Ne. Ga. Med. Ctr., Inc. v. Healthsouth Rehab. Hosp. of Forsyth Cnty., LLC., A18A1029

• Decision Date: 29 October 2018
• Docket Number: A18A1029,A18A1030
• Citation: 821 S.E.2d 68,347 Ga.App. 852
• Parties: NORTHEAST GEORGIA MEDICAL CENTER, INC. et al. v. HEALTHSOUTH REHABILITATION HOSPITAL OF FORSYTH COUNTY, LLC. Georgia Department of Community Health v. Healthsouth Rehabilitation Hospital of Forsyth County, LLC.
• Court: Georgia Court of Appeals

347 Ga.App. 852

821 S.E.2d 68

NORTHEAST GEORGIA MEDICAL CENTER, INC. et al.

v.HEALTHSOUTH REHABILITATION HOSPITAL OF FORSYTH COUNTY, LLC.

Georgia Department of Community Health

v.Healthsouth Rehabilitation Hospital of Forsyth County, LLC.

A18A1029

A18A1030

Court of Appeals of Georgia.

October 29, 2018

Armando Luis Basarrate II, Elizabeth Murphy Kitchens, Robert Michael Rozier, Michael J. McConnell, Laura Kolesar Gura, Atlanta, for Appellant

Robert Charles Threlkeld, Atlanta, for Appellee

Isaac Byrd, Christopher Michael Carr, Daniel Stephen Walsh, Atlanta, Rachel Louise King, Monica Anne Sullivan, for Appellant

Brown, Judge.

In these consolidated appeals, Georgia Department of Community Health (the "Department"), Northeast Georgia Medical Center, Inc., Gwinnett Hospital System, Inc. d/b/a Gwinnett Medical Center-Duluth, and WellStar North Fulton Hospitals, Inc. (the "Hospital Respondents," collectively the "appellants") appeal the trial court’s dismissal of their appeals from the trial court’s order reversing the Department’s decision denying a certificate of need ("CON") to HealthSouth Rehabilitation Hospital of Forsyth County, LLC to build a 50-bed comprehensive inpatient physical rehabilitation ("CIPR") hospital in Forsyth County. The appellants argue that the trial court abused its discretion in dismissing their appeals based on findings that the delay in filing the hearing transcript was unreasonable, inexcusable, and caused by the appellants. For the reasons set forth below, we affirm the trial court’s order dismissing the appeals.

The record shows that on October 12, 2015, HealthSouth filed a petition for judicial review in the Forsyth County Superior Court of the Department’s decision denying HealthSouth’s application for a CON to build the CIPR. After the appellants moved to transfer venue, the case was transferred to the Fulton County Superior Court. Following a hearing on the petition on April 11, 2016,¹ the trial court remanded the case to the Department for it "to either make a ruling consistent with its precedent or to explain its change from precedent" on three issues. On June 29, 2016, the Department filed a response to the trial court’s request for clarification, disagreeing with the trial court that it departed from precedent and explaining its reasoning with respect to each issue. On January 27, 2017, the trial court issued an order, granting HealthSouth’s petition. The trial court found the Department’s response regarding precedent deviation "unconvincing" and concluded that the Department "acted arbitrarily and capriciously in denying [HealthSouth] a CON."

On March 16, 2017, this Court granted the appellants’ applications for discretionary review of the trial court’s January 27, 2017 order. Four days later, counsel for Gwinnett Hospital System emailed the court reporter asking if she could please let him know "if anyone in this matter asked that the full transcripts [of the April 11, 2016 hearing] be prepared?" The court reporter responded, "I have a note that it’s been done. Would you like a copy?"² That same day, counsel for Gwinnett Hospital System emailed counsel for the other three appellants as follows: "Good news. The Court Reporter believes that she prepared the transcripts, so unless there are any further changes, I will file the attached Notice tomorrow."³

As contemplated, on March 23, 2017, the Hospital Respondents and the Department all filed their notices of appeal. In their joint notice of appeal, the Hospital Respondents, represented by six lawyers from three law firms, stated the following: "The Clerk will please transmit the entire record to the Court of Appeals along with the attached Order granting the discretionary appeal. The Hospital Respondents request that the Court also file the previously compiled transcript of the April 11, 2016 hearing and oral argument held before this Court for inclusion in the record on appeal." (Emphasis supplied.) The Department’s notice of appeal provided, "[t]he Clerk shall omit nothing from the record on appeal. A transcript of evidence and proceedings will be filed for inclusion in the record on appeal."

