Cook v. McNamee

Decision Date05 November 1996
Docket NumberNo. A96A1129,A96A1129
Parties, 96 FCDR 3908 COOK v. McNAMEE et al.
CourtGeorgia Court of Appeals

William R.L. Latson, Jonesboro, for appellant.

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, Atlanta, for appellees.

McMURRAY, Presiding Judge.

The trial court granted defendants Debbie McNamee's and J.D. Ray's, d/b/a D. J.'s One Stop, motion to dismiss plaintiff William T. Cook's appeal based upon plaintiff's failure to file a transcript in a timely manner pursuant to OCGA § 5-6-48(c).

The sparse filings designated for inclusion in the record on appeal in the case sub judice do not elucidate all facts essential for consideration of this appeal. We, therefore, presume that the trial court's dismissal order is supported by those parts of the record not designated for inclusion in the record on appeal, Smallwood v. Mulkey, 198 Ga.App. 496, 402 S.E.2d 99, and accept the trial court's findings that plaintiff's original notice of appeal (which was dismissed) was filed on August 3, 1994; that plaintiff was granted a 90-day extension to file a transcript for inclusion in the record in this appeal on October 13, 1994; that this extension expired (with no request by plaintiff for renewal) on January 11, 1995, and that plaintiff cancelled his order for a transcript in January 1995 because of a dispute with the court reporter over the cost of the transcript. The trial court observed that this dispute arose after the court reporter informed plaintiff that the transcript would cost over $600 more than the court reporter had originally estimated in October 1994; that "the transcript was in rough-draft form at the time Plaintiff cancelled the order, and [that the transcript] could have been completed in final form sometime in January [1995 had plaintiff not cancelled his order for a transcript in January 1995]." The trial court found that plaintiff contacted the court reporter on February 22, 1995; that plaintiff then discovered that the cost of a transcript could be reduced by excluding all but four exhibits from the transcript and that, after doing so, plaintiff entered into a contract with the court reporter for completion of the trial transcript. The trial court determined that, "by the time the transcript was re-ordered by Plaintiff on February 22, 1995, the court reporter was involved in two death penalty cases, and was unable to immediately return to work on Plaintiff's transcript, which remained in rough-draft form as of May 8, 1995, the day before the filing of this motion."

The trial court concluded that plaintiff's delay in attempting to resolve his dispute with the court reporter, along with plaintiff's failure to request more time to file the transcript after expiration of his first extension of time to file a transcript, inexcusably caused an unreasonable delay in acquiring a transcript. The trial court thus dismissed plaintiff's appeal pursuant to OCGA § 5-6-48(c). Held:

"A trial court has authority to dismiss an appeal if, 'after notice and opportunity for hearing, (it finds that) 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 (the appealing) party.' OCGA § 5-6-48(c). In passing upon these issues the trial court must exercise its discretion, Strother v. C & S Nat. Bank, 147 Ga.App. 140, 141, 248 S.E.2d 204 (1978), but only if the movant has shown: (1) that the delay in filing was unreasonable; (2) that it was inexcusable; and (3) that it was caused by the appealing party. Department of Human Resources v. Pattilo, 196 Ga.App 778, 779, 397 S.E.2d 47 (1990). This court must decide, based on the evidence presented, whether the trial court abused its discretion in dismissing the appeal. Gilman Paper Co. v. James, 235 Ga. 348, 349, 219 S.E.2d 447 (1975)." Van Diviere v. Delta Airlines, 204 Ga.App. 573, 574(1), 420 S.E.2d 27.

In the case sub judice, the trial court concluded that plaintiff's delay in attempting to resolve his dispute with the court reporter, as well as plaintiff's failure to request more time to file a transcript after expiration of his first extension of time to file a transcript, inexcusably caused an unreasonable delay in acquiring a transcript. While these circumstances are sufficient to authorize the trial court's finding that the delay was caused by plaintiff and was inexcusable, Van Diviere v. Delta Airlines, 204 Ga.App. 573, 574(1), 420 S.E.2d 27, supra, they are insufficient to authorize the trial court's finding that the delay was unreasonable. See Sellers v. Nodvin, 262 Ga. 205, 415 S.E.2d 908.

"[T]he threshold question [of] whether [a] delay [in filing a transcript is] unreasonable is a separate matter [from the issue of whether such a delay is inexcusable], and refers principally to the length and effect of the delay [rather than the cause of the delay]. OCGA § 5-6-48(c). See Young v. Climatrol, etc., Distrib. Corp., 237 Ga. 53, 55, 226 S.E.2d 737." (Emphasis in original.) Galletta v. Hillcrest Abbey West, 185 Ga.App. 20, 21(1), 363 S.E.2d 265. In the case sub judice, the trial court found that "118 days passed between the expiration of the ninety (90) day extension and the filing of [defendants' motion to dismiss plaintiff's appeal]." But the trial court did not mention whether this delay was so severe as to prejudice the opposing parties or otherwise cause the appeal to become stale, as these terms are defined in cases such as Sellers v. Nodvin, 262 Ga. 205, 415 S.E.2d 908, supra; Jackson v. Beech Aircraft Corp., 213 Ga.App. 172, 173, 444 S.E.2d 359; Galletta v. Hillcrest Abbey West, 185 Ga.App. 20, 21(1), 363 S.E.2d 265, supra.

In Sellers v. Nodvin, 262 Ga. 205, 415 S.E.2d 908, the Supreme Court held that a 35-day delay in filing a transcript was not unreasonable in light of undisputed evidence showing that the delay did not also "delay transmission of the record to the Court of Appeals." Id. at 207, 208, 415 S.E.2d 908 (2)(b), supra. In Jackson v. Beech Aircraft Corp., 213 Ga.App. 172, 444 S.E.2d 359, the Court of Appeals said that an...

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  • State v. Brienza
    • United States
    • Georgia Court of Appeals
    • 20 Junio 2019
    ...is inexcusable, and refers principally to the length and effect of the delay rather than the cause of the delay." Cook v. McNamee , 223 Ga. App. 460, 461, 477 S.E.2d 884 (1996) (punctuation and emphasis omitted).13 See supra note 11.14 See Jenkins v. Edelhertz , 272 Ga. 480, 481, 532 S.E.2d......
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    ...if the delay was unreasonable by examining both the length of time involved and the effect of the delay. See Cook v. McNamee, 223 Ga.App. 460, 477 S.E.2d 884 (1996). Here, Central was in no way prejudiced, and the appeal is not, in fact, stale. The trial court must also determine if the del......
  • Morrell v. Western Services, LLC
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    ...that it was inexcusable; and (3) that it was caused by the appealing party. (Citations and punctuation omitted.) Cook v. McNamee, 223 Ga.App. 460, 461, 477 S.E.2d 884 (1996). "Appellants are not accountable for delays caused by clerks of court or court reporters after the transcript has bee......
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    • United States
    • Georgia Court of Appeals
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