Miller v. Ingles Market, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: McMURRAY; POPE, C.J., and SMITH
• Citation: Miller v. Ingles Market, Inc., 449 S.E.2d 166, 214 Ga.App. 817 (Ga. App. 1994)
• Decision Date: 07 October 1994
• Docket Number: No. A94A2391,A94A2391
• Parties: MILLER v. INGLES MARKET, INC.

Page 166

449 S.E.2d 166

214 Ga.App. 817

MILLER v. INGLES MARKET, INC.

No. A94A2391.

Court of Appeals of Georgia.

Oct. 7, 1994.

Charles G. Wright, Jr., Chattanooga, TN, for appellant.

Leitner, Warner, Moffitt, Williams, Dooley, Carpenter & Napolitan, David W. Noblit, Chattanooga, TN, for appellee.

McMURRAY, Presiding Judge.

Ingles Market, Inc. (appellee) has filed a motion to dismiss this appeal pursuant to OCGA § 5-6-48(c), arguing that there was an unreasonable and inexcusable delay in the transmission of the record to this court due to Carol L. Miller's (appellant) failure to timely pay the costs of preparing the appellate record. Appellee asserts that it was unable to press a motion to dismiss this appeal in the trial court because appellant did not notify appellee of the filing of a notice of appeal (as required by OCGA § 5-6-37) or otherwise inform appellee of the appeal via notice or correspondence of any kind. Appellee supports this allegation via affidavit identifying a letter from appellate counsel apologizing for his "gross oversight" and contends it did not find out about the appeal until receipt of a notice of docketing from the Georgia Court of Appeals.

OCGA § 5-6-48(c) authorizes dismissal of a party's appeal "where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence; provided, however, that no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail, of the amount of costs." "Under that Code section, only the trial court has the authority to dismiss an appeal for failure to file a transcript timely. 'The cause for delay in the processing of the appeal is a fact issue for determination in the trial court,' and in making that determination, the trial court exercises a broad legal discretion which is subject to appellate scrutiny only for abuse. (Citation and punctuation omitted.) Barmore v. Himebaugh, 205 Ga.App. 381, 382, 422 S.E.2d 255 (1992)." Beavers v. Gilstrap, 210 Ga.App. 46(1), 47, 435 S.E.2d 267.

In the case sub judice, appellee alleges that appellant waited more than 20 days to pay costs after the trial court clerk mailed a receipt of the amount of said costs. Further, it appears the trial court was never provided an opportunity to make the requisite fact...