Russell Carbonara v. Fortress Group, Inc.

R
                              FOURTH DIVISION
                               DILLARD, P. J.,
                         RICKMAN, P. J. and BROWN, J.

                    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.
                                https://www.gaappeals.us/rules

                    DEADLINES ARE NO LONGER TOLLED IN THIS
                    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                    THE TIMES SET BY OUR COURT RULES.


                                                                       January 8, 2021



In the Court of Appeals of Georgia
 A20A1888. CARBONARA et al. v. FORTRESS GROUP, INC.
 A20A2035. FORTRESS GROUP, INC. v. CARBONARA et al.

      RICKMAN, Presiding Judge.

      These consolidated appeals arise from a judgment in favor of Fortress Group,

Inc. on a claim of fraudulent transfer against Russell and Amarynthia Carbonara

arising out of Mr. Carbonara’s transfer of his interest in the marital residence to his

wife within months of Fortress obtaining an arbitration award against Mr. Carbonara.

In Case No. A20A2035, Fortress appeals from the trial court’s denial of its motion to

dismiss the Carbonaras’ appeal. In Case No. A20A1888, the Carbonaras appeal from

the judgment in favor of Fortress. For the reasons that follow, we find the trial court

erred when it denied Fortress’s motion to dismiss the Carbonaras’ appeal. We

therefore reverse in Case No. A20A2035 and dismiss Case No. A20A1888.
      The record shows that Fortress obtained an arbitration award against Russell

Carbonara in 2014. In September 2015, Fortress filed the underlying lawsuit, alleging

that Mr. Carbonara had fraudulently transferred his 50 percent interest in a residence

to his wife via quitclaim deed. A bench trial was held on November 15, 16, and 27,

2018. One court reporter covered the first two days of trial, and a second court reporter

covered the third day. The trial court entered its “Order and Final Judgment” on March

28, 2019, in which it set aside the quitclaim deed and awarded punitive damages and

attorney fees in favor of Fortress.1 The Carbonaras filed their notice of appeal from the

trial court judgment on April 26, 2019,2 stating that the record should include “the

transcript from the Bench Trial held on November 15, 16, and 27, 2018.”

      Over seven months later — on December 4, 2019 — Fortress filed its motion

to dismiss the appeal on the grounds that the Carbonaras had failed to file any

transcripts or seek an extension of time to do so.

      Following Fortress’s motion, the trial court attempted to expedite production of

the transcript by ordering the first court reporter to complete and file the transcript or


      1
       The final order and judgment incorporated by reference an earlier order in
which the court found that the Carbonaras conspired to defraud Fortress.
      2
        The Carbonaras’ appellate counsel made their appearance that day and filed the
notice of appeal.

                                            2
provide the takedown so that another court reporter could do so; the court even

threatened to hold the court reporter in contempt. There is nothing in the record to

show that the court took similar steps vis-a-vis the second court reporter.

      Meanwhile, the Carbonaras responded to Fortress’s motion but did not come

forward with any evidence that they had requested or paid for the transcripts or that

they had contacted either of the two court reporters. In fact, the court soon inquired

of all counsel, via email, as to who had paid for the transcript. In their reply, the

Carbonaras avoided a direct response, stating only that “[t]he invoice for the hearing

transcript was likely sent to Defendants’ prior counsel.”3 The court asked the

Carbonaras a second time if they had ordered a transcript and paid for it, but the

record does not contain a response. On January 22, 2020, in another email message,

the judge’s staff attorney stated “[t]o date, no party has requested a transcript for [the

third day of trial]” from the second court reporter. The staff attorney also stated that

a substitute had been arranged for the first court reporter and “[w]homever now

desires the above-referenced transcripts needs to contact the court reporters

respectively to place the order and pay”; the message included the contact information



      3
       Fortress responded that it had paid its portion of the takedown fee and for a
copy of the transcript in May 2019 but that it had not received a transcript.

                                            3
for both reporters. Finally, sometime after January 24, 2020, nine months after the

filing of the notice of appeal and at least 50 days after the motion to dismiss, Fortress

ordered the trial transcripts, which were filed on May 11, 2020.

      After the transcripts were filed, the trial court denied Fortress’s motion to

dismiss. The court found that the “sole or at least primary reason for the delay” was

caused by the first court reporter. The court commented about its own difficulties in

trying to obtain the transcript from that reporter, on the fact that the reporter was out

on medical leave for “the latter part of 2019 and beginning of 2020,” and on the court’s

own diligence in attempting to obtain the transcript. The court also stated that it had

informed the parties via email in May 2019 that it was working diligently to obtain the

transcript from the court reporter. The court made no comment regarding the second

court reporter.

      Subsequently, the record and transcript were then forwarded to this Court, and

the case was docketed on May 26, 2020 — over one year after the notice of appeal —

and assigned to the August 2020 term of this Court.

