GORDON et al.
BARNES, P. J., MCMILLIAN and REESE, JJ.
Barnes, Presiding Judge.
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. Discerning no abuse of discretion by the
trial court, we affirm.
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."
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
trial transcript was due to be filed by April 15, 2016, see
OCGA § 5-6-42, 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.
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.
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.
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).
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.
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
(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).
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