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HTTP Hypothermia Therapy v. Kimberly-Clark Corp.

Court of Appeals of Georgia

February 12, 2015

HTTP HYPOTHERMIA THERAPY
v.
KIMBERLY-CLARK CORPORATION et al

Reconsideration denied March 3, 2015 -- Cert. applied for.

Transcript; delay. Fulton Superior Court. Before Judge Brasher.

Balch & Bingham, Michael J. Bowers, McNally Weeks, Jeffrey L. Sakas, for appellant.

Bryan Cave, Christopher P. Galanek, Ann W. Ferebee, for appellees.

OPINION

Dillard, Judge.

HTTP Hypothermia Therapy (" HTTP" ) appeals the trial court's dismissal of its appeal from the court's grant of summary judgment in favor of Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., and Kimberly-Clark Global Sales, Inc. (collectively, " Kimberly Clark" ) as to its counterclaims in a declaratory-judgment action. HTTP also appeals the underlying summary-judgment order. First, HTTP argues that the trial court abused its discretion in dismissing its appeal based on findings that the delay in completing the record on appeal was unreasonable, inexcusable, and caused by HTTP. Second, HTTP contends that the trial court

Page 543

erred in granting summary judgment in favor of Kimberly Clark because there were genuine issues of material fact remaining as to each of its counterclaims. For the reasons set forth infra, we affirm the trial court's order dismissing HTTP's appeal of the summary-judgment order, and as such, its arguments challenging the summary-judgment order are not subject to appellate review.

The record shows that, in 2008, Kimberly Clark filed a complaint against HTTP, requesting declaratory relief regarding certain agreements that the two companies entered into for the purpose of developing a patient-warming device. In its answer and amended answers, HTTP asserted numerous counterclaims against Kimberly Clark. Discovery then ensued and, in July 2012, Kimberly Clark filed a motion for summary judgment as to HTTP's counterclaims.[1] After a hearing on November 7, 2012, the trial court granted summary judgment in favor of Kimberly Clark, and on December 5, 2012, HTTP filed a timely notice of appeal.

In relevant part, HTTP's notice of appeal provides: " The Clerk shall attach the entire record of this matter for transmittal to the Georgia Court of Appeals. The transcript shall be ordered by Plaintiff and transmitted by the Clerk of the Superior Court to the Georgia [330 Ga.App. 858] Court of Appeals." But when HTTP filed its notice of appeal, it apparently only intended for deposition transcripts to be included in the record, not the transcript of the summary-judgment hearing (which HTTP did not plan to order or file with the clerk).

When the record had not been completed for " several months," HTTP's counsel contacted the clerk's office for the Fulton County Superior Court and learned that the clerk had been waiting to compile the record until he received the transcript of the summary-judgment hearing. Thereafter, on October 11, 2013, approximately ten months after HTTP filed its notice of appeal, HTTP filed an amended notice of appeal, clarifying that, " [a]lthough numerous deposition transcripts shall be filed for inclusion of the record on appeal, there exist[s] no trial or hearing transcript to be transmitted to the appellate court." Subsequently, Kimberly Clark filed a motion to dismiss HTTP's appeal, arguing that (1) HTTP's failure to order and file the summary-judgment hearing transcript, as well as its failure to file any additional deposition transcripts, resulted in a ten-month delay in the record being transmitted to this Court, and (2) such a delay was unreasonable and inexcusable. After a hearing, the trial court granted Kimberly Clark's motion and dismissed the appeal. This appeal follows.

1. HTTP first argues that the trial court abused its discretion in dismissing its appeal. We disagree.

OCGA § 5-6-48 (c) provides that

[n]o appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but 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 ...

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