Jackson v. Beech Aircraft Corp., s. A95A0343

• Citation: 458 S.E.2d 377,217 Ga.App. 498
• Decision Date: 31 May 1995
• Docket Number: Nos. A95A0343,A95A0344 and A95A0345,s. A95A0343
• Parties: JACKSON et al. v. BEECH AIRCRAFT CORPORATION. BEECH AIRCRAFT CORPORATION v. JACKSON et al. BEECH AIRCRAFT CORPORATION v. JACKSON et al.
• Court: United States Court of Appeals (Georgia)

Page 377

458 S.E.2d 377

217 Ga.App. 498

JACKSON et al. v. BEECH AIRCRAFT CORPORATION.

BEECH AIRCRAFT CORPORATION v. JACKSON et al.

BEECH AIRCRAFT CORPORATION v. JACKSON et al.

Nos. A95A0343, A95A0344 and A95A0345.

Court of Appeals of Georgia.

May 31, 1995.

Certiorari Denied Sept. 11, 1995.

Bates, Kelehear, Starr & Toland, James E. Toland, Jr., J. Raymond Bates, Jr., Dalton, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Cordele, for Jackson et al.

Gray, Gilliland & Gold, T. Cullen Gilliland, Atlanta, for Beech Aircraft Corp.

BIRDSONG, Presiding Judge.

This litigation arises from an aircraft accident; the pilot Dr. Joseph Jackson and his son were injured in the crash. Dr. Jackson, his wife, and son brought suit against Beech Aircraft Corporation (Beech Aircraft), the manufacturer of the plane, alleging defects in the aircraft. The jury returned a verdict in favor of defendant Beech Aircraft. The Jacksons appeal this judgment, and Beech Aircraft cross-appeals; Beech Aircraft also appeals the denial of its motion to dismiss the Jacksons' appeal on grounds of delay in the filing of the transcript. The Jacksons' notice of appeal was filed timely on November 12, 1992.

In Jackson v. Beech Aircraft Corp., 213 Ga.App. 172, 444 S.E.2d 359, this court examined appellee's motion to dismiss the appeal in light of the unreasonable delay found to exist, and remanded the case to the trial court with direction to enter certain specific findings. The trial court conducted a hearing and, after entering certain additional findings, denied Beech Aircraft's motion to dismiss and granted the parties' motions to reinstate their appeals. Held:

Case No. A95A0345

(Denial of Motion to Dismiss Appeal)

1. The opinion of this court in Jackson, supra, was not appealed by either party; accordingly, the holdings therein were binding on the trial court (Ga. Const. of 1983, Art. VI, Sec. V, Par. III; see Moore v. American, etc., Motor Corp., 211 Ga.App. 337, 340(1), 439 S.E.2d 43), including the holding that "[t]here exists a plethora of evidence to support the trial court's finding that unreasonable delay has occurred." Jackson, supra at 173, 444 S.E.2d 359. The three criteria for dismissal of an appeal for failure to file timely a transcript are explained in Baker v. Southern R. Co., 260 Ga. 115, 390 S.E.2d 576; we will review this enumeration in light of the precedent of Baker.

In doing so, we recognize that in making its factual determinations, a trial court "exercises a broad legal discretion which is subject to appellate scrutiny only for abuse." Miller v. Ingles Market, 214 Ga.App. 817, 818, 449 S.E.2d 166. Compare Leonard v. Ognio, 201 Ga.App. 260, 410 S.E.2d 814 (reversing trial court's denial of motion to dismiss appeal on grounds of abuse of discretion).

2. OCGA § 5-6-42 provides for filing of a transcript within 30 days after notice of appeal is filed unless filing time is extended as provided by OCGA § 5-6-48. As we previously concluded (Jackson, supra), unreasonable delay occurred in the filing of the trial transcript in this case.

However, on remand the trial court entered an order denying Beech Aircraft's motion to dismiss. In support of that ruling, the trial court affirmatively made the following 13 findings of fact seriatim: (1) record preparation was completed February 2, 1994; (2) plaintiffs Jacksons were billed for record preparation on April 28, 1993; (3) plaintiffs Jacksons paid the clerk's cost bill on or about April 29, 1993; (4) the superior court clerk's office did not begin record preparation until after completion and delivery of the trial transcript to the clerk; (5) delay in ordering the transcript caused delay in delivering the record to the Court of Appeals; (6) the record was prepared within 12 working days after delivery of the transcript on January 14, 1994; (7) no unreasonable delay would have occurred had the transcript been timely filed; (8) plaintiffs Jacksons formally ordered a transcript in April 1993; (9) plaintiffs Jacksons made the deposit in April 1993 for the transcript required by the reporters; (10) there was an unreasonable delay in filing the transcript and preparation of the record; (11) the cause of delay in filing the record was the failure of plaintiffs Jacksons to order the transcript in a timely manner; (12) plaintiffs Jacksons' counsel were reasonable in their belief that the transcript had been ordered and was being or would be prepared in a timely fashion; and (13) the delay in preparation of the transcript and filing of the record with the Court of Appeals was excusable and therefore did not constitute unexcusable neglect. We find the record supports the trial court's findings nos. 1-11; however, for reasons hereinafter discussed, the latter two findings, nos. 12 and 13, are not supported by the record. As we conclude transcript preparation delay was unreasonable and caused by plaintiffs Jacksons, and that any delay in preparation of the trial record was caused by the plaintiffs' failure to order the transcript in a timely manner, the remaining issue is whether the trial court, under these unique circumstances, abused its discretion in finding that this protracted delay was excusable.

