City of College Park v. Georgia Power Co.

• Court: Georgia Court of Appeals
• Writing for the Court: BEASLEY; BIRDSONG
• Citation: City of College Park v. Georgia Power Co., 372 S.E.2d 493, 188 Ga.App. 223 (Ga. App. 1988)
• Decision Date: 06 September 1988
• Docket Number: No. 76707,76707
• Parties: CITY OF COLLEGE PARK et al. v. GEORGIA POWER COMPANY et al.

Page 493

372 S.E.2d 493

188 Ga.App. 223

CITY OF COLLEGE PARK et al. v. GEORGIA POWER COMPANY et al.

No. 76707.

Court of Appeals of Georgia.

Sept. 6, 1988.

George E. Glaze, Steven M. Fincher, James E. Ervin, Jonesboro, for appellants.

Robert H. Forry, Arthur H. Domby, Bruce L. Bromberg, John R. Barmeyer, Charles N. Pursley, Jr., Atlanta, Michael J. Bowers, Atty. Gen., Victoria H. Tobin, Michael J. Henry, Asst. Attys. Gen., for appellees.

BEASLEY, Judge.

The City of College Park and the mayor appeal the trial court dismissing their appeals for failure to timely file the transcript. The prior history of this case is chronicled in Smith v. Ga. Power Co., 183 Ga.App. 295, 358 S.E.2d 879 (1987), in which we reversed and remanded for "determination of whether the delay in filing was unreasonable, and if so, whether the unreasonable delay was inexcusable."

The enumeration of error presents as the sole question whether the court erred as a matter of law because it failed to determine whether appellants' delay in filing the transcript was unreasonable and whether the delay was inexcusable. They argue that the court did not rule on its motion for an oral hearing and should not have entered an order after remand without permitting the parties to submit evidence other than affidavits; that the court failed to issue findings as to whether the delay was unreasonable and inexcusable; that the court failed to exercise its discretion in making its determination; that the court erred because the delay was not unreasonable and even if it were it was not inexcusable. Thus there are three procedural and one substantial contentions, but only those related to the enumeration will be considered.

"An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration." Echols v. State, 149 Ga.App. 620, 625(3), 255 S.E.2d 92 (1979). Accord Irvin v. Askew, 241 Ga. 565, 566(2), 246 S.E.2d 682 (1978); Frink v. State, 177 Ga.App. 604, 608(5), 340 S.E.2d 631 (1986); Key v. State, 147 Ga.App. 800, 801 (2), 250 S.E.2d 527 (1978); Leniston v. Bonfiglio, 138 Ga.App. 151, 153(2), 226 S.E.2d 1 (1976). A thorough discussion of what this court will consider under one enumeration of error is found in MacDonald v. MacDonald, 156 Ga.App. 565(1), 275 S.E.2d 142 (1980) [2 judges only, but cited approvingly in over 20 cases]. One cannot expand the scope of review or supply additional issues "through a process of switching, shifting, and 'mending your hold.' " Redwing Carriers v. Knight, 143 Ga.App. 668, 674(9)(a), 239 S.E.2d 686 (1977). Tested by the maxims of the cited cases, we consider only the error asserted by the enumeration and not those sought to be raised by argument to this court.

The trial court in its order found that the delay in perfecting the appeal was "dilatory and unreasonable" and "inexcusable in that no effort was made to prepare the transcript of the hearing for over four and one-half months when plaintiffs knew that such transcript was essential to perfect its appeal." The court ordered both appeals dismissed "in the exercise of its sound discretion." This was an unqualified statement by the trial court that it was acting as required by law, and the facts upon which this conclusion was based were set out.

Moreover, there is nothing to establish that, as a matter of law, there was an abuse of discretion. The two notices of appeal were filed on November 20, 1985, and thirty days elapsed without the filing of any transcript or of any requests for extension of the time in which to file them. Not until April 9 and 11, 1986, were such requests filed. On June 20, when the first hearing on the motion to dismiss the appeals was held, the transcripts had still not been filed.

As we stated in the previous opinion, under Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53, 226 S.E.2d 737 (1976), in consideration of a motion to dismiss for untimely filing a trial court must find the delay to be both unreasonable and inexcusable. In making that determination, the trial court exercises a legal discretion which is subject to appellate scrutiny only for abuse. Dubois v. Dubois, 240 Ga. 314(1), 240 S.E.2d 706 (1977). Failure...