Ashley v. JP Morgan Chase Bank, N.A.

• Decision Date: 30 April 2014
• Docket Number: No. A14A0331.,A14A0331.
• Citation: 758 S.E.2d 135,327 Ga.App. 232
• Court: Georgia Court of Appeals
• Parties: ASHLEY v. JP MORGAN CHASE BANK, N.A. et al.

327 Ga.App. 232

758 S.E.2d 135

ASHLEY

v.JP MORGAN CHASE BANK, N.A. et al.

No. A14A0331.

Court of Appeals of Georgia.

April 30, 2014.

Laxavier P. Reddick–Hood, Atlanta, for Appellant.

Steven James Flynn, Brett Christian Giordano, Frank Reid Olson, Atlanta, Robert Michael Sheffield, Roswell, Stephen V. Kern Esquire, for Appellee.

McMILLIAN, Judge.

Ruth L. Ashley filed suit against JP Morgan Chase Bank, N.A. (“JP Morgan”), McCurdy & Candler, LLC, and McCalla Raymer, LLC (collectively the “Appellees”) to set aside the foreclosure sale of her property. The trial court awarded summary judgment to defendants, and Ashley timely filed a notice of appeal. However, the trial court later dismissed her appeal because of a delay in filing the transcript of the proceedings. It is from that dismissal order that Ashley now appeals. For the reasons that follow, we affirm.

The record reflects that Ashley filed her suit against Appellees in August 2011. Shortly thereafter, the parties filed cross-motions for summary judgment, and following two hearings in November and December 2011, the trial court entered an order denying Ashley's motion for summary judgment and granting summary judgment to Appellees on September 24, 2012. Ashley then filed her notice of appeal on October 2, 2012, specifically appealing “the Trial Court's entire order of September 26, 2012 in its entirety” and requesting the clerk to “forward its entire file to the Georgia Court of Appeal [s] and exclude nothing from the record, including the transcript of the proceeding.”

On October 23, 2012, after issuance of the bill of costs for the record on appeal (in the amount of $1025), Ashley moved to proceed in forma pauperis. The trial court entered an order granting Ashley's motion on January 9, 2013, instructing the clerk to “transmit the record of the within matter to the Georgia Court of Appeals without Plaintiff's payment of the cost bill.” But it was not until March 25, 2013 that Ashley first contacted the court reporter who took down the two summary judgment hearings. In her March 25, 2013 letter, Ashley's counsel informed the court reporter that a copy of the transcript for the November 2011 hearing was needed for her appeal and asked her to “advise [her] of the cost of the transcript.” Ashley's counsel further asked the court reporter to “let [her] know if the order of Judge Campbell approving the application for Ms. Ashley to proceed in forma pauperis will cover the cost of the transcript.”

On March 27, 2013, the court reporter responded to Ashley's counsel via email, notifying her that the cost for the preparation of the November 2011 hearing transcript was estimated to be around $100 and explaining that she did not know whether Judge Campbell's order would cover the cost of the transcript. Ashley's counsel alleges that she did not receive this email because it was sent to her prior email address, which she had changed sometime between the November 2011 hearing and March 2013 when she contacted the court reporter. However, Ashley's counsel took no further steps to pay for the cost of the transcript, order the transcript, or otherwise contact the court reporter.

On June 4, 2013, JP Morgan filed a motion to dismiss Ashley's notice of appeal, arguing that Ashley failed to timely file the transcripts designated in her notice of appeal for inclusion in the record. JP Morgan's motion was supported by an affidavit of the court reporter. Finally, after receiving the motion to dismiss, Ashley's counsel submitted payment, via letter dated June 11, 2013, to the court reporter for the cost of the November 2011 hearing transcript. In her letter, Ashley's counsel called the court reporter's affidavit into question, stating, “Although you maintain in your affidavit that you forwarded an email to my attention on March 25, 2011, I did not receive the email as the email addressthat you used is not a valid email for me or my office and was not an email address that I provided to you at any time during the course of this case.” The court reporter responded, confirming that she would complete the transcript within two to three weeks, and attached a copy of the business card that Ashley's counsel had provided to her at the November 2011 hearing which showed the email address that the court reporter had used to respond to her original inquiry in March 2013.

