Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A22E0031. FREDDIE J. WAKEFIELD, JR., DMD, et al. v. TIMOTHY A.

KISER.

In the underlying suit, Timothy A. Kiser (“Plaintiff”) seeks rescission of an

operating agreement into which he entered with Freddie J. Wakefield, Jr., DMD and

Daryl S. Wakefield, as well as the return of over $600,000 he invested in DentCorp

Management, LLC (collectively, the “Defendants”). Plaintiff filed a motion seeking

the appointment of a receiver for DentCorp, which the trial court granted in an order

dated January 25, 2022.

On February 10, 2022, the trial court held a hearing to determine whether the

Defendants should be held in contempt for failing to comply with the court’s

receivership order. In an order dated February 14, 2022, the trial court declined to

hold the Defendants in contempt, but issued further clarifying directionsrequiring the

Defendants to provide the receiver with access to requested information by a set

deadline. The courtfurther denied the Defendants’motionsto compel arbitration and

to reconsider the January 25 order establishing the receivership.

The Defendantsfiled a notice of appealfromthe trial court’s February 14, 2022

order. The appeal has not yet been docketed in this Court. The Defendants also filed

the instant emergency motion for supersedeas “to stay all further proceedings” in the

trial court pending their appeal from the appointment of the receiver. See OCGA §

9-11-62 (a) (“Unless otherwise ordered by the court, an interlocutory or final

judgment in an action for an injunction or in a receivership action shall not be stayed

March 03, 2022
during the period after its entry and until an appeal is taken or during the pendency

of an appeal.”). The Defendants further represent that the trial court entered an order

on February 28, 2022, ruling that “by the close of business (5:00 pm) March 3, 2022,

[Defendants] will have to give over all requested sensitive and confidential

information to the receiver or risk being held in contempt[.]” As a result, the

Defendants contend that we should grant their requested relief because “[o]nce all the

requested information is given to the receiver, there is no going back. The underlying

appeal will be moot and preserving the jurisdiction of this Court will be obsolete. The

receivership will be catastrophic to the livelihood and business operations of the

[Defendants].” 

In the first instance, the Defendants have failed to present any evidence to this

Court that theymoved for supersedeasin the trial court. See Green Bull Ga. Partners,

LLC v. Register, 301 Ga. 472, 473 (801 SE2d 843) (2017) (“Although the appellate

courts also have the authority to grant a stay or injunction pending appeal, an

application for such relief ordinarily ought to be directed in the first instance to the

trial court.”). The Defendants assert that they filed an “Emergency Motion to Stay

Receivership” in the trial court on February 3, 2022. However, the Defendants did

not include thisfiling with their emergency motion, and the trial court’s February 14,

2022 order does not contain a ruling on the Defendants’ motion to stay. The

Defendants also failed to include a copy of the trial court’s February 28, 2022 order

with their emergency motion.

ThisCourt’s Rule 40 (b) emergency powers are limited and intended to be used

sparingly. Rule 40 (b) provides, in relevant part, that we may only “issue such orders

or give direction to the trial court as may be necessary to preserve jurisdiction of an

appeal or to prevent the contested issue from becoming moot.” Based upon a review

of the submitted material, we find that an emergency order of supersedeas is not

warranted here. Accordingly, the Defendants’ emergencymotion is hereby DENIED.
Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

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.

03/03/2022