Boulden v. Fowler, A91A1305
| Decision Date | 26 November 1991 |
| Docket Number | No. A91A1305,A91A1305 |
| Citation | 202 Ga.App. 237,414 S.E.2d 263 |
| Parties | BOULDEN, et al. v. FOWLER. |
| Court | Georgia Court of Appeals |
L. David Wolfe & Associates, L. David Wolfe and Susan E. Teaster, Atlanta, for appellants.
Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., Columbus, for appellee.
ARNOLD SHULMAN, Judge, sitting by designation.
The appellants, Kathryn and David Boulden, brought suit against the appellee to recover for injuries they had allegedly sustained in a motor vehicle accident. They evidently obtained a jury verdict in the amount of $10,000, following which they filed a motion for new trial which was overruled by the trial court. They then filed a timely notice of appeal. The trial court granted a motion by the appellee to dismiss the appeal on the ground that there had been an unreasonable and inexcusable delay in filing the trial transcript, and the present appeal followed.
The Bouldens filed their notice of appeal from the denial of the motion for new trial on December 15, 1989. On that same date, Mr. Boulden sent a letter to the court reporter confirming a prior telephonic request for preparation of the trial transcript and noting he had been told by the reporter that, "due to a backlog, it would be February or March 1990 before the [transcript] could be prepared for inclusion in the record on appeal." By return letter, the reporter advised the appellants that "in all likelihood it [would] probably be March of 1990 before [he could] get started on the transcript" and that he would not request payment from them until then. On April 10, 1990, the court reporter notified the appellants by mail that he was prepared to commence preparation of the transcript and requested payment from them of half the estimated $1,800 transcription cost. The appellants promptly sent him a check for $900. On May 28, 1990, the court reporter billed them for the remaining balance of $927, which they paid within a week. The transcript was filed on June 8, 1990, some six months after the filing of the notice of appeal. The appellee moved to dismiss the appeal on September 4, 1990. Following a hearing, the trial court granted the motion, concluding that there had been an unreasonable and inexcusable delay in the filing of the transcript as well as an unreasonable and inexcusable failure to obtain an extension of time for the filing of the transcript, and that "[t]he delay in the filing of the transcript and the failure to obtain an extension of time for the filing of the transcript was (sic) caused by the [appellants]."
"[T]he 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). In Baker, as in the present case, the trial court "predicated its conclusion of the delay being unreasonable and inexcusable upon the failure of [the appellant] to seek an extension." Id. Holding that "[t]he failure to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal," the Supreme Court remanded the case for a finding as to whether the delay in filing the transcript had been caused by the appellant. Id.
The record before us in the present case leaves no doubt as to whether the delay in filing the transcript was caused by the...
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Allan v. Jefferson Lakeside, L.P.
...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 ......
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Gordon v. Dennis
...than by an act or omission of the appellant. See Welch v. Welch , 212 Ga. App. 667, 669, 442 S.E.2d 857 (1994) ; Boulden v. Fowler , 202 Ga. App. 237, 238, 414 S.E.2d 263 (1991).3 That is the situation here.Dennis's counsel submitted an affidavit with exhibits4 reflecting that she contacted......
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Barmore v. Himebaugh, A92A1032
...necessary to vest the trial court with the discretion to dismiss the appeal." Id. 260 Ga. at 116, 390 S.E.2d 576; Boulden v. Fowler, 202 Ga.App. 237, 238, 414 S.E.2d 263 (1991). Conflicting cases were expressly overruled. Baker, supra 260 Ga. at 116, 390 S.E.2d 576. "[T]he cause for delay i......
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Welch v. Welch, A93A2580
...which arose in typing the transcript], rather than to any act or omission on the part of the appellants." Boulden v. Fowler, 202 Ga.App. 237, 238, 414 S.E.2d 263 (1991). In fact, the trial court specifically found that the delay in filing was not attributable to appellants. Furthermore, the......