Kelly v. Dawson Cnty., 646 S.E.2d 53 (Ga. 2007). · Go Syfert
Kelly v. Dawson Cnty., 646 S.E.2d 53 (Ga. 2007). Cases Citing This Book View Copy Cite
“. . . seeks to shift responsibility for the tardiness in filing the transcript by asserting it had been sent to the wrong attorney, but did not establish on the record how that error prevented the timely filing . . . .”
73 citation events (73 in the last 25 years) across 2 distinct courts.
Strongest positive: Technology Square, LLC v. Fulton County Board of Tax Assessors (gactapp, 2021-06-30)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Technology Square, LLC v. Fulton County Board of Tax Assessors (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2021 · signal: see · quote attribution · 1 verbatim quote · confidence high
he appellant shall cause the transcript to be prepared and filed within 30 days after filing of the notice of appeal.
examined Cited as authority (verbatim quote) Sdm Investments Group LLC v. Hbn Media Inc. (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2021 · quote attribution · 1 verbatim quote · confidence high
. . . seeks to shift responsibility for the tardiness in filing the transcript by asserting it had been sent to the wrong attorney, but did not establish on the record how that error prevented the timely filing . . . .
discussed Cited as authority (verbatim quote) Tyler Brienza v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2019 · quote attribution · 1 verbatim quote · confidence high
his presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.
examined Cited as authority (rule) Premier Pediatric Providers, LLC v. Kennesaw Pediatrics, P.C (7×) also: Cited "see"
Ga. · 2024 · confidence medium
Indeed, that is the whole point of the abuse-of-discre- tion standard: when questions are committed to a trial court’s dis- cretion, the court is afforded substantial deference that allows for a range of permissible outcomes, see Kelly, 282 Ga. at 189, as long as that discretionary decision is based on a correct understanding of the law and facts.
examined Cited as authority (rule) Fulton County Board of Tax Assessors v. Technology Square, LLC Parcel No. 14-080-029-6 (3×) also: Cited "see"
Ga. Ct. App. · 2022 · confidence medium
Kelly v. Dawson Cnty., 282 Ga. 189, 189 ( 646 SE2d 53 ) (2007).
discussed Cited as authority (rule) Leila Norman v. State (2×) also: Cited "see"
Ga. Ct. App. · 2021 · confidence medium
“A delay 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.” Kelly v. Dawson County, 282 Ga. 189, 189 ( 646 SE2d 53 ) (2007).
discussed Cited as authority (rule) Russell Carbonara v. Fortress Group, Inc.
Ga. Ct. App. · 2021 · confidence medium
“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).
discussed Cited as authority (rule) Chanda M. Gordon v. Tracy E. Dennis (2×) also: Cited "see"
Ga. Ct. App. · 2018 · confidence medium
“A delay 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 ) 7 (2007).
discussed Cited as authority (rule) Mitchell v. 3280 PEACHTREE 1, LLC
Ga. · 2009 · confidence medium
We note, also, *577 that Mitchell did not request an oral hearing. 3 See Kelly v. Dawson County, 282 Ga. 189, 189 ( 646 SE2d 53 ) (2007); Dept. of Transp. v. Southeast Timberlands, Inc., 263 Ga. App. 805, 806 ( 589 SE2d 575 ) (2003); Fun Fit Enterprises v. Halpern Enterprises, 273 Ga. App. 685, 686 ( 616 SE2d 466 ) (2005) (delay of more than 30 days in paying costs is prima facie unreasonable and inexcusable but subject to rebuttal); OCGA § 5-6-48 (c). 4 On April 2, 2008, approximately 19 months after he filed his notice of appeal, Mitchell filed a document stating that he “must file a paup…
examined Cited "see" Premier Pediatric Providers, LLC v. Kennesaw Pediatrics, P.C. (4×) also: Cited "see, e.g."
Ga. Ct. App. · 2022 · signal: see · confidence high
Carbonara, 358 Ga. App. at 286 (1); see 6 also Kelly v. Dawson County, 282 Ga. 189 ( 646 SE2d 53 ) (2007); Fulton County Bd. of Tax Assessors, __ Ga. App. at __ (1) ( 871 SE2d at 675 (1)).
discussed Cited "see" Rhonda M. Newton, Court-Appointed Administrator of the Estate of Ronnie M. Cantrell v. Kaye Freeman, Court-Appointed Temporary Administrator of the Estate of Margaret Cantrell (2×)
Ga. Ct. App. · 2020 · signal: accord · confidence high
In considering the trial court’s decision, we note that our Supreme Court has previously held that “a delay in excess of 30 days in filing a transcript after a notice of appeal is filed is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show 8 that the delay was neither unreasonable nor inexcusable.”4 Furthermore, this Court will also consider any delay in transmitting the appellate record unreasonable where it may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermed…
discussed Cited "see" State v. Brienza (2×)
Ga. Ct. App. · 2019 · signal: see · confidence high
See Kelly , 282 Ga. at 189 , 646 S.E.2d 53 ("[T]his presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable."); Gordon , 347 Ga. App. at 114 (1), 817 S.E.2d 561 ("The presumption that the delay was inexcusable can be rebutted by evidence that the delay was not caused by the appellant."); Callaway , 340 Ga. App. at 179 (1), 796 S.E.2d 906 ("[T]his presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable." (punctuation omitted)); s…
discussed Cited "see" Gordon v. Dennis (2×)
Ga. Ct. App. · 2018 · signal: see · confidence high
See Kelly , 282 Ga. at 189 , 646 S.E.2d 53 .
discussed Cited "see" CALLAWAY Et Al. v. GARNER Et Al. (2×)
Ga. Ct. App. · 2017 · signal: accord · confidence high
Co. v. Taylor, 144 Ga. App. 64, 66 ( 240 SE2d 575 ) (1977) (“The failure to support the enumerated error by citation of authority or argument in the brief leaves nothing for this [C]ourt to consider and constitutes an abandonment of the error enumerated in this appeal.”). 5 HTTP Hypothermia Therapy v. Kimberly-Clark Corp., 330 Ga. App. 857, 858-59 (1) ( 768 SE2d 542 ) (2015) (punctuation omitted); accord Bush v. Reed, 311 Ga. App. 328, 331 ( 715 SE2d 747 ) (2011); see Propst v. Morgan, 288 Ga. 862, 863 ( 708 SE2d 291 ) (2011) (noting that a trial court’s ruling on whether a delay in fili…
discussed Cited "see" Http Hypothermia Therapy, Ltd. v. Kimberly-Clark Corporation (2×)
Ga. Ct. App. · 2015 · signal: accord · confidence high
H., 311 Ga. App. 641, 643 ( 716 SE2d 724 ) (2011) (punctuation omitted); accord Kelly v. Dawson County, 282 Ga. 189, 189 ( 646 SE2d 53 ) (2007); Adams v. Hebert, 279 Ga. App. 158, 159 ( 630 SE2d 652 ) (2006). 6 See Pistacchio v. Frasso, 314 Ga. App. 119, 121 ( 723 SE2d 322 ) (2012); accord Am.
discussed Cited "see" Virginia J. Marshall v. Ocwen Loan Servicing LLC (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See Kelly v. Dawson, 282 Ga. 189 ( 646 SE2d 53 ) (2007) (delay in excess of 30 days prima facie unreasonable).
discussed Cited "see" Pistacchio v. Frasso (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See Kelly v. Dawson County, 282 Ga. 189, 189-190 ( 646 SE2d 53 ) (2007).
discussed Cited "see" Propst v. Morgan (2×)
Ga. · 2011 · signal: see · confidence high
See Kelly v. Dawson County, 282 Ga. 189, 189 ( 646 SE2d 53 ) (2007).
discussed Cited "see" Pioneer Security & Investigations, Inc. v. Hyatt Corp. (2×)
Ga. Ct. App. · 2008 · signal: see · confidence high
See Kelly v. Dawson County, 282 Ga. 189 ( 646 SE2d 53 ) (2007) (presumption).
Retrieving the full opinion text from the archive…
KELLY
v.
DAWSON COUNTY Et Al.
S07A0506.
Supreme Court of Georgia.
May 14, 2007.
646 S.E.2d 53
Cummings, Kelley & Bishop, Thomas S. Bishop, for appellant., Fox, Chandler, Homans, Hicks & McKinnon, Joseph A. Homans, Miles, McGoff & Moore, Dana B. Miles, Kevin J. Tallant, for appellees.
Benham.
Cited by 24 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 67%
Citer courts: Court of Appeals of Georgia (2)
BENHAM, Justice.

