Postell v. Alfa Ins. Corp.

• Citation: 327 Ga.App. 194,757 S.E.2d 661
• Decision Date: 15 April 2014
• Docket Number: No. A14A0695.,A14A0695.
• Parties: POSTELL et al. v. ALFA INSURANCE CORPORATION et al.
• Court: Georgia Court of Appeals

327 Ga.App. 194
757 S.E.2d 661

POSTELL et al.
v.
ALFA INSURANCE CORPORATION et al.

No. A14A0695.

Court of Appeals of Georgia.

April 15, 2014.

[757 S.E.2d 662]

Crandall Postell, pro se.

Sharon E. Davis, pro se.

Thomas Peter Allen III, John Dennis Carey, Martin Snow, William H. Larsen, Macon, Haygood, Lynch, Harris, Melton & Watson, C. Robert Melton, Forsyth, Sherman Eugene Moody III, Perry, for Appellees.

PHIPPS, Chief Judge.

Crandall Postell and Sharon Davis filed suit against Alfa Insurance Corporation, Dean P. Bagwell, American Home Shield Corporation, Oxford Heating & Air, Inc., and James E. Calloway d/b/a Calloway Construction. After a jury trial, the trial court entered a “Directed Verdict Order and Final Judgment.” Dissatisfied therewith, Postell and Davis filed a notice of appeal, designating that a trial transcript be included in the record on appeal. The defendants filed a motion to dismiss the notice of appeal, which the trial court granted. In this appeal, Postell and Davis contest that dismissal. Because the trial court failed to make requisite findings, we vacate the dismissal order and remand the case.

In seeking to dismiss Postell's and Davis's notice of appeal, the defendants cited OCGA § 5–6–48(c); they alleged a delay in the filing of the transcript and alleged also a delay in the transmission of the record to the appellate court for reason that Postell and Davis had failed to pay costs. The trial court conducted a hearing, then issued an order that provided only: “The Defendant's [sic] Joint Motion to Dismiss Appeal is hereby GRANTED.”

OCGA § 5–6–48(c) states, in pertinent part:

[A] trial court may, after notice and opportunity for hearing, order that [a party's] appeal be dismissed where 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 such party. In like manner, the trial court may order the appeal dismissed 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....

Thus,

[i]n order for a trial court to dismiss an appeal for unreasonable delay in the filing of the transcript or in the transmission of the record, OCGA § 5–6–48(c) “requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, and then to exercise discretion in deciding whether to dismiss the appeal.” ¹

Although we review the trial court's decision for an abuse of discretion, the trial court must make findings on these issues before we may determine whether its discretion was abused. Failure to make these findings mandates that we vacate the order dismissing the appeal...