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Gordon v. Dennis

Court of Appeals of Georgia, First Division

July 20, 2018

GORDON et al.
v.
DENNIS.

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          Barnes, Presiding Judge.

         This is the second appearance of this case before this Court arising out of a dental malpractice action that Tracy E. Dennis brought against Chanda M. Gordon, DDS, and Pain Away Dentistry, LLC (collectively, "Gordon"), which resulted in a jury verdict in favor of Gordon. Dennis appealed the denial of her motion for new trial, but Gordon filed a motion to dismiss the appeal on the basis that the trial transcript had not been timely filed. The trial court denied Gordon's motion to dismiss the appeal; however, in Gordon v. Dennis, 341 Ga.App. 795, 795-797 (1) (802 S.E.2d 77) (2017) ("Gordon I"), we vacated the trial court's order because it did not contain the necessary findings of fact and remanded for further action consistent with the opinion. On remand, the trial court entered a new order containing findings of fact and conclusions of law that again denied Gordon's motion to dismiss Dennis's appeal. Gordon now appeals from that new order.[1] Discerning no abuse of discretion by the trial court, we affirm.

         The record, construed in favor of the trial court's ruling, reflects that Dennis filed a dental malpractice action against Gordon, and it was tried before a jury in October 2015. The jury returned a verdict in favor of Gordon, and the trial court entered judgment on the verdict on October 13, 2015. On October 29, 2015, Dennis's counsel emailed the court reporter to order a transcript of the trial after receiving an estimate of the costs associated with the preparation of the transcript. The following day, Dennis's counsel spoke with the court reporter regarding the request for the transcript, and the reporter informed counsel that she had three trials ahead of counsel's request and was currently working on an eight-day jury trial. Dennis's counsel told the court reporter that she likely would be filing a motion for new trial and thus "did not need a rush on the transcript."

         Dennis filed a motion for new trial, which the trial court denied on February 18, 2016. Dennis then filed a timely notice of appeal from the trial court's order denying her motion for new trial on March 16, 2016. Following the denial of the motion for new trial, Dennis's counsel again contacted the court reporter regarding the preparation of the transcript.

         The trial transcript was due to be filed by April 15, 2016, see OCGA § 5-6-42, [2]but it was not filed by that date. Dennis's counsel contacted the court reporter in April 2016 and reiterated that she had filed an appeal in the case, and counsel contacted the reporter again in May 2016 to inquire why the transcript still had not been filed. The court reporter indicated that it was because she "had not received payment," and she forwarded Dennis's counsel the final estimate of costs associated with the preparation of the transcript. The court reporter's practice was not to begin work on preparing a transcript until she had been paid, but the reporter could not recall having had any prior discussions with Dennis's counsel in which she explained to her the "logistics" of her preparation of the transcript, although counsel had asked the court reporter for that information when she initially contacted the reporter in October 2015. After the court reporter provided Dennis's counsel with a final estimate of costs that had to be paid before she would prepare the transcript, Dennis's counsel paid the fees. The court reporter indicated, however, that she still had several trials ahead of counsel's request.

         Gordon filed a motion to dismiss the appeal on the basis that the transcript had not been filed and Dennis had not sought an extension of time to file the transcript. In her response to Gordon's motion to dismiss the appeal, Dennis contended that the delay was not unreasonable, inexcusable, or caused by her and requested a 60-day extension for filing the transcript. Dennis's counsel submitted an affidavit with exhibits in which she described her efforts made to obtain the transcript from the court reporter and her payment of the fees associated with preparation of the transcript. The trial court conducted a hearing on the motion to dismiss the appeal, during which Dennis's counsel stated in her place that she had contacted the court reporter at least three more times since payment of the transcription fees to inquire about the transcript, but that the reporter had been on vacation at one point and "still had a transcript ahead of mine." Following the hearing, on August 26, 2016, the trial court denied Gordon's motion to dismiss the appeal in a summary order and granted Dennis an extension until September 30, 2016 to file the trial transcript.

