Ledee v. Kissiah

Pope, Chief Judge.

Defendant William A. Ledee, pro se, appeals the trial court’s order dismissing his original notice of appeal for failure to pay costs, arguing that the trial court erred by dismissing his appeal without receiving evidence or conducting a hearing.

On January 14, 1994, the trial court entered the following order: “Before the Court is Plaintiff’s Motion to Dismiss Appeal pursuant to OCGA § 5-6-48 filed on November 5, 1993. The Defendant has not filed a response to the motion. After reviewing the record, the Court finds as follows:

“This Court granted Plaintiff’s Motion for Partial Summary Judgment on May 3, 1993 and an Order was filed with the Court on May 4, 1993. The Defendant filed a Notice of Appeal on June 3, 1993. The cost bill was delivered to the Defendant on June 16, 1993 when his attorney of record signed a certified mail receipt for the bill. As of this date defendant has not paid the cost bill.

“The trial court, after notice and opportunity for hearing, has the authority to dismiss an appeal ‘where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of (the appealing party) to pay costs in the trial court or file an affidavit of indigence.’ OCGA § 5-6-48 (c). The Court orders Defendant to schedule such [a] hearing with the Court within 15 days of the date of this Order or the appeal shall be dismissed.”

On February 2, 1994, the court entered an order dismissing the appeal, noting that defendant had failed to request a hearing within 15 days as required by the January 14 order. The January order clearly recited the conditions necessary to authorize dismissal pursuant to OCGA § 5-6-48 (c) and stated the facts in this case which would authorize dismissal under that section. That order also provided defendant with an opportunity to be heard, which is what the statute requires, within a specified time. When defendant did not exercise his right to be heard, the trial court properly exercised its discretion, based on what was said in the January 14 order, to dismiss the appeal pursuant to OCGA § 5-6-48 (c). See, e.g., Bouldin v. Parker, 173 Ga. App. 526 (1) (327 SE2d 760) (1985) (delays of over 30 days are prima facie unreasonable and inexcusable).

The dissent would remand this case to the trial court, “with direction that appropriate findings be made on the record as to the pertinent inquiry.” However, remand serves no useful purpose when it would simply require the trial court to do again what it has already done before. This is the situation here, and the judgment of the trial court dismissing the original notice of appeal is affirmed.

Judgment affirmed.

Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. Beasley, P. J., concurs specially. McMurray, P. J., dissents.