334 Ga. App. 95
Ga. Ct. App.2015Background
- Royce L. Jones sued Deutsche Bank (as trustee), Ocwen Loan Servicing, and foreclosure attorneys alleging wrongful foreclosure and other claims.
- Defendants moved to dismiss; the trial court granted those motions and entered judgment against Jones.
- Jones timely filed a first notice of appeal but failed to promptly pay the cost bill for the appellate record.
- The trial court dismissed Jones’s first notice of appeal for unreasonable and inexcusable delay in paying costs (42 days after delivery).
- Jones filed a second appeal and argued the merits of the underlying dismissal rather than challenging the trial court’s dismissal of his first notice of appeal.
- The Court of Appeals declined to reach the merits because Jones did not contest the dismissal of his initial notice of appeal and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in dismissing Jones’s first notice of appeal for delay in paying the cost bill | Jones (in reply brief) blamed the trial-court clerk for delay and implied dismissal was improper | Trial court defendants argued delay was unreasonable and inexcusable; dismissal was permissible under OCGA § 5-6-48(c) | Court: No abuse of discretion; dismissal affirmed because 42‑day delay was prima facie unreasonable and Jones offered no proper record support to rebut it |
| Whether the Court may address merits of the underlying dismissal when the notice of appeal was dismissed | Jones urged review on the merits despite not challenging dismissal | Defendants argued appellate review of merits is barred unless dismissal is overturned | Court: Merits cannot be reached absent reversal of dismissal; Jones abandoned the only appealable issue by not challenging dismissal |
Key Cases Cited
- Ashley v. JP Morgan Chase Bank, 327 Ga. App. 232 (standard for review of trial court's dismissal of an appeal)
- Hatfield v. Great American Management & Investment, 258 Ga. 640 (only if dismissal of notice of appeal is overturned can merits be reached on appeal)
- ACCC Ins. Co. v. Pizza Hut of America, 314 Ga. App. 655 (court will not address merits when appeal dismissed and dismissal stands)
- Befekadu v. Addis Intl. Money Transfer, 332 Ga. App. 103 (arguments abandoned in initial brief cannot be resurrected in reply brief)
- Bennett v. Quick, 305 Ga. App. 415 (court will not consider factual assertions unsupported by the record)
- Kelly v. Dawson County, 282 Ga. 189 (delay over 30 days is prima facie unreasonable and inexcusable; presumption rebuttable with evidence)