Accc Ins. Co. v. Pizza Hut of Am., Inc.

• Decision Date: 09 March 2012
• Docket Number: No. A11A1905.,A11A1905.
• Citation: 725 S.E.2d 767,314 Ga.App. 655,12 FCDR 467
• Parties: ACCC INSURANCE COMPANY v. PIZZA HUT OF AMERICA, INC.
• Court: Georgia Court of Appeals

314 Ga.App. 655

725 S.E.2d 767

12 FCDR 467

ACCC INSURANCE COMPANY

v.PIZZA HUT OF AMERICA, INC.

No. A11A1905.

Court of Appeals of Georgia.

Feb. 10, 2012.

Reconsideration Denied March 9, 2012.

Gray, Rust, St. Amand, Moffett & Brieske, Michael D. St. Amand, Atlanta, for appellant.

Carlock, Copeland & Stair, Scott D. Huray, Kenneth W. Brosnahan, Atlanta, for appellee.

BLACKWELL, Judge.

Pizza Hut of America, Inc. filed a petition in Cobb County against ACCC Insurance Company,¹ seeking a declaratory judgment that Pizza Hut is an additional insured under a policy of automobile insurance that ACCC Insurance previously had issued to a Pizza Hut employee. The court below awarded summary judgment to Pizza Hut, and ACCC Insurance took an appeal from the entry of summary judgment. A transcript that was designated to be included in the record on appeal, however, apparently was not filed for another six months, and on the motion of Pizza Hut, the court below dismissed the appeal under OCGA § 5–6–48(c) for unreasonable and inexcusable delay in the filing of the transcript. ACCC Insurance now appeals from the dismissal of its appeal, but because we cannot conclude that the court below abused its discretion, we must affirm.

On October 10, 2008, ACCC Insurance timely filed a notice of appeal from the entry of summary judgment for Pizza Hut on its petition for declaratory judgment. In this notice of appeal, ACCC Insurance designated the entire record, including all transcripts, as the record on appeal. About four months later, a lawyer for ACCC Insurance telephoned the civil appeals clerk and asked about the preparation of the record on appeal. The clerk responded that she had been on maternity leave when the notice of appeal was filed in October 2008, and she had not yet prepared an estimated bill of costs for the preparation of the record. The lawyer received the bill of costs on February 10, 2009, and ACCC Insurance paid it two weeks later.

The bill of costs indicated that no transcript had been filed of the hearing on the motion for summary judgment. The law firm representing ACCC Insurance then contacted the court reporter and asked her to prepare a transcript of that hearing on an expedited basis. The court reporter replied that she could not expedite the preparation of this transcript because she already had other transcripts, 3,000 pages in all, to prepare before she could turn to this request. The court reporter also said that, if only ACCC Insurance had made its request a couple of months earlier, “I had no transcript orders [then] and could have done it probably the same day.”

On February 25, 2009, ACCC Insurance filed a motion for an extension of the time for the preparation and filing of the hearing transcript, and although the motion was untimely, OCGA § 5–6–39(d), the court below granted it, extending the time to file the transcript until April 11. Two days after ACCC Insurance asked for an extension of time, Pizza Hut moved to dismiss the appeal. ² Attached to this motion to dismiss were two exhibits, which reflected the communications between the law firm representing ACCC Insurance and the court reporter about the preparation of the transcript of the hearing on the motion for summary judgment. ACCC Insurance responded in writing to the motion to dismiss the appeal, and attached to its response were several affidavits and exhibits, further detailing the efforts of ACCC Insurance to secure the preparation of the transcript beginning in February 2009.

