Dubarton Enterprises, LLC v. Appalachian Community Bank

Opinion

SECOND DIVISION BARNES, P. J., MILLER, and RAY, JJ.

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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

May 14, 2013

In the Court of Appeals of Georgia A13A0485. DUBARTON ENTERPRISES, LLC. et al. v. APPALACHIAN COMMUNITY BANK.

BARNES, Presiding Judge.

Dubarton Enterprises, LLC and Richard Dubarton, (collectively, “Dubarton”)

appeal from the trial court’s court’s order denying their motion for modification of

the supersedeas bond entered after the trial court granted Appalachian Community

Bank’s (the “Bank”) motion for summary judgment and awarded a judgment in the

amount of $835,592.28. The Bank had filed an emergency motion for supersedeas

bond for the full amount of the judgment, but the trial court ordered that the bond

amount would be $200,000, based, in part, on a 2009 appraisal of the collateral

property. The 2009 appraisals established that the value of the property was

approximately $29,000 more than the judgment amount. The trial court took judicial

notice, based on “common knowledge,” that it was unlikely that property values in Gilmer County had increased or maintained their 2009 value. The court further found

that the bond amount should cover “costs, interest, and damages for delay if the

appeal is found to be frivolous” and set the amount of the bond at $200,000

Following a hearing on Dubarton’s motion for reconsideration, which the trial court

denied, this appeal ensued.

Subsequent to Dubarton’s appeal of the bond amount, this Court affirmed the

trial court’s grant of summary judgment to the Bank in an unpublished opinion

pursuant to Court of Appeals Rule 36. See Dubarton Enterprises, LLC. v.

Appalachian Community Bank, Case No. A12A2054 (decided March 11, 2013). Thus,

as the appeal is no longer pending in this Court, the issue as to the supersedeas is

moot. OCGA § 5-6-48 (b) (3); Muhammad v. Power Lending, LLC, 311 Ga. App.

347, 349-350 (5) (715 SE2d 734) (2011) (holding that because appeal of underlying

order had been resolved “all issues regarding the propriety of a supersedeas bond

[were] moot.”). Cf. Hubert v. State, 244 Ga. 374 (260 SE2d 83) (1979) (the “court

having affirmed the judgment denying the appellant’s petition for writ of habeas

corpus . . . the present appeal from that same judgment . . . is hereby, dismissed as

moot.”)

Appeal dismissed. Miller, and Ray, JJ., concur.