(Ga. L. 1965, p. 18, § 13; Ga. L. 1965, p. 240, § 1; Ga. L. 1966, p. 493, § 10; Ga. L. 1968, p. 1072, §§ 2, 3; Ga. L. 1972, p. 624, § 1; Ga. L. 1978, p. 1986, § 1; Ga. L. 2000, p. 1589, § 3.)
Cross references.- Briefs of appellant and cross appellant, Rules of the Supreme Court of the State of Georgia, Rule 39.
Service on opposing parties, Rules of the Supreme Court of the State of Georgia, Rule 43.
Argument and citation of authority, Rules of the Supreme Court of the State of Georgia, Rule 45.
Judgments deemed included and presented, Rules of the Supreme Court of the State of Georgia, Rule 46.
Presenting issue where record supplemented, Rules of the Supreme Court of the State of Georgia, Rule 48.
Motions in civil actions, hearing, Uniform Superior Court Rules, Rule 6.3.
Transcript costs, Uniform Superior Court Rules, Rule 41.3.
Editor's notes.- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.
Law reviews.- For article, "Synopses of 1968 Amendments Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article discussing Georgia court decision on questions of appellate practice and procedure, see 31 Mercer L. Rev. 1 (1979). For article surveying appellate practice and procedure, see 34 Mercer L. Rev. 3 (1982). For annual survey of appellate practice and procedure, see 38 Mercer L. Rev. 47 (1986). For annual survey of appellate practice and procedure, see 40 Mercer L. Rev. 51 (1988). For annual survey of appellate practice and procedure, see 57 Mercer L. Rev. 35 (2005). For survey article on appellate practice and procedure, see 60 Mercer L. Rev. 21 (2008). For annual survey on appellate practice and procedure, see 61 Mercer L. Rev. 31 (2009). For article, "Appellate Practice and Procedure," see 63 Mercer L. Rev. 67 (2011). For annual survey on trial practice and procedure, see 64 Mercer L. Rev. 305 (2012). For annual survey on trial practice and procedure, see 70 Mercer L. Rev. 253 (2018). For comment on Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123 (1966), see 4 Ga. St. B.J. 259 (1967). For comment on Durham v. Stand-By Labor of Ga., Inc., 230 Ga. 558, 198 S.E.2d 145 (1973), appearing below, see 8 Ga. L. Rev. 526 (1974).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality of section discussed.
- See Brackett v. Allison, 119 Ga. App. 632, 168 S.E.2d 611 (1969).
Purpose of section.
- Section contains specific and limited grounds for dismissal and is replete with provisions for liberal amendment to meet technical objections to appeals, to the end of facilitating a proper decision on the merits. Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev'd on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966).
Section opens notice of appeal to extrinsic construction for first time and puts burden on court to examine orders themselves in determining from which orders an appeal has been taken. Brackett v. Allison, 119 Ga. App. 632, 168 S.E.2d 611 (1969).
Entire section gives to court a very broad discretion. Brookshire v. J.P. Stevens Co., 133 Ga. App. 97, 210 S.E.2d 46 (1974).
Appellate courts should reach merits of appeals when possible.
- It is the policy of both appellate courts in Georgia to attempt to avoid dismissing appeals and to try to reach the merits of every case when it can be done consistent with the mandate of the law. Johnson v. Daniel, 135 Ga. App. 926, 219 S.E.2d 579 (1975); Gilland v. Leathers, 141 Ga. App. 680, 234 S.E.2d 338 (1977); Corbin v. First Nat'l Bank, 151 Ga. App. 33, 258 S.E.2d 697 (1979).
When the plaintiff failed to file enumerations of error as a separate document, but did set forth enumerations of error in the plaintiff's brief, it was apparent from the notice of appeal, the brief, the enumerations of error in that brief, and the record, exactly what judgment was appealed from and what errors were asserted, and a liberal construction of the Appellate Practice Act, O.C.G.A. § 5-6-30 et seq., required the court to exercise the court's discretion to reach the merits of the case. Leslie v. Williams, 235 Ga. App. 657, 510 S.E.2d 130 (1998).
Section does not limit judicial authority under rule regarding dismissal.
- Judicial authority under Rule 39, Rules of the Supreme Court to dismiss appeal for failure to comply with order to file enumeration of error is not prohibited by Ga. L. 1965, p. 18, § 23 (see O.C.G.A. § 5-6-30), which expresses an intent to avoid dismissals, and is not limited by the three grounds for dismissal contained in Ga. L. 1968, p. 1072, §§ 2, 3. Taylor v. Columbia County Planning Comm'n, 232 Ga. 155, 205 S.E.2d 287 (1974).
Belated filing of separate enumerations of error is not a basis for dismissal of an appeal. Reeder v. GMAC, 235 Ga. App. 617, 510 S.E.2d 337 (1998).
Failure to file brief and enumerations of error.
- In a suit pursuant to O.C.G.A. § 36-91-90 et seq., seeking to recover against a payment bond for amounts due for labor and materials provided on a construction project on private property, the court dismissed the subcontractors' appeal because the subcontractors failed to set forth an enumeration of errors as required by O.C.G.A. § 5-6-40. Complete Wiring Solutions, LLC v. Astra Group, Inc., 335 Ga. App. 723, 781 S.E.2d 597 (2016).
Former Rule 14(a) of the Rules of the Supreme Court (see Rule 39) is directory and its violation does not constitute one of the limited grounds for dismissal as prescribed by this section. Durham v. Stand-By Labor of Ga., Inc., 230 Ga. 558, 198 S.E.2d 145 (1973).
What must be shown to order dismissal.
- In order for the trial court to order the dismissal of an appeal, it must appear that the delay between the filing of the notice of appeal and the subsequent filing of the transcript was unreasonable and that the unreasonable delay was inexcusable. Gay v. City of Rome, 157 Ga. App. 368, 277 S.E.2d 741 (1981).
Discretion of court.
- In passing upon issues of unreasonable delay and inexcusable delay, the trial court has discretion. However, it is a legal discretion which is subject to review in the appellate courts. Gay v. City of Rome, 157 Ga. App. 368, 277 S.E.2d 741 (1981).
When the main appeal was dismissed in the appeal's entirety and the defendant filed no application for interlocutory review of the denial of the motion to transfer venue, the court had no independent jurisdiction over the cross-appeal and dismissal is proper. Patel v. Georgia Power Co., 234 Ga. App. 141, 505 S.E.2d 787 (1998).
Formal recitation of conditions of grant or denial not required.
- O.C.G.A. § 5-6-41 does not, by the statute's terms, require the trial court to make a formal recitation of the conditions upon which the trial court grants or denies a motion to dismiss an appeal. When the challenged order complies with the requirements of § 5-6-48, the trial court is not required to make findings of fact and conclusions of law in the court's order denying the motion to dismiss the appeal. Gay v. City of Rome, 157 Ga. App. 368, 277 S.E.2d 741 (1981).
No ground exists for dismissing an appeal based on a special demurrer,
- or for that matter any motion, if the motion was not timely filed in the trial court. Kimbrough v. State, 336 Ga. App. 381, 785 S.E.2d 54 (2016).
Hearing.
- There is no conflict between the "opportunity for hearing" on a motion to dismiss, as set forth in subsection (c) of O.C.G.A. § 5-6-48, and Uniform Superior Court Rule 6.3, and when there is full opportunity to respond to an opponent's motion to dismiss, the court does not err in granting the motion without an oral hearing. Glen Restaurants, Inc. v. Building 5 Assocs., 189 Ga. App. 327, 375 S.E.2d 492, cert. denied, 189 Ga. App. 912, 375 S.E.2d 492 (1988).
Cited in Williams v. State, 112 Ga. App. 566, 145 S.E.2d 765 (1965); Undercofler v. McLennan, 221 Ga. 613, 146 S.E.2d 635 (1966); Banks v. Banks, 221 Ga. 626, 146 S.E.2d 636 (1966); Cade v. Burson, 221 Ga. 715, 146 S.E.2d 761 (1966); Gibson v. Hodges, 221 Ga. 779, 147 S.E.2d 329 (1966); Chambliss v. Hall, 113 Ga. App. 96, 147 S.E.2d 334 (1966); Birdwell v. Pippen, 113 Ga. App. 202, 147 S.E.2d 673 (1966); Seaton v. Redisco, Inc., 113 Ga. App. 256, 147 S.E.2d 828 (1966); Dawn Mem. Park v. Southern Cem. Consultants of Ga., Inc., 113 Ga. App. 814, 149 S.E.2d 760 (1966); Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556 (1966); LeCraw v. L.P.D., Inc., 114 Ga. App. 281, 150 S.E.2d 927 (1966); Sayers v. Rothberg, 222 Ga. 626, 151 S.E.2d 445 (1966); Puckett v. Puckett, 222 Ga. 653, 151 S.E.2d 767 (1966); Louisville & N.R.R. v. Clark, 114 Ga. App. 755, 152 S.E.2d 694 (1966); Hood v. Akins, 114 Ga. App. 733, 152 S.E.2d 704 (1966); Hicks v. Maple Valley Corp., 223 Ga. 69, 153 S.E.2d 547 (1967); Norbo Trading Corp. v. Wohlmuth, 223 Ga. 258, 154 S.E.2d 224 (1967); Griffith v. Morgan, 115 Ga. App. 518, 154 S.E.2d 822 (1967); Turner v. Bogle, 115 Ga. App. 710, 155 S.E.2d 667 (1967); State Hwy. Dep't v. Hicks, 115 Ga. App. 703, 155 S.E.2d 689 (1967); Liberty Loan & Thrift Corp. v. Meeks, 115 Ga. App. 846, 156 S.E.2d 172 (1967); Ward v. Ward, 115 Ga. App. 778, 156 S.E.2d 210 (1967); Hayes v. State, 116 Ga. App. 260, 157 S.E.2d 30 (1967); Byrd v. Moore Ford Co., 116 Ga. App. 292, 157 S.E.2d 41 (1967); Cotton States Mut. Ins. Co. v. Tiller, 116 Ga. App. 275, 157 S.E.2d 57 (1967); Olds v. Hair, 116 Ga. App. 401, 157 S.E.2d 559 (1967); Peach v. State, 116 Ga. App. 703, 158 S.E.2d 701 (1967); Bailey v. State, 224 Ga. App. 48, 159 S.E.2d 286 (1968); Mixon v. Hall, 117 Ga. App. 626, 161 S.E.2d 429 (1968); McKinney v. Schaefer, 117 Ga. App. 595, 161 S.E.2d 446 (1968); Lake Spivey Parks v. Jones, 118 Ga. App. 60, 162 S.E.2d 801 (1968); Wooten v. State ex rel. Bagby, 118 Ga. App. 366, 163 S.E.2d 870 (1968); Fahrig v. Garrett, 224 Ga. 817, 165 S.E.2d 126 (1968); Hardy v. D.G. Mach. & Gage Co., 224 Ga. 818, 165 S.E.2d 127 (1968); Daniels v. Allen, 118 Ga. App. 722, 165 S.E.2d 449 (1968); Jones v. State, 225 Ga. 114, 166 S.E.2d 350 (1969); Carroll v. Askew, 119 Ga. App. 224, 166 S.E.2d 635 (1969); Stephens v. State, 119 Ga. App. 674, 168 S.E.2d 333 (1969); Shepherd v. Shepherd, 225 Ga. 455, 169 S.E.2d 314 (1969); Joiner v. Joiner, 225 Ga. 699, 171 S.E.2d 297 (1969); Harrison v. State, 120 Ga. App. 812, 172 S.E.2d 328 (1969); Genins v. Genins, 226 Ga. 70, 172 S.E.2d 416 (1970); Reese v. State, 121 Ga. App. 189, 173 S.E.2d 351 (1970); O'Quinn v. State, 121 Ga. App. 231, 173 S.E.2d 409 (1970); Teppenpaw v. Blalock, 121 Ga. App. 320, 173 S.E.2d 442 (1970); Jacobs v. Shiver, 226 Ga. 284, 174 S.E.2d 415 (1970); Stewart v. Church, 121 Ga. App. 783, 175 S.E.2d 46 (1970); Satcher v. James H. Drew Shows, Inc., 122 Ga. App. 548, 177 S.E.2d 846 (1970); Hicks v. Seaboard Coast Line R.R., 123 Ga. App. 95, 179 S.E.2d 532 (1970); Wellcraft Mfg., Inc. v. Troutman, 123 Ga. App. 321, 180 S.E.2d 588 (1971); Norman v. Walker, 123 Ga. App. 413, 181 S.E.2d 310 (1971); Rusk v. Rusk, 227 Ga. 756, 183 S.E.2d 209 (1971); Faulkner v. Home Fed. Sav. & Loan Ass'n, 124 Ga. App. 360, 183 S.E.2d 615 (1971); Buffalo Holding Co. v. Shores, 124 Ga. App. 868, 186 S.E.2d 339 (1971); Servall v. Southern Cross Indus., Inc., 125 Ga. App. 88, 186 S.E.2d 499 (1971); Smith v. Mayor of Lake City, 125 Ga. App. 772, 189 S.E.2d 104 (1972); Meeks v. Kirkland, 125 Ga. App. 792, 189 S.E.2d 107 (1972); Brown v. Hemperley, 125 Ga. App. 828, 189 S.E.2d 131 (1972); Palm Beach Inv. Properties, Inc. v. Dingman, 126 Ga. App. 17, 189 S.E.2d 906 (1972); Slay v. Brady, 126 Ga. App. 249, 190 S.E.2d 445 (1972); Pope v. State, 126 Ga. App. 488, 191 S.E.2d 115 (1972); Housing Auth. v. Marbut Co., 229 Ga. 403, 191 S.E.2d 785 (1972); Dixie Mgt. Corp. v. Hubbard, 127 Ga. App. 401, 194 S.E.2d 118 (1972); Model Cleaners & Laundry, Inc. v. Per Corp., 127 Ga. App. 559, 194 S.E.2d 258 (1972); George v. Southern Ry. Sys., 127 Ga. App. 583, 194 S.E.2d 284 (1972); Burroughs Corp. v. Outside Carpets, Inc., 127 Ga. App. 622, 194 S.E.2d 487 (1972); Reinhardt v. Parker, 129 Ga. App. 312, 199 S.E.2d 638 (1973); Candler v. Orkin, 129 Ga. App. 721, 200 S.E.2d 909 (1973); Tapley Fin. Corp. v. Citizens & S. Bank, 129 Ga. App. 781, 201 S.E.2d 482 (1973); Irby v. Christian, 130 Ga. App. 375, 203 S.E.2d 284 (1973); G.M.J. v. State, 130 Ga. App. 420, 203 S.E.2d 608 (1973); Jackson v. State, 130 Ga. App. 581, 203 S.E.2d 923 (1974); Fleming v. Phoenix of Hartford Ins. Co., 130 Ga. App. 771, 204 S.E.2d 460 (1974); Azar v. Baird, 232 Ga. 81, 205 S.E.2d 273 (1974); Dunbar v. Green, 232 Ga. 188, 205 S.E.2d 854 (1974); Blackshear v. Blackshear, 232 Ga. 312, 206 S.E.2d 429 (1974); Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974); Bethsaida Dev., Inc. v. Charter Land & Housing Corp., 232 Ga. 641, 208 S.E.2d 462 (1974); Von Waldner v. Baldwin/Cheshire, Inc., 133 Ga. App. 23, 209 S.E.2d 715 (1974); Carroll v. Cates, 134 Ga. App. 10, 213 S.E.2d 120 (1975); Wade v. Ray, 234 Ga. 234, 214 S.E.2d 923 (1975); Scroggins v. Ridge Nassau Corp., 135 Ga. App. 547, 218 S.E.2d 448 (1975); Lackey v. State, 135 Ga. App. 632, 218 S.E.2d 648 (1975); Lee v. Goldner, 135 Ga. App. 744, 219 S.E.2d 5 (1975); Whitehead