Premier Pediatric Providers, LLC v. Kennesaw Pediatrics, P. C.

• Decision Date: 16 September 2022
• Docket Number: A22A0857,A22A0924
• Parties: PREMIER PEDIATRIC PROVIDERS, LLC v. KENNESAW PEDIATRICS, P. C.; and KENNESAW PEDIATRICS, P. C. v. PREMIER PEDIATRIC PROVIDERS, LLC
• Court: Georgia Court of Appeals

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PREMIER PEDIATRIC PROVIDERS, LLC v. KENNESAW PEDIATRICS, P. C.; and KENNESAW PEDIATRICS, P. C. v. PREMIER PEDIATRIC PROVIDERS, LLC

Nos. A22A0857, A22A0924

Court of Appeals of Georgia, Fourth Division

September 16, 2022

DILLARD, P. J., MERCIER and MARKLE, JJ.

Markle, Judge.

These consolidated appeals arise from the trial court's grant of summary judgment in favor of Kennesaw Pediatrics, P. C. and against Premier Pediatric Providers, LLC in a suit involving an alleged scrivener's error in a subscription agreement. Kennesaw asserted that, because of the subscription agreement, it had acquired a membership interest in Premier; thus, allowing Kennesaw to have access to Premier's corporate books and records pursuant to the procedures outlined in OCGA § 14-11-313 (3). In Case No A22A0857, Premier argues that the trial court erred in granting summary judgment to Kennesaw. In Case No. A22A0924 Kennesaw argues that the trial court abused its discretion by failing to dismiss Premier's appeal because Premier failed to timely order the transcript of the summary judgment hearing. For the reasons that follow, we find the trial court abused its discretion when it denied Kennesaw's motion to dismiss Premier's appeal. We therefore reverse the denial of Kennesaw's motion to dismiss the appeal in Case No. A22A0924, and dismiss Premier's appeal in Case No. A22A0857.

We review a trial court's ruling on a motion to dismiss an appeal pursuant to OCGA § 5-6-48 (c) under an abuse of discretion standard . . . . Absent an abuse of such discretion, the court's decision will not be disturbed on appeal.

(Citation and punctuation omitted.) Brown v. Quiggley, 361 Ga.App. 76, 77 (862 S.E.2d 739) (2021).

The record shows that Kennesaw asserted it bought a membership interest in Premier under a subscription agreement, and sought to utilize the agreement as a means to seek access to Premier's corporate books and records under the agreement's terms. In response to Kennesaw's request, Premier asserted that the subscription agreement at issue contained a scrivener's error, and that the parties intended for Kennesaw to purchase a membership interest in another company. Thus, Premier refused to allow Kennesaw access to its records. Kennesaw then filed a verified complaint for inspection of Premier's books and records, pursuant to OCGA § 14-11-313 (3).

Both sides then filed cross-motions for summary judgment. Following a hearing, the trial court denied Premier's motion and granted Kennesaw's motion for summary judgment and attorney fees, finding that the subscription agreement allowed Kennesaw the right to inspect Premier's books and records under the procedures set forth in the statute. Premier filed its notice of appeal on August 2, 2021.

On August 3, 2021, Premier received the court clerk's cost bill in the amount of $1,629.50, which included a line item designation for "transcript charges," and Premier paid it on August 18, 2021. Approximately four months later, Kennesaw moved to dismiss the appeal, asserting that Premier failed to ensure the hearing transcript was included in the record within 30 days of the filing of its appeal. Kennesaw also filed the court reporter's affidavit, averring that Premier never ordered or paid for the transcript. Upon learning that it had not already been done, Premier sought to have the transcript prepared and filed. Three days later, the transcript was filed. The trial court subsequently denied Kennesaw's motion, finding the delay in filing the transcript was not unreasonable or inexcusable. These appeals followed.

Case No. A22A0924

1. We address this appeal first because Kennesaw's argument pertains to our jurisdiction to entertain Premier's appeal.

The applicable statutory framework governing appellate practice and the filing of a transcript of the 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.

Northeast Ga. Med. Center v. Healthsouth Rehabilitation Hosp. of Forsyth County, 347 Ga.App. 852, 855-856 (821 S.E.2d 68) (2018). Further, Uniform Superior Court Rule 41.3 provides, in pertinent part, that the filing of a notice of appeal "shall constitute a certificate by the attorney that the transcript has been ordered from the court reporter[.]" Also, OCGA § 5-6-42 specifically provides:

Where there is a transcript of evidence and proceedings to be included in the record on appeal, . . . . [t]he party having the responsibility of filing the transcript shall cause it to be filed within 30 days after filing of the notice of appeal . . .

