On courtroom TV shows, the case almost always turns on some dramatic game-changing “a-ha” moment during the trial. In real life, cases play out differently. The key to success often is something less TV drama-friendly. It could be a document request in pretrial discovery. It could be a question in a deposition. Or it could be the skillful use of a procedural rule, either to advance your case or maybe to preserve a hard-earned win at trial. To ensure that you are optimally positioned for success in your commercial litigation action, you need an experienced Atlanta contract litigation lawyer who’s fully versed in doing all the little things (in addition to the big things) necessary for a positive outcome.
A recent contract dispute case that originated here in metro Atlanta shows this truth at work. The case centered around a stock subscription agreement where a Kennesaw-based pediatric medicine practice agreed to buy a membership in an Atlanta-based pediatrics entity.
When the subscriber asked to see the Atlanta practice’s books and records, the latter challenged the subscriber’s assertion of its rights, contending that the subscription agreement contained a scrivener’s error (a/k/a an unintentional mistake in the text of the contract that resulted in the writing not reflecting the true intent of the parties.) Specifically, the practice asserted that the error was a big one: the parties actually intended for the subscriber to obtain membership in an entirely different entity.
The trial court rejected the scrivener’s error argument and granted summary judgment to the subscriber, allowing it to access the Atlanta practice’s corporate books and records.
Not surprisingly, the latter was unhappy and filed an appeal.
An Untimely Transcript Submission Paved the Way to Dismissal of the Appeal
As an experienced appellate attorney knows — but a layperson might not — pursuing an appeal of your civil case involves significantly more than just filing a notice of appeal and paying the required filing fees. Georgia law expressly says that “where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant’s expense.” In cases where a transcript is required, the party with responsibility for procuring and submitting it has 30 days to do so.
If you’re the party that emerged successful from the trial court action, these rules can be significantly helpful in the event your opponent doesn’t comply with all the requirements. If, for example, the opposing side doesn’t file the transcript within 30 days, you can move to dismiss the appeal and will be entitled to that dismissal unless the delay was reasonable and excusable.
The burden of proving that a 30+-day delay was excusable falls on the appellant. A party seeking to prove excusable delay needs proof such as evidence that their counsel “actively pursued the timely preparation and filing of the transcript by ordering it, inquiring as to the cost of its preparation, and by repeatedly following up with the clerk concerning the status of the transcript prior to the 30-day deadline for filing.” In this case, the Atlanta practice never contacted the court clerk and never followed up. In fact, the proof showed that it never ordered or paid for the transcript.
All that meant that the subscriber was entitled to dismissal of the appeal and to the benefit of the judgment it obtained in the trial court.
The key to an efficient defeat of the appeal and preservation of the favorable judgment earned in the trial court, in this action, was a thorough knowledge of the rules of appellate procedure and a well-placed motion for dismissal of appeal. In your case, it may be something similar or could be something very different. Either way, count on the knowledgeable Atlanta contract litigation attorneys at Poole Huffman, LLC to provide you with the detail-oriented and zealous advocacy you need to best protect your business interests. Contact our attorneys online or by calling 404-373-4008 to schedule your confidential consultation today.
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