Georgia Department of Human Resources v. Patillo

194 Ga. App. 279 (1990) 390 S.E.2d 431

GEORGIA DEPARTMENT OF HUMAN RESOURCES
v.
PATILLO.

A89A1603.

Court of Appeals of Georgia.

Decided January 22, 1990.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Daniel J. Craig, for appellee.

BEASLEY, Judge.

Georgia Department of Human Resources appeals from the order of the trial court dismissing its appeal for failure to obtain the timely filing of a trial transcript.

"The provision authorizing the trial court to dismiss an appeal [OCGA § 5-6-48 (c)] specifies that two elements must be present: One is that the delay was unreasonable and the other is that the unreasonable delay was inexcusable. In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts." Young v. Climatrol &c. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976); Glen Restaurants v. Bldg. 5 Assoc., 189 Ga. App. 327 (2) (375 SE2d 492) (1988).

Both sides have supplied numerous record and legal citations regarding what facts constitute an unreasonable and inexcusable delay, but the crucial point is that the trial court must make such findings before we may determine whether it abused its discretion. See Baker v. Southern R. Co., 192 Ga. App. 444, 445 (385 SE2d 125) (1989); City of College Park v. Ga. Power Co., 188 Ga. App. 223, 224 (372 SE2d 493) (1988). The final order merely granted the motion to dismiss, and the court did not orally state any findings at the conclusion of the hearing. The failure to ascertain the reasonableness and excusableness of the delay mandates a reversal of the order and a remand with instruction that findings be made on these issues. Speir v. Nicholson, 193 Ga. App. 444 (388 SE2d 42) (1989). See White v. Olderman Realty &c. Co., 163 Ga. App. 57, 58 (293 SE2d 726) (1982).

Judgment reversed and case remanded with instruction. Carley, C. J., and McMurray, P. J., concur.