American Ass'n of Cab Companies, Inc. v. Abdillahi

Johnson, Judge. American Association of Cab Companies, Inc., appeals from the trial court’s order granting a motion to dismiss his appeal for failure to timely file the trial transcript. American contends that the trial court abused its discretion in dismissing the appeal. “A trial court has authority to dismiss an appeal if, after notice and opportunity for hearing, it finds that 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 the appealing party. In passing upon these issues the trial court must exercise its discretion. . . . This court must decide, based on the evidence presented, whether the trial court abused its discretion by dismissing the appeal.” (Citations and punctuation omitted.) Van Diviere v. Delta Airlines, 204 Ga. App. 573, 574 (1) (420 SE2d 27) (1992). The trial court held an evidentiary hearing on the motion to dismiss the appeal. The record before us, however, does not contain a transcript of that hearing. The only pertinent evidence in the record shows that the trial transcript had not been filed by the date the court dismissed the appeal, almost 11 months after American filed its original notice of appeal. “An appeal with enumeration of error dependent upon consideration of evidence heard by the trial court will, absent a transcript, result in an affirmance.” (Citations and punctuation omitted.) Ross v. Ninety-Two West, 201 Ga. App. 887, 891 (2) (412 SE2d 876) (1991). Absent a transcript of the hearing held on the motion, we cannot say that the trial court abused its discretion in dismissing the appeal. The evidence presented at the hearing may well have supported a finding that the delay in filing the trial transcript was unreasonable, inexcusable and caused by American. Accordingly, we find no error. Judgment affirmed. Carley, P. J., and Pope, J., concur. Freeman & Hawkins, Edward M. Newsom, for appellee.