CALLAWAY Et Al. v. GARNER Et Al.
340 Ga. App. 176
| Ga. Ct. App. | 2017Background
- The Estate of Cason J. Callaway, Jr., through its executor, appealed the trial court’s final judgment awarding the Garners $1,200,000 for stock sale and finding the Estate forfeited supersedeas collateral (the stock) as worthless.
- The Estate had previously appealed an earlier order (Callaway I); while that appeal was pending it posted supersedeas collateral including the disputed stock; the Georgia Supreme Court later remanded limited issues (Callaway II).
- After a September 30, 2015 hearing (no certified court reporter present), the trial court on October 1, 2015 entered final judgment for the Garners and found the posted stock forfeited.
- The Estate filed a timely notice of appeal on October 9, 2015, stating a transcript would be filed; counsel had recorded the hearing but did not timely provide a complete certified transcript or recording to the clerk or opposing counsel.
- The Garners moved to dismiss the appeal for failure to file the transcript; after over two months the trial court denied reconstruction and dismissed the appeal under OCGA § 5-6-48(c) for unreasonable, inexcusable delay caused by the Estate.
- The Estate appealed the dismissal, arguing the trial court failed to make required factual findings about length, cause, and excusability of the delay; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by dismissing appeal without required findings under OCGA § 5-6-48(c) | Estate: court failed to make explicit findings on length, reasons, causation, and excusability of transcript delay | Garners: dismissal proper because Estate designated a nonexistent transcript and failed to provide or reconstruct it | Court: affirmed—trial court’s order, though not using statute’s exact words, contained sufficient factual findings and relied on controlling precedent (Teston) |
| Whether forfeiture/valuation of supersedeas collateral (stock) was wrongly decided | Estate: trial court erred valuing collateral as worthless and forfeiting it | Garners: trial court’s finding supported by evidence at hearing | Court: declined to reach merits—challenge to underlying final judgment not before this appeal; dismissal upheld |
Key Cases Cited
- Callaway v. Garner, 327 Ga. App. 67 (affirming trial court on specific performance; physical precedent only)
- Estate of Callaway v. Garner, 297 Ga. 52 (Ga. 2015) (supreme court reversed in part as to prejudgment interest and remanded limited issues)
- Teston v. Mills, 203 Ga. App. 20 (1992) (sets forth factors under OCGA § 5-6-48(c) and supports dismissal when appellant designates a nonexistent transcript)
- HTTP Hypothermia Therapy v. Kimberly Clark Corp., 330 Ga. App. 857 (2015) (affirming dismissal where designation of nonexistent transcript caused lengthy, inexcusable delay)
- Propst v. Morgan, 288 Ga. 862 (2011) (explains trial court must consider length, reasons, causation, and excusability before dismissing an appeal)