To support dismissal of an appeal for failure to file a transcript timely, OCGA § 5-6-48(b) requires that the unreasonable delay caused by the appealing party must also constitute an "inexcusable" delay. With certain exceptions not here applicable, "[i]n all interpretations of statutes, the ordinary signification shall be applied to all words...." OCGA § 1-3-1(b). The ordinary signification applied to the word "inexcusable" is that the conduct by act or omission was "not excusable; incapable of being justified." Webster's Encyclopedic Unabridged Dictionary of the English Language (1989). Plaintiffs Jacksons argued and the trial court found they had harbored a good faith belief that the transcript had been timely ordered. While good faith is a factor in determining whether conduct is inexcusable or excusable, it is but one factor to be considered; existence of good faith does not automatically render an unreasonable delay excusable. Whether conduct is incapable of being justified and thus inexcusable must be determined by examining the totality of the circumstances of a given appeal. Among the factors which should be considered is the existence of negligence on the part of the appealing party causing unreasonable delay, whether such delay reasonably should have been detected and timely corrected, and whether any such negligence was so severe as to prejudice the opposing party or to cause the appeal to become stale, within the meaning of Jackson, supra, and Cousins Mtg. etc. v. Hamilton, 147 Ga.App. 210, 248 S.E.2d 516.

Judgment was entered in favor of defendant Beech Aircraft on August 31, 1992. The Jacksons filed a motion for new trial. A few days prior to the hearing on the motion for new trial, Beech Aircraft sent a letter to the court reporters saying the defense would need a full transcript of the proceedings; however, the Jacksons' lead counsel testified that he was unaware of this letter before the hearing, and at the hearing he learned that Beech Aircraft had ordered a trial transcript for the "purpose" of responding to the Jacksons' supplemental brief and amended motion for new trial. Beech Aircraft also filed a motion for continuance in order to obtain the transcript for use in opposition to the motion for new trial; motion for continuance was denied. Motion for new trial hearing was held on October 9, 1992. At the hearing, counsel for Beech Aircraft stated that he had asked for the transcript to be produced; counsel for the Jacksons argued that production of the trial transcript was not necessary for a ruling by the trial court on the motion. At the end of the hearing, counsel for the Jacksons made a motion that the defense be required to provide them with a copy of the trial transcript at Beech Aircraft's expense. The trial court denied the motion to compel the defense to provide a copy of the record in open court at the hearing. Although the Jacksons' local and lead counsel stated that after the new trial motion hearing they were under the impression the transcript had been ordered, the denial of the motion to compel defendants to provide a transcript to plaintiffs placed the Jacksons on reasonable notice they would have to make their own timely arrangements with the court reporter to order and obtain a copy of the trial transcript. Moreover, any implication of confusion among the Jacksons' counsel, as to which of them was responsible for procuring the transcript for appeal, would not serve as justification for the filing in this court of an untimely appeal (compare Dept. of Human Resources v. Patillo, 196 Ga.App. 778, 397 S.E.2d 47 and In re G.W.H., 168 Ga.App. 845, 310 S.E.2d 573). Further, although the Jacksons' lead counsel testified that following the motion for new trial hearing he expected the transcript to be furnished in installments and invoices sent therewith, the record unequivocally establishes that the court reporter was never contacted as the months went by and as repeated extensions of transcript filing time were sought and granted without the receipt by the Jacksons' counsel of any transcript installments whatsoever. The failure to contact the court reporter is even more flagrant if the Jacksons' counsel actually expected the transcript to be provided in installments; an installment should be completed and delivered much sooner than a complete transcript, and failure to inquire as to the lack of such receipt is even more egregious and unjustifiable under these circumstances. In this regard, the Jacksons' lead counsel conceded on the record, "I would admit to the court that maybe we could have done some additional things to follow up on this; maybe we should have anticipated that something was going wrong. We did note the record was taking a...