This appeal is from the trial court’s order dismissing an appeal pursuant to OCGA § 5-6-48 (c) for delay in filing a transcript. Appellant Linda Moore Kelly filed a timely notice of appeal after an adverse judgment in a quia timet action she had instituted to establish her ownership of certain property. When no transcript had been filed within 30 days as required by OCGA § 5-6-42, two of the appellees filed a motion to dismiss. After a hearing, the trial court entered an order finding the four-day delay in causing a transcript to be filed and the seventy-four- day delay in filing copies of exhibits for transmission with the record to be unreasonable and inexcusable and caused by Kelly.

“Where 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. . . .” OCGA § 5-6-42. “[T]he 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.” OCGA § 5-6-48 (c). “[A] delay 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.” Brandenburg v. All-Fleet Refinishing, Inc., 252 Ga. App. 40, 44 (555 SE2d 508) (2001). “In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, [an appellate] court will not disturb the lower court’s finding absent an abuse of discretion. [Cit.]” Id.

The trial court’s order dismissing the appeal noted that Kelly bore the responsibility for timely filing the transcript and exhibits, that counsel for Kelly knew of a potential difficulty in timely filing the transcript but did not seek an extension, and that counsel filed the transcript four days late. The longer delay was in filing exhibits, regarding which the trial court found the delay “unreasonably postponed resolution of this action” and was inexcusable due to the “prejudicial effect on the other parties.” Finally, the trial court found that Kelly had failed to demonstrate the delay she caused was not unreasonable and inexcusable.

On appeal, Kelly contends there was no actual delay in filing the exhibits because the originals of the exhibits were already on file. The record shows, however, that Kelly’s counsel was informed upon filing the notice of appeal that he had the responsibility for duplicating the exhibits because the clerk’s office did not have that capability and the originals of the exhibits would have to be retained by the clerk’s office.[*190] Kelly also seeks to shift responsibility for the tardiness in filing the transcript by asserting it had been sent to the wrong attorney, but did not establish on the record how that error prevented the timely filing, especially in light of the fact her counsel was on record as being aware of the alleged misdirection of the original transcript shortly after filing the notice of appeal. The record, therefore, supports the trial court’s finding that Kelly caused the tardy filing and that Kelly had not rebutted the presumption that the delay was unreasonable and inexcusable. Under those circumstances, we find no abuse of discretion in the trial court’s dismissal of the appeal.

Decided May 14, 2007 Reconsideration denied June 25, 2007. Cummings, Kelley & Bishop, Thomas S. Bishop, for appellant. Fox, Chandler, Homans, Hicks & McKinnon, Joseph A. Homans, Miles, McGoff & Moore, Dana B. Miles, Kevin J. Tallant, for appellees.

Judgment affirmed.

All the Justices concur.