Clarence Allen Cowart v. Krystal M. Newberry, as Administrator of the Estate of Billy J. Gay

Court of Appeals
of the State of Georgia

ATLANTA,____________________
April 06, 2026

The Court of Appeals hereby passes the following order:

A26E0175. CLARENCE ALLEN COWART v. KRYSTAL M. NEWBERRY, AS
ADMINISTRATOR OF THE ESTATE OF BILLY J. GAY.

Clarence Allen Cowart (“Cowart”) has filed an emergency motion under
Court of Appeals Rule 40(b), seeking an order directing the trial court clerk to
immediately transmit the complete record and transcript from the proceedings below
so that his appeal can be docketed in this Court.1 Alternatively, Cowart requests that
this Court direct the trial court clerk to immediate provide a certification of cause of
delay in accordance with OCGA § 5-4-43(a).2 Cowart contends that the requested
emergency relief is necessary to prevent the dismissal of his appeal, which has not
been docketed due to the failure to transmit the record and transcript. Because

1
Cowart also has filed a motion seeking the same emergency relief in the trial
court.
2
OCGA § 5-6-43(a) provides that it is the duty of the trial court clerk to prepare
and transmit the transcript of evidence and proceedings to the appellate court within
five days after the date of filing the transcript. “If for any reason the clerk is unable to
transmit the record and transcript within the time required in this subsection or when
an extension of time was obtained under [OCGA § 5-6-39], he shall state in his
certificate the cause of the delay and the appeal shall not be dismissed.” OCGA §
5-6-43(a).
Cowart’s motion raises issues that must be adjudicated in the trial court below under
OCGA § 5-6-48(c), it must be denied.
In support of the motion, Cowart shows that on October 8, 2025, the trial court
entered a final dispossessory order in favor of Krystal M. Newberry, as Administrator
of the Estate of Billy J. Gay (“Newberry”). On October 9, 2025, and again on October
10, 2025, Cowart filed notices of appeal, designating the trial transcript for inclusion
in the record. Appeal costs were paid on October 14, 2025. The transcript was not
filed for inclusion with the record until nearly four months later, on February 11, 2026.

Newberry filed a Motion to Dismiss Appeal under OCGA § 5-6-48(c),
contending that Cowart’s failure to have the transcript prepared resulted in an
unreasonable and inexcusable delay in transmission of the record. The trial court has
scheduled a hearing to address the dismissal motion on April 10, 2026. Cowart cannot
circumvent the trial court’s hearing by seeking emergency relief in this Court.
The questions surrounding the delay in transmission of the record and
transcript, and whether the appeal should be dismissed, must be decided by the trial
court. OCGA § 5-6-48(c) provides that “the 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 [the appellant].” The statute “requires the trial court
to determine the length of the delay, the reasons for the delay, whether the appealing
party caused the delay, and whether the delay was inexcusable, and then to exercise
discretion in deciding whether to dismiss the appeal.”Propst v. Morgan, 288 Ga. 862,
863 (708 SE2d 291) (2011). “[T]he trial court is the court best suited to weigh a
party’s conduct, the status of the litigation, and other matters relevant to whether the
responsible party has acted unreasonably and inexcusably in failing to file a transcript
before the statutory deadline.”Premier Pediatric Providers, LLC v. Kennesaw Pediatrics,
P.C., 318 Ga. 350, 356(2) (898 SE2d 481) (2024) (punctuation omitted). We can not
interfere in the trial court’s proceedings in this regard.3
“[A] party cannot do indirectly what the law does not allow to be done
directly.” Jordan v. Bd. of Pub. Safety, 253 Ga. App. 339, 343(2) (559 SE2d 94) (2002)
(punctuation omitted). See Northeast Ga. Cancer Care v. Blue Cross & Blue Shield of
Ga., 297 Ga. App. 28, 32–33(2) (676 SE2d 428) (2009) (a party cannot bypass the
required legal procedure by attempting to present its claim under the guise of a
different action for relief). Because Cowart cannot bypass the trial court’s proceedings
under OCGA § 5-6-48(c) by seeking emergency relief in this Court, his 40(b) motion
is hereby DENIED.

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/06/2026
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.

, Clerk.

3
Cowart has an available remedy to address this issue since “the trial court's
decision whether to dismiss an appeal under OCGA § 5-6-48 (c) is appealable.”
Premier Pediatric Providers, LLC, 318 Ga. at 354(2).