v. Hasty, 235 Ga. App. 331, 219 S.E.2d 443 (1975); Hughes Motor Co. v. First Nat'l Bank, 136 Ga. App. 295, 220 S.E.2d 782 (1975); Tamplin v. State, 235 Ga. 774, 221 S.E.2d 455 (1975); Herring v. Herring, 236 Ga. 43, 222 S.E.2d 331 (1976); Canon v. Canon, 236 Ga. 99, 222 S.E.2d 381 (1976); Wilson v. Coite Somers Co., 138 Ga. App. 455, 226 S.E.2d 277 (1976); Hogan v. City-County Hosp., 138 Ga. App. 906, 227 S.E.2d 796 (1976); State v. Gethers, 139 Ga. App. 1, 227 S.E.2d 832 (1976); Kowalski v. State, 139 Ga. App. 12, 228 S.E.2d 19 (1976); Hiller v. Culbreth, 139 Ga. App. 351, 228 S.E.2d 374 (1976); Pickett v. Paine, 139 Ga. App. 508, 229 S.E.2d 90 (1976); May v. May, 139 Ga. App. 672, 229 S.E.2d 145 (1976); Beatty v. Underground Atlanta, 237 Ga. 844, 229 S.E.2d 615 (1976); Hudson v. Columbus, 139 Ga. App. 789, 229 S.E.2d 671 (1976); Little v. Thompson Co., 140 Ga. App. 238, 230 S.E.2d 316 (1976); Davis v. Davis, 238 Ga. 143, 231 S.E.2d 753 (1977); Termplan, Inc. v. Dorsey, 141 Ga. App. 47, 232 S.E.2d 402 (1977); Ellis v. Continental Ins. Co., 141 Ga. App. 809, 234 S.E.2d 377 (1977); Pickens County v. Darnell, 142 Ga. App. 281, 235 S.E.2d 677 (1977); Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (1977); Holloway v. Giddens, 239 Ga. 195, 236 S.E.2d 491 (1977); Foskey v. Dockery, 143 Ga. App. 63, 237 S.E.2d 532 (1977); Malloy v. Aetna Cas. & Sur. Co., 143 Ga. App. 212, 237 S.E.2d 692 (1977); Owens v. State, 144 Ga. App. 611, 241 S.E.2d 485 (1978); Spaulding v. Rich's, Inc., 144 Ga. App. 467, 241 S.E.2d 584 (1978); Solomon Refrigeration, Inc. v. Lloyd, 144 Ga. App. 542, 241 S.E.2d 642 (1978); Lawrence v. Whittle, 146 Ga. App. 686, 247 S.E.2d 212 (1978); Cousins Mtg. & Equity v. Hamilton, 147 Ga. App. 210, 248 S.E.2d 516 (1978); Citizens & S. Nat'l Bank v. Williams, 147 Ga. App. 205, 249 S.E.2d 289 (1978); Rodes v. Citizens & S. Nat'l Bank, 147 Ga. App. 782, 250 S.E.2d 513 (1978); Scocca v. Wilt, 243 Ga. 2, 252 S.E.2d 401 (1979); Black v. Cotton States Ins. Co., 149 Ga. App. 71, 253 S.E.2d 565 (1979); Peacock v. Cox, 243 Ga. 261, 253 S.E.2d 728 (1979); Citizens & S. Nat'l Bank v. Brown, 149 Ga. App. 795, 256 S.E.2d 72 (1979); Shield Ins. Co. v. Hutchins, 149 Ga. App. 742, 256 S.E.2d 108 (1979); Canup v. State, 150 Ga. App. 794, 258 S.E.2d 907 (1979); Petkas v. Piedmont-Linberg Corp., 151 Ga. App. 323, 259 S.E.2d 713 (1979); McIntyre v. Gulf Oil Corp., 151 Ga. App. 855, 261 S.E.2d 766 (1979); Price v. Ortiz, 152 Ga. App. 651, 263 S.E.2d 527 (1979); Hart v. State, 153 Ga. App. 53, 264 S.E.2d 542 (1980); Middleton v. Continental Dev. Corp., 153 Ga. App. 144, 264 S.E.2d 689 (1980); Ford v. Liberty Loan Corp., 153 Ga. App. 309, 265 S.E.2d 113 (1980)
City of Atlanta v. Barton, 153 Ga. App. 426, 265 S.E.2d 345 (1980); Hubbard v. Farmers Bank, 153 Ga. App. 497, 265 S.E.2d 845 (1980); Westmoreland v. Beutell, 153 Ga. App. 558, 266 S.E.2d 260 (1980); Southeast Ceramics, Inc. v. Klem, 154 Ga. App. 149, 267 S.E.2d 756 (1980); In re Norris, 154 Ga. App. 173, 267 S.E.2d 788 (1980); Hendley v. Auto Owners Ins. Co., 154 Ga. App. 316, 268 S.E.2d 722 (1980); Exum v. City of Valdosta, 246 Ga. 169, 269 S.E.2d 441 (1980); State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980); Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980); Knight v. First Nat'l Bank, 156 Ga. App. 167, 274 S.E.2d 139 (1980); MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980); Caldwell v. Elbert County School Dist., 247 Ga. 359, 276 S.E.2d 43 (1981); Griswold v. Whetsell, 157 Ga. App. 800, 278 S.E.2d 753 (1981); Crosby v. Crosby, 247 Ga. 792, 279 S.E.2d 712 (1981); Colley v. Dillon, 158 Ga. App. 416, 280 S.E.2d 425 (1981); Mack v. Demming, 248 Ga. 117, 281 S.E.2d 591 (1981); Kirby v. Federated Mut. Implement & Hdwe. Ins. Co., 158 Ga. App. 778, 282 S.E.2d 139 (1981); Horton v. Diamond Auto Parts & Recycling, Inc., 158 Ga. App. 750, 282 S.E.2d 207 (1981); McKinnon v. McKinnon, 158 Ga. App. 776, 282 S.E.2d 220 (1981); Harkey v. State, 159 Ga. App. 112, 282 S.E.2d 648 (1981); Cartwright v. Alpha Transp. Serv., Inc., 159 Ga. App. 296, 283 S.E.2d 282 (1981); Tobitt v. Tobitt, 249 Ga. 245, 290 S.E.2d 49 (1982); Newman v. James M. Vardaman & Co., 162 Ga. App. 878, 293 S.E.2d 462 (1982); Collier v. Cosby, 293 S.E.2d 567 (1982); Hooper v. State, 164 Ga. App. 49, 296 S.E.2d 243 (1982); Carson v. Morris, 164 Ga. App. 732, 297 S.E.2d 513 (1982); Johnson v. G.A.B. Bus. Servs., Inc., 165 Ga. App. 284, 300 S.E.2d 325 (1983); Strickland v. State, 165 Ga. App. 197, 300 S.E.2d 537 (1983); Jernigan v. Carroll, 167 Ga. App. 40, 306 S.E.2d 45 (1983); Parks v. Atlanta Pub. Sch. Sys. Bd. of Educ., 168 Ga. App. 572, 309 S.E.2d 645 (1983); Hill Aircraft & Leasing Corp. v. Planes, Inc., 169 Ga. App. 161, 312 S.E.2d 119 (1983); Thomas v. Satterfield, 169 Ga. App. 432, 313 S.E.2d 134 (1984); State v. Waters, 170 Ga. App. 505, 317 S.E.2d 614 (1984); Hazelrig v. State, 171 Ga. App. 97, 319 S.E.2d 32 (1984); Miller v. Rosetti, 171 Ga. App. 162, 319 S.E.2d 61 (1984); Hudgins v. Bacon, 171 Ga. App. 856, 321 S.E.2d 359 (1984); Bowen v. Clayton County Hosp. Auth., 172 Ga. App. 204, 322 S.E.2d 528 (1984); Graham v. State, 172 Ga. App. 660, 324 S.E.2d 518 (1984); Davis v. State, 172 Ga. App. 710, 324 S.E.2d 559 (1984); Savage v. Newsome, 173 Ga. App. 271, 326 S.E.2d 5 (1985); Sunn v. Mercury Marine, 173 Ga. App. 593, 327 S.E.2d 562 (1985); Bouldin v. Contran Corp., 173 Ga. App. 823, 328 S.E.2d 424 (1985); Georgia Communications Corp. v. Horne, 174 Ga. App. 69, 329 S.E.2d 192 (1985); Ball v. Duncan, 174 Ga. App. 341, 330 S.E.2d 160 (1985); Franklin v. Shackelford, 174 Ga. App. 520, 330 S.E.2d 449 (1985); Haywood v. Wooden Peg, Inc., 174 Ga. App. 806, 331 S.E.2d 109 (1985); Wicker v. Harrison, 175 Ga. App. 68, 332 S.E.2d 366 (1985); Law Offices of Johnson & Robinson v. Fortson, 175 Ga. App. 706, 334 S.E.2d 33 (1985); Carpets 'N Colors, Inc. v. Hollycraft Carpets, Inc., 177 Ga. App. 534, 339 S.E.2d 793 (1986); Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 340 S.E.2d 207 (1986); Belk-Hudson Co. v. Patterson, 178 Ga. App. 16, 342 S.E.2d 2 (1986); Daniel v. Leibolt, 178 Ga. App. 186, 342 S.E.2d 334 (1986); Chastain v. Baker, 178 Ga. App. 649, 344 S.E.2d 472 (1986); Dial v. Turner, 179 Ga. App. 689, 347 S.E.2d 305 (1986); McCallister v. Doe, 181 Ga. App. 602, 353 S.E.2d 89 (1987); Hanson v. Wilson, 257 Ga. 5, 354 S.E.2d 126 (1987); Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 355 S.E.2d 437 (1987); Richardson v. State, 182 Ga. App. 827, 357 S.E.2d 162 (1987); Staggs v. Wang, 185 Ga. App. 310, 363 S.E.2d 808 (1987); California Fed. Sav. & Loan Ass'n v. Hudson, 185 Ga. App. 384, 364 S.E.2d 582 (1987); Bruce Tile Co. v. Copelan, 185 Ga. App. 469, 364 S.E.2d 603 (1988); Watts v. State, 185 Ga. App. 654, 365 S.E.2d 501 (1988); Willis v. State, 186 Ga. App. 197, 366 S.E.2d 778 (1988); Booker v. Amdur, 186 Ga. App. 276, 367 S.E.2d 94 (1988); Palmer v. State, 186 Ga. App. 892, 369 S.E.2d 38 (1988); Computer Communications Specialists, Inc. v. Hall, 188 Ga. App. 545, 373 S.E.2d 630 (1988); Suddeth v. Forsyth County, 258 Ga. 773, 373 S.E.2d 746 (1988); Typo-Repro Servs., Inc. v. Bishop, 188 Ga. App. 576, 373 S.E.2d 758 (1988); Aldridge v. State, 188 Ga. App. 729, 374 S.E.2d 223 (1988); Seaton v. Aetna Cas. & Sur. Co., 189 Ga. App. 546, 376 S.E.2d 712 (1988); Gerdes v. Dziewinski, 189 Ga. App. 802, 377 S.E.2d 550 (1989); Rivera v. Harris, 259 Ga. 171, 377 S.E.2d 844 (1989); Jarrett v. Butts, 190 Ga. App. 703, 379 S.E.2d 583 (1989); Rozier v. Davis/Smith Mtg. Corp., 193 Ga. App. 340, 387 S.E.2d 627 (1989); Estfan v. Poole, 193 Ga. App. 507, 388 S.E.2d 373 (1989); State v. Dixon, 194 Ga. App. 146, 390 S.E.2d 600 (1990); City of Fairburn v. Cook, 195 Ga. App. 265, 393 S.E.2d 70 (1990); Val Preda Motors v. National Uniform Serv., 195 Ga. App. 443, 393 S.E.2d 728 (1990); Miller v. Jeff Davis Apts., Ltd. II, 196 Ga. App. 600, 396 S.E.2d 494 (1990); Moore v. Sinclair, 196 Ga. App. 667, 396 S.E.2d 557 (1990); Auld v. Weaver, 196 Ga. App. 782, 397 S.E.2d 51 (1990); Speir v. Nicholson, 198 Ga. App. 383, 401 S.E.2d 588 (1991); Merrill v. Eiberger, 198 Ga. App. 806, 403 S.E.2d 91 (1991); Royal v. Curry, 199 Ga. App. 133, 404 S.E.2d 302 (1991); Fabe v. Floyd, 199 Ga. App. 322, 405 S.E.2d 265 (1991); Slaughter v. State, 199 Ga. App. 695, 405 S.E.2d 897 (1991); Hall v. Bussey, 200 Ga. App. 311, 408 S.E.2d 430 (1991); Stephens v. State, 201 Ga. App. 737, 412 S.E.2d 568 (1991); Castleberry's Food Co. v. Smith, 205 Ga. App. 859, 424 S.E.2d 33 (1992); Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 206 Ga. App. 315, 425 S.E.2d 340 (1992); Wal-Mart Stores, Inc. v. Curry, 206 Ga. App. 775, 426 S.E.2d 581 (1992); Metropolitan Atlanta Rapid Transit Auth. v. Harrington, 208 Ga. App. 736, 431 S.E.2d 730 (1993); Hall v. World Omni Leasing, Inc., 209 Ga. App. 115, 433 S.E.2d 297 (1993); Miller v. Ingles Mkt., Inc., 214 Ga. App. 817, 449 S.E.2d 166 (1994); Copeland v. Continental Kewitt, 218 Ga. App. 305, 461 S.E.2d 277 (1995); State v. Bishop, 219 Ga. App. 510, 466 S.E.2d 8 (1995); Howard v. City of Columbus, 219 Ga. App. 569, 466 S.E.2d 51 (1995); Richardson v. GMC, 221 Ga. App. 583, 472 S.E.2d 143 (1996); Plumides v. American Engines & Transmissions, Inc., 227 Ga. App. 885, 490 S.E.2d 552 (1997); Goldstein v. Goldstein, 229 Ga. App. 862, 494 S.E.2d 745 (1997); Hopkinson v. Labovitz, 231 Ga. App. 557, 499 S.E.2d 338 (1998); Central of Ga. R.R. v. DEC Assocs., 231 Ga. App. 787, 501 S.E.2d 6 (1998); Hipple v. Simpson Paper Co., 234 Ga. App. 516, 507 S.E.2d 156 (1998); Adams v. State, 234 Ga. App. 696, 507 S.E.2d 538 (1998); Hawkins ex rel. Pearson v. Small World Day Care Ctr., Inc., 234 Ga. App. 843, 508 S.E.2d 200 (1998); Durden v. Griffin, 270 Ga. 293, 509 S.E.2d 54 (1998); Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga. App. 674, 530 S.E.2d 800 (2000); Pinnell v. Kight, 245 Ga. App. 299, 537 S.E.2d 170 (2000); Camp v. Eichelkraut, 246 Ga. App. 275, 539 S.E.2d 588 (2000); McKinney v. Jennings, 246 Ga. App. 862, 542 S.E.2d 580 (2000); Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 555 S.E.2d 175 (2001); Lott v. Arrington & Hollowell, P.C., 258 Ga. App. 51, 572 S.E.2d 664 (2002); Ball v. Fulton-DeKalb Hosp. Auth., 258 Ga. App. 899, 576 S.E.2d 1 (2002); Ford Motor Co. v. Lawrence, 279 Ga. 284, 612 S.E.2d 301 (2005); Bailey v. McNealy, 277 Ga. App. 848, 627 S.E.2d 893 (2006); Randolph County v. Johnson, 282 Ga. 160, 646 S.E.2d 261 (2007); Sistrunk v. State, 287 Ga. App. 39, 651 S.E.2d 350 (2007); Blair v. Bishop, 290 Ga. App. 721, 660 S.E.2d 35 (2008); Hiner Transp., Inc. v. Jeter, 293 Ga. App. 704, 667 S.E.2d 919 (2008); Lee v. Ga. Power Co., 296 Ga. App. 719, 675 S.E.2d 465 (2009); Morgan v. State of Ga., 323 Ga. App. 852, 748 S.E.2d 491 (2013)
Thomas v. State, 331 Ga. App. 641, 771 S.E.2d 255 (2015); Anderson v. All Am. Quality Foods, 333 Ga. App. 533, 773 S.E.2d 389 (2015); Ewing v. Ewing, 333 Ga. App. 766, 777 S.E.2d 56 (2015); Williams v. Murrell, 348 Ga. App. 754, 824 S.E.2d 638 (2019); 280 Partners, LLC v. Bank of North Georgia, 352 Ga. App. 605, 835 S.E.2d 377 (2019).
Failure to Perfect Service
Plaintiff not entitled to evidentiary hearing.
- In a contract action, the trial court did not err in denying the plaintiff's motion for an extension of time as the plaintiff failed to timely file a trial transcript, and because the motion was improperly filed, the plaintiff was not entitled to an evidentiary hearing. Hadavi v. Palmer, 260 Ga. App. 509, 580 S.E.2d 291 (2003).
Subsection (a) relates to procedure only and is therefore retrospective. Horton v. Western Contracting Corp., 113 Ga. App. 613, 149 S.E.2d 542 (1966).
Failure of service which causes no harm is not ground for dismissal.
- When counsel for third-party defendant appears in court and argues merits of the claim both orally and by brief, the third-party defendant is not harmed by failure of service, and there is no ground to dismiss the appeal. Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676, 194 S.E.2d 670 (1972).
Mandatory Dismissal of Appeal
1. In General
Dismissal of appeal mandatory only in instances provided in subsection (b). Young v. Climatrol S.E. Distrib. Corp., 237 Ga. 53, 226 S.E.2d 737 (1976).
Dismissal of cross-appeal required since cross-appeal had no independent basis for jurisdiction.
- Georgia Department of Transportation's (DOT's) cross-appeal was dismissed with regard to a trial court's grant of an asphalt company's motions in limine and the denial of the DOT's partial motion for summary judgment since the asphalt company's direct appeal was dismissed for failure to file a brief and enumerations of error; therefore, the cross-appeal could not survive on the cross-appeal's own under O.C.G.A. § 5-6-48. The DOT never applied for interlocutory review of the rulings of the trial court it was challenging, therefore, the appellate court had no independent basis for jurisdiction over the cross-appeal. State, DOT v. Douglas Asphalt Co., 297 Ga. App. 511, 677 S.E.2d 728 (2009).
