GORDON et al.
GORDON et al.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
related appeals concern Tracy E. Dennis's dental
malpractice action against Chanda M. Gordon, DDS, and Pain
Away Dentistry, LLC. After a jury trial, the trial court
entered judgment on a jury verdict in favor of the
defendants, and the trial court denied Dennis's motion
for new trial. Dennis appeals from that ruling in Case No.
A17A0847. Gordon and Pain Away Dentistry filed a motion in
the trial court to dismiss Dennis's appeal, and the trial
court denied their motion. Gordon and Pain Away Dentistry
appeal from that ruling in Case No. A17A0525. Because the
trial court denied the motion to dismiss the appeal without
making the necessary findings of fact, we vacate the order in
Case No. A17A0525 and remand that case for further
proceedings consistent with this opinion. Consequently, we
dismiss without prejudice the appeal in Case No. A17A0847.
Case No. A17A0525 - Denial of motion to dismiss
March 16, 2016, Dennis filed a timely notice of appeal. As
the appellant, Dennis had the responsibility to assure that
the appellate record was timely prepared and transmitted to
this court. See Long v. Midway, 251 Ga. 364 (306
S.E.2d 639) (1983). As to most of the record, that simply
entailed timely paying the clerk's bill for the cost of
preparing it. See OCGA § 5-6-41 (c); Long v.
Midway, supra. But as to the transcript, that duty
entailed contacting the court reporter, making the necessary
arrangements to have the transcript prepared and filed with
the trial court, and securing an extension from the trial
court if the court reporter would not be able to complete the
transcript within the statutory 30-day deadline. See OCGA
§ 5-6-42 (an appellant shall cause the transcript
"to be filed within 30 days after filing the notice of
appeal . . . unless the time is extended as provided in Code
Section 5-6-39"); Durden v. Griffin, 270 Ga.
293, 294 (1) (509 S.E.2d 54) (1998) (finding appellants did
not meet their obligation under OCGA § 5-6-42 of causing
the transcript to be prepared, where they did not timely
order a transcript or make financial arrangements with the
court reporter); Long v. Midway, supra ("The
preparation of the transcript of evidence and proceedings, as
opposed to the record, is the responsibility of the appellant
or, if he desires inclusion of material omitted by appellant,
the appellee.") (citations omitted).
9, 2016, Gordon and Pain Away Dentistry filed their motion to
dismiss the appeal. They argued that the trial court should
dismiss the appeal because Dennis had unreasonably and
inexcusably caused a delay in the filing of the transcript
from the October 2015 trial. They noted in their motion that
Dennis had not timely sought an extension to file the
transcript. In her responsive brief, Dennis described her
efforts to obtain a transcript and asked for a 60-day
extension to file the transcript.
trial court held a hearing on the motion to dismiss on August
23, 2016, at which all of the parties presented arguments for
and against dismissal and Dennis again asked for an
extension. At the end of the hearing, the trial court took
the issue under advisement. Subsequently, the trial court
entered an order that stated, in its entirety:
The above-styled case is before the Court on Defendants'
Motion to Dismiss Appeal. After considering the entire record
in this case, the Court hereby denies Defendants' Motion.
The Court further orders that Plaintiff's motion for an
extension of time to file transcript is granted. The
Plaintiff has until September 30, 2016 to file the
transcript. (Emphasis in original.) (The transcript has since
been filed and is part of the appellate record in Case No.
and Pain Away Dentistry appeal from this ruling, arguing
among other things that this summary order is deficient as a
matter of law because it does not contain the necessary
factual findings. We agree. Under OCGA § 5-6-48 (c),
"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 such party." In making this decision, the trial court
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 . . . exercise discretion in
deciding whether to dismiss the appeal. Although we review
the trial court's decision for an abuse of discretion,
the trial court must make findings on these issues before we
may determine whether its discretion was abused.
Postell v. Alfa Ins. Corp., 327 Ga.App. 194, 195
(757 S.E.2d 661) (2014) (citations and punctuation omitted).
Here, the trial court did not make findings on these issues.
Instead, the trial court "summarily dismissed the notice
of appeal." Id. at 196. Compare Callaway v.
Garner, 340 Ga.App. 176, 180-181 (1) (796 S.E.2d 906)
(2017) (finding that trial court made sufficient findings of
fact to demonstrate that it considered the relevant statutory
factors, although it did not use the statutory words).
enumerating this failure as error and stating in their brief
that the trial court's order "must be reversed and
remanded with instruction, " Gordon and Pain Away
Dentistry argue that in the interest of judicial economy we
should nevertheless decide the merits of the trial
court's denial of their motion to dismiss. For her part,
Dennis also urges us to decide the merits of that denial in
this appeal. We cannot do so. The trial court's
"[f]ailure to make [the necessary] findings
mandates that we vacate the order dismissing the
appeal and remand the case with the direction that findings
of fact be entered on these issues." Postell,
supra at 195 (citations omitted; emphasis supplied). Accord
Temple v. Hillegass, 340 Ga.App. 189, 190 (796
S.E.2d 899) (2017); Rogers v. Norris, 262 Ga.App.
857-858 (1) (586 S.E.2d 747) (2003). Simply put, the trial
court, in her summary order, "did not make the findings
of fact necessary to vest [her] with discretion to dismiss
the appeal. Because the trial court had no discretion to
dismiss the appeal, we vacate the dismissal order and remand
the case for further action in accord with this
opinion." Postell, supra at 196 (citations and
A17A0847 - Denial of motion for new trial.
"In view of our holding in Case No. [A17A0525], the
appeal in Case No. [A17A0847] is premature and must be
dismissed. If on remand of Case No. [A17A0525] the trial
court [again] determines that the appeal should [be] allowed,
[Dennis] shall have 30 days to appeal the issues raised in
Case No. [A17A0847]." G ...