In turn, a trial court has the discretion to dismiss an appeal after notice and opportunity for hearing,^[1] "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." OCGA § 5-6-48 (c). Accordingly,

as explained by our Supreme Court, OCGA § 5-6-48 (c) sets forth three criteria for dismissal of an appeal for failure to timely file a transcript: 1) unreasonable delay which was 2) inexcusable and 3) caused by such party. A delay in excess of 30 days is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable. The trial court has discretion in passing on these questions, but that discretion is subject to appellate review for abuse.

(Citations and punctuation omitted.) Carbonara v. Fortress Group, 358 Ga.App. 283, 286 (1) (853 S.E.2d 388) (2021); see also Central Ga. Dev. Group v. Synovus Bank, 320 Ga.App. 893, 894 (740 S.E.2d 812) (2013); Pistacchio v. Frasso, 314 Ga.App. 119, 121 (723 S.E.2d 322) (2012); OCGA § 5-6-48 (c). "And while trial courts have wide discretion when ruling on a motion to dismiss an appeal based on a failure to timely file a transcript, that discretion is not unlimited." (Citation and punctuation omitted.) Newton v. Freeman, 353 Ga.App. 704, 707 (1) (839 S.E.2d 203) (2020); SDM Investments Group, v. HBN Media, 358 Ga.App. 421, 423-424 (1) (853 S.E.2d 688) (2021). Here, we conclude that the trial court abused its discretion because Premier's failure to timely file the transcript was both unreasonable and inexcusable.

(a) Premier's delay was unreasonable.

The question of whether a delay in filing the transcript is unreasonable generally refers to the length and effect of the delay, and "[w]ith respect to the length of the delay, we have repeatedly recognized that justice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed." (Citation omitted.) Fulton County Bd. of Tax Assessors v. Technology Sq., ___ Ga.App. ___ (1) (871 S.E.2d 671, 675 (1) (2022); see also SDM Investments Group, 358 Ga.App. at 425 (1); Newton, 353 Ga.App. at 708 (1); Callaway v. Garner, 340 Ga.App. 176, 179 (1) (796 S.E.2d 906) (2017); HTTP Hypothermia Therapy v. Kimberly-Clark Corp., 330 Ga.App. 857, 860 (1) (768 S.E.2d 542) (2015). Moreover, a delay of more than 30 days in filing the transcript is prima facie unreasonable. Carbonara, 358 Ga.App. at 286 (1); see also Kelly v. Dawson County, 282 Ga. 189 (646 S.E.2d 53) (2007); Fulton County Bd. of Tax Assessors, ___ Ga.App. at ___ (1) (871 S.E.2d at 675 (1)).

Delay can affect an appeal by causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court."

(Citation omitted.) Carbonara, 358 Ga.App. at 286 (1) (a). This Court's terms commence on the first Mondays of December, April, and August. See Court of Appeals Rule 12. Here, the nearly four-month lapse in ordering the transcript resulted in a delay in the docketing of Premier's appeal by at least one term of this Court and was, therefore, unreasonable. Id. at 286-287 (1) (a); see also Brown, 361 Ga.App. at 80 (delay in filing transcript was unreasonable where appeal "could have conceivably been docketed during" an earlier term of court.); American Nat. Property & Cas. Co. v. Potts, 243 Ga.App. 645, 646-647 (534 S.E.2d 123) (2000) (month-and-a-half delay in paying for transcript was considered unreasonable where it prevented docketing and placement of case on earliest possible appellate calendar).

(b) Premier's delay was inexcusable.

Premier's delay in filing the transcript was also inexcusable. Premier had a duty to designate in its notice of appeal whether or not any transcript of evidence and proceedings was to be transmitted as a part of the record on appeal; and it was responsible for requesting it, paying for it, and ensuring the transcript was filed within 30 days. Carbonara, 358 Ga.App. at 286 (1); see also SDM Investments Group, 358 Ga.App. at 425 (1); OCGA §§ 5-6-41 (c); 5-6-42. The record shows that Premier's notice of appeal, filed in August 2021, designated that the transcript of the summary judgment hearing be included in the record on appeal. However, the transcript was not filed until December 2021. As the transcript was filed more than 30 days after the filing of the notice of appeal, Premier's delay is prima facie inexcusable. Carbonara, 358 Ga.App. at 286 (1); see also Kelly, 282 Ga. at 189.

Therefore it was incumbent on Premier to come forth with evidence to...