Ovestco Corp. v. Bowen , 216 Ga. App. 121 ( 1994 )

Smith, Judge,

dissenting.

I respectfully dissent from the dismissal of this appeal. The notice of appeal was filed on November 1, 1993> stating that “a transcript of evidence and proceedings will be filed.” Although there was a hearing, it apparently was not transcribed, and appellants mistakenly requested the filing of a transcript. Appellees filed a motion to dismiss the appeal on February 2, 1994. Appellants then requested immediate transmittal on February 9, 1994. The trial court granted the motion to dismiss on March 24, 1994, after docketing of this appeal. It is not disputed that costs were paid on November 5, 1993.

Unlike the per curiam opinion, I do not see any manipulation or improper motives on the part of appellants. After filing what amounted to a standard notice of appeal containing a reference to a nonexistent transcript, appellants belatedly realized their error and endeavored to correct it.

OCGA § 5-6-48 (b) provides for the dismissal of appeals only under certain limited circumstances. Those circumstances differ depending on whether the filing of a transcript or the transmission of a record is involved. More specifically, OCGA § 5-6-48 (c) provides that the trial court may, after notice and a hearing, dismiss an appeal where there is unreasonable delay in the filing of a transcript if it is shown that the delay was inexcusable and caused by the appellant. In contrast, where there is unreasonable delay in the transmission of the record, it must be shown that the delay was both inexcusable and caused by the failure of a party to pay costs in the trial court or file an affidavit of indigency. Since no transcript in fact existed in this appeal, our ruling must be governed by the second provision of OCGA § 5-6-48 (c), which requires both inexcusable delay and failure to pay costs.

There is no dispute that costs in this case were paid, unlike Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992), in which they were not. Therefore the reliance on Teston by Johnston v. Ga. Pub. Svc. Comm., 209 Ga. App. 224, 225 (433 SE2d 65) (1993), is misplaced. Because Johnston relied upon Teston even though costs had been paid, Johnston impermissibly extends Teston. Although I concurred in Johnston, I am now convinced it was wrongly decided and should be overruled. The plain language of the statute limits dismissal for delay in transmitting the record to those situations in which the delay was caused by appellants’ failure to pay costs. Since costs were paid in this action, the appeal should not be dismissed.

Moreover, Rule 47 of the rules of this court provides: “Appellee shall be deemed to have waived any failure of the appellant to comply with the provisions of the Appellate Practice Act relating to the filing of the transcript of the evidence and proceedings or transmittal of the record to this Court, unless objection thereto was made and ruled upon in the trial court prior to transmittal and such order is appealed as provided by law.” (Emphasis supplied.) Appellees’ motion was made but not ruled upon prior to the transmittal of the record. State v. Jackson, 188 Ga. App. 259, 260 (1) (372 SE2d 823) (1988).

Decided December 20, 1994 Reconsideration denied January 23, 1995 Stewart, Melvin & House, J. Douglas Stewart, Frank W. Armstrong III, for appellants. Webb, Tanner & Powell, Anthony O. L. Powell, R. Jack Wilson, Frederick D. Burkey, Chandler & Britt, Gregory D. Jay, for appellees.

This result is consistent with the stated purpose of the Appellate Procedure Act: “[T]his article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in this article.” OCGA § 5-6-30. Construed in this fashion, the Appellate Procedure Act and the rules of this court do not provide for a dismissal of this appeal under the circumstances presented here. For these reasons, I believe appellees’ motion to dismiss should be denied and the merits of this appeal considered.

I am authorized to state that Presiding Judge Birdsong and Judge Ruffin join in this dissent.