Bass v. Mercer

Barnes, Judge. Case No. A99A1260 is before the Court from an order dismissing appellants’ notice of appeal in a personal injury suit. Two cross appeals by the defendants in the personal injury suit (Case Nos. A99A1261 and A99A1262) are also pending and have been consolidated with this case. We affirm the trial court’s dismissal of the appeal and therefore dismiss the subsequent cross appeals. The parents of two minors sued several parties seeking compensation for injuries their daughters suffered in an automobile collision. Following a trial, the jury returned a verdict for both sets of parents, awarding in both cases medical expenses, but no damages for pain and suffering. Case No. A99A1260 The plaintiffs-appellants timely filed their notice of appeal on May 5, 1997, and directed the clerk to include the trial transcript in the record to be sent to this Court. They then moved on November 19, 1997, for an extension of time to file the transcript on the ground that their attorney had “just become aware that the transcript of trial was not ordered on May [5], 1997, at the time the Notice of Appeal was filed nor in July when costs for the appeal record were forwarded” to the trial court. The trial court granted the motion for an extension of time the same day it was filed, and one week later, the defendants opposed the motion and moved the court to dismiss the appeal. On January 9, 1998, the defendants moved to vacate and reconsider the order granting plaintiffs an extension of time to file the transcript, averring they first received notice of the court’s order on December 23, 1997. They also moved again to dismiss the appeal on the ground that plaintiffs failed to order the transcript until more than 190 days after their notice of appeal was filed and therefore delayed the transmission of the record to this Court. Finally, the defendants submitted affidavits from the court reporter confirming that the trial transcript was not ordered until November 13, 1997, and from the clerk of court confirming that the record was ready, but could not be transmitted because she had not received the transcript. The transcript was finally filed with the clerk of court on February 19, 1998. After a hearing in March 1998, the trial court granted the defendants’ motion to vacate, explaining that it had erroneously [546] believed the motion for an extension of time to file the transcript was unopposed and timely. Given that the defendants filed timely responses opposing the extension, the trial court concluded that its November 19,1997 order granting the extension was premature. The trial court then considered whether to grant plaintiffs’ motion for an extension of time and concluded that under OCGA § 5-6-39 (d), any application for an extension had to be made “before expiration of the period for filing as originally prescribed.” Since the plaintiffs sought their first extension more than 190 days after the notice of appeal was filed, far past the 30-day deadline set out in OCGA § 5-6-42, the trial court denied their motion. “The failure to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal.” Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990). Therefore, the trial court then considered whether the appeal should be dismissed under OCGA § 5-6-48 (c), under which a trial court may dismiss an appeal because the delay was caused by the appellants, was unreasonable, and was inexcusable. First, the trial court considered the court clerk’s affidavit stating the record was ready for submission to this Court except for the trial transcript. Because the appellants failed to order the transcript in a timely manner, the trial court found they delayed the record’s transmittal. The court then found the transcript filing delay of more than six months was unreasonable, noting that we have found filing delays of ninety days and one hundred fifty days inexcusable. Crocker v. Stevens, 210 Ga. App. 231, 239-241 (10) (435 SE2d 690) (1993); Burton v. Hamilton, 204 Ga. App. 18, 19 (418 SE2d 398) (1992). Finally, the court concluded that the delay was inexcusable. The only excuse appellants’ counsel gave for failing to order the transcript was that he thought, in good faith, it had already been ordered. Citing Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 500 (2) (458 SE2d 377) (1995), the trial court noted that [w]hile good faith is a factor in determining whether conduct is inexcusable or excusable, it is but one factor to be considered; existence of good faith does not automatically render an unreasonable delay excusable. Whether conduct is incapable of being justified and thus inexcusable must be determined by examining the totality of the circumstances of a given appeal. Among the factors which should be considered is the existence of negligence on the part of the appealing party causing unreasonable delay, whether such delay reasonably should have been detected and timely corrected, and [547] whether any such negligence was so severe as to prejudice the opposing party or to cause the appeal to become stale. . . . (Citations omitted; emphasis in original.) Considering the totality of the circumstances, the trial court concluded that the delay of several months caused by appellants’ negligence allowed the appeal to become stale. We review a trial court’s dismissal of an appeal for abuse of discretion. Durden v. Griffin, 270 Ga. 293, 294 (1) (509 SE2d 54) (1998). The Supreme Court of Georgia has upheld such a dismissal when the appellant ordered the transcript only four days after the statutory time expired. Id. We conclude the trial court did not abuse its discretion in dismissing the appeal. . Case Nos. A99A1261, A99A1262 In view of the holding above, the related cross appeals are dismissed. Judgment affirmed in Case No. A99A1260. Appeals dismissed in Case Nos. A99A1261 and A99A1262. Blackburn, P. J, and Ellington, J., concur specially.