Also on March 24, 2017, the Clerk sent a cost bill in the amount of $29.50 to counsel for Northeast Georgia Medical Center, by certified mail, return receipt requested.⁴ Counsel did not receive the bill, averring that the Clerk mailed the bill to an incorrect address:

"303 Peachtree Street, Suite 3600, Atlanta, Georgia 30303." The zip code for his law firm is 30308, not 30303.⁵ Six days later, on March 29, 2017, counsel for the Department received a cost bill, dated March 24, 2017, totaling $4,135.50, which included a line item charge of $35, designated as "Transcript Charges." The appellants agreed to split the total cost amongst themselves, and on April 20, 2017, counsel for the Department notified co-counsel that the cost bill had been paid in full.

On April 23, 2017, 30 days after the notices of appeal were filed, the transcript had not yet been filed and no party moved the trial court for an extension of time to file the transcript. On May 19, 57 days after the notices of appeal were filed, counsel for WellStar North Fulton Hospital called the Clerk’s office for the first time to inquire as to the status of the appeal and was told that the transcript had not been filed. Counsel for WellStar emailed her colleagues advising as follows: "I just talked to the clerk’s office and was told that no transcript had been filed yet. I was told that we should be notified when it is." Another month went by before counsel for WellStar called the Clerk’s office on June 22, 2017, but was unable to speak with anyone. She called back on June 23, 2017, and was told that the transcript still had not been filed and that there was an outstanding cost bill for $29.50 associated with Northeast’s notice of appeal.⁶ On that same date, counsel also emailed the court reporter to inquire about the status of the transcript, but did not hear back. From July 5, 2017 to July 14, 2017, counsel made several attempts to contact the court reporter, including speaking to her supervisors. On July 14, 2017, the court reporter left two voicemails for counsel, the first stating, " ‘I’d swear that this is done and I thought I filed it. Let me take a look and I will call back and let you know,’ " and the second stating that "she had looked into it and the cost of the transcript would be $200.83." In her affidavit, counsel explained that when she called back, the court reporter "indicated that we would need to pay her for a copy of the transcript for her to file it." On that same date, the court reporter emailed an invoice, which counsel paid via check on July 17, 2017. By July 28, 2017, counsel had not heard from the court reporter and left a voicemail asking for the status of the transcript.

On August 2, 2017, HealthSouth filed its motion to dismiss the appeals, on the ground that the appellants had not filed the transcript as required by OCGA § 5-6-42. On August 3, 2017, counsel for WellStar called the court reporter and was told that she had not received the check for the transcript. The court reporter advised that she had recently moved and was "having issues with her mail," but that she would file the transcript that day and work out payment later. On August 4, 2017, counsel received confirmation from the court reporter that the transcript had been filed. Counsel paid the court reporter over the phone with a credit card for the cost of the transcript. In her affidavit counsel affirmed that, "[d]espite paying the so-called copy charge, to date[, August 29, 2017,] I have not received a copy of the transcript from [the court reporter]." On August 8, 2017, the envelope with the check counsel sent to the court reporter on July 17, was returned as undeliverable.

Following a hearing on September 22, 2017, in which no witnesses testified, the trial court granted HealthSouth’s motion to dismiss the appeals under OCGA § 5-6-48 (c), concluding that the delay in filing the transcript was unreasonable, inexcusable, and caused by the appellants. Specifically, the trial court ruled that the appellants

failed to provide evidence to show that the delay [in filing the transcript] was not unreasonable[, and] that the 133 days that passed between the filing of the Notices of Appeal and the filing of the transcript was unreasonable. ... The delay was also inexcusable and caused by [the appellants]. The record shows that [the appellants] did not direct the court reporter to file the transcript. Instead [the appellants] contend that they relied on the court reporter’s representation that the transcript had previously been prepared as evidence that she would file the transcript.

The trial court further found that the appellants failed to monitor the timely progress of the filing of the transcript; the appellants neither monitored the Clerk’s website, nor did they contact the court reporter to ask about the status of the transcript until June 22, 2017, two months after the filing deadline had passed. This appeal followed.

The relevant statutory framework governing appellate practice and the filing of a transcript of the trial proceedings is as follows. OCGA § 5-6-37 requires that the notice of appeal shall state whether or not any transcript of evidence and proceedings is to be transmitted as part of the record on appeal. OCGA § 5-6-41 (c) provides that "where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant’s expense."

OCGA § 5-6-42 elaborates on this duty, specifying that the appellant must file the transcript within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5-6-39. In turn, OCGA § 5-6-48 (c) governs the dismissal of appeals and provides that "the trial court may, after notice and opportunity for hearing, order that the

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