2. Failure to Timely File Notice of Appeal
Proper, timely filing of notice of appeal is an absolute requirement to confer appellate jurisdiction. Hester v. State, 242 Ga. 173, 249 S.E.2d 547 (1978).
Failure to file notice of appeal within time required is ground for dismissal. Stanford v. Evans, Reed & Williams, 221 Ga. 331, 145 S.E.2d 504 (1965); Shepherd v. Epps, 242 Ga. 322, 249 S.E.2d 33 (1978); Littlejohn v. Tower Assocs., 163 Ga. App. 37, 293 S.E.2d 33 (1982), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).
When notice of appeal was given more than 30 days after entry of judgment, judgment is not reviewable and appeal must be dismissed. Buckhead Doctors' Bldg., Inc. v. Oxford Fin. Cos., 116 Ga. App. 503, 157 S.E.2d 767 (1967).
If the plaintiff wishes more than 30 days allowed by court order to deliberate on whether the plaintiff should appeal dismissal of the complaint, the plaintiff's remedy is to apply for an extension of time as provided in Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39). When the appellant failed to exercise this provision of the law and the appellee filed a motion to dismiss the appeal under Ga. L. 1966, p. 493, § 10 (see O.C.G.A. § 5-6-48), the court had no alternative but to grant the motion and dismiss the appeal. Hearn v. DeKalb County, 118 Ga. App. 730, 165 S.E.2d 467 (1968).
Failure to file a notice of appeal within the time required, 30 days after entry of judgment complained of unless the trial judge has extended the time, will result in the judgment's dismissal. Associated Bldrs. Supply v. Georgia-Pacific Corp., 123 Ga. App. 222, 180 S.E.2d 273 (1971).
Judgment complained of by parents was a trial court's finding that the parents' children were deprived pursuant to O.C.G.A. § 15-11-2(8)(A), and not a later order ruling that the case was closed; the parents' notice of appeal filed more than three months after the order finding deprivation was untimely, and the appeal was dismissed. In the Interest of I.S., 265 Ga. App. 759, 595 S.E.2d 528 (2004).
Failure to obtain extension before expiration of previously extended time.
- When the plaintiff fails to obtain an extension of time for expiration of previously extended time, and failed to file a transcript of the evidence within the extended time, the trial judge is authorized to enter dismissal of the appeal. Allen v. Seaboard C.L.R.R., 128 Ga. App. 391, 196 S.E.2d 878 (1973).
Filing notice one day late requires dismissal.
- When notice of appeal was filed only one day late, the court was powerless to deny a motion to dismiss filed by the appellee. Associated Bldrs. Supply v. Georgia-Pacific Corp., 123 Ga. App. 222, 180 S.E.2d 273 (1971).
Inexcusable and unreasonable delay.
- Considering the fact that the mistaken designation in the notice of appeal could have been easily discovered if some attention had been paid to the matter, and that the earliest inquiry about the status of the appeal did not occur until several months after the notice of appeal had been filed, the trial court was duly authorized to find that plaintiff's delay was inexcusable and unreasonable. Johnson v. Georgia Pub. Serv. Comm'n, 209 Ga. App. 224, 433 S.E.2d 65 (1993); Lindstrom v. Forsyth County, 221 Ga. App. 581, 472 S.E.2d 106 (1996).
Because a limited liability company (LLC) failed to offer an explanation as to why the company did not hire an attorney, obtain the transcript or take any other steps to pursue the company's appeal for over two and one-half years, the trial court did not abuse the court's discretion in dismissing the appeal, as the lengthy delay was unreasonable, inexcusable, and caused by the LLC. Winzer v. EHCA Dunwoody, LLC, 277 Ga. App. 710, 627 S.E.2d 426 (2006).
Trial court erred in denying the appellee's motion to dismiss the appellant's appeal because in the order denying the appellee's motion to dismiss the appeal, the trial court did not consider whether the appellee suffered prejudice as a result of the 15-month delay as a delay is unreasonable if the delay affects an appeal either by directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity or by causing the appeal to become stale. Newton v. Freeman, 353 Ga. App. 704, 839 S.E.2d 203 (2020).
Notice of appeal from judgment granting child custody must meet time requirement of
§ 5-6-35(g). - Subsection (g) of Ga. L. 1979, p. 619, §§ 3, 6 (see O.C.G.A. § 5-6-35) read in conjunction with paragraph (b)(1) of Ga. L. 1978, p. 1986, § 1, subjects notice of appeal from judgment granting child custody to dismissal if the appellant fails to file the notice within ten days after the order is issued granting application for such appeal. Evans v. Davey, 154 Ga. App. 269, 267 S.E.2d 875 (1980).
Notice of appeal from judgment in contempt of alimony judgment.
- Subsection (g) of Ga. L. 1979, p. 619, §§ 3, 6 (see O.C.G.A. § 5-6-35), read in conjunction with paragraph (b)(1) of Ga. L. 1978, p. 1986, § 1 (see O.C.G.A. § 5-6-48), subjects notice of appeal from judgment in contempt of alimony judgment to dismissal if the appellant fails to file the notice within ten days after order is issued granting the application for such appeal. Harris v. Harris, 245 Ga. 75, 263 S.E.2d 113 (1980).
Attorney's stipulation regarding record on appeal does not affect running of time.
- Fact that attorneys for the parties, after time limit for filing appeal entered into a stipulation as to what would constitute the record on appeal and filed the appeal, could have no effect on running of time within which notice of appeal must be filed. Kokotis v. Lightsey, 227 Ga. 800, 183 S.E.2d 383 (1971).
Reaffirmance of dismissal of counterclaims does not extend time for filing.
- When the time for filing the notice of appeal runs from the date of the voluntary dismissal of the appellees' counterclaims, the trial court is powerless to extend the time by entering a subsequent order reaffirming the dismissal of the complaint, even had the court intended to do so. Caswell v. Caswell, 157 Ga. App. 710, 278 S.E.2d 452 (1981).
Delay in filing amendment to notice of appeal.
- Although it is over two months later, after the expiration of the statutory appeal period, that the appellant filed an amendment to the appellant's original notice of appeal to correct the error the appellant made, in light of O.C.G.A. §§ 5-6-30 and5-6-48, the appellant is entitled to amend the appellant's notice of appeal to correct the name of the court to which the appeal is directed. Griffin v. Johnson, 157 Ga. App. 657, 278 S.E.2d 422 (1981).
Filing during unauthorized second extension.
- Under O.C.G.A. § 5-6-39, the trial court is authorized to grant only one extension of time for filing of notice of appeal; thus, filing of notice of appeal during unauthorized second extension comes too late to satisfy requirement of O.C.G.A. § 5-6-48. Hamby v. State, 162 Ga. App. 348, 291 S.E.2d 724 (1982).
Insufficient motion for new trial does not extend filing date.
- Alleged motion for new trial which did not contest factual issues or errors contributing to the verdict, but instead challenged only the trial court's legal conclusions and judgment was not a proper motion for new trial and did not entitle party to an automatic stay in filing the party's notice of appeal. Bank S. Mtg., Inc. v. Starr, 208 Ga. App. 19, 429 S.E.2d 700 (1993).
Parent's appeal from the imposition of attorney's fees against the parent in a contempt finding was dismissed as untimely under O.C.G.A. § 5-6-38(a); the parent's motion for new trial was not the proper vehicle for a purely legal challenge to the judgment and, therefore, the motion did not toll the time for filing the appeal. Parker v. Robinson, 337 Ga. App. 362, 787 S.E.2d 317 (2016).
Court abused discretion dismissing appeal.
- Trial court abused the court's discretion when the court denied the defendant's motion for an out-of-time appeal without making a factual inquiry as to the defendant's claims of ineffective assistance of counsel based on the court's determinations that the judgment was not then appealable and that the questions presented had become moot. Moore v. State, 308 Ga. 312, 840 S.E.2d 353 (2020).
3. Appeals From Nonfinal Judgments
Dismissal proper when judgment appealed was neither final nor certified for review under former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34). Marsh v. Allgood, 118 Ga. App. 773, 165 S.E.2d 479 (1968); D.C.E. v. State, 130 Ga. App. 724, 204 S.E.2d 481 (1974).
Appeal taken from two orders that appeared to be non-final, was dismissed; moreover, as no certificate of immediate review was obtained, and since no amendment was filed to correct the defect in the notice of appeal, no other recourse remained. Southwest Health & Wellness, LLC v. Work, 282 Ga. App. 619, 639 S.E.2d 570 (2006).
Fact that matter was heard at chambers.
- Judgment which was not appealable under Ga. L. 1972, p. 624, § 1 (see O.C.G.A. § 5-6-48) was is not made appealable by former Code 1933, § 6-901 (see O.C.G.A. § 5-6-33) merely because the matter was heard at chambers. Sheet Metal Workers Int'l Ass'n v. Carter, 131 Ga. App. 176, 205 S.E.2d 715 (1974).
Appeal while motion for new trial is pending must be dismissed as premature. Smith v. Smith, 128 Ga. App. 29, 195 S.E.2d 269 (1973).
Appeal from "motion to compel settlement" was dismissed since the appeal was actually intended to be taken from an interlocutory order rather than from the "final outcome" of the case, and no amendment had been filed to correct this defect. Martin v. Farrington, 179 Ga. App. 227, 346 S.E.2d 5 (1986).
Georgia Supreme Court dismissed the appeal for lack of appellate jurisdiction because an order modifying an interlocutory injunction was not subject to direct appeal under O.C.G.A. § 5-6-34(a)(4) and the appellants did not obtain a certificate of immediate review from the trial court. Jones v. Peach Trader Inc., 302 Ga. 504, 807 S.E.2d 840 (2017).
Order modifying an interlocutory injunction is not subject to direct appeal. Jones v. Peach Trader Inc., 302 Ga. 504, 807 S.E.2d 840 (2017).
4. Moot Questions
Intermediate order appealed from becomes moot when subsequent final judgment is entered. Newman v. Steinberg, 133 Ga. App. 824, 212 S.E.2d 479 (1975).
Supreme Court's affirmance of judgment denying habeas petition moots other appeals.
- When Supreme Court has affirmed judgment denying the appellant's petition for writ of habeas corpus, appeal from the same judgment, filed in the Court of Appeals and transferred to the Supreme Court, must be dismissed as moot. Hubert v. State, 244 Ga. 374, 260 S.E.2d 83 (1979).
Appeal from dissolution of restraining order dismissed when issue involved has become moot.
- When appellants bring action to enjoin appellees from conducting corporate stockholders meeting for purpose of electing directors, and the trial court, after hearing, dissolves restraining order and dismisses the complaint for failure to state a claim, and the appellees then held a stockholder's meeting, an appeal of order dissolving the restraining order and dismissing the complaint must be dismissed pursuant to paragraph (b)(3). Strickland v. Adams, 231 Ga. 729, 204 S.E.2d 294 (1974).
Review of earlier judgment denying summary judgment.
- After verdict and judgment, it is too late to review earlier judgment denying summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Rich v. Strickland, 168 Ga. App. 107, 308 S.E.2d 206 (1983).
Motion to dismiss as moot an appeal of the entry of summary judgment.
- College's motion to dismiss as moot a Baptist convention's appeal of the entry of summary judgment for the college as to the convention's request for an injunction barring the college from dissolving was denied as the trial court's order dissolving a temporary restraining order was entered the day before the college filed articles of dissolution with the Georgia Secretary of State, the certificate of dissolution was entered nunc pro tunc, and the convention's counsel received the order on the date the certificate was effective; thus, the convention did not have notice to require the convention to obtain a supersedeas. Baptist Convention v. Shorter College, 266 Ga. App. 312, 596 S.E.2d 761 (2004), aff'd, 279 Ga. 466, 614 S.E.2d 37 (2005).
Ex-employer's motion to dismiss on appeal moot.
- Trial court granted the employee leave to amend the answer to include a claim for wrongful restraint, which remained pending below, and thus, the appellate court had to decide whether the restrictive covenant actually enforced against the employee was illegal; if the restrictive covenant was, then the employee's wrongful restraint claim was meritorious, and the employee could recover such costs and damages, O.C.G.A. § 9-11-65(c), as the employee may have suffered during the period of the injunction's enforcement. Therefore, the ex-employer's motion to dismiss the appeal as moot under O.C.G.A. § 5-6-48(b)(3) was denied. Cox v. Altus Healthcare & Hospice, Inc., 308 Ga. App. 28, 706 S.E.2d 660 (2011).
Dismissal by trial court.
- Although O.C.G.A. § 5-6-48 does not specifically empower a trial court to dismiss an appeal for mootness, the Court of Appeals will affirm the trial court's dismissal of notices of appeal because the decision or judgment was not then appealable and hold that the trial court is empowered to dismiss an appeal where the questions presented have become moot. Attwell v. Lane Co., 182 Ga. App. 813, 357 S.E.2d 142 (1987).
Trial court without discretion to rule on moot question.
- When a father petitioned to have his name removed from the child abuse registry and challenged the constitutionality of the statute establishing the registry, and the trial court expunged the father's name as he requested, the trial court had no discretion to rule on the constitutional question and did not err in declaring the constitutional challenge moot. In re I.B., 219 Ga. App. 268, 464 S.E.2d 865 (1995).
If case is moot, but error is capable of repetition, yet evades review, the appeal will be considered. Chastain v. Baker, 255 Ga. 432, 339 S.E.2d 241 (1986).
Ground for dismissal.
- Mootness is a ground for dismissal of an appeal, and not a ground for the vacation of a judgment. Harrell v. Huntington Assocs., 190 Ga. App. 421, 379 S.E.2d 194 (1989).
Appeal deemed moot and dismissed.
- Glenridge Unit Owners Ass'n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987); Computone Corp. v. Branch, Pike & Ganz, 264 Ga. 844, 452 S.E.2d 114 (1995); Rohm & Haas Co. v. Gainesville Paint & Supply Co., 225 Ga. App. 441, 483 S.E.2d 888 (1997); Federal Nat'l Mtg. Ass'n v. DeMoonie, 231 Ga. App. 162, 497 S.E.2d 677 (1998); Good Ol' Days Commissary, Inc. v. Longcrier Family Ltd. Partnership I, 240 Ga. App. 111, 522 S.E.2d 249 (1999).
Declaratory judgment action filed by the sole commissioner of a county in the commissioner's official capacity to determine the commissioner's power vis-a-vis that of the county advisory board to enter into a lease-purchase contract for a county jail became moot when the voters provided the budgetary authority in the referendum. Bond v. Parten, 206 Ga. App. 88, 424 S.E.2d 353 (1992).
Dismissal was required of the defendant's appeal of a consent agreement resolving a breach of contract in real estate when the defendant had specifically agreed to the agreement and was thus not an aggrieved party and when the defendant's only enumerations of error concerned the grant of partial summary judgment and did not challenge the terms, validity, or enforceability of the judgment entered pursuant to the agreement. Riverdale Pools & Constr., Inc. v. Evans, 210 Ga. App. 127, 435 S.E.2d 501 (1993).
When the county board of health had unilaterally lifted home confinement of the defendant as part of the treatment plan for the defendant's contagious tuberculosis, the defendant's appeal from the trial courts order of compliance with the board's plan was moot since reversal of the trial court would be of no practical benefit to the defendant, and the action did not fall within the class of cases which would inevitably evade review. Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117, 446 S.E.2d 794 (1994).
Because the defendant failed to file a timely direct appeal of the denial of the defendant's request for appellate counsel, the defendant was precluded from raising the same issue again; further, the defendant had withdrawn from the appellate court the record from the defendant's original appeal, and therefore the appellate court did not know whether the defendant attempted to raise the issue of appellate counsel during the defendant's initial appeal; as the initial appeal had been decided, the issue was moot under O.C.G.A. § 5-6-48(b)(3). Spear v. State, 271 Ga. App. 845, 610 S.E.2d 642 (2005).
Since a debtor had taken a direct appeal in a separate case on the dismissal of the debtor's application to appeal an order substituting a party plaintiff, any error upon the dismissal of the debtor's application for interlocutory review was moot. Kent v. A.O. White, Jr., Consulting Eng'r, Inc., 279 Ga. App. 563, 631 S.E.2d 782 (2006).
As a homeowner last operated a haunted house on the homeowner's property on October 31, 2007, a city's attempt to enjoin the activity was moot, and dismissal was appropriate under O.C.G.A. § 5-6-48(b). City of Comer v. Seymour, 283 Ga. 536, 661 S.E.2d 539 (2008).
Patients' appeal of a judgment entered against the patients in a medical malpractice action on the ground that it was error to grant a motion to transfer filed by a hospital and corporation pursuant to the forum non conveniens statute, O.C.G.A. § 9-10-31.1, was dismissed as moot because the patients admitted in the patients' appellate brief that the patients' case had already been adjudicated, and it was too late for the patients to obtain an adjudication of the patients' case in the Fulton County Superior Court; therefore, any determination by the court of appeals regarding whether the Fulton County Superior Court was authorized under the forum non conveniens statute to transfer the patients' case to Cobb County Superior Court for adjudication would be an abstract exercise unrelated to any existing facts or rights. Lamb v. Javed, Ga. App. , S.E.2d (Jan. 19, 2010).