      1. In Georgia, a party filing a notice of appeal must “state whether or not any

transcript of evidence and proceedings is to be transmitted as a part of the record on

appeal.” OCGA § 5-6-37. Thereafter, the appellant is responsible for requesting,


                                           4
paying for, and filing the transcript in the trial court within 30 days of the notice of

appeal:

      When a transcript is to become part of the record on appeal, the appellant
      must have the transcript prepared at its expense and have it filed to be
      part of the record on appeal within 30 days after the notice of appeal was
      filed. OCGA §§ 5-6-41 (c); 5-6-42.


Crown Diamond Co. v. N.Y. Diamond Corp., 

242 Ga. App. 674

, 676 (2) (530 SE2d

800) (2000). “If the transcript cannot be filed within 30 days, the appellant must request

an extension of time under the procedures stated in OCGA § 5-6-39 to file the

transcript. OCGA § 5-6-42.”

Id. “Appellants are not

accountable for delays caused by

clerks of court or court reporters after the transcript has been ordered properly.”

(Emphasis supplied.)

Id. A trial court

may dismiss an appeal for failure to file a transcript “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 [the appealing] party.” OCGA § 5-6-48 (c).

Thus, as explained by our Supreme Court, “OCGA § 5-6-48 (c) sets forth three criteria

for dismissal of an appeal for failure to timely file a transcript: 1) unreasonable delay

which was 2) [i]nexcusable and 3) caused by such party.” (Citation and punctuation

omitted.) Baker v. Southern R. Co., 

260 Ga. 115

, 116 (390 SE2d 576) (1990). “A delay

                                            5
in excess of 30 days 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.” (Citation and punctuation omitted.) Kelly

v. Dawson County, 

282 Ga. 189

, 189 (646 SE2d 53) (2007). “The trial court has

discretion in passing on these questions, but that discretion is subject to appellate

review for abuse.” (Citation omitted.) Atlanta Orthopedic Surgeons v. Adams, 254 Ga.

App. 532, 535 (562 SE2d 818) (2002).

      As further shown below, the record in this case shows without question that at

least the first five to seven months of delay in filing the transcript was unreasonable,

inexcusable, and caused by the Carbonaras. The greater than 30-day delay established

a prima facie case that the delay was unreasonable and inexcusable, see 

Kelly, 282 Ga. at 189

, and the Carbonaras failed to rebut the presumption. Although the court reporter

was responsible for some of the delay, the trial court did not have discretion to ignore

the Carbonaras’ significant role in the delay.

      (a) “[T]he threshold question whether the delay was unreasonable refers

principally to the length and effect of the delay.” (Citation and punctuation omitted;

emphasis in original.) Sellers v. Nodvin, 

262 Ga. 205

, 206 (1) (b) (415 SE2d 908)

(1992). Delay can affect an appeal by “causing the appeal to be stale, such as, by


                                           6
delaying just disposition 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.” (Citation omitted.) Jackson v. Beech Aircraft

Corp., 

213 Ga. App. 172

, 173 (444 SE2d 359) (1994). Here, the nine-to-twelve-month

delay in obtaining the transcript undoubtedly resulted in a delay in docketing of

Fortress’s appeal by at least two terms of this Court and was, therefore, unreasonable.4

See American Nat. Property & Cas. Co. v. Potts, 

243 Ga. App. 645

, 646-647 (534

SE2d 123) (2000) (month-and-a-half delay in paying for transcript unreasonable where

it prevented placement of case on earliest possible calendar and delayed docketing and

hearing).

      (b) The Carbonaras’ delay in obtaining the transcript was inexcusable. Although

they stated in their notice of appeal that transcripts would be included with the record

for their appeal, the Carbonaras never ordered or paid for the transcripts from either

court reporter in the first nine months following the appeal, and they never requested




      4
       This Court’s docket for the December, April, and August terms closes on the
March 31 (the following year), July 17, and November 18, respectively. See Court of
Appeals Rule 12.

                                            7
an extension of time to do so.5 During that time, they wholly shirked their

responsibility to obtain the transcript as required by law and to remain in contact with

the court reporter about progress.6 See Coptic Const. Co. v. Rolle, 

279 Ga. App. 454

,

456 (631 SE2d 475) (2006) (delay inexcusable where appellant never sought extension

of time to file transcript and never communicated with the court reporter during the

nine-month period about transcript status). In response to Fortress’s motion to dismiss,

the Carbonaras came forward with no evidence of an excuse for their failure to request

and pay for the transcripts.

       Instead, the Carbonaras suggest that the court’s own involvement in attempting

the obtain the transcript excused their failure to act. But it is the appellant’s burden, not


       5
        A failure to request an extension of time is not dispositive of a motion to
dismiss “if the failure to request an extension stands alone and independent of any
unreasonable and inexcusable delay on the part of the appellant.” Morrell v. Western
Services, LLC, 

291 Ga. App. 369

, 373 (2) (662 SE2d 215) (2008) (emphasis omitted.).
       6
        Fortress acknowledges that it ordered a portion of the transcript in April 2019.
But there is no evidence that the Carbonaras were aware of or relied upon that fact; and
even if they had, such reliance alone is insufficient. See Northeast Georgia Medical
Center v. Healthsouth Rehabilitation Hosp. of Forsyth County, 

347 Ga. App. 852

,
859-860 (2) (821 SE2d 68) (2018) (“appellants are not absolved of [duty to have
transcript prepared at their expense and to file it within 30 days] simply because they
learned that [appellee] had requested a transcription of the hearing”); Jackson, 217 Ga.
App. at 500 (holding that good faith belief that opposing party had ordered the
transcript is but one factor in determining whether conduct is excusable; “good faith
does not automatically render an unreasonable delay excusable”).

