Newton v. Freeman

353 Ga.App. 704

839 S.E.2d 203

Rhonda NEWTON, Court Appointed Administrator of the Estate of Ronnie Cantrell

v.Kaye FREEMAN, Court Appointed Temporary Administrator of the Estate of Margaret Cantrell.

Kaye Freeman, Court Appointed Temporary Administrator of the Estate of Margaret Cantrell

v.Rhonda Newton, Court Appointed Administrator of the Estate of Ronnie Cantrell.

A19A2398

A20A0058

Court of Appeals of Georgia.

February 18, 2020

William R. Moody Jr., Stockbridge, Warren Randall Power, McDonough, for Appellant in A19A2398.

Terry Dale Jackson, Woodstock, Eric Kane Maxwell, Fayetteville, for Appellant in A20A0058

Terry Dale Jackson, Woodstock, Floyd Ernest Propst III, Atlanta, for Appellee in A19A2398.

William R. Moody Jr., Stockbridge, Warren Randall Power, McDonough, for Appellee in A20A0058

Dillard, Presiding Judge.

In 2005, Kaye Freeman—as the guardian and ultimately administrator of her mother’s estate—filed suit against her brother, Ronnie Cantrell, seeking cancellation of a deed conveying Margaret Cantrell’s property and damages. The case was dismissed for want of prosecution in 2007, but reinstated three years later. Following a 2017 trial, in which Rhonda Newton represented her then-deceased brother Ronnie’s estate, a jury returned a verdict in favor of Freeman and awarded her $2,541,000 in damages. In Case No. A19A2398, Newton contends that the trial court erred in reinstating the case in 2010, admitting bad character evidence pertaining to non-parties during trial, and entering judgment on an award of damages that was not supported by evidence. And in Case No. A20A0058, Freeman contends that the trial court erred in denying her motion to dismiss Newton’s appeal for failing to timely file the trial transcript. For the reasons discussed infra , we reverse the trial court’s denial of Freeman’s motion and, thus, dismiss Newton’s appeal.

The record shows that on April 6, 1994, Ronnie Cantrell entered into an agreement with his parents—Margaret and Linzy Cantrell—to purchase 32.8 acres of land in Henry County for $100,000. The contract for the sale of the property included a stipulation that it would be rezoned prior to its actual conveyance. And following the execution of the sales contract, Ronnie immediately sought to have the land rezoned but was unable to do so until 2002. Thus, on June 5, 2002, Ronnie paid Margaret—his father Linzy had passed away in the interim—$99,000 in exchange for the property and recorded the deed with the Henry County clerk. The very next day, Ronnie sold the property, as well as an additional 34 acres he acquired from one of his mother’s neighbors, for $1,156,000.00 to Lexington Park LLC, which planned to develop a subdivision on the land.

On February 11, 2005, Kaye Freeman—as the court-appointed guardian of Margaret, who was incapacitated due to dementia—filed suit against her brother and Lexington Park, seeking cancellation of the deed conveying her mother’s property and damages for breach of fiduciary duty and fraud. Specifically, Freeman’s complaint alleged that Ronnie took advantage of his mother’s poor mental and physical health in convincing her to convey him the property so that he could in turn sell the property to Lexington Park for a large profit. Ronnie and Lexington Park filed answers and counterclaims, and discovery ensued. Thereafter, in January 2007, Lexington Park settled with Freeman, and the trial court dismissed that entity from the case.

On February 6, 2007, the superior court clerk’s office issued a peremptory calendar order, in which it notified all attorneys with cases before the court, including Freeman and Ronnie Cantrell’s respective counsel, that pending actions would be dismissed for want of prosecution if attorneys did not appear at the calendar call currently scheduled for April 18, 2007. But in that same order, the clerk also informed counsel that:

In the alternative, the attorney for the respective parties may advise the office of the Clerk of the Superior Court in writing, not later than 4:00 o’clock P.M., Tuesday, April 17, 2007, as to the reason his action should not be dismissed for want of prosecution. If any attorney chooses to avail himself of this method of notification, it shall be unnecessary for him to appear at the peremptory calendar call on April 18, 2007.