Denial of a bank's motion for summary judgment on a business owner's counterclaim was moot on appeal because the bank did not move for a directed verdict, which point was specifically brought to the attention of the court and the jury considered the counterclaim and returned a verdict. Ameris Bank v. Alliance Inv. & Mgmt. Co., LLC, 321 Ga. App. 228, 739 S.E.2d 481 (2013).
In a post-divorce proceeding, the appellate court dismissed a father's appeal of the trial court's rulings with regard to the writ for habeas corpus filed seeking to enforce visitation rights because the appeal was moot since the father's visitation was restored. Higdon v. Higdon, 321 Ga. App. 260, 739 S.E.2d 498 (2013).
When the mother and the father, who were the biological parents of their incapacitated adult daughter, were seeking appointment as the daughter's guardian and conservator, the mother's and the stepfather's appeals from the December 22, 2015, order were dismissed as moot because they had been released from custody for their failure to appear in court with the mother's daughter; no additional punishments were imposed for their failure to appear as directed in the December 21, 2015, order; and, pursuant to the trial court's subsequent order dismissing any contempt finding, the December 22, 2015, order no longer subjected them to jeopardy. Ruemker v. Ruemker, 339 Ga. App. 680, 792 S.E.2d 727 (2016).
Where appeal was based on action taken pursuant to statute later declared unconstitutional, the question of abuse of discretion under the statute was moot; thus, dismissal of the appeal upon the court's own motion was proper and there could be no cross-appeal. Bergmann v. McCullough, 218 Ga. App. 353, 461 S.E.2d 544 (1995), cert. denied, 517 U.S. 1141, 116 S. Ct. 1433, 134 L. Ed. 2d 555 (1996).
Mortgagor's appeal from a writ of possession, which was granted in favor of the mortgagee after the mortgagor's property was foreclosed upon and the mortgagor refused to surrender possession, was dismissed pursuant to O.C.G.A. § 5-6-48(b)(3) because the parties had entered into a consent agreement with respect to the writ of possession and, accordingly, the matter was moot; it was noted that pursuant to the consent judgment which embodied the agreement, the mortgagor had agreed to withdraw the mortgagor's pending appeal. Hurt v. Norwest Mortg., Inc., 260 Ga. App. 651, 580 S.E.2d 580 (2003).
Issue of illegal withholding of child moot.
- When the parties had a common law marriage which resulted in the father forcefully keeping the child and filing for divorce and custody of the child, once the legitimation issue was resolved, the father had an equal right to the child's physical and legal custody and the issue of his illegal withholding of the child became moot. Gregg v. Barnes, 203 Ga. App. 549, 417 S.E.2d 206, cert. denied, 203 Ga. App. 906, 417 S.E.2d 206 (1992).
Acceptance of an attorney's fees payment by the plaintiff did not render an appeal moot because there was an inference that the payment was accepted as a partial payment and because the attorney fees issue was collateral to the main judgment appealed. Claxton Enter. v. Evans County Bd. of Comm'rs, 249 Ga. App. 870, 549 S.E.2d 830 (2001).
Insured's prevailing on merits rendered insurer's appeal moot.
- Insurer that sought a declaratory judgment ruling on the insurer's obligations under a multi-peril insurance policy issued to a company whose employee was under the influence of alcohol at the time of a collision because of alcoholic beverages served to the employee by other employees during a company function had no claim because the insurer could not have suffered prejudice because the company had prevailed on the merits. Southern Guar. Ins. Co. v. Viau, 203 Ga. App. 806, 418 S.E.2d 608, cert. denied, 203 Ga. App. 907, 418 S.E.2d 608 (1992).
Suit regarding county contract moot by voter approval.
- Declaratory judgment action filed by the sole commissioner of a county in the commissioner's official capacity to determine the commissioner's power vis-a-vis that of the county advisory board to enter into a lease-purchase contract for a county jail became moot when the voters provided the budgetary authority in the referendum. Bond v. Parten, 206 Ga. App. 88, 424 S.E.2d 353 (1992).
Annexation challenge rendered moot by city's annexation of additional property.
- Taxpayer's challenge to a city's 2007 annexation of property based on the creation of an illegal unincorporated island within the new municipal boundaries, in violation of O.C.G.A. § 36-36-4, was moot under O.C.G.A. § 5-6-48(b)(3) because the city later remedied the violation by also annexing the unincorporated island. Scarbrough Group v. Worley, 290 Ga. 234, 719 S.E.2d 430 (2011).
Appeal of denial of nomination petition was moot.
- Regardless of the merits or lack thereof of the candidate's claims that the candidate's nomination petition was miscounted, improperly counted, or that there were irregularities in the process leading to the unlawful decision to keep the candidate off the November ballot, the candidate's present appeal was moot because the general election had already taken place. Bodkin v. Bolia, 285 Ga. 758, 684 S.E.2d 241 (2009).
Election contests.
- While the established rule in Georgia is that a primary election contest becomes moot after the general election has taken place, the Georgia Supreme Court has routinely decided general election challenges on the merits, regardless of whether a stay or supersedeas was requested or obtained. Parham v. Stewart, 308 Ga. 170, 839 S.E.2d 605 (2020).
Delay in Filing Transcript
1. In General
Time not jurisdictional.
- Time provided for filing transcript of evidence and proceedings in appeals is not jurisdictional. Taylor v. Thompson, 152 Ga. App. 547, 263 S.E.2d 487 (1979).
Failure to file a transcript in accordance with § 5-6-42 is not jurisdictional, and is not a ground for dismissal unless accompanied by finding of unreasonableness and lack of excuse, as required by subsection (c) of this section. Young v. Jones, 147 Ga. App. 65, 248 S.E.2d 49 (1978).
In considering question of unreasonable delay, it should be remembered that the time provided for filing transcript or record is not jurisdictional, but merely a means of avoiding unreasonable delay so that the case can be presented on earliest possible calendar in appellate court. Young v. Climatrol S.E. Distrib. Corp., 237 Ga. 53, 226 S.E.2d 737 (1976); Gilland v. Leathers, 141 Ga. App. 680, 234 S.E.2d 338 (1977); Ray v. Williams, 144 Ga. App. 155, 240 S.E.2d 577 (1977); Compher v. Georgia Waste Sys., 155 Ga. App. 819, 273 S.E.2d 200 (1980).
Time provided for filing transcript or record is not jurisdictional, but merely a means of avoiding unreasonable delay so that case can be presented on earliest possible calendar in appellate courts. Green v. Weaver, 161 Ga. App. 295, 291 S.E.2d 247 (1982).
Failure of an appellant to cause the transcript to be filed in accordance with the time limitations set forth in O.C.G.A. § 5-6-42 is not itself a ground for dismissal of the appeal, absent a judicial determination that the resulting delay was both unreasonable and inexcusable. Llano v. DeKalb County, 174 Ga. App. 693, 331 S.E.2d 36 (1985); Barmore v. Himebaugh, 205 Ga. App. 381, 422 S.E.2d 255 (1992).
Transcript not designated for inclusion in appellate record.
- Trial court erred in dismissing the appeal filed by the appellant for failure to timely file a transcript for inclusion in the record on appeal because the appellant's failure to file a transcript could not be deemed to have caused an unreasonable delay as the appellant's notice of appeal did not designate a transcript for inclusion in the appellate record, and the choice of whether to include a transcript in the appellate record was left to the appellant; thus, the trial court abused the court's discretion in dismissing the appellant's notice of appeal. Hill v. Bd. of Regents of the Univ. System of Ga., 346 Ga. App. 830, 816 S.E.2d 296 (2018).
Excusable delay in filing transcript due to clerk's actions.
- Trial court did not abuse the court's discretion by finding that the investor did not cause the delay in filing the transcript and that the delay, which was the result of the court reporter having attempted to file the transcript with a newly implemented electronic system, was excusable. Alpha Balanced Fund, LLLP v. Irongate Performance Fund, LLC, 342 Ga. App. 93, 802 S.E.2d 357 (2017).
Delay in filing of transcript is not necessarily cause for dismissal.
- In a dental malpractice case, the trial court did not abuse the court's discretion in denying the defendant's motion to dismiss the appeal because there was some evidence that the delay in the filing of the transcript on the part of the plaintiff was excusable and not caused by the plaintiff as emails were presented showing that the court reporter indicated that the reporter could not meet the various deadlines. Gordon v. Dennis, 347 Ga. App. 110, 817 S.E.2d 561 (2018).
Request for transcript was ambiguous.
- Appellants used ambiguous language in the appellants' notice of appeal and did not include the statutory language suggested regarding whether or not a transcript was to be sent to the appellate court because, when the appellants filed the notice of appeal, there was a transcript of an earlier summary judgment hearing that was already on file, but the appellants had not filed a transcript of a second summary judgment hearing relevant to the appeal; and it was not clear from the appellants' notice of appeal whether the trial court clerk was to wait for the second transcript or send the record with only the transcript already on file. Webb's Erection, Inc. v. Colonial Pacific Leasing Corporation, 345 Ga. App. 202, 812 S.E.2d 602 (2018).
Transcript not required for appellate review.
- Although a petroleum company did not obtain a transcript of the trial court's hearing on a bank's motion to dismiss the company's action in a timely manner and a transcript could not be obtained as a result, the appellate court found that the court did not need the transcript to rule on the company's appeal, and the court upheld the trial court's judgment denying the bank's motion to dismiss the company's appeal. Griffis v. Branch Banking & Trust Co., 268 Ga. App. 588, 602 S.E.2d 307 (2004).
Illness of court reporter.
- In a professional negligence case, denial of the purchaser's motion to dismiss the appeal based on a delay in obtaining the transcript was affirmed because the appellate court deferred to the trial court's decision upon determining that the court reporter had limited ability to prepare the transcripts due to illness in denying the motion. Atl. Geoscience, Inc. v. Phoenix Dev. & Land Inv., LLC, 341 Ga. App. 81, 799 S.E.2d 242 (2017).
Failure to file transcript is no longer ground for dismissal of appeals by appellate courts. Jackson v. Fincher, 128 Ga. App. 148, 195 S.E.2d 762 (1973).
Court of Appeals lacks authority to dismiss any appeal because of failure of any party to cause transcript of evidence and proceedings to be filed within time provided by law or order of court. Reed v. Arrington-Blount Ford, Inc., 148 Ga. App. 595, 252 S.E.2d 13 (1979); Campbell v. Crumpton, 173 Ga. App. 488, 326 S.E.2d 845 (1985); State v. Jackson, 188 Ga. App. 259, 372 S.E.2d 823 (1988).
Failure to include transcript of hearing on motion to dismiss appeal.
- Because a broker failed to include a transcript of the hearing on the broker's motion to dismiss the sellers' appeal, specifying in the broker's notice of appeal that a transcript of evidence and proceedings of the hearing would not be filed for inclusion in the record on appeal, the court of appeals had to assume the trial court's ruling denying the motion was correct. Cochran v. Kennelly, 306 Ga. App. 838, 703 S.E.2d 411 (2010).
Distinction between appellate courts' right to dismiss appeals and trial courts' right.
- Buffalo Holding Co. v. Shores, 124 Ga. App. 868, 186 S.E.2d 339 (1971), appeal dismissed, 228 Ga. 854, 188 S.E.2d 790 (1972).
Subsection (c) does not affect appellate courts' constitutional responsibility.
- Provision of subsection (c) of Ga. L. 1968, p. 1072, §§ ?n 2, 3 (see O.C.G.A. § 5-6-48) that trial courts, rather than appellate courts, may dismiss appeals for failure of party to file transcript within proper time, does not change responsibility of appellate court under Ga. Const. 1976, Art. VI, Sec. II, Para. V (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II), and appellate court will dismiss a state appeal. Cox Enters., Inc. v. Southland, Inc., 226 Ga. 794, 177 S.E.2d 653 (1970), cert. denied, 401 U.S. 993, 91 S. Ct. 1231, 28 L. Ed. 2d 531 (1971).
Effect of Ga. L. 1968, p. 1072, §§ 2, 3 on subsection (c) was to permit disposition of case in trial court. Richardson v. Nu-Way Cleaners & Laundry, 121 Ga. App. 425, 174 S.E.2d 202 (1970).
Only way to raise question of late filing of transcript is under this section. Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975).
Determination of whether delay was unreasonable or inexcusable required.
- Trial court, in reaching a decision whether a delay in filing a transcript justified dismissal of the appeal, had to consider whether the delay was unreasonable and inexcusable. Russell Morgan Landscape Mgmt. v. Velez-Ochoa, 252 Ga. App. 549, 556 S.E.2d 827 (2001).
Trial court erred in denying a motion to dismiss a patient's appeal for failure to timely pay the bill of costs as required by O.C.G.A. § 5-6-48(c) because the trial court did not determine the length of the delay, the reasons for the delay, whether the patient caused the delay, and whether the delay was inexcusable; the trial court merely entered a summary order denying the motion to dismiss and relied exclusively upon the arguments and uncorroborated averments contained in the patient's responsive brief, and as a result, the court of appeals was unable to engage in meaningful appellate review of whether the trial court properly exercised the court's discretion in denying the motion to dismiss the appeal. Grant v. Kooby, 310 Ga. App. 483, 713 S.E.2d 685 (2011).
Trial court erred by dismissing plaintiffs' appeal under O.C.G.A. § 5-6-48(c) because the court was required to make findings on the issues of unreasonable delay in the filing of the transcript, the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, thus, requiring a remand. Postell v. Alfa Ins. Corp., 327 Ga. App. 194, 757 S.E.2d 661 (2014).
Following a jury verdict in a dentist's favor in a dental malpractice case, upon the dentist's motion to dismiss the appeal for failure to file the transcript, the trial court erred in denying the motion without making the findings regarding the reasons for the delay as required by O.C.G.A. § 5-6-48(c). Gordon v. Dennis, 341 Ga. App. 795, 802 S.E.2d 77 (2017).
Trial court's order dismissing an appeal for a delay in transmitting the record to the appellate court and making findings as required by O.C.G.A. § 5-6-48(c) about the delay was entered before the trial court had received the remittitur from the first appeal; the trial court therefore lacked jurisdiction and the court's order was a nullity and void. Temple v. Hillegass, 344 Ga. App. 454, 810 S.E.2d 625 (2018).
Unreasonable distinguished from inexcusable.
- Question of whether a delay in filing a transcript is unreasonable is a separate matter from the issue of whether such a delay is inexcusable and refers principally to the length and effect of the delay rather than the cause of the delay. Cook v. McNamee, 223 Ga. App. 460, 477 S.E.2d 884 (1996).
Dismissal for delay in filing transcript requires exercise of discretion.
- Subsection (c) which empowers trial courts to dismiss appeals for delay in filing transcript or transmitting record, requires exercise of discretion by the judge. Strother v. C. & S. Nat'l Bank, 147 Ga. App. 140, 248 S.E.2d 204 (1978).
Unexplained delay provides no discretion as to dismissal.
- Trial court was not authorized to exercise the court's discretion and deny a motion to dismiss the appellant's notice of appeal in view of more than a 30 day delay in the payment of costs and the absence of any evidence as to why the delay occurred. Briley-Holmes v. Hill, 350 Ga. App. 474, 829 S.E.2d 632 (2019), cert. dismissed, No. S19C1600, 2020 Ga. LEXIS 112 (Ga. 2020).
Criteria for dismissal.
- Subsection (c) of O.C.G.A. § 5-6-48 sets forth three criteria for dismissal of the appeal for failure to timely file a transcript: (1) unreasonable delay, which was (2) inexcusable and (3) "caused by such party." Department of Human Resources v. Patillo, 196 Ga. App. 778, 397 S.E.2d 47 (1990).
Provisions governing power of court to dismiss appeal for late filing.
- Southeastern Plumbing Supply Co. v. Lee, 232 Ga. 626, 208 S.E.2d 449 (1974).
When appellant fails to present adequate record for review.
- Subsection (c) of O.C.G.A. § 5-6-48 does not prohibit affirmance when the appellant fails to present the appellate court with record sufficient to enable the court to determine whether trial court has committed reversible error. Brown v. Frachiseur, 247 Ga. 463, 277 S.E.2d 16 (1981).
When clerk is unable to timely transmit record.
- Although a court clerk's certificate under O.C.G.A. § 5-6-43 that was attached to a record on appeal indicated that the delay in the transmission of the record was not due to any fault by the insurer that had appealed, as the certificate was dated months after the trial court dismissed an earlier appeal under O.C.G.A. § 5-6-48(c), it was clearly not considered by the trial court in the court's dismissal decision, and accordingly, it was not considered by the appellate court on appeal from the dismissal. ACCC Ins. Co. v. Pizza Hut of Am., Inc., 314 Ga. App. 655, 725 S.E.2d 767 (2012).
Trial court's denial of the environmental company's motion to dismiss the appeal based on a delay in ordering transcripts was affirmed because the trial court did not abuse the court's discretion when the court concluded that it was undisputed that the court reporter had significant health problems during the time period in question, which resulted in the delay. Atl. Geoscience, Inc. v. Phoenix Dev. & Land Inv., LLC, 341 Ga. App. 81, 799 S.E.2d 242 (2017).
