Allan v. Jefferson Lakeside, L.P.
| Decision Date | 16 July 2015 |
| Docket Number | A15A0479.,A15A0247,Nos. A15A0246,s. A15A0246 |
| Citation | 775 S.E.2d 763,333 Ga.App. 222 |
| Parties | ALLAN et al. v. JEFFERSON LAKESIDE, L.P.; and vice versa. Allan et al. v. Jefferson Lakeside, L.P. |
| Court | Georgia Court of Appeals |
The Mitchell Law Group, Thomas P. Mitchell, for appellants.
Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Atlanta, Jason D. Hergenroether, for appellee.
A three-year-old boy drowned when his uncle drove the car in which the uncle, the boy's father, and the boy were all riding into a lake at the apartment complex where the father and son lived. the parents of the boy, Allan Ali Allan and Abeer Allan (the Allans), brought this wrongful death and negligence action against their landlord and the owner of the complex, Jefferson Lakeside, L.P. In Case No. A15A0246, the Allans appeal the trial court's grant of summary judgment to Jefferson Lakeside; in Case No. A15A0247, Jefferson Lakeside cross-appeals the denial of its motion to exclude an expert's testimony ruling. After the Allans had filed their notice of appeal, however, the trial court dismissed that notice on the ground that they had not timely completed the record. In Case No. A15A0479, we reverse the dismissal of the Allans' notice of appeal, but we affirm the grant of summary judgment to Jefferson Lakeside in Case No. A15A0246, and we therefore dismiss Case No. A15A0247 as moot.
1. The Allans first argue that the trial court abused its discretion when it dismissed their notice of appeal. We agree.
(Emphasis supplied.) Although the time elapsed between the filing of the notice of appeal and the completion of the appellate record gave rise to a presumption of unreasonable delay by the Allans, the evidence does not support a determination that the delay in this case was inexcusable in that it was caused by them. This trial court thus abused its discretion by dismissing the Allans' notice of appeal.1
A trial court's discretion to dismiss an appeal under OCGA § 5–6–48 “is a legal discretion which is subject to review in the appellate courts.” Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53, 55, 226 S.E.2d 737 (1976) (citation omitted). Specifically, and as the Supreme Court of Georgia has held, a trial court “has discretion to dismiss an appeal for failure to timely file a transcript only if 1) the delay in filing was unreasonable; [and] 2) the failure to timely file was inexcusable in that it was caused by some act of the party responsible for filing the transcript.” (Emphasis supplied.) Baker v. Southern R. Co., 260 Ga. 115, 116, 390 S.E.2d 576 (1990), citing OCGA § 5–6–48(f) ; see also Welch v. Welch, 212 Ga.App. 667, 668–669, 442 S.E.2d 857 (1994) (following Baker ); Barmore v. Himebaugh, 205 Ga.App. 381, 382, 422 S.E.2d 255 (1992) (same); Boulden v. Fowler, 202 Ga.App. 237–238, 414 S.E.2d 263 (1991) (same).
The Allans filed their timely notice of appeal from the trial court's grant of summary judgment on September 30, 2013. The notice of appeal designated inclusion of the transcript of the oral argument hearing on summary judgment as part of the appellate record. Only four days later, on October 4, 2013, counsel for the Allans e-mailed the trial court's official court reporter, ordered the transcript of the hearing on the summary judgment motion, and inquired as to the cost of preparing that transcript. On October 7, the court reporter informed counsel that the cost of preparation would be “extra” and in addition to the “shared takedown amount” paid at the hearing, but that she needed to “get back to [counsel] with an estimate” of the preparation cost. A few minutes later, counsel repeated to the court reporter that he needed to know what and where to pay, to which the court reporter replied, “I will get back to you and I will begin the transcript as soon as possible.”
Counsel for the Allans averred that in the three weeks following this exchange with the court reporter, and having been promised that the reporter would “begin the transcript as soon as possible,” counsel made “several inquiries with the Clerk ... regarding the transmittal of the record to the appellate court,” in response to which the clerk first told counsel that the clerk was “waiting for the transcript to be filed before finalizing the Cost Billing Form,” but later said that “the transcript was filed” and then that “the record was complete and that the Cost Billing Form was finalized.” The trial court thus clearly erred when it found that counsel for the Allans “made no further inquiry into the status of the transcript [after October 7, 2013] until Defendant filed the [motion to dismiss the notice of appeal].”2
Further, on October 22, 2013, or more than a week before the expiration of 30 days after the filing of the Allans' notice of appeal, counsel received the Cost Billing Form from the clerk, the total amount of which included a line item charge of $35.00, designated as “Transcript.” Counsel paid this bill on November 8, 2013. Nowhere in the record or the trial court's order is there any evidence to contradict counsel's reasonable inference that this line item charge referred to the transcript of the only in-court proceeding in the case, which counsel had tried to obtain from the court reporter for the purpose of filing it with the clerk. Rather, and as counsel testified, “given that the Cost Billing Form indicated that the record was complete,” counsel had “no reason to believe that [he] would have been told that the transcript was filed and billed for a transcript, if in fact the [c]lerk ... had not received it, as the [trial court] knew how much to bill for the transcript.” Counsel therefore reasonably if erroneously believed that the transcript, the cost of which had been itemized on the bill he paid, had been prepared by the court reporter and filed with the clerk before the preparation of that bill, which counsel promptly paid. Not until July 2014, when Jefferson Lakeside moved to dismiss the notice of appeal, did the Allans learn that no transcript of the hearing had ever been filed with the clerk of the trial court.
This undisputed evidence makes clear that the Allans' delay in filing the transcript of the oral argument hearing was excusable and not caused by them. See Welch, 212 Ga.App. at 669, 442 S.E.2d 857 (), quoting Boulden, 202 Ga.App. at 238, 414 S.E.2d 263 (). Accordingly, the trial court abused its discretion when it dismissed the Allans' notice of appeal.
2. In Case No. A15A0246, the Allans argue that the trial court erred when it granted Jefferson Lakeside summary judgment on the Allans' negligence claims because genuine issues of material fact remain as to those claims. We disagree.
To prevail at summary judgment under OCGA § 9–11–56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9–11–56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.
Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991) (emphasis omitted).
Although we view the record in a light most favorable to the Allans, the relevant facts are not in dispute. The Allans moved into an apartment owned by Jefferson Lakeside in January 2010. On May 1, 2010, a sunny day, the decedent's uncle entered the complex in a car he had rented for more than two weeks. The uncle had driven this same car into and out of the complex on the access road at least twice before. At approximately 12:30 p.m., the uncle was driving out of the complex with his brother (the decedent's father) in the front seat and the decedent strapped into a car seat in the back seat when the uncle pulled over to the side of the access road in order to obtain a pack of cigarettes from the glove compartment. The access road was two lanes wide. The right side of the access road ended at a curb, with a sidewalk beginning a few feet from that curb. A slope led up from the sidewalk to at least 14 feet from the edge of the road, where it turned downward for at least 36 feet to the edge of a lake.
As the father retrieved the cigarettes, the uncle saw a navigation system in the glove compartment and asked his brother to give it to him. When the father did so, and as the uncle attached the navigation system to the dashboard, the uncle lifted his foot off the brake, pressed the accelerator, saw that the contents of the glove compartment were falling onto the floor, and “found [him]self in the air.” The car struck the curb, went over it, the sidewalk, up 14 feet of slope, and down an additional 36 feet into the lake, where the car briefly floated. The father opened the front passenger door in an attempt to reach his son, at which water rushed into the car, cutting off its engine and electricity. Although the father...
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