Tracy E. Dennis v. Chanda M. Gordon , 341 Ga. App. 795 ( 2017 )

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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
June 19, 2017
In the Court of Appeals of Georgia
A17A0525, A17A0847. GORDON et al. v. DENNIS; and vice
versa.
MCFADDEN, Presiding Judge.
These related appeals concern Tracy E. Dennis’s dental malpractice action
against Chanda M. Gordon, DDS, and Pain Away Dentistry, LLC. After a jury trial,
the trial court entered judgment on a jury verdict in favor of the defendants, and the
trial court denied Dennis’s motion for new trial. Dennis appeals from that ruling in
Case No. A17A0847. Gordon and Pain Away Dentistry filed a motion in the trial
court to dismiss Dennis’s appeal, and the trial court denied their motion. Gordon and
Pain Away Dentistry appeal from that ruling in Case No. A17A0525. Because the
trial court denied the motion to dismiss the appeal without making the necessary
findings of fact, we vacate the order in Case No. A17A0525 and remand that case for
further proceedings consistent with this opinion. Consequently, we dismiss without
prejudice the appeal in Case No. A17A0847.
1. Case No. A17A0525 — Denial of motion to dismiss appeal.
On March 16, 2016, Dennis filed a timely notice of appeal. As the appellant,
Dennis had the responsibility to assure that the appellate record was timely prepared
and transmitted to this court. See Long v. Midway, 251 Ga. 364 (306 SE2d 639)
(1983). As to most of the record, that simply entailed timely paying the clerk’s bill
for the cost of preparing it. See OCGA § 5-6-41 (c); Long v. Midway, supra. But as
to the transcript, that duty entailed contacting the court reporter, making the necessary
arrangements to have the transcript prepared and filed with the trial court, and
securing an extension from the trial court if the court reporter would not be able to
complete the transcript within the statutory 30-day deadline. See OCGA § 5-6-42 (an
appellant shall cause the transcript “to be filed within 30 days after filing the notice
of appeal . . . unless the time is extended as provided in Code Section 5-6-39”);
Durden v. Griffin, 270 Ga. 293, 294 (1) (509 SE2d 54) (1998) (finding appellants did
not meet their obligation under OCGA § 5-6-42 of causing the transcript to be
prepared, where they did not timely order a transcript or make financial arrangements
with the court reporter); Long v. Midway, supra (“The preparation of the transcript of
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evidence and proceedings, as opposed to the record, is the responsibility of the
appellant or, if he desires inclusion of material omitted by appellant, the appellee.”)
(citations omitted).
On May 9, 2016, Gordon and Pain Away Dentistry filed their motion to dismiss
the appeal. They argued that the trial court should dismiss the appeal because Dennis
had unreasonably and inexcusably caused a delay in the filing of the transcript from
the October 2015 trial. They noted in their motion that Dennis had not timely sought
an extension to file the transcript. In her responsive brief, Dennis described her efforts
to obtain a transcript and asked for a 60-day extension to file the transcript.
The trial court held a hearing on the motion to dismiss on August 23, 2016, at
which all of the parties presented arguments for and against dismissal and Dennis
again asked for an extension. At the end of the hearing, the trial court took the issue
under advisement. Subsequently, the trial court entered an order that stated, in its
entirety:
The above-styled case is before the Court on Defendants’ Motion to
Dismiss Appeal. After considering the entire record in this case, the
Court hereby denies Defendants’ Motion. The Court further orders that
Plaintiff’s motion for an extension of time to file transcript is granted.
The Plaintiff has until September 30, 2016 to file the transcript.
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(Emphasis in original.) (The transcript has since been filed and is part of the appellate
record in Case No. A17A0847.)
Gordon and Pain Away Dentistry appeal from this ruling, arguing among other
things that this summary order is deficient as a matter of law because it does not
contain the necessary factual findings. We agree. Under OCGA § 5-6-48 (c), “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.” In making this
decision, the trial court must
determine the length of the delay, the reasons for the delay, whether the
appealing party caused the delay, and whether the delay was
inexcusable, and then . . . exercise discretion in deciding whether to
dismiss the appeal. Although we review the trial court’s decision for an
abuse of discretion, the trial court must make findings on these issues
before we may determine whether its discretion was abused.
Postell v. Alfa Ins. Corp., 327 Ga. App. 194, 195 (757 SE2d 661) (2014) (citations
and punctuation omitted). Here, the trial court did not make findings on these issues.
Instead, the trial court “summarily dismissed the notice of appeal.” Id. at 196.
Compare Callaway v. Garner, 340 Ga. App. 176, 180-181 (1) (796 SE2d 906) (2017)
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(finding that trial court made sufficient findings of fact to demonstrate that it
considered the relevant statutory factors, although it did not use the statutory words).
Despite enumerating this failure as error and stating in their brief that the trial
court’s order “must be reversed and remanded with instruction,” Gordon and Pain
Away Dentistry argue that in the interest of judicial economy we should nevertheless
decide the merits of the trial court’s denial of their motion to dismiss. For her part,
Dennis also urges us to decide the merits of that denial in this appeal. We cannot do
so. The trial court’s “[f]ailure to make [the necessary] findings mandates that we
vacate the order dismissing the appeal and remand the case with the direction that
findings of fact be entered on these issues.” Postell, supra at 195 (citations omitted;
emphasis supplied). Accord Temple v. Hillegass, 340 Ga. App. 189, 190 (796 SE2d
899) (2017); Rogers v. Norris, 262 Ga. App. 857-858 (1) (586 SE2d 747) (2003).
Simply put, the trial court, in her summary order, “did not make the findings of fact
necessary to vest [her] with discretion to dismiss the appeal. Because the trial court
had no discretion to dismiss the appeal, we vacate the dismissal order and remand the
case for further action in accord with this opinion.” Postell, supra at 196 (citations
and punctuation omitted).
2. A17A0847 — Denial of motion for new trial.
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“In view of our holding in Case No. [A17A0525], the appeal in Case No.
[A17A0847] is premature and must be dismissed. If on remand of Case No.
[A17A0525] the trial court [again] determines that the appeal should [be] allowed,
[Dennis] shall have 30 days to appeal the issues raised in Case No. [A17A0847].”
Grant v. Kooby, 310 Ga. App. 483, 487 (713 SE2d 685) (2011) (citations omitted).
Judgment vacated and case remanded in Case No. A17A0525. Appeal
dismissed in Case No. A17A0847. Branch and Bethel, JJ., concur.
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