Absent transcript, trial court findings assumed authorized.
- When the defendant has not provided the appellate court with a transcript of the trial, the court must assume that the findings of the trial court were authorized by the evidence. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).
Trial court did not abuse the court's discretion by dismissing a security corporation's appeal of a civil judgment against the corporation as a result of having failed to have filed a transcript within 30 days as required by O.C.G.A. § 5-6-42. Since no transcript existed, the appellate court was unable to determine whether the security corporation had rebutted the presumption that the filing of the transcript 49 days after the 30-day statutory deadline for filing transcripts was unreasonable and no extension was requested. Pioneer Sec. & Investigations, Inc. v. Hyatt Corp., 295 Ga. App. 261, 671 S.E.2d 266 (2008).
No transcript to include as part of record.
- There was no abuse of discretion in the trial court's dismissal of the appeal when the appeal was delayed because of the appellant's designation of the transcript to be included as part of the record when there was no transcript and appellant's counsel made no effort to expedite the appeal since filing the notice of appeal. Teston v. Mills, 203 Ga. App. 20, 416 S.E.2d 133 (1992).
Affidavits of indigency precluded dismissal.
- Although the plaintiff's delay in following up on the transmission of the record was unreasonable and inexcusable, the language of O.C.G.A. §§ 5-6-30 and5-6-48 mandated that the appellate practice provisions be liberally construed. Accordingly, the trial court properly denied the defendant's motion to dismiss when the plaintiffs had filed affidavits of indigency. Carter v. Fulton-DeKalb County Hosp. Auth., 209 Ga. App. 384, 433 S.E.2d 433 (1993).
2. Unreasonable, Inexcusable Delay
Cause for delay in processing of appeal is fact issue for determination in trial court. Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975); ITT Indus. Credit Co. v. Burnham, 152 Ga. App. 641, 263 S.E.2d 482 (1979).
Whether there has been unreasonable delay in filing transcript is fact issue for trial court determination. Johnson v. Clements, 135 Ga. App. 495, 218 S.E.2d 109 (1975).
Finding of unreasonable and inexcusable delay required for dismissal.
- Failure to timely file transcript is not basis for dismissal of appeal unless the trial court finds that the delay was unreasonable, and that the unreasonable delay was inexcusable. Patterson v. Professional Resources, Inc., 242 Ga. 459, 249 S.E.2d 248 (1978); Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980); White v. Olderman Realty & Dev. Co., 163 Ga. App. 57, 293 S.E.2d 726 (1982).
Provision authorizing trial court to dismiss the appeal for failure to make timely filing of the transcript specifies that two elements must be present: one is that the delay is unreasonable and the other is that the unreasonable delay is inexcusable. Young v. Climatrol S.E. Distrib. Corp., 237 Ga. 53, 226 S.E.2d 737 (1976); ITT Indus. Credit Co. v. Carpet Factory, Inc., 140 Ga. App. 204, 230 S.E.2d 354 (1976), appeal dismissed, 143 Ga. App. 218, 237 S.E.2d 687 (1977); Young v. Jones, 147 Ga. App. 65, 248 S.E.2d 49 (1978); Smith v. Georgia Power Co., 183 Ga. App. 295, 358 S.E.2d 879 (1987).
With regard to delays in transmitting an appeal record to the appellate court, a trial court may dismiss an appeal when the delay was unreasonable, inexcusable, and caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence. Hameed v. Hall, 234 Ga. App. 890, 508 S.E.2d 680 (1998).
Discretion is in trial court.
- Section gives discretion to trial court to dismiss appeal if delay in transmitting record is both unreasonable and inexcusable. Corbin v. First Nat'l Bank, 151 Ga. App. 33, 258 S.E.2d 697 (1979).
When there has been unreasonable delay in filing of transcript and it is shown that the delay was inexcusable and was caused by the appellant, the trial court may order the appeal dismissed, and in such cases, it is error to dismiss the appeal based upon jurisdictional grounds and to fail to determine whether or not delay, if any, was "unreasonable" and "inexcusable." Green v. Weaver, 161 Ga. App. 295, 291 S.E.2d 247 (1982).
Failure to apply for an extension of time within which to file the transcript does not automatically convert a subsequent delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal. The trial court has discretion to dismiss an appeal for failure to timely file a transcript only if: (1) the delay in filing was unreasonable; or (2) the failure to timely file was inexcusable in that it was caused by some act of the party responsible for filing the transcript. Baker v. Southern Ry., 260 Ga. 115, 390 S.E.2d 576 (1990); Burns v. Howard, 239 Ga. App. 315, 520 S.E.2d 491 (1999).
Trial court did not abuse the court's discretion in finding that the delay in timely filing a transcript was caused by plaintiffs and was inexcusable, given the plaintiffs undisputed failure to seek another extension of the deadline and the trial court's authorization to conclude that the plaintiffs had failed even to order the additional portions of the transcript until the deadline had passed. Van Diviere v. Delta Airlines, 204 Ga. App. 573, 420 S.E.2d 27, cert. denied, 204 Ga. App. 922, 420 S.E.2d 27 (1992).
There was no abuse of discretion in the trial court's dismissal of the notice of appeal from the directed verdict on a counterclaim, on the grounds that the three-month delay was inexcusable, unreasonable, and caused by the party's failure to pay the required deposit for preparation of the transcript. Crocker v. Stevens, 210 Ga. App. 231, 435 S.E.2d 690 (1993), cert. denied, 511 U.S. 1053, 114 S. Ct. 1613, 128 L. Ed. 2d 340 (1994), overruled on other grounds, Kim v. Lim, 254 Ga. App. 627, 563 S.E.2d 485 (2002).
Trial court abused the court's discretion when the court dismissed the parents' notice of appeal because the undisputed evidence made clear that the delay in filing the transcript of the oral argument hearing was excusable and not caused by the parents as the parents timely paid the bill for the transcript, which had never been filed with the clerk of the trial court. Allan v. Jefferson Lakeside, L.P., 333 Ga. App. 222, 775 S.E.2d 763 (2015).
No finding of lack diligence.
- Trial court's finding that the appellants had not been diligent in determining that there would be a delay was not supported by the record which revealed that the appellants' counsel ordered the transcript in a timely manner, made timely payment, and made reasonable inquiry as to the status of its preparation and that the court reporter knew the reporter needed to complete the transcript as soon as possible, that the reporter was aware of the 30-day deadline, and that the earliest the reporter could complete the transcript was the end of July. Welch v. Welch, 212 Ga. App. 667, 442 S.E.2d 857 (1994).
Findings of fact required.
- Trial court's failure to make findings with regard to the reasonableness and excusability of the delay, as well as on the issue of causation, mandates a reversal of the court's dismissal order and a remand with direction that findings of fact be entered on these issues. Wood v. Notte, 238 Ga. App. 748, 519 S.E.2d 923 (1999).
Trial court's order dismissing appeal for the failure to file the transcript was affirmed when the evidence showed: (1) that although the transcript was completed sometime in late September or early October, the appellant failed to have the transcript filed by November 13 as ordered by the court; (2) that the delay was due to the appellant's own failure to timely pay the court reporter; and (3) that the delay was inexcusable as the appellant sought the third extension of time on the ground that the court reporter needed more time to prepare the transcript, accepting no responsibility for, and making no mention of, the appellant's own failure to pay the court reporter the balance due. Quarles v. Saddleback Ridge Condos. Ass'n, 266 Ga. App. 467, 597 S.E.2d 460 (2004).
Trial court did not abuse the court's discretion in granting a dismissal of the plaintiff's appeal, pursuant to O.C.G.A. § 5-6-42, because the plaintiff failed to file a transcript for the plaintiff's appeal for more than 17 months after the plaintiff filed the notice of appeal, the plaintiff never sought an extension of time for such filing under O.C.G.A. § 5-6-39, and the court held that the plaintiff's action was unreasonable, inexcusable, and caused by the plaintiff's own conduct; there was no requirement that a hearing be held on the motion to dismiss, pursuant to O.C.G.A. § 5-6-48(c), as the plaintiff was only entitled to an opportunity to be heard, which the plaintiff received. Lemmons v. Newton, 269 Ga. App. 880, 605 S.E.2d 626 (2004).
Appeal was properly dismissed for failure to timely file a transcript under O.C.G.A. § 5-6-42 since the 150 day delay in filing the transcript was unreasonable under O.C.G.A. § 5-6-48, in that it resulted in a delay of the consideration of the appeal for another term and affected the appellee's ability to administer the estate in question; the delay was inexcusable since the record indicated that the attorney had the transcript when the attorney filed the notice of appeal. Adams v. Hebert, 279 Ga. App. 158, 630 S.E.2d 652 (2006).
Inexcusable delay in failing to file transcript.
- Trial court properly dismissed the debtors' appeal as a transcript was not filed until over two months after the statutory due date, and the debtors did not request an extension of time to file the transcript; any delay in completing the record past the 30 days granted by statute was presumptively unreasonable and inexcusable. Dye v. U.S. Bank Nat'l Ass'n, 273 Ga. App. 652, 616 S.E.2d 476 (2005).
Since a construction company bringing an appeal of a jury verdict in favor of the homeowners never sought an extension of time to file the transcript from the post-trial hearing on its motions for new trial and judgment notwithstanding the verdict, nor communicated with the court reporter during the nine-month period after the hearing, the record did not support the trial court's finding that the delay in filing that transcript caused by the construction company was excusable and the trial court's denial of the homeowners' motion to dismiss the appeal was error; the record showed that the construction company's actions delayed a just disposition of the case by delaying the docketing of the appeal and hearing of the case by the appellate court, and, consequently, the homeowners were forced to wait for a final disposition on the construction company's appeal of the verdict against the company. Coptic Constr. Co. v. Rolle, 279 Ga. App. 454, 631 S.E.2d 475 (2006).
Trial court did not abuse the court's discretion in dismissing the parents' appeal under O.C.G.A. § 5-6-48(c) on the ground that the parent' delay in the filing of the transcript was unreasonable, inexcusable, and caused by the parents because the parents took no steps whatsoever to have the transcript prepared until almost ten months after the parents filed the parents' notice of appeal, over seven months after the court reporter informed the parents of the necessary deposit, and almost five months after the trial court informed the parents that the parents would be responsible for bearing the full costs of having the transcript prepared; by waiting to pay the deposit and order the transcript, the parents prevented the case from being docketed and heard in the earliest possible appellate term of court. Bush v. Reed, 311 Ga. App. 328, 715 S.E.2d 747 (2011).
Trial court did not abuse the court's discretion in finding that a mother's failure to timely pursue the filing of the transcript from the mother's parental rights termination hearing or seek an extension of time for almost one year was unreasonable and inexcusable and in dismissing the appeal under O.C.G.A. § 5-6-48(a). In the Interest of T.H., 311 Ga. App. 641, 716 S.E.2d 724 (2011).
In an attorney lien case, the trial court did not abuse the court's discretion by dismissing the former client's appeal for a delay in transmitting the record appendix because the delay of 55 days was inexcusable and caused by the former client, who had elected to take responsibility for transmitting the record by stating in the notice of appeal that the client would file a record appendix and never amended the client's notice of appeal to provide that the clerk would be responsible for transmission of the record. McAlister v. Abam-Samson, 318 Ga. App. 1, 733 S.E.2d 58 (2012).
Homeowner's appeal in a wrongful foreclosure case was properly dismissed due to the homeowner's failure to file the transcript of the summary judgment proceedings for more than eight months after the deadline provided in O.C.G.A. § 5-6-42; the homeowner's proceeding in forma pauperis, O.C.G.A. § 9-15-2, did not excuse the homeowner's failure to timely obtain the transcript. Ashley v. JP Morgan Chase Bank, N.A., 327 Ga. App. 232, 758 S.E.2d 135 (2014).
In a juvenile delinquency case, a parent's appellate argument that the juvenile court erred by dismissing the parent's appeal for failure to pay costs because the clerk of court never submitted a cost bill was meritless because the juvenile court had in fact dismissed the parent's appeal because of the parent's 10-month delay in causing the requested transcripts to be filed as required under O.C.G.A. §§ 5-6-42 and5-6-48. In the Interest of C. W., 342 Ga. App. 484, 803 S.E.2d 618 (2017).
Trial court erred in failing to dismiss the state's appeal because the trial court's findings of fact did not support conclusions of law that the state's delay was neither unreasonable nor inexcusable particularly in light of the state's burden to come forward with evidence to rebut the presumption that the delay was inexcusable when the state far exceeded 30 days and the state failed to request an extension. State v. Brienza, 350 Ga. App. 672, 829 S.E.2d 894 (2019).
While 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 and, 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 whether any such negligence was so severe as to prejudice the opposing party or to cause the appeal to become stale. Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 458 S.E.2d 377 (1995).
Discretion of court.
- In passing upon issues of unreasonableness and lack of excuse, trial court has discretion. Ray v. Williams, 144 Ga. App. 155, 240 S.E.2d 577 (1977).
Determination that delay is unreasonable and inexcusable is within discretion of trial court. ITT Indus. Credit Co. v. Burnham, 152 Ga. App. 641, 263 S.E.2d 482 (1979).
Trial court's determination subject to review.
- In passing upon whether delay was unreasonable and inexcusable, trial court has legal discretion which is subject to review in appellate courts. Young v. Climatrol S.E. Distrib. Corp., 237 Ga. 53, 226 S.E.2d 737 (1976); Ray v. Williams, 144 Ga. App. 155, 240 S.E.2d 577 (1977); Corbin v. First Nat'l Bank, 151 Ga. App. 33, 258 S.E.2d 697 (1979); Galletta v. Hillcrest Abbey W., Inc., 185 Ga. App. 20, 363 S.E.2d 265 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 265 (1988); Smith v. Georgia Power Co., 183 Ga. App. 295, 358 S.E.2d 879 (1987); Lloyd v. Hodge, 191 Ga. App. 355, 381 S.E.2d 540 (1989).
Losing party has right to appeal trial court's ruling on question of late filing of transcript. Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E. 447 (1975).
Specific findings of unreasonable and unexcusable delay.
- Fact that trial court does not render specific findings of unreasonable and unexcusable delay does not prevent trial court judge from dismissing appeal on these grounds pursuant to this section. Karlsberg v. Hoover, 142 Ga. App. 590, 236 S.E.2d 520, cert. dismissed, 240 Ga. 295, 240 S.E.2d 553 (1977).
While this section sets forth conditions upon which the trial court may dismiss appeal for delay, it does not by its terms require court to make formal recitation of those conditions in the court's order. Lee v. White Truck Lines, 143 Ga. App. 94, 238 S.E.2d 120 (1977).
Delay of nine months after the notice of appeal was filed and the total failure to pay the cost of the transcript as of the date of the trial court's order was both inexcusable and unreasonable. Kendall v. Burke, 237 Ga. App. 742, 516 S.E.2d 791 (1999).
Standard of review.
- Trial court's finding on reasonable delay will be reversed only for abuse of discretion. DuBois v. DuBois, 240 Ga. 314, 240 S.E.2d 706 (1977); Patterson v. Professional Resources, Inc., 242 Ga. 459, 249 S.E.2d 248 (1978); Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980); Hunt v. Lee, 190 Ga. App. 403, 379 S.E.2d 215 (1989).
In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court's finding absent an abuse of discretion. Teston v. Mills, 203 Ga. App. 20, 416 S.E.2d 133 (1992).
Trial judge's failure to exercise discretion will result in reversal.
- When trial judge under subsection (c) fails to exercise discretion, resting the judge's decision instead solely upon a point of law, a reversal will result. Strother v. C. & S. Nat'l Bank, 147 Ga. App. 140, 248 S.E.2d 204 (1978).
Court not required to make express finding that delay was inexcusable.
- Since no requirement exists that the trial court make specific recitals of the elements necessary to authorize dismissal, the presumption should adhere as in other appeals that the judgment was correct, with the burden upon the appellant to show otherwise to the reviewing court. Cooper v. State, 235 Ga. App. 66, 508 S.E.2d 447 (1998).
Trial court provided sufficient findings of fact to show that the court considered the factors set forth in O.C.G.A. § 5-6-48(c) for dismissal of an appeal (i.e., the length of the delay in filing a transcript, the reasons for the delay, whether the appellant caused the delay, and whether the delay was inexcusable), even though the court did not use the words "unreasonable" or "inexcusable." Callaway v. Garner, 340 Ga. App. 176, 796 S.E.2d 906 (2017).
When the delay is attributable to clerk of court rather than to counsel, the Constitution forbids dismissal of the case. AMOCO v. McCluskey, 116 Ga. App. 706, 158 S.E.2d 431 (1967), rev'd on other grounds, 224 Ga. 253, 161 S.E.2d 271 (1968).
Appeal was timely as the notice of appeal was filed within 30 days after entry of an appealable judgment as required by O.C.G.A. § 5-6-38(a); although the court reporter inexplicably did not file the transcript with the court until two years later, the defendant did not cause an unreasonable and inexcusable delay in filing the appeal. Johnson v. State, 259 Ga. App. 452, 576 S.E.2d 911 (2003).
