HILL v. BOARD OF REGENTS OF the UNIVERSITY OF GEORGIA Et Al. ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
April 19, 2018
In the Court of Appeals of Georgia
A18A0669. HILL v. BOARD OF REGENTS OF THE
UNIVERSITY OF GEORGIA et al.
MCMILLIAN, Judge.
Jennifer Hill appeals from the trial court’s order dismissing her appeal for
failure to timely file a transcript for inclusion in the record on appeal. Because we
find that Hill had no obligation to file a transcript, we reverse.
Hill filed a qui tam suit against Georgia Regents University, the College of
Dental Medicine Faculty Practice (“Faculty Practice”), MCG Health System, Inc.,
MCG Health, Inc., and the Board of Regents of the University System of Georgia.
Following a hearing, the trial court dismissed her claims against Faculty Practice,
MCG Health System, Inc., and MCG Health, Inc. in an order dated March 2, 2017.
Hill timely filed a notice of appeal, directing “[t]he Clerk will please omit nothing
pertaining to this action from the record on appeal[,]” with no reference to a
transcript. The appellees subsequently moved to dismiss the notice on the ground that
Hill had unreasonably delayed in transmitting a transcript to the trial court clerk’s
office, thus delaying the completion of the appellate record. After the trial court
granted the motion, Hill appealed that order, arguing that the trial court abused its
discretion in dismissing the notice of appeal because the omitted transcript was not
necessary for appellate review of the order.
Under Georgia law, “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.” OCGA § 5-6-48 (c). Therefore, a trial court “has
discretion to dismiss an appeal for failure to timely file a transcript only if (1) the
delay in filing was unreasonable; and (2) the failure to timely file was inexcusable in
that it was caused by some act of the party responsible for filing the transcript.”
(Citation and punctuation omitted; emphasis in original.) Allan v. Jefferson Lakeside,
L.P., 333 Ga. App. 222, 223 (775 SE2d 763) (2015). Accordingly, “[w]hile the trial
court has broad discretion in ruling on a motion to dismiss under OCGA § 5-6-48 (c),
that discretion is not unlimited and the trial court’s decision may be reversed for
abuse of discretion.” (Citation and punctuation omitted.) Mercer v. Munn, 321 Ga.
App. 723, 725 (742 SE2d 747) (2013).
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Georgia law specifies the procedure for the inclusion of a transcript in an
appellate record. Under OCGA § 5-6-37, a notice of appeal “shall state whether or not
any transcript of evidence and proceedings is to be transmitted as a part of the record
on appeal.” This provision leaves the choice of whether to include a transcript in the
appellate record to the appellant. If an appellant desires that a transcript be made part
of the record on appeal, she must say so in her notice of appeal, have the transcript
prepared at her own expense, and have it filed with the trial court within 30 days of
the filing of the notice of appeal, unless she obtains an extension of time from the trial
court. OCGA §§ 5-6-37; 5-6-39; 5-6-41 (c); 5-6-42.
Hill’s notice of appeal, however, made no reference to a transcript, stating only
that nothing should be omitted from the record on appeal. Although the appellees
assert that Hill’s failure to reference a transcript in her notice somehow obligated her
to file one within 30 days, the law in Georgia is to the contrary. Our appellate courts
have held that “[t]he specification that ‘nothing’ is to be omitted from the record
would not infer that the transcript is to be included, since the appellant is required to
state whether the transcript will be filed, in addition to designating any portion of the
record to be omitted.” Yetman v. Walsh, 282 Ga. App. 499, 500 (1) (639 SE2d 491)
(2006). Steadham v. State, 224 Ga. 78, 80 (1) (159 SE2d 397) (1968). Rather,
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appellants may elect whether to file a transcript of the evidence,1 and where they fail
to state whether a transcript will be filed, “the failure to file such a transcript will not
result in a dismissal of the appeal[.]” Steadman, 224 Ga. at 80 (1).
Therefore, because Hill’s notice of appeal does not designate a transcript for
inclusion in the appellate record, her failure to file a transcript cannot be deemed to
have caused an unreasonable delay within the meaning of OCGA § 5-6-48 (c), and
the trial court abused its discretion in dismissing Hill’s notice of appeal under that
provision. Accordingly, we reverse that determination.
Although Hill asserts in her appellate brief that this Court should proceed to
address the merits of the underlying appeal, the issues raised in that appeal are not
before us. Hill’s notice of appeal does not state that she is appealing the trial court’s
order dismissing her claims against Faculty Practice, MCG Health System, Inc., and
MCG Health, Inc., and the parties have not briefed the issues raised by the dismissal
on their merits. Instead, Hill shall have 30 days from the date of the return of the
1
We note that Hill argued both below and on appeal that the transcript of the
motion hearing is not necessary for the resolution of the issues raised in her notice of
appeal as the hearing on the appellees’ motion to dismiss her claims was not an
evidentiary hearing.
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remittitur in this case in which to refile her notice of appeal, and upon the filing of
same, the case may be transmitted to this Court for docketing as a new appeal.
Judgment reversed. Barnes, P. J., and Reese, J., concur.
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