                                             8
the court or the court reporter, to take the necessary steps to secure the transcript. See

Mercer v. Munn, 

321 Ga. App. 723

, 726 (1) (742 SE2d 747) (2013) (“[T]he duty to

order the transcript and to monitor timely the progress of the reporter’s office in

transcript preparation is vested upon the appropriate appealing party.”) (citation and

punctuation omitted.); 

Jackson, 217 Ga. App. at 502-503

(2). Nothing done by the

court relieved the Carbonaras of their duty under the law to obtain the transcript, nor

should it. Otherwise the burden would be shifted improperly to the appellee to deal

with any delays. Once the court indicated that it might be playing a role in obtaining

the transcript, at a bare minimum the Carbonaras should have requested an extension

of time of their duty to obtain the transcript within 30 days of the filing of the notice

of appeal. Instead, the Carbonaras took no steps whatsoever and have offered no

excuse for this failure; thus, they failed to rebut the presumption that the delay was

inexcusable.

      (c) Finally, given that the Carbonaras failed to take any steps to secure the

transcript for over nine months, the trial court abused its discretion by finding that the

court reporter was the “sole or at least primary reason for the delay.” Instead, the court

only considered the Carbonara’s effort to “point to the [first reporter’s] delay in

completing and filing the transcript.” In so doing, the court noted that the reporter was


                                            9
on medical leave for “the latter part of 2019 and beginning of 2020.” But the trial court

improperly ignored the time delay from April 26, 2019 though “the latter part of 2019,”

for which the Carbonaras offered no excuse for their failure to follow the law; thus,

the Carbonaras caused significant delay. See Newton v. Freeman, 

353 Ga. App. 704

,

709 (839 SE2d 203) (2020) (holding that trial court abused its discretion by denying

motion to dismiss where, even though superior court clerk experienced technical

inability to file trial exhibits, which explained some of the delay, appellant’s failure to

contact clerk for 15 months or to seek an additional extension of time caused

significant delay); Morrell v. Western Services, 

291 Ga. App. 369

, 372 (2) (662 SE2d

215) (2008) (holding that trial court abused its discretion by denying motion to dismiss

where, despite court’s “inclin[ation] to attribute most of the delay in preparation of the

transcript to the press of business with his court reporter,” record showed that delay

in obtaining transcript was unreasonable and inexcusable where “significant portion

of the delay” was attributable to the appellant); compare Atlanta Geoscience v. Phoenix

Dev. & Land Inv., 

341 Ga. App. 81

, 82 (1) (799 SE2d 242) (2017) (physical precedent

only). The Carbonaras complete failure to obtain the transcript of the third day of trial

from the second court reporter, who had no medical issues, supports our conclusion.




                                            10
      Any argument that the first court reporter would have been unable to produce

the transcript on a timely basis if the Carbonaras had made a timely request and

payment is speculative. See Pistacchio v. Frasso, 

314 Ga. App. 119

, 122 (723 SE2d

322) (2012) (speculative assertion that delay would not have caused the appeal to be

docketed at a later term of court was mere conjecture). This is especially true given that

the Carbonaras failed to contact the court reporters and stay in contact with them in

order to solve any developing problems and expedite production of the transcripts.

      In sum, the trial court abused its discretion in denying the motion to dismiss

because the record shows that the Carbonaras failed to rebut the presumption that the

delay in filing the transcript was unreasonable and inexcusable, and the trial court

abused its discretion in failing to attribute significant delay to the Carbonaras. See

Atlanta 

Orthopedic, 254 Ga. App. at 536

(trial court abused its discretion in refusing

to dismiss where there was “no evidence that [appellant] took any steps whatsoever to

ensure that a second copy of the transcript was filed. . . during these 13 months, nor

did [appellant] request any extensions. . . and [because of] the extraordinary total delay

involved, most of which was caused by [appellant]”); 

Mercer, 321 Ga. App. at 727

(1)

(trial court abused its discretion by denying motion to dismiss appeal were appellant

“failed to present evidence to rebut the presumption that his delay in filing the


                                           11
transcript was unreasonable, which delayed the just disposition of this case”). Delay

by the appellant in obtaining a transcript 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.” Cousins Mortg. & Equity Investments v. Hamilton, 

147 Ga. App. 210

, 212 (248 SE2d 516) (1978). We therefore reverse the trial court’s judgment in

Case No. A20A2035. See 

Newton, 353 Ga. App. at 708

.

      2. In light of our holding in Division 1, we dismiss the Carbonaras’ appeal in

Case No. A20A1888.

      Judgment reversed in Case No. A20A2035. Appeal dismissed in Case No.

A20A1888. Dillard, P. J., and Brown, J., concur.




                                         12

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