When delay in filing of transcript does not delay docketing and hearing dismissal is not warranted. AMOCO v. McCluskey, 116 Ga. App. 706, 158 S.E.2d 431 (1967), rev'd on other grounds, 224 Ga. 253, 161 S.E.2d 271 (1968).
Trial court's finding that the delay in filing the transcript in a timely fashion was unreasonable so as to warrant dismissal was an abuse of discretion and the delay in filing did not delay transmission of the record to the Court of Appeals. Sellers v. Nodvin, 262 Ga. 205, 415 S.E.2d 908 (1992).
Because there was no evidence that an 11-day delay in the filing of a transcript for transmission as part of the appellate record discernibly delayed the docketing of the record in the appellate court, the trial court abused the court's discretion by concluding that the delay was unreasonable, and erred by dismissing an appeal. Fulton County Bd. of Tax Assessors v. Love, 289 Ga. App. 252, 656 S.E.2d 576 (2008).
Party must request extension of time though initial delay not his fault.
- Fact that initial delay in preparation of transcript may not have been the fault of the defendant does not excuse the filing delay, in absence of proper request by the defendant for an extension of time. Dampier v. First Bank & Trust Co., 153 Ga. App. 756, 266 S.E.2d 539 (1980).
Fact that an unreasonable delay in the preparation of the transcript is not the fault of the appellant does not excuse a filing delay, in the absence of a proper request by the appellant for an extension of time. This being so, the trial court is authorized to dismiss the appeal. In re G.W.H., 168 Ga. App. 845, 310 S.E.2d 573 (1983).
Dismissal not required where appellant does not cause delay and judge denies extension.
- To construe Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39) as requiring dismissal when the appellant did not cause delay and the trial judge declined to grant a requested extension would shut off the right of appeal, and would thus violate the constitutional mandate of Ga. Const. 1976, Art. VI, Sec. II, Para. V (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II). Such a construction would also be contrary to the legislative intent expressed in subsection (c) of Ga. L. 1966, p. 493, § 10 (see O.C.G.A. § 5-6-48) and Ga. L. 1965, p. 18, § 23 (see O.C.G.A. § 5-6-30) as to a decision upon the merits. Elliott v. Leathers, 223 Ga. 497, 156 S.E.2d 440 (1967).
Grant of extension of time for filing transcript does not excuse unreasonable delay in filing. Johnson v. Clements, 135 Ga. App. 495, 218 S.E.2d 109 (1975).
Six-day delay not unreasonable.
- When the transcript was completed by the court reporter, who failed to file Ga. L. 1965, p. 18, § 23 (see O.C.G.A. in the clerk's office, a six-day delay did not amount to an unreasonable delay in filing, nor was it inexcusable. Wagner v. Howell, 257 Ga. 801, 363 S.E.2d 759 (1988).
Eight-month delay held unreasonable.
- When there was an eight-month delay in the filing of the transcript, failure to request an extension of time, and absence of any articulated excuse for the failure, the court did not abuse the court's discretion in finding the delay to be unreasonable and inexcusable. Fuller v. Mayor of Savannah, 193 Ga. App. 716, 389 S.E.2d 7 (1989), cert. denied, 496 U.S. 906, 110 S. Ct. 2589, 110 L. Ed. 2d 270 (1990).
151-day delay unreasonable.
- When the record showed a 151-day delay between when the transcript was required to be filed, and when it was ultimately filed, which was caused by the appellants' failure to order the transcript, subsection (f) of O.C.G.A. § 5-6-48 was inapplicable and the delay was unreasonable. Burton v. Hamilton, 204 Ga. App. 18, 418 S.E.2d 398 (1992).
Trial court erred in not granting the appellee's motion to reconsider the denial of the appellee's motion to dismiss when the appellant's obvious shirking of the responsibility for seeing to it that a transcript of proceedings of the appellant's medical malpractice case was filed in the trial court and that shirking of responsibility led to a greater than three-year delay in filing the transcript that prejudiced the surgical business and the doctor. Atlanta Orthopedic Surgeons v. Adams, 254 Ga. App. 532, 562 S.E.2d 818 (2002).
Misunderstanding clerk's directions not inexcusable.
- When the wife's attorney offered under oath an explanation for the delay in filing the transcript, claiming misunderstood the directions given to counsel by an unidentified deputy court clerk, the explanation provided by the attorney as the reason for the counsel's delay, could not be said to be inexcusable as a matter of law. Hammontree v. Hammontree, 186 Ga. App. 819, 368 S.E.2d 576 (1988).
Remand for fact determination.
- When the trial court never made the requisite fact determination regarding whether the delay in filing the transcript was unreasonable, inexcusable, and caused by the plaintiff, the appropriate course of action was to remand the case to the trial court to make that determination and rule on the defendant's motion to dismiss. Beavers v. Gilstrap, 210 Ga. App. 46, 435 S.E.2d 267 (1993).
Delay held unreasonable.
- See A. Roberts Corp. v. Roberts, 207 Ga. App. 663, 428 S.E.2d 671 (1993).
Delay of almost two years in filing transcript warranted dismissal of appeals. Boveland v. YWCA, 227 Ga. App. 241, 489 S.E.2d 35 (1997).
Transcript filing delay of more than six months was unreasonable. Bass v. Mercer, 240 Ga. App. 545, 524 S.E.2d 260 (1999).
Transcript filing delay of more than six months was unreasonable.
- Trial court did not abuse the court's discretion in dismissing the defendant's notice of appeal due to the defendant's unreasonable and inexcusable delay in transmitting the record to the appellate court since the defendant waited 108 days before transmitting the record, waited three months to pay court costs, and was represented by counsel. Strickland v. State, 257 Ga. App. 304, 570 S.E.2d 713 (2002).
Because a lender's O.C.G.A. § 9-11-41(a)(1)(A) notice to withdraw an appeal after sustaining an adverse judgment on the merits did not toll the time in which the lender was required to file a transcript on appeal, the renewal statute, O.C.G.A. § 9-2-61, did not apply; thus, the appeal was properly dismissed pursuant to O.C.G.A. § 5-6-48(c). Schreck v. Standridge, 273 Ga. App. 58, 614 S.E.2d 185 (2005).
Trial court did not abuse the court's discretion in ruling that an appellant had not satisfied O.C.G.A. §§ 5-6-42 and5-6-48, that the appellant's delay in filing a transcript was unreasonable and inexcusable, and that the delay in the appeal process was the appellant's fault because the case was remanded to the trial court for the purpose of supplementing or reconstructing the transcript, and at the hearing more than a year later, the appellant offered no evidence as to efforts taken by the appellant to obtain the transcript or, if necessary, to file the appropriate motions to extend the time to file the transcript or to have the transcript reconstructed; at no time did the appellant file a motion to reconstruct the record, pursuant to O.C.G.A. § 5-6-41(g), or to extend the time to file the transcript, pursuant to O.C.G.A. § 5-6-39, after the case was remanded to the trial court. Lavalle v. Jarrett, 306 Ga. App. 260, 701 S.E.2d 886 (2010).
Delay was not unreasonable or inexcusable.
- Trial court did not err in finding claimant's 91 day delay in paying costs was not unreasonable nor inexcusable when the court conducted an evidentiary hearing and the claimant suffered from both financial and mental disability. Logan v. St. Joseph Hosp., 227 Ga. App. 853, 490 S.E.2d 483 (1997).
Trial court did not abuse the court's discretion in denying the appellee's motion to dismiss an appeal because of the appellant's late filing of a transcript since the evidence showed that the delay was excusable, attributable to a third party, and did not directly prejudice the appellee. Brandenburg v. All-Fleet Refinishing, Inc., 252 Ga. App. 40, 555 S.E.2d 508 (2001).
Trial court did not abuse the court's discretion, pursuant to O.C.G.A. § 5-6-48(c), in granting the appellee's motion to dismiss with regard to the transcript on appeal because the appellants' delay in filing the transcript, pursuant to O.C.G.A. §§ 5-6-41(c) and5-6-42, was unreasonable, inexcusable, and caused by the appellants. Pistacchio v. Frasso, 314 Ga. App. 119, 723 S.E.2d 322 (2012).
Delay Occasioned by Nonpayment of Costs
1. In General
Rebuttable presumption of delivery of notice.
- Clerk's affidavit is sufficient evidence to establish the elements necessary to create a rebuttable presumption that the notice of the amount of costs was delivered to counsel, and to create a duty to show it was not wilfully refused. Crenshaw v. Georgia Underwriting Ass'n, 202 Ga. App. 610, 414 S.E.2d 915 (1992).
Issue of failure to pay costs cannot be raised for first time on appeal.
- When no issue was raised in the trial court as to whether the notice of appeal should be dismissed for unreasonable and inexcusable delay in transmitting the record due to failure to pay costs; the issue may not be raised for the first time on appeal. Jones v. Monroe Nursing Home, Inc., 149 Ga. App. 582, 254 S.E.2d 902 (1979).
Appellant entitled to opportunity for hearing on motion to dismiss for delay in paying costs. Scocca v. Wilt, 241 Ga. 334, 245 S.E.2d 295 (1978).
Plaintiffs required to pay calculated costs.
- Notice received by the plaintiffs contained calculated, not estimated costs, thus requiring the plaintiffs to pay when the state court appeals clerk testified at the hearing on the motion to dismiss that costs are determined by multiplying the number of pages to be photocopied by the cost per page and then adding a small fee ($5.50) for recording and certifying the record. CRA Transp., Inc. v. Rolls Royce Motors, Inc., 204 Ga. App. 825, 420 S.E.2d 757, cert. denied, 204 Ga. App. 921, 420 S.E.2d 757 (1992).
Transmittal of record prior to ruling on motion to dismiss appeal.
- Where, whether transmitted erroneously or not, the record and transcript in an appeal was sent to the Court of Appeals prior to any ruling by the trial court in regard to the appellee's motion to dismiss the appeal, even assuming that the trial court's dismissal of the appeal was premised not only upon the failure to pay costs timely but also upon the basis that such failure resulted in unreasonable delay in the transmission of the record to this court and that the delay was inexcusable as required under O.C.G.A. § 5-6-48(c), the order of dismissal is a nullity. Pursuant to Court of Appeals Rule 47, as amended effective March 1, 1985, the trial court was relieved of the court's jurisdiction to consider objections to records or transcripts when there was no ruling upon such objection prior to transmittal of the record. Turner v. Taylor, 179 Ga. App. 574, 346 S.E.2d 920 (1986).
Nonprejudicial delay.
- When the delay in paying the costs did not appreciably lengthen the litigation or prejudice the opponents, there was no abuse of discretion in the trial court's denial of the motion to dismiss. Jim Walter Homes, Inc. v. Strickland, 185 Ga. App. 306, 363 S.E.2d 834 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 834 (1988).
Trial court properly denied the appellee's motion to dismiss an appeal for the appellant's unreasonable delay in the payment of costs, when the delay was caused by confusion surrounding the post-trial the appellate procedure and was neither unreasonable nor inexcusable, and appellant showed no prejudice from the delay. DOT v. Southeast Timberlands, Inc., 263 Ga. App. 805, 589 S.E.2d 575 (2003).
Trial court properly found that a delay in paying costs was excusable considering the pendency of the motion to accept a pauper's affidavit; because the opposing party failed to show any prejudice resulting from the delay, and given that the trial court had broad discretion in this area, the trial court's judgment was affirmed. Hiers v. ChoicePoint Servs., 270 Ga. App. 128, 606 S.E.2d 29 (2004).
Refusal to accept letter is equivalent of receipt.
- Refusal to accept a letter delivered to the proper address with adequate postage is the equivalent of receipt of notice. Crenshaw v. Georgia Underwriting Ass'n, 202 Ga. App. 610, 414 S.E.2d 915 (1992).
Discretion of court.
- Whether to dismiss a notice of appeal for delay in paying costs rested in the sound discretion of the trial court when the grounds to dismiss were met. Style Craft Homes, Inc. v. Chapman, 226 Ga. App. 634, 487 S.E.2d 32 (1997).
Dismissal of state's appeal under O.C.G.A.
§ 5-6-48(c) upheld. - Trial court properly dismissed the state's appeal from an order barring the defendant's trial on speedy trial grounds, pursuant to O.C.G.A. § 5-6-48(c), as order was not the type the state had a right to pursue under O.C.G.A. § 5-7-1; moreover, the order was not void as the order was entered by a court of competent jurisdiction. State v. Glover, 281 Ga. 633, 641 S.E.2d 543 (2007).
Trial court did not abuse the court's discretion in dismissing the defendant's notice of appeal when the defendant failed to request a hearing within 15 days of the court's order dismissing the appeal for failure of the defendant to pay the cost bill. Ledee v. Kissiah, 215 Ga. App. 850, 452 S.E.2d 558 (1994).
2. Unreasonable, Inexcusable Delay
Failure to pay costs which does not occasion delay.
- When record in lower court is forwarded prior to payment of costs in that court, and failure to pay costs has not worked a delay in appellate court, there is no ground for dismissal. AMOCO v. McCluskey, 116 Ga. App. 706, 158 S.E.2d 431 (1967), rev'd on other grounds, 224 Ga. 253, 161 S.E.2d 271 (1968).
Failure to pay costs when record otherwise properly transmitted.
- Failure to pay court costs to clerk of court below before record is transmitted to appellate court will not result in dismissal of case when the record is otherwise properly transmitted (albeit inadvertently). Elliott v. Walton, 136 Ga. App. 211, 220 S.E.2d 696 (1975).
Unreasonable delay warrants dismissal.
- When there has been an unreasonable delay and it is shown that the delay was inexcusable and was caused by failure of the party to pay costs in the trial court or file the pauper's affidavit, the trial court may order an appeal dismissed. Brookshire v. J.P. Stevens Co., 133 Ga. App. 97, 210 S.E.2d 46 (1974).
Court properly dismissed the plaintiff's appeal after the plaintiff failed to appear and present evidence at an indigency hearing and failed to pay the costs of the appeal within the statutory time limit. Cody v. Coldwell Banker Real Estate Corp., 253 Ga. App. 752, 560 S.E.2d 275 (2002).
Because an unsuccessful Georgia Bar applicant, who sought review of a trial court's denial of a petition for mandamus, failed to pay the bill of costs for the appellate record, despite filing numerous notices of appeal, receiving updated bills, and receiving extensions of time to pay the bill, a trial court properly found the delay of over two years was both inexcusable and unreasonable under O.C.G.A. § 5-6-48(c), and dismissal of the appeal was properly granted. Cottrell v. Askew, 276 Ga. App. 717, 624 S.E.2d 203 (2005).
Notice of appeal filed by several related companies in an action under O.C.G.A. § 14-2-1604 was properly dismissed for failure to timely pay a bill of costs pursuant to O.C.G.A. § 5-6-48(c) as the 64-day delay in paying was due to counsel's failure to confirm that payment had been made; thus, the delay was inexcusable and unreasonable. Langdale Co. v. Langdale, 295 Ga. App. 372, 671 S.E.2d 863 (2008).
Trial court did not abuse the court's discretion when the court dismissed an insurer's appeal under O.C.G.A. § 5-6-48(c) as the insurer did not rebut the presumption that a delay of over five months in filing a transcript as part of the record on appeal was unreasonable and inexcusable. ACCC Ins. Co. v. Pizza Hut of Am., Inc., 314 Ga. App. 655, 725 S.E.2d 767 (2012).
Trial court's dismissal of an appeal from a summary judgment dismissing a wrongful death claim brought by four children, due to the failure of two of the children to pay costs or submit affidavits of indigency, was in error as to two of the children who filed affidavits of indigency; assuming the children filed true affidavits of indigence (O.C.G.A. § 9-15-2(a)(2), (b)), the children had rights to appeal from the dismissal of the children's proportionate shares of the wrongful death case as: (1) the wrongful death claim was not jointly in all the children or in none of the children; and (2) originally, each child had a separate claim for one-fourth of the value of the decedent's life. Mapp v. We Care Transp. Servs., 314 Ga. App. 391, 724 S.E.2d 790 (2012), cert. denied, No. S12C1111, 2012 Ga. LEXIS 660 (Ga. 2012).
Trial court's dismissal of an appeal from a summary judgment dismissing a wrongful death claim brought by four children, due to the failure of two of the children to pay costs or submit affidavits of indigency, was not an abuse of discretion as to the two children who did not pay costs or submit affidavits; the children, in addition to failing to pay costs or submit affidavits, offered no explanation for the children's failure to do so, which caused an unreasonable delay. Mapp v. We Care Transp. Servs., 314 Ga. App. 391, 724 S.E.2d 790 (2012), cert. denied, No. S12C1111, 2012 Ga. LEXIS 660 (Ga. 2012).
Dismissal of appeal for failure to pay costs of the appeal was affirmed because the defendants delayed 37 days in paying costs and such delay was prima facie unreasonable and inexcusable. Defendants cited no case law indicating that the 30-day period was to be calculated in any manner other than by calendar days. Cent. Ga. Dev. Group, Inc. v. Synovus Bank, 320 Ga. App. 893, 740 S.E.2d 812 (2013).