The transcript finally was filed with the clerk on April 8, 2009. About a week later, the court below heard the motion to dismiss the appeal.³ Lawyers for ACCC Insurance and Pizza Hut argued the motion, but no witness testified at the hearing, and no evidence was submitted to supplement the several affidavits and exhibits that the parties previously had submitted. ACCC Insurance argued, among other things, that the clerk could not have prepared the record any sooner than she did, and the delay in filing the transcript did not, therefore, cause any delay in the transmission of the record. When the lawyer for ACCC Insurance represented that the clerk was behind in her preparation of records for appeals because she had only recently returned from maternity leave, the court inquired whether there was “ some affidavit showing that[.]” The lawyer said that he thought the clerk had “submitted something to the Court[,]” but the lawyer was unable to answer a question from the court about the dates that the clerk had taken maternity leave. During the course of the hearing, the judge also asked whether the clerk was available “to testify today so that we can find out about why [the record] was delayed,” and the judge helpfully suggested that “I think I need to hear from the Clerk's Office.” No witness from the clerk's office appeared, however, to testify. The court below subsequently entered an order dismissing the appeal.

“Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed ... within 30 days after filing of the notice of appeal....” OCGA § 5–6–42. In relevant part, OCGA § 5–6–48(c) provides that “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.” Thus, “[t]he party seeking dismissal for failure to file a transcript must show that the delay was unreasonable, inexcusable, and caused by the appellants themselves.” Dye v. U.S. Bank Nat. Assn., 273 Ga.App. 652, 653, 616 S.E.2d 476 (2005) (citations omitted).

Our Supreme Court has said that a delay of more than 30 days in filing a transcript is presumptively unreasonable and inexcusable, but that presumption may be rebutted “if the [appellant] comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” Kelly v. Dawson County, 282 Ga. 189, 646 S.E.2d 53 (2007) (citation and punctuation omitted). See PJ Svcs. v. Equity Technologies Assocs., 295 Ga.App. 214, 216, 671 S.E.2d 264 (2008) (accord). We review the decision of a trial court to dismiss an appeal under OCGA § 5–6–48(c) for abuse of discretion. Rois–Mendez v. Stamps, 312 Ga.App. 136, 137, 717 S.E.2d 718 (2011). We find no abuse of that discretion here.

The court below concluded, consistent with the evidence, that ACCC Insurance did nothing from October 10, 2008, when it filed its notice of appeal, until February 4, 2009, when it contacted the appeals division of the clerk's office, to comply with its obligation to obtain the transcript that it had designated as part of the record on appeal. The court also found that the delay between November 9, 2008, which is 30 days after the filing of the notice of appeal, and February 4, 2009, was presumptively unreasonable and inexcusable and that ACCC Insurance offered “no evidence with respect to this time period that would tend to rebut this presumption.”

ACCC Insurance argues that the court nevertheless erred in dismissing its appeal because the transcript was filed within the extension that the court allowed. See OCGA § 5–6–42 (transcript to be filed within 30 days of filing of notice of appeal “unless the time is extended as provided in Code Section 5–6–39”). Although OCGA § 5–6–39(a)(3) authorizes a trial court to extend the time for filing transcripts of the evidence and proceedings on appeal, OCGA § 5–6–39(d) requires that an appellant make a request for an extension “ before expiration of the period for filing as originally prescribed or as extended by a permissible previous order.” (emphasis supplied.) Since ACCC Insurance only applied for an extension months after the initial filing period had expired, the order granting the extension was “nugatory and void.” Almond v. Robertson, 138 Ga.App. 22, 23, 225 S.E.2d 486 (1976) (citation omitted).

ACCC Insurance further contends that the delay in filing the transcript was not unreasonable because it did not actually delaythe docketing of the appeal.⁴ Whether a delay is inexcusable, and whether it is unreasonable, are separate and distinct questions. See Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga.App. 674, 677(3), 530 S.E.2d 800 (2000). We have said before that “[a]n unreasonable delay is one that (1) causes the appeal to be stale by delaying the docketing of the appeal or (2) directly prejudices the position of a party by allowing an intermediate change of condition.” ⁵Griffis v. Branch Banking & Trust Co., 268 Ga.App. 588, 590(1), 602 S.E.2d 307 (2004). As we have explained, “the demand for punctuality should not be so strict as to defeat the very...