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Postell v. Alfa Ins. Corp.

Court of Appeals of Georgia

March 19, 2015

POSTELL et al.

Reconsideration denied April 13, 2015.

Page 794

Transcript; delay. Houston Superior Court. Before Judge Lumsden.

Crandall Postell, pro se.

Sharon Davis, pro se.

John D. Carey; S.E. Moody III; Martin Snow, William H. Larsen, Thomas P. Allen III; Haygood Lynch Harris Melton & Watson, C. Robert Melton; Hall Booth Smith, James H. Fisher, for appellees.


Page 795

Andrews, Presiding Judge.

Appellants Crandall Postell and Sharon Davis commenced an action in the trial court asserting tort and breach of contract claims against Alfa Insurance Corporation, Davis' home insurer, American Home Shield Corporation, which provided a home warranty plan for Davis' home, and other defendants (collectively, " Appellees" ). The trial court entered an order on February 28, 2013 by which it (1) entered judgment on a jury verdict in Davis' favor on one of her contractual claims against Alfa and (2) granted a directed verdict for Appellees as to all other claims. Appellants filed a notice of appeal, but the trial court thereafter granted Appellees' motion to dismiss the appeal under OCGA § 5-6-48 (c). In Postell v. Alfa Ins. Corp., 327 Ga.App. 194 (757 S.E.2d 661) (2014), we vacated the trial court's dismissal order and remanded the case because the trial court failed to make the requisite findings to allow us to determine whether the trial court properly exercised its discretion. Following remand, the trial court entered a more detailed order dismissing the appeal. Appellants appeal pro se, arguing that the trial court abused its discretion in dismissing the appeal and erred in denying their motion to recuse the trial judge. For the reasons that follow, we affirm.

The record shows that Appellants filed a notice of appeal on March 22, 2013 requesting that the trial court clerk " omit nothing" from the record on appeal. On March 26, 2013, the trial court clerk sent an invoice for the cost of preparing the record on appeal to Appellants by certified mail. On April 12, 2013, Appellants filed an amended notice of appeal specifying that the record on appeal should omit nothing and should include the " trial court transcript and all exhibits." Appellees filed their motion to dismiss the appeal on May 28, 2013 based on Appellants' alleged unreasonable and inexcusable delay in filing the trial transcript and in paying the costs of the appeal. On May 31, 2013, Appellants' counsel wrote to the trial court, stating that she was retained on April 30, 2013 and requesting an extension of time for obtaining the trial transcripts.

Appellants asserted in their response to the motion to dismiss that the court reporter who took down the trial sent an invoice to their [332 Ga.App. 23] trial counsel on February 19, 2013 for the cost of taking down the trial but that their counsel did not forward it to them. Postell contacted the court reporter on his own accord in late February to get an estimate of the cost of a full transcript. A February 26, 2013 letter from the court reporter to Postell, attached as an exhibit to Appellants' response, reflects that Postell had spoken with her that day and that she advised him that she would not begin transcribing the trial until she received a payment of $4,700. The letter stated that her reporting company " requires payment in advance

Page 796

of beginning work on such a time-consuming trial." Appellants asserted in their response that they were not able to pay that sum up front and that the court reporter was not willing to work out another arrangement. Once they retained new counsel, however, counsel was able to work out a payment arrangement so that Appellants could pay $937 in advance for the transcription of each day of the trial.

At the hearing on the motion to dismiss on July 19, 2013, Appellants' counsel asserted that Appellants' trial counsel had advised Appellants that they would only need certain parts of the transcript but that he would not represent them on appeal. Another attorney they consulted while looking for new counsel, however, " tipped them off" that they would need to have the full transcript prepared. Appellants' counsel advised the trial court that as of the hearing date, the court reporter had completed day one of the four-day trial and was working on day two. Appellants' counsel stated that the March 26, 2013 invoice had been paid the previous ...

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