         Dennis's counsel informed the court reporter of the extension of time provided by the trial court, and the reporter initial indicated that she could meet that deadline. However, on September 29, 2016, Dennis's counsel moved for an additional extension of time to file the trial transcript because the court reporter had not yet completed it. Dennis's counsel submitted an affidavit with exhibits, including an email from the court reporter stating that she was currently taking down a lengthy wrongful death medical malpractice trial, could not meet the September 30th deadline, and would need another extension of time. Ultimately, before the trial court ruled on the motion for an extension of time, the transcript was filed with the court on November 15, 2016.

         Gordon appealed the trial court's denial of her motion to dismiss Dennis's appeal. Gordon's appeal of the trial court's denial of her motion to dismiss was considered together with Dennis's related appeal of the trial court's denial of her motion for new trial in Gordon I, 341 Ga.App. 795. In that case, we vacated the trial court's order denying Gordon's motion to dismiss the appeal because it did not contain findings of fact and remanded for further action consistent with the opinion. See id. at 795-797 (1). In light of that ruling, we dismissed Dennis's appeal of the trial court's denial of her motion for new trial on the grounds that it was premature and could be re-filed, contingent on the outcome on remand. See id. at 797-798 (2).

         Following remand, the trial court entered a detailed order containing findings of fact and conclusions of law that denied Gordon's motion to dismiss Dennis's appeal. The trial court found that Gordon had failed to carry her burden of showing that the delay in the filing of the transcript was unreasonable, inexcusable, and caused by Dennis. In so ruling, the trial court noted that the delay in the filing of the transcript was presumptively unreasonable and inexcusable, but the court found that Dennis had rebutted that presumption. This appeal by Gordon followed.

         1. Gordon contends that the trial court abused its discretion in denying her motion to dismiss the appeal because the uncontroverted evidence showed that the delay in the filing of the transcript was unreasonable, inexcusable, and caused by Dennis. Gordon emphasizes that a presumption arose that the delay was unreasonable and inexcusable, and she maintains that Dennis failed to overcome that presumption. We conclude, however, that because there was some evidence that the delay in the filing of the transcript was excusable and not caused by Dennis, the trial court did not abuse its discretion in denying Gordon's motion to dismiss the appeal.

In relevant part, 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 such party." Thus, the party seeking dismissal for failure to file a transcript must show that the delay was unreasonable, inexcusable, and caused by the appellants themselves.

(Citation and punctuation omitted.) ACCC Ins. Co. v. Pizza Hut of America, 314 Ga.App. 655, 657 (725 S.E.2d 767) (2012). A trial court is afforded broad discretion in deciding whether to dismiss an appeal under OCGA § 5-6-48 (c), but the court can exercise its discretion only if it finds that all of the aforementioned criteria have been met. See Baker v. Southern R. Co., 260 Ga. 115, 116 (390 S.E.2d 576) (1990); Alpha Balanced Fund v. Irongate Performance Fund, 342 Ga.App. 93, 95 (802 S.E.2d 357) (2017); Allan v. Jefferson Lakeside, 333 Ga.App. 222, 223 (1) (775 S.E.2d 763) (2015) (whole court).

         "A delay in excess of 30 days is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable." (Citation and punctuation omitted.) Kelly v. Dawson County, 282 Ga. 189, 189 (646 S.E.2d 53) (2007). The presumption that the delay was inexcusable can be rebutted by evidence that the delay was not caused by the appellant. See Allan, 333 Ga.App. at 223 (1); Brandendburg v. All-Fleet Refinishing, 252 Ga.App. 40, 44 (555 S.E.2d 508) (2001). "Appellants are not accountable for delays caused by clerks of court or court reporters after the transcript has been ordered properly; appellants are held accountable only for delays that they cause." (Citations omitted.) Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga.App. 674, 676 (2) (530 S.E.2d 800) (2000). Thus, for example, a delay in the filing of a transcript is excusable when there is evidence that it was caused by the "backlog" of ...


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