Trial court did not abuse the court's discretion in dismissing the appellants' notice of appeal as the appellants did not pay the costs of appeal for 70 days after receiving notice of those costs because, contrary to the appellants' argument, the trial court was authorized to presume that the appellants' delay in paying costs was unreasonable and inexcusable as that delay was more than 30 days; the trial court expressly found that the appellants did not rebut that inference; and the appellate court presumed that the evidence presented at the hearing supported the trial court's finding as the appellate record did not contain a transcript of the hearing on the motion to dismiss the appeal. Webb's Erection, Inc. v. Colonial Pacific Leasing Corporation, 345 Ga. App. 202, 812 S.E.2d 602 (2018).
Hearing required.
- Trial court must conduct a hearing or otherwise consider evidence to make a determination as to whether under the circumstances the delay was unreasonable and, if so, whether the delay was inexcusable. Crenshaw v. Georgia Underwriting Ass'n, 202 Ga. App. 610, 414 S.E.2d 915 (1992).
Trial court erred in dismissing the development corporation's appeal from a judgment against it in a contract action after it did not pay a bill of costs that the clerk of the court mailed to it and did not request more time to pay since the trial court had an obligation to hold a hearing and determine whether the failure to pay and the failure to request more time to pay were inexcusable and unreasonably delayed transmission of the record to the appellate court. McCorvey Dev. v. D. G. Jenkins Dev. Corp., 260 Ga. App. 276, 581 S.E.2d 308 (2003).
Delay of 45 days in paying costs is in fact unreasonable and inexcusable.
- When the total elapsed time between filing of notice of appeal and mailing of record was 70 days, 25 of which were chargeable to clerk and additional 45 to plaintiff's tardiness in paying costs, such delay is in fact unreasonable and inexcusable, nothing further appearing. Jones v. State, 123 Ga. App. 672, 182 S.E.2d 190 (1971).
Determination by trial court was not an abuse of discretion when all arguments presented were fully considered and the reasons for the delay were found neither reasonable nor excusable. McDonald v. Garden Servs., Inc., 163 Ga. App. 851, 295 S.E.2d 551 (1982), cert. vacated, 251 Ga. 337, 304 S.E.2d 914 (1983).
Error by inexperienced employee of counsel as giving rise to delay.
- Trial court did not abuse the court's discretion in denying the motion to dismiss the appeal due to an alleged unreasonable and inexcusable delay in paying the costs, which had not been paid more promptly, according to the appellant, due to a mistake by an inexperienced former employee, and due to lack of knowledge by counsel of the receipt by counsel's office of the bill. ITT Terryphone Corp. v. Modems Plus, Inc., 171 Ga. App. 710, 320 S.E.2d 784 (1984).
Delays of over 30 days have been suggested as being prima facie unreasonable and inexcusable. Continental Inv. Corp. v. Cherry, 124 Ga. App. 863, 186 S.E.2d 301 (1971); Bouldin v. Parker, 173 Ga. App. 526, 327 S.E.2d 760 (1985); Hatfield v. Great Am. Mgt. & Inv., Inc., 190 Ga. App. 534, 379 S.E.2d 544 (1989); Stone v. Boyne, 245 Ga. App. 868, 539 S.E.2d 209 (2000).
Delay of more than 30 days in paying costs is prima facie unreasonable and inexcusable. However, the inference arising from such a delay is not conclusive and may be rebutted by evidence presented by an opposing party. Leonard v. Ognio, 201 Ga. App. 260, 410 S.E.2d 814 (1991).
Trial court's denial of plaintiff's motion to dismiss the defendants' notice of appeal was an abuse of discretion, when there was a delay of more than 30 days in the payment of costs and no evidence as to why the delay occurred. Leonard v. Ognio, 201 Ga. App. 260, 410 S.E.2d 814 (1991).
Delay of over 100 days unreasonable.
- Trial court properly dismissed an oncologist's appeal in a breach of contract suit based on the oncologist's failure to pay costs under O.C.G.A. § 5-6-48(c). The oncologist did not pay the costs until over 100 days after the initial bill was sent, over 90 days after seeking permission to proceed in forma pauperis, and over 70 days after the denial of the request to proceed in forma pauperis; it had been determined that a delay in excess of 30 days was prima facie unreasonable and inexcusable. Mitchell v. Cancer Carepoint, Inc., 299 Ga. App. 881, 683 S.E.2d 923 (2009).
Delay of 106 days found unreasonable.
- Appellant's 106 day delay in paying costs was unreasonable and warranted dismissal. Roach v. Boyce, Thompson & O'Brien, 201 Ga. App. 212, 410 S.E.2d 748, cert. denied, 201 Ga. App. 904, 410 S.E.2d 748 (1991).
Delay not unreasonable or inexcusable.
- Trial court did not err in declining to dismiss a contractor's appeal for failure to pay costs timely pursuant to O.C.G.A. § 5-6-48(c) as the court was authorized to find that the delay in the clerk's receipt of payment was not unreasonable or inexcusable; the original bill of costs had been erroneously mailed to the former address of the contractor's counsel, which delayed receipt, and when the bill of costs was finally received, the contractor attempted to tender prompt payment of the costs and immediately delivered a new check upon finding that the contractor's previous check had not been received by the clerk of court. J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 644 S.E.2d 440 (2007).
Considerations in determining reasonableness of delay of less than 30 days.
- Continental Inv. Corp. v. Cherry, 124 Ga. App. 863, 186 S.E.2d 301 (1971).
Counsel's inability to contact client and latter's delay in obtaining money for costs.
- When counsel for the appellant states that the delay in transmitting the record to appellate court was caused by an inability to contact the client and the time the client took to obtain money to pay costs, the appellate court cannot say that the judge of the superior court erred in dismissing the appeal because of a delay in forwarding the record. Williford v. General Ins. Co. of America, 119 Ga. App. 1, 165 S.E.2d 924 (1969).
Amendment of Record
Record before the court is what appellate courts should rely on in passing on the merits of an appeal from a final judgment. Interstate Fin. Corp. v. Appel, 233 Ga. 649, 212 S.E.2d 821 (1975).
Supplementation of record.
- If record before it is insufficient to pass upon merits, the appellate court should require supplementation if necessary additions are available in trial court. Interstate Fin. Corp. v. Appel, 233 Ga. 649, 212 S.E.2d 821 (1975); Scott v. Allstate Ins. Co., 190 Ga. App. 135, 378 S.E.2d 332 (1989).
In the state's action to condemn game machines, it was error not to grant the machine owners' timely and proper motion to supplement the record on appeal. The Court of Appeals did not have the complete record before it, and it had considered the state's expert report to the exclusion of the owners' expert report, which it did not have and which the trial court had relied upon along with the state's report. Damani v. State, 284 Ga. 372, 667 S.E.2d 372 (2008).
Appellate court should allow parties to send up necessary documents rather than dismiss appeal.
- Ends of justice are better served by allowing appellant or appellee to send up through clerk of trial court additional available documents or transcripts that will enable appellate courts to render decisions on merits than by dismissing the appeal for failure to provide documents. Interstate Fin. Corp. v. Appel, 233 Ga. 649, 212 S.E.2d 821 (1975).
When omission of proper party was inadvertent.
- In order to add additional proper party by amendment to notice of appeal under subsection (d), original omission of that party must have been an inadvertent error. Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882, 237 S.E.2d 198 (1977).
Failure to perfect record.
- Appellant, seeking an interlocutory review of a denial of a motion to dismiss, is not entitled, after the reviewing court has rendered the court's decision, to supplement the court's record on appeal in order to correct an omission resulting from the failure of counsel to perfect the record. Consolidated Government v. Williams, 184 Ga. App. 815, 363 S.E.2d 20, cert. denied, 184 Ga. App. 909, 363 S.E.2d 20 (1987).
Motion erroneously brought under O.C.G.A.
§ 5-6-41(f). - Once the appellate court renders the court's decision, O.C.G.A. § 5-6-48, under which the action originates in the appellate court, becomes the exclusive method for supplementing the record. Therefore, the appellate court's refusal to entertain, on motion for rehearing under O.C.G.A. § 5-6-41(f), under which the action originates in the trial court, the supplementation of the record was not error. However, in holding that what the defendant wore at trial, not shown in the record other than a reference to "prison garb," was new evidence and not subject to § 5-6-41(f), the appellate court erred. State v. Pike, 253 Ga. 304, 320 S.E.2d 355 (1984).
O.C.G.A. § 5-6-41(f) is not to be used after rendition of an appellate court's decision as a vehicle to secure the grant of a motion for reconsideration or application for certiorari. Once the appellate court renders the court's decision, O.C.G.A. § 5-6-48 becomes the exclusive method for supplementing the record. Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 463 S.E.2d 703 (1995).
Notice of Appeal
Trial court does not lose complete jurisdiction by mere filing of notice of appeal. Allied Prods., Inc. v. Peterson, 233 Ga. 266, 211 S.E.2d 123 (1974).
Trial court does not lose complete jurisdiction in a case by the mere filing of a notice of appeal. Hooper v. Southern Bell Tel. & Tel. Co., 195 Ga. App. 629, 394 S.E.2d 798 (1990).
Plain language and import of subsection (c) of O.C.G.A. § 5-6-48 is that the filing of the notice of appeal does not divest the trial court of authority to consider dismissal of an appeal. Hooper v. Southern Bell Tel. & Tel. Co., 195 Ga. App. 629, 394 S.E.2d 798 (1990).
Plaintiff's request for an extension on the basis of inability to pay costs, filed a month after receiving the bill, was untimely, and the plaintiff's belated payment of costs did not eliminate the court's authority to determine the reasonableness and excusability of the payment delay, in ruling on dismissal. Hooper v. Southern Bell Tel. & Tel. Co., 195 Ga. App. 629, 394 S.E.2d 798 (1990).
When appealable judgment or order not included in notice.
- It is duty of appellate courts to inquire into the court's own jurisdiction and dismiss the appeal when an appealable judgment or order is not included in the notice of appeal. Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436, 150 S.E.2d 618, answer conformed to, 114 Ga. App. 332, 151 S.E.2d 486 (1966).
Notice of appeal must specify an appealable judgment from which the appeal is entered, absent which the appeal must be dismissed. Parish v. Georgia R.R. Bank & Trust Co., 115 Ga. App. 540, 154 S.E.2d 750 (1967).
When the notice of appeal fails to specify any judgment whatever, the appeal must be dismissed. Ballew v. State, 225 Ga. 547, 170 S.E.2d 242 (1969); Zachery v. State, 233 Ga. App. 519, 504 S.E.2d 466 (1998).
Notice of appeal from jury verdict neither constitutes substantial compliance nor is amendable.
- When notice of appeal states that it is an appeal from a jury verdict, this section does not authorize appellate courts to cause notice of appeal to be perfected by requiring appeal to be amended to show appeal from judgment or to treat appeal from verdict as a substantial compliance with the statute. Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436, 150 S.E.2d 618, answer conformed to, 114 Ga. App. 332, 151 S.E.2d 486 (1966).
Fact that notice of appeal is improperly styled is not ground for dismissal. Bagwell v. Henson, 124 Ga. App. 92, 183 S.E.2d 485 (1971).
Incorrect designation of date of judgment does not render notice of appeal insufficient. Bagwell v. Henson, 124 Ga. App. 92, 183 S.E.2d 485 (1971).
Failure to state offense and punishment prescribed.
- Deficiencies in the defendant's notice of appeal, which did not state the offense and punishment prescribed, did not justify dismissal of the appeal when the notice did provide the specific case number, style, court and date on which the final judgment appealed from was entered and information contained in the notice, considered in conjunction with even a cursory inspection of the record, would make clear the judgment appealed from, as well as the offense and punishment. Brumby v. State, 264 Ga. 215, 443 S.E.2d 613 (1994).
Technical error in referring to judgment n.o.v. as directed verdict.
- When trial court's ruling was made after a jury verdict for the appellant, the appellee is technically correct in denominating it as a judgment notwithstanding the verdict, rather than a directed verdict. Nevertheless, the appellant's misnomer did not require dismissal. Sanders v. Looney, 247 Ga. 379, 276 S.E.2d 569 (1981).
Failure to specify whether transcript will be included on appeal not ground for dismissal. AMOCO v. McCluskey, 116 Ga. App. 706, 158 S.E.2d 431 (1967), rev'd on other grounds, 224 Ga. 253, 161 S.E.2d 271 (1968).
Notice of appeal may be amended.
- In view of the plain language, a notice of appeal may be amended. Blackwell v. Cantrell, 169 Ga. App. 795, 315 S.E.2d 29 (1984).
Sufficiency of notice.
- Amended notice of appeal complied with the requirement of O.C.G.A. § 5-6-37 since an examination of the record clearly identified the judgment appealed from. In re Burton, 271 Ga. 491, 521 S.E.2d 568 (1999).
Notice of appeal containing the petitioner's name, indicating the opposing party, specifying the case number and that the appeal involved an adverse ruling in the petitioner's habeas corpus action satisfied the requirements of the Appellate Practice Act, O.C.G.A. § 5-6-30 et seq., and, in conjunction with a timely application for a certificate of probable cause, was sufficient to confer jurisdiction over the case upon the Supreme Court. Hughes v. Sikes, 273 Ga. 804, 546 S.E.2d 518 (2001).
When it was apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors were sought to be asserted upon appeal, the appeal was not subject to dismissal and shall be considered in accordance therewith. Carter v. Fayette County, 287 Ga. App. 175, 651 S.E.2d 108 (2007).
Failure to state grounds of appeal.
- Notice of appeal which fails to specifically state the grounds of appeal, can be amended prior to judgment to perfect the appeal. Spencer v. Lamar County Bd. of Tax Assessors, 202 Ga. App. 742, 415 S.E.2d 332 (1992).
Amendments to notices of appeal to superior courts from administrative boards.
- Since policy of law is in favor of deciding tax appeals on merits, even at expense of procedural technicalities, subsection (d) which allows amendments of notice of appeal from superior courts, also applies to notices of appeal to superior courts from administrative boards. Mundy v. Clayton County Tax Assessors, 146 Ga. App. 473, 246 S.E.2d 479 (1978) (see O.C.G.A. § 5-6-38).
Error in stating prior action from which appeal sought.
- As it was clear that the appellant was appealing the entry of judgment in favor of the appellee, the notice of appeal was deemed filed within 30 days of the entry of judgment, despite the fact that the notice erroneously stated that it was from the prior directed verdict. Horton v. Allstate Ins. Co., 171 Ga. App. 707, 320 S.E.2d 761 (1984), overruled on other grounds, Carter v. Banks, 254 Ga. 550, 330 S.E.2d 866 (1985).
Failure to include dismissal of city as defendant.
- Because it is clear from the enumerations of error that the plaintiffs sought to appeal from the trial court's dismissal of the city as a defendant, as well as the grant of summary judgment as to other defendants, the failure to include the dismissal of the city in the notice of appeal does not prevent the court's review of the matter. Rea v. Bunce, 179 Ga. App. 628, 347 S.E.2d 676 (1986), overruled on other grounds, Martin v. Georgia Dep't of Pub. Safety, 257 Ga. 300, 357 S.E.2d 569 (1987), cert. denied, 484 U.S. 998, 108 S. Ct. 685, 98 L. Ed. 2d 638 (1988).
Judge had no discretion to deny permission to file notice of direct appeal.
- As no claims remained, and the case was no longer pending in the court below, a judge's order was a final judgment as contemplated by O.C.G.A. § 5-6-34(a)(1), and thus, a direct appeal was appropriate, and children could raise any issues in the direct appeal from the order that were ruled upon in all previous non-final orders; the judge erred in refusing permission for the children to file a notice of direct appeal from the order dismissing the timely-filed direct appeals, and the judge did not have the discretion to deny such permission. Sotter v. Stephens, 291 Ga. 79, 727 S.E.2d 484 (2012).
Application Generally
When court can ascertain what judgment is appealed from.
- Whernfrom examination of notice of appeal, record, and enumeration of errors, the court is able to determine what judgment is appealed from, a motion to dismiss the appeal is without merit. Franklin v. Sea Island Bank, 120 Ga. App. 654, 171 S.E.2d 866 (1969).
Patently inadvertent misdescription of judgment appealed from will not cause dismissal of the appeal when examination of whole record clearly reveals identity of judgment from which appellant intended to take appeal. Eubank v. Barber-Colman Co., 115 Ga. App. 217, 154 S.E.2d 638 (1967).
When claim is clear, although formal enumeration and brief not filed.
- When claim is clear and apparent from face of pro se pleading and notice of appeal, motion to dismiss for failure to file formal enumeration of errors and brief will be denied. Parris v. State, 232 Ga. 687, 208 S.E.2d 493 (1974).
Although the defendant, who was convicted of a criminal offense and appealed pro se from a denial of the defendant's motion for new trial, failed to set out the defendant's enumerations of errors as part two of the defendant's brief, as required by Ga. Ct. App. R. 22(a), and the defendant also failed to clearly set out the defendant's enumerations of errors within the brief that the defendant filed, the court considered the merits of the defendant's appeal pursuant to O.C.G.A. § 5-6-48(f), as was the defendant's duty when it was apparent from the notice of appeal, the record, the enumeration of errors, or any combination thereof what errors were sought to be asserted upon appeal. Phillips v. State, 267 Ga. App. 733, 601 S.E.2d 147 (2004).
