Alvin L. Kendall v. Kathye Dawson ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 17, 2017
The Court of Appeals hereby passes the following order:
A18A0498. KENDALL v. DAWSON et al.
Presently before the Court are the appellant’s MOTION TO REMAND CASE
TO TRIAL COURT FOR INCLUSION OF TRIAL TRANSCRIPT and the appellees’
MOTION TO DISMISS APPEAL.
The appellees show that the appellant failed to cause the transcript to be filed
within 30 days after filing of the notice of appeal, as required by OCGA §§ 5-6-41 (c)
(“[W]here an appeal is taken which draws in question the transcript of the evidence
and proceedings, it shall be the duty of the appellant to have the transcript prepared
at the appellant's expense.”) and 5-6-42 (“The party having the responsibility of filing
the transcript shall cause it to be filed within 30 days after filing of the notice of
appeal or designation by appellee, as the case may be, unless the time is extended as
provided in Code Section 5-6-39.”).
The appellant seeks to excuse his failure on the basis that the administrator in
charge of court reporters in the Superior Court of Fulton County has been unable to
identify the court reporter who took down the bench trial, making it impossible for
him to order the transcript. The appellant fails to offer any reason, however, for his
failure to seek an extension of time from the trial court, as provided in OCGA § 5-6-
39 (a) (3) (“Any judge of the trial court . . . may, in his discretion, and without motion
or notice to the other party, grant extensions of time for the filing of . . . Transcript
of the evidence and proceedings on appeal[.]”).
OCGA § 5-6-48 (c) provides that “[n]o appeal shall be dismissed by the
appellate court nor consideration of any error therein refused because of failure of any
party to cause the transcript of evidence and proceedings to be filed within the time
allowed by law or order of court[.]” OCGA § 5-6-48 (c) further provides, however,
“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.” See
Pistacchio v. Frasso, 314 Ga. App. 119, 121 (723 SE2d 322) (2012) (A delay of more
than 30 days in filing a transcript 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.”); Crown Diamond
Co. v. N.Y. Diamond Corp., 242 Ga. App. 674, 677 (3) (530 SE2d 800) (2000) (“A
delay is unreasonable if it directly delays placement of the case on the earliest
possible calendar in [the appellate] court or delays the docketing of the appeal and the
hearing of the case in [the appellate] court.”); see also Southeastern Plumbing Supply
Co. v. Lee, 232 Ga. 626, 630-631 (208 SE2d 449) (1974), Justice Hall concurring
specially (“The purpose of [OCGA § 5-6-48, as amended,] was to eliminate the
automatic dismissal of an appeal by one of the appellate courts for the failure of a
party to cause the transcript of evidence and proceedings to be filed within the time
allowed by law or order of court and to provide for a means of determining the reason
for the delay in the trial court.”).
Because the Appellate Practice Act reserves to the trial court consideration of
the appellees’ motion to dismiss based on the failure to file the transcript, the motion
is hereby DENIED, and the case is hereby REMANDED for the trial court’s
consideration of the motion. The appellant’s motion to remand is hereby GRANTED;
however, in the event the trial court grants the appellees’ motion to dismiss, the clerk
of the trial court shall not be required to transmit the transcript of the proceedings to
this Court in connection with the above-styled case. Any appeal from an order
granting the appellees’ motion may be initiated by timely filing a notice of appeal
from such order.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/17/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.