On July 3, 2013, Ashley filed the November 2011 hearing transcript, and on July 5 and July 22, 2013, Ashley filed various oppositions to JP Morgan's motion to dismiss. On September 4, 2013, the trial court entered an order granting the motion and dismissing Ashley's notice of appeal, making the following findings:

Plaintiff did not contact the court reporter to make arrangements for the preparation of the transcript until March 25, 2013, almost six (6) months after filing the Notice of Appeal, and did not pay for the preparation of the transcript until June 11, 2013. Plaintiff never moved this Court for an extension of time to file the transcript. The transcript was not filed until July 3, 2013, 274 days after Plaintiff filed her Notice of Appeal.

The Court further finds that these delays were caused by Plaintiff's failure to timely make arrangements for the preparation of the transcript, her failure to timely pay for the transcript, and her complete lack of diligence in ensuring the timely completion and filing of the transcript. The Court further finds that the delay was unreasonable and inexcusable, and was due solely to the actions and inactions of the Plaintiff.

1. In her first and second enumerations of error, Ashley argues that the trial court erred in dismissing her appeal by failing to consider her indigent status and Uniform Superior Court Rule 41.3.

Numerous conditions on appellate practice concern filing a transcript of the trial court proceedings. OCGA § 5–6–37 requires that the notice of appeal shall state whether or not any transcript of evidence and proceedings is to be transmitted as part of the record on appeal. OCGA § 5–6–41 tells litigants how to obtain a transcript of their trial ... or prepare statements of recollections concerning the record in lieu of a transcript.

In the Interest of D.M.C., 232 Ga.App. 466, 467(2)(b), 501 S.E.2d 305 (1998). In addition,

OCGA § 5–6–41(c) provides that where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant's expense. OCGA § 5–6–42 elaborates on this duty, specifying that the appellant must file the transcript within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5–6–39.

(Citation and punctuation omitted.) Pistacchio v. Frasso, 314 Ga.App. 119, 121, 723 S.E.2d 322 (2012).

A trial court's ruling on whether an appeal is subject to dismissal will be reversed only for an abuse of discretion. McAlister v. Abam–Samson, 318 Ga.App. 1, 2, 733 S.E.2d 58 (2012). OCGA § 5–6–48(c) requires the trial court to “determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable before exercising its discretion in deciding whether to dismiss the appeal.” (Citation and punctuation omitted.) Id. A delay of more than 30 days in filing a transcript is “prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” (Citation and punctuation omitted.) Pistacchio, 314 Ga.App. at 121, 723 S.E.2d 322. The question of whether a delay was unreasonable “refers principally to the length and effect of the delay.” (Citation and punctuation omitted.) Id. “Generally, a delay is unreasonable if it affects an appeal, either by directly prejudicing the position of a party ... or by causing the appeal to become stale, for instance by delaying docketing and hearing in this court.” (Citation and punctuation omitted.) Adams v. Hebert, 279 Ga.App. 158, 159, 630 S.E.2d 652 (2006).

Here, Ashley was required to file the transcript within 30 days after the filing of her notice of appeal, or by November 1, 2012. OCGA § 5–6–42. However, without ever filing for an extension, she did not do so until July 3, 2013, more than eight months after the deadline. Therefore, Ashley's delay was prima facie unreasonable and the burden shifted to her to come forward with evidence that the delay was neither unreasonable nor inexcusable. Pistacchio, 314 Ga.App. at 121, 723 S.E.2d 322. However, Ashley has pointed to no evidence that would demonstrate that the eight-month delay was either reasonable or excusable. Although Ashley emphasizes that she was granted leave to proceed in forma pauperis,¹ her motion only asked that she be relieved from payment of the costs to transmit the record, which relief the trial court granted, without reference to the costs of preparing the transcript. And her counsel's letter to the court reporter highlighted her own uncertainty as to her obligation with respect to the transcript. Ashley's reliance on Uniform Superior Court Rule 41.3, which speaks only to appellate counsel's duty to personally pay transcript costs and to certify that she has ordered the transcript prior to filing a notice of appeal, does not aid her in demonstrating that the eight-month delay was somehow reasonable.² Moreover, Ashley has cited no authority that would absolve her of all responsibility in ensuring that the transcript was timely filed.³

To the contrary, “[i]t is well settled that the duty to order the transcript and to monitor timely the progress of the [court] reporter's office in transcript preparation is vested upon the appropriate appealing party.” (Citation and punctuation omitted.) Mercer v. Munn, 321 Ga.App. 723, 726(1), 742 S.E.2d 747 (2013); see also Atlanta Orthopedic Surgeons v. Adams, 254 Ga.App. 532, 536, ...