Gordon v. Dennis, A17A0525
Decision Date | 19 June 2017 |
Docket Number | A17A0525,A17A0847 |
Citation | 802 S.E.2d 77 |
Parties | GORDON et al. v. DENNIS; and vice versa. |
Court | Georgia Court of Appeals |
Heather Saum Ware, John E. Hall Jr., Atlanta, David J. Younker, Nathan Alexander Gaffney, Atlanta, for Appellant in A17A0525.
Tiffany Carter Sellers, for Appellee in A17A0525.
Tiffany Carter Sellers, for Appellant in A17A0847.
Heather Saum Ware, John E. Hall Jr., Nathan Alexander Gaffney, Atlanta, for Appellee in A17A0847.
These related appeals concern Tracy E. Dennis's dental malpractice action against Chanda M. Gordon, DDS, and Pain Away Dentistry, LLC. After a jury trial, the trial court entered judgment on a jury verdict in favor of the defendants, and the trial court denied Dennis's motion for new trial. Dennis appeals from that ruling in Case No. A17A0847. Gordon and Pain Away Dentistry filed a motion in the trial court to dismiss Dennis's appeal, and the trial court denied their motion. Gordon and Pain Away Dentistry appeal from that ruling in Case No. A17A0525. Because the trial court denied the motion to dismiss the appeal without making the necessary findings of fact, we vacate the order in Case No. A17A0525 and remand that case for further proceedings consistent with this opinion. Consequently, we dismiss without prejudice the appeal in Case No. A17A0847.
On March 16, 2016, Dennis filed a timely notice of appeal. As the appellant, Dennis had the responsibility to assure that the appellate record was timely prepared and transmitted to this court. See Long v. Midway , 251 Ga. 364, 306 S.E.2d 639 (1983). As to most of the record, that simply entailed timely paying the clerk's bill for the cost of preparing it. See OCGA § 5-6-41 (c) ; Long v. Midway , supra. But as to the transcript, that duty entailed contacting the court reporter, making the necessary arrangements to have the transcript prepared and filed with the trial court, and securing an extension from the trial court if the court reporter would not be able to complete the transcript within the statutory 30-day deadline. See OCGA § 5-6-42 ( ); Durden v. Griffin , 270 Ga. 293, 294 (1), 509 S.E.2d 54 (1998) ( ); Long v. Midway , supra () (citations omitted).
On May 9, 2016, Gordon and Pain Away Dentistry filed their motion to dismiss the appeal. They argued that the trial court should dismiss the appeal because Dennis had unreasonably and inexcusably caused a delay in the filing of the transcript from the October 2015 trial. They noted in their motion that Dennis had not timely sought an extension to file the transcript. In her responsive brief, Dennis described her efforts to obtain a transcript and asked for a 60-day extension to file the transcript.
The trial court held a hearing on the motion to dismiss on August 23, 2016, at which all of the parties presented arguments for and against dismissal and Dennis again asked for an extension. At the end of the hearing, the trial court took the issue under advisement. Subsequently, the trial court entered an order that stated, in its entirety:
The above-styled case is before the Court on Defendants' Motion to Dismiss Appeal. After considering the entire record in this case, the Court hereby denies Defendants' Motion. The Court further orders that Plaintiff's motion for an extension of time to file transcript is granted. The Plaintiff has until September 30, 2016 to file the transcript.
(Emphasis in original.) (The transcript has since been filed and is part of the appellate record in Case No. A17A0847.)
Postell v. Alfa Ins. Corp. , 327 Ga.App. 194, 195, 757 S.E.2d 661 (2014) (citations and punctuation omitted). Here, the trial court did not make findings on these issues. Instead, the trial court "summarily dismissed the notice of appeal." Id. at 196, 757 S.E.2d 661. Compare Callaway v. Garner , 340 Ga.App. 176, 180-181 (1), 796 S.E.2d 906 (2017) ( ).
Despite enumerating this failure as error and stating in their brief that the trial court's order "must be reversed and remanded with instruction," Gordon and Pain Away Dentistry argue that in the interest of judicial economy we should nevertheless decide the merits of the trial court's denial of their motion to dismiss. For her part, Dennis...
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