Both counsel for Freeman and Ronnie Cantrell wrote the clerk prior to the April 17, 2007 deadline to request that the case be kept active. And records indicate that the clerk, in fact, received those requests. Nevertheless, on August 27, 2007, the trial court, for reasons not entirely clear, dismissed Freeman’s case but not Ronnie Cantrell’s counterclaims. Furthermore, that dismissal order was apparently not served on either party, and both parties continued as if the case were still active. On August 10, 2010, the clerk’s office discovered that the case had been mistakenly dismissed and immediately filed an affidavit with the court explaining the error. Consequently, a few days later, the trial court issued an order reinstating the case on the ground that the earlier dismissal had been due to a scrivener’s error.

In February 2017, the case proceeded to trial, with Rhonda Newton now the defendant in her capacity as the court-appointed administrator for the estate of Ronnie Cantrell, who had passed away several years earlier. During the trial, numerous witnesses testified regarding, inter alia , the property conveyance and Margaret’s mental state at the time of that conveyance. At the conclusion of the trial, the jury issued a verdict in favor of Freeman and awarded her $2,541,000 in compensatory damages. And the following day, February 22, 2017, the trial court entered a judgment for Freeman in that same amount.

On March 17, 2017, Newton filed a notice of appeal and a motion for extension of time to file the transcript of evidence and proceedings. The trial court granted the motion and set the new filing deadline for July 10, 2017. A few days before that deadline, Newton filed a second motion for extension of time to file the transcript. The trial court granted this motion as well and set a new filing deadline for September 15, 2017. Newton requested no additional extensions of time, and, in fact, her counsel received an electronic version of the transcript on August 30, 2017, and allegedly e-filed it with the superior court clerk less than a week later. But the superior court clerk apparently encountered difficulties e-filing the digital exhibits. As a result, the final transcript and all trial exhibits were not filed until December 12, 2018—nearly fifteen months after the last extension of time for filing that had been granted by the trial court. And during that period of time, Newton sought no additional extensions of time.

On April 11, 2019, Freeman filed a motion to dismiss Newton’s appeal in the trial court, citing the nearly fifteen-month delay in filing the trial transcript beyond the second extension of time granted by the court. Newton filed a response, and the trial court conducted a hearing on May 9, 2019. At the conclusion of the hearing, the trial court denied Freeman’s motion and issued an order to that effect. Freeman then filed a notice of appeal as to that decision, and those two appeals are now before us.

1. We first address Freeman’s appeal in Case No. A20A0058, in which she contends that the trial court erred in denying her motion to dismiss Newton’s appeal in Case No. A19A2398. We agree.

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, order that the appeal be dismissed 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.

Additionally, under OCGA § 5-6-42, when "there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed ... within 30 days after filing of the notice of appeal ...."¹ Importantly, in considering a motion to dismiss on grounds of a failure to timely file the transcript, the trial court must 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 exercise discretion in deciding whether to dismiss the appeal."² And while trial courts have wide discretion when ruling on a motion to dismiss an appeal based on a failure to timely file a transcript, that discretion is "not unlimited."³

Here, Newton filed her notice of appeal of the jury’s verdict and trial court’s judgment on March 17, 2017, and on that same date, also submitted a motion for extension of time to file the transcript of evidence and proceedings. A few days before that deadline, Newton filed a second motion for extension of time to file the transcript and was granted a new filing deadline of September 15, 2017. Thereafter, Newton requested no additional extensions of time. And although her counsel received an electronic version of the transcript on August 30, 2017, and allegedly e-filed it with the superior court clerk less than a week later, the final transcript and all trial exhibits were not filed until nearly fifteen months after the last extension of time for filing had been granted by the trial court. Importantly, during those fifteen months, Newton sought no additional extensions of time and made no effort to ensure that the trial transcript and exhibits were filed.

In its brief order denying Freeman’s motion to dismiss the appeal, the trial court acknowledged that there was a delay in filing the transcript and the exhibits but did not attribute the delay to Newton—seemingly in light of the clerk’s...