WEBB'S ERECTION, INC. et al.
COLONIAL PACIFIC LEASING CORPORATION.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
an appeal from the trial court's dismissal of a notice of
appeal under OCGA § 5-6-48 (c). The trial court
expressed alternative grounds for his ruling, holding that
the notice of appeal should be dismissed both because the
appellants did not pay the costs of appeal for 70 days after
receiving notice of those costs and because the appellants
did not cause the transcript of a summary judgment hearing to
be filed. Because the trial court was within his discretion
to dismiss the notice of appeal for the untimely payment of
costs, we affirm. Consequently, we do not consider either the
merits of the trial court's alternative ground for
dismissal or the merits of the appellants' claim that the
trial court erred in the underlying summary judgment ruling.
Delay in payment of costs.
other reasons, OCGA § 5-6-48 (c) permits a trial court
to dismiss an appeal, after notice and opportunity for a
hearing, "where there has been an unreasonable delay in
the transmission of the record to the appellate court, and it
is seen that the delay was inexcusable and was caused by the
failure of a party to pay costs in the trial court[.]"
We review a trial court's ruling on a motion to dismiss
an appeal pursuant to this Code section
under an abuse of discretion standard. When making factual
determinations based upon evidence presented at a hearing on
the question of dismissal, the trial court is vested with
broad discretion to decide whether the appeal should be
dismissed. Absent an abuse of such discretion, the
court's decision will not be disturbed on appeal.
Park Regency Partners v. Gruber, L. P., 271 Ga.App.
66, 70 (1) (608 S.E.2d 667) (2004) (citations and punctuation
record in this case shows that on July 11, 2016, the
appellants filed a notice of appeal from a grant of summary
judgment to the appellee. The trial court issued a bill of
costs to the appellants on July 26, 2016. The appellants did
not pay the costs until October 4, 2016. The appellee moved
to dismiss the notice of appeal under OCGA § 5-6-48 (c),
asserting, among other things, that this delay in paying
costs delayed the docketing of the appeal.
hearing, the trial court granted the appellee's motion
and dismissed the appeal. The appellants argue that this was
an abuse of discretion because the trial court "never
assessed or determined the element of unreasonableness"
and "made no actual findings of the elements needed to
support dismissal, " because the trial court improperly
presumed that the appellants' delay in paying the costs
was unreasonable, and because the appellee did not present
evidence that the appellants' delay in paying costs was
unreasonable. We are not persuaded.
record shows that the trial court made the required findings
before exercising his discretion in dismissing the appeal,
and that the trial court made a determination regarding
unreasonableness. Under OCGA § 5-6-48 (c), a trial court
shall exercise discretion in deciding whether to dismiss an
appeal only after determining "the length of the delay,
the reasons for the delay, whether the appealing party caused
the delay, and whether the delay was inexcusable[.]"
Propst v. Morgan, 288 Ga. 862, 863 (708 S.E.2d 291)
(2011). In the dismissal order, the trial court expressly
found that the appellants did not pay the bill of costs until
70 days after it was issued, that this delay was prima facie
unreasonable and inexcusable, and that the appellants offered
no reason or justification for the delay. The trial court
concluded that, "based on [the appellants']
unreasonable and inexcusable delay in paying costs, [the
appellee's] Motion is GRANTED." The
order "demonstrate[s] that [the trial court] considered
the relevant factors delineated in OCGA § 5-6-48
(c)." Callaway v. Garner, 340 Ga.App. 176,
180-181 (1) (796 S.E.2d 906) (2017). To require more specific
terminology in the order "would be to elevate form over
substance, and that is not something OCGA § 5-6-48 (c)
requires." Id. at 181 (1).
to the appellants' argument, the trial court was
authorized to presume that the appellants' delay in
paying costs was unreasonable and inexcusable because that
delay was more than 30 days. "[A] delay of more than 30
days in paying costs is prima facie unreasonable and
inexcusable." Central Ga. Dev. Group v. Synovus
Bank, 320 Ga.App. 893, 894 (1) (740 S.E.2d 812) (2013)
(citation and punctuation omitted). "[T]his inference
may be rebutted by evidence presented by the
appealing party." Fun Fit Enterprises v.
Halpern Enterprises, 273 Ga.App. 685, 686 (616 S.E.2d
466) (2005) (citation and punctuation omitted; emphasis
supplied). Consequently, the appellants bore the burden of
presenting evidence rebutting the presumption that their
70-day delay in paying costs was unreasonable.
dismissal order, the trial court expressly found that the
appellants did not meet their evidentiary burden. And because
the appellate record does not contain a transcript of the
hearing on the motion to dismiss the appeal, we presume that
the evidence presented at that hearing supported the trial
court's finding. See Holmes v. Roberson-Holmes,
287 Ga. 358, 361 (1) (695 S.E.2d 586) (2010) ("In
accordance with the presumption of regularity of court
proceedings, we must assume in the absence of a transcript
that there was sufficient competent evidence to support the
trial court's findings.") (citations, punctuation,
and emphasis omitted). "[T]herefore, we cannot say that
the court abused [his] broad discretion in dismissing the
appeal." Park Regency Partners, 271 Ga.App. at
71 (1) (citation omitted) (trial court authorized to dismiss
where appellant had not paid bill of costs received 47 days
earlier and had not presented evidence that rebutted the
presumption that this delay was unreasonable and
inexcusable). We affirm the ruling on that ground.
Failure to file transcript.
our decision to affirm the dismissal based on the delay in
paying costs, we do not need to consider the merits of the
trial court's alternative ground for dismissing the
appeal - that the appellants' failure to file a
transcript of the hearing on their summary judgment motion
caused a delay in the transmission of the appellate record.
See OCGA § 5-6-48 (c) (permitting trial court to dismiss
appeal where there has been unreasonable delay in
transmission of appellate record "because of failure ...