Although the state failed to file, or include in the state's brief as Part 2, an enumeration of errors as required by Ga. Ct. App. R. 25(a)(2) and O.C.G.A. §§ 5-6-40,5-6-48(f) and O.C.G.A. § 5-6-30 required the liberal construction of the Appellate Practice Act, O.C.G.A. § 5-6-30 et seq., so as to avoid dismissal of any case or refuse to consider any points raised therein. Because the court could ascertain the state's argument, it was considered. State v. Freeman, 349 Ga. App. 94, 825 S.E.2d 538 (2019).
Inclusion of motion in enumeration of errors and not in notice of appeal.
- Since denial of motion for summary judgment was included in enumeration of errors, requirements of law were adequately met despite failure to include denial of motion in notice of appeal. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).
Failure to include jurisdictional statement in enumeration of errors.
- Failure of the enumeration of errors to contain statement of reasons why Court of Appeals and not Supreme Court has jurisdiction will not result in dismissal of case. Kitchens v. Hall, 116 Ga. App. 41, 156 S.E.2d 920 (1967).
Appellant cannot by brief substitute new and different enumeration for one actually and clearly made. Daniel v. State, 118 Ga. App. 370, 163 S.E.2d 863 (1968), cert. denied, 394 U.S. 919, 89 S. Ct. 1193, 22 L. Ed. 2d 453 (1969).
Mere failure to argue some errors insisted upon in brief.
- When there is a general insistence in brief of counsel for the defendant in criminal case upon all of the errors assigned in the defendant's petition for certiorari, upon the overruling of which the defendant assigns error in Court of Appeals, a mere failure to argue some of the assignments of error does not constitute abandonment of those issues. Cole v. State, 86 Ga. App. 770, 72 S.E.2d 537 (1952) (decided under former Code 1933, § 6-1601).
Independent motions for new trial may be appealed separately.
- Each party has right to make motion for new trial independently of the other and to test ruling thereon by separate appeal, so that neither may be dismissed against movant's will. Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev'd on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966).
Error sufficiently "set out separately."
- In order to take into account the duty imposed by subsection (f) of O.C.G.A. § 5-6-48, when the enumeration of errors filed in the appellate court identifies the trial court ruling asserted to be error, the error relied upon is sufficiently "set out separately" to require the appellate court to shoulder the court's constitutional responsibility to be a court of review. Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).
Appeals from denials of motions for judgment n.o.v. or for new trial are unnecessary.
- Since enumeration of errors is deemed to include all judgments necessary to determine appeal, it is no longer necessary to appeal from denial of motions for judgment n.o.v. or for new trial. Contractors Mgt. Corp. v. McDowell-Kelley, Inc., 136 Ga. App. 116, 220 S.E.2d 473 (1975).
Remedy for erroneous ruling on motion to dismiss is appeal.
- If trial court commits error by abusing the court's discretion in ruling on motion to dismiss appeal under this section, appeal should be filed from order of trial court by losing party as provided by law and not by new motion to dismiss appeal in appellate court. Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975).
Burden is on appellant to bring up necessary record and to specify intended omissions.
- Burden is on appellant in first instance to bring up all record and evidence introduced under it bearing on review of the appellant's enumerations of error, and in particular it is the appellant's duty, if the appellant wishes something omitted, to state it with precision in the appellant's notice of appeal pursuant to Ga. L. 1965, p. 18, § 11 (see O.C.G.A. § 5-6-42). Ayers Enterprises, Ltd. v. Adams, 131 Ga. App. 12, 205 S.E.2d 16 (1974).
Notice specifically designating nonfinal judgment.
- Subsection (f) providing for situations where notice of appeal fails "to specify definitely the judgment" is inapplicable when the notice of appeal does specifically designate a particular order, but one which does not constitute a final judgment. Thompson v. Consumer Credit of Valdosta, Inc., 123 Ga. App. 281, 180 S.E.2d 595 (1971).
All matter forwarded on appeal must be part of transcript.
- Subsection (f) does not require all matter to be forwarded to Court of Appeals, but only that all matter so forwarded shall be part of the transcript rather than, as was formerly permissible, included as an exhibit to the bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50) or assignments of error. G.E.C. Corp. v. Southern Fabricators, Inc., 122 Ga. App. 452, 177 S.E.2d 497 (1970).
Judges of superior courts have no jurisdiction to dismiss appeal pending in either of appellate courts. Davis v. Davis, 222 Ga. 369, 149 S.E.2d 802 (1966).
When appellant becomes a fugitive from justice after filing notice, the appeal can be dismissed. Russell v. State, 152 Ga. App. 663, 263 S.E.2d 552 (1979).
When trial judge dismissed case previously and reversal would not benefit appellants dismissal of the appeal is required. McGalliard v. Jones, 133 Ga. App. 44, 209 S.E.2d 664 (1974).
Dismissal of appeal docketed in error.
- When the plaintiffs appealed from a grant of summary judgment, the defendants filed a motion to dismiss the appeal which was granted and, between the filing of the defendants' motion and the trial court's action on the motion, the clerk mistakenly transmitted the record to the court of appeals on plaintiffs' instructions, the appeal was subject to dismissal because of the trial court's dismissal which was unappealed from; the plaintiffs' instructing the clerk to transmit the record when there was a pending motion filed by the defendants could not be permitted to deprive the trial court of jurisdiction. Ovestco Corp. v. Bowen, 216 Ga. App. 121, 453 S.E.2d 94 (1994).
Supreme Court of Georgia may take judicial notice of the court's own records in immediate case or proceedings before the court. Davis v. Davis, 222 Ga. 369, 149 S.E.2d 802 (1966).
Specific grounds stated for directed verdict must be same ones asserted on appeal.
- Enumeration of error in a dispossessory case as to the trial court's failure to direct a verdict on the grounds of the lessor's failure to prove demand for possession cannot be construed to encompass, as error, the later refusal to grant judgment n.o.v. on the basis of the lessee's belatedly raised "complete defense" of payment of rent. The trial court's refusal to direct a verdict cannot be expanded to encompass other defects on appeal, because the specific grounds stated for the directed verdict must be the same ones asserted on appeal. Able-Craft, Inc. v. Bradshaw, 167 Ga. App. 725, 307 S.E.2d 671 (1983).
Jurisdiction over cross-appeal.
- When an appeal from the denial of a summary judgment motion is filed as a cross-appeal, the appellate jurisdiction over the cross-appeal necessarily arises from the court's jurisdiction over the main appeal from the directly appealable order, and thus the cross-appeal must derive its life from the main appeal. Serco Co. v. Choice Bumper, Inc., 199 Ga. App. 846, 406 S.E.2d 276 (1991).
Survival of cross-appeal after dismissal of main appeal.
- Although under subsection (e) of O.C.G.A. § 5-6-48, a cross-appeal may survive the dismissal of the main appeal, this is true only when the cross-appeal can stand on the appeal's own merit. Serco Co. v. Choice Bumper, Inc., 199 Ga. App. 846, 406 S.E.2d 276 (1991).
Dismissal of cross-appeal with main appeal.
- When the main appeal is dismissed for failure to comply with O.C.G.A. § 5-6-35(a)(6), any cross-appeal which is dependent on that main appeal will also be dismissed. Jones Roofing & Constr. Co. v. Roberts, 179 Ga. App. 169, 345 S.E.2d 683 (1986).
Although under O.C.G.A. § 5-6-48(e), a cross-appeal may survive the dismissal of the main appeal, that is true only when the cross-appeal can stand on its own merit, and the Court of Appeals has no jurisdiction to entertain a cross-appeal which must derive its life from the main appeal. An appellant's voluntary withdrawal of its direct appeal requires the dismissal of a cross-appeal that has no independent basis for jurisdiction and, to the extent it holds otherwise, MARTA v. Harrington, George & Dunn, P.C., 208 Ga. App. 736 (1993) is overruled. State, DOT v. Douglas Asphalt Co., 297 Ga. App. 511, 677 S.E.2d 728 (2009).
Failure to comply with requirements for appellate brief.
- Mother's appellate brief failed to provide the required content because there was no statement of the proceedings below, no statement of facts, and not one specific reference to the record or transcript; there was not any appreciable enumerated errors, and no argument or substantive legal analysis; there was no cognizant support for the mother's claim that the trial court erred in granting the father's petition for modification of custody and child support; and, in the absence of a transcript, there was sufficient competent evidence to support the trial court's findings. Floyd v. Brown, 338 Ga. App. 520, 790 S.E.2d 307 (2016).
Unreasonable delay in filing transcript caused by conduct of appellant or attorney.
- When neither the appellant nor the appellant's counsel (trial or appellate) files the transcript within 30 days of the filing of the notice of appeal (or, within 30 days of the entry of judgment), nor is any request made for an extension of time for filing, the appellate counsel's efforts being concentrated on attempting to obtain a release from trial counsel of the transcript, and there is no issue of substantive or technical ineffective assistance of counsel, the delay in filing the transcript is unreasonable and the unreasonable delay is inexcusable and is caused by appellant's conduct or appellant's conduct in concert with that of appellant's attorney. Curtis v. State, 168 Ga. App. 235, 308 S.E.2d 599 (1983).
When trial court failed to conduct a hearing to decide appellant's motion for extension of time for filing a transcript, but instead granted defendant's motion to dismiss the appeal without hearing or notice of hearing to appellant, the trial court's action was error and the matter remanded for a determination on whether the delay in forwarding the transcript was both unreasonable and inexcusable. Hosch v. Pickett, 172 Ga. App. 13, 321 S.E.2d 777 (1984).
Court did not err in finding 51 day delay in transmitting transcript unreasonable, and to be inexcusably caused by the appellant's failure to pay costs, even after the appellant admittedly had received notice of the amount due, although not by registered or certified mail. Neese v. Long, 178 Ga. App. 105, 341 S.E.2d 861 (1986).
Appellant not obligated to prepare record.
- Oligation of the appellant relates to the transcript, and the obligation for the preparation of the record rests with the clerk. After the appellant has filed a notice of appeal, the appellant's duty as to the record is limited to the payment of costs. When the clerk fails to transmit the record, but there is no indication that this failure is occasioned by the failure of a party to pay costs, the trial court has no discretion to dismiss the appeal. Long v. City of Midway, 251 Ga. 364, 306 S.E.2d 639 (1983); Holy Fellowship Church of God in Christ v. First Community Bank of Henry County, 242 Ga. App. 400, 530 S.E.2d 24 (2000).
Neither improper certification of service of brief or failure to support enumerated error by specific reference to the record or transcript is a statutorily recognized ground for dismissal of an appeal. Allen v. ABKO Properties, Inc., 166 Ga. App. 776, 305 S.E.2d 477 (1983).
County's appeal properly filed.
- Fact that the county board of commissioners never voted to file an appeal at any meeting would not provide a legal basis for dismissing the appeal when the county met all the requirements of O.C.G.A. § 5-6-48 for filing the county's notice of appeal. Board of Comm'rs v. Guthrie, 273 Ga. 1, 537 S.E.2d 329 (2000).
Appeal dismissed for failure to file notice of appeal within time required by statute. Mathis v. Hegwood, 169 Ga. App. 547, 314 S.E.2d 122, cert. denied, 469 U.S. 830, 105 S. Ct. 115, 83 L. Ed. 2d 58 (1984), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).
Appeal by defendants, an individual and corporations, was dismissed under O.C.G.A. § 5-6-48(c). A total delay of 19 months was caused in significant part by the defendants, not only by the defendants' failure to pay costs until 200 days after filing the notice of appeal and the defendants' failure to ensure the prompt filing of the transcript, but also by the defendants' deliberate employment of multiple bankruptcy filings and inadequate affidavits of indigence. Morrell v. W. Servs., LLC, 291 Ga. App. 369, 662 S.E.2d 215 (2008).
Landlord was entitled to dismissal of a tenant's appeal because Ga. Ct. App. R. 23(a) required the tenant to file a brief containing an enumeration of errors within 20 days after the appeal was docketed; the appeal was docketed in October 2007, and the tenant had yet to file a brief with an enumeration of errors or respond to the landlord's motion to dismiss. Smith v. R. James Props., Inc., 292 Ga. App. 317, 665 S.E.2d 19 (2008).
Case dismissed for lack of jurisdiction. Fredericks v. State, 168 Ga. App. 278, 308 S.E.2d 693 (1983).
Defendant's flight and continued uncertainty as to defendant's whereabouts divested defendant of right to appeal.
- Despite the fact that the defendant was not an escapee from custody, an appeal from the judgments entered was dismissed based on the defendant's flight and continued uncertainty as to the defendant's whereabouts; those actions amounted to an open defiance of the court's order and divestment of the right to appeal. Mohamed v. State, 289 Ga. App. 394, 657 S.E.2d 307 (2008).
Effect of action in sister state.
- That an insurer filed a declaratory judgment action which has since resulted in a final declaratory judgment that no coverage exists, and which was pending at the time the insured initiated the instant Georgia action, is not a ground for dismissing the instant appeals. Atlantic Wood Indus., Inc. v. Lumbermen's Underwriting Alliance, 196 Ga. App. 503, 396 S.E.2d 541, cert. denied, 498 U.S. 1085, 111 S. Ct. 958, 112 L. Ed. 2d 1046 (1990).
Motion to dismiss appeal denied. First Fed. Sav. & Loan Ass'n v. White, 168 Ga. App. 516, 309 S.E.2d 858 (1983).
Because the defendant's notice of appeal from Stephens County superior court was timely, the defendant's error in confusing the counties in an appeal brief was inconsequential to the disposition of the case; thus, the state's motion to dismiss the appeal was denied. McCroskey v. State, 291 Ga. App. 15, 660 S.E.2d 735 (2008).
District attorney's motion to dismiss the defendant's appeal of a judgment denying the defendant's motion to strike an illegal sentence was denied because a direct appeal from the trial court's ruling was authorized; the defendant was contending that the defendant's sentence was illegal because the sentence was based on an unconstitutional statute, which was a colorable claim that the defendant's sentence imposed was void. Wiggins v. State, 288 Ga. 169, 702 S.E.2d 865 (2010), cert. denied, 562 U.S. 1131, 131 S. Ct. 2906, 179 L. Ed. 2d 1251 (2011).
Dismissal inappropriate sanction for party's refusal to sign deposition.
- Dismissal of a party's appeal is not an appropriate sanction for the party's failure to comply with an order to review and sign a deposition. Gerdes v. Dziewinski, 182 Ga. App. 764, 357 S.E.2d 110 (1987).
Dismissal proper for delay in ordering transcript.
- There was no abuse of discretion by the trial court's dismissal of the appellant's appeal based on the appellant's unreasonable and inexcusable delay in ordering the transcript. Kleber v. Cobb County, 212 Ga. App. 441, 442 S.E.2d 296 (1994).
Dismissal proper since record didn't include all evidence.
- In the pageant organizers' appeal from the trial court's denial of a judgment notwithstanding the verdict in the model's action for, inter alia, slander, the case was removed from the appeal docket as the record on appeal did not include all of the evidence presented to the jury. Galardi v. Steele-Inman, 259 Ga. App. 249, 575 S.E.2d 921 (2002).
No error in favoring transcript.
- Trial court did not err in denying a wife's request that the court reporter's audiotapes be replayed in her presence to establish the accuracy of the certified transcript of the wife's remarks against her recollection thereof because the wife did not show error in the trial court's failure to adopt the wife's recollected version of what transpired during the hearing in favor of the court reporter's certified transcript. Willis v. Willis, 288 Ga. 577, 707 S.E.2d 344 (2010).
Appeals based on void sentence.
- State's motion to dismiss the defendant's appeal was without merit and had to be denied as the defendant was entitled to directly appeal the denial of the defendant's petition attacking the defendant's sentence based on the contention that the sentence was void; however, defendant was unable to show that the sentence was void, and, therefore, the defendant's sentence was permissible. Daniel v. State, 262 Ga. App. 474, 585 S.E.2d 752 (2003).
RESEARCH REFERENCES
Am. Jur. 2d.
- 4 Am. Jur. 2d, Appellate Review, § 155 et seq. 5 Am. Jur. 2d, Appellate Review, §§ 252 et seq., 809, 810.
C.J.S.- 4 C.J.S., Appeal and Error, § 161 et seq. 5 C.J.S., Appeal and Error, § 748 et seq.
ALR.
- Public interest as ground for refusal to dismiss an appeal, where question has become moot, or dismissal is sought by one or both parties, 132 A.L.R. 1185.
Dismissal of appeal for appellant's failure to obey court order, 49 A.L.R.2d 1425.
Dismissal of appeal or writ of error for want of prosecution as bar to subsequent appeal, 96 A.L.R.2d 312.
Failure or refusal of state court judge to have record made of bench conference with counsel in criminal proceeding, 31 A.L.R.5th 704.
Effect of escape by, or fugitive status of, state criminal defendant on availability of appeal or other post-verdict or post-conviction relief - State cases, 105 A.L.R.5th 529.