was appellant’s inadvertent designation that a nonexistent
transcript would be included in the record on appeal and the earliest inquiry about the
status of the appeal was not made until “several months” after the notice of appeal
was filed).

13
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 caused the delay, and

whether the delay was inexcusable)16, even though the court’s order did not expressly

use the language delineated in OCGA § 5-6-48.17

2. The Estate also argues that the trial court’s valuation of the supersedeas

collateral in the underlying final judgment was erroneous. But regardless of our

holding in Division 1 supra, any challenge to the trial court’s underlying judgment

regarding the Garners’ specific-performance claim is not properly before this Court

because that judgment is not the subject of this appeal.

For all of the foregoing reasons, we affirm the trial court’s dismissal of the

Estate’s appeal from the court’s final judgment on the Garners’ claim for specific

performance.

Judgment affirmed. Reese and Bethel, JJ., concur.

16
See supra note 10 & accompanying text.
17
See supra notes 13 and 15.

14