ACCC Insurance Co. v. Pizza Hut of America, Inc.
314 Ga. App. 655
| Ga. Ct. App. | 2012Background
- Pizza Hut of America filed a petition in Cobb County for declaratory judgment that it is an additional insured under ACCC Insurance's automobile policy.
- ACCC Insurance timely filed a notice of appeal from a summary judgment favoring Pizza Hut on October 10, 2008, designating the entire record including transcripts.
- A transcript of the summary judgment hearing was not filed for several months, and Pizza Hut moved to dismiss the appeal for unreasonable and inexcusable delay.
- ACCC Insurance sought and obtained a court-ordered extension for filing the transcript until April 11, 2009, after which the transcript was eventually filed on April 8, 2009.
- The trial court dismissed ACCC Insurance's appeal under OCGA § 5-6-48(c) for delay, and ACCC Insurance challenged the dismissal on appeal.
- On appeal, the Georgia Court of Appeals affirmed the dismissal, holding the delay was unreasonable and inexcusable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the delay in filing the transcript was unreasonable and inexcusable. | ACCC Insurance argued the delay was excusable because of clerical backlog and maternity leave, and the extension allegedly prevented docketing delays. | Pizza Hut argued the delay was unreasonable and inexcusable, causing prejudice to the appellate process. | No abuse of discretion; delay was unreasonable and inexcusable. |
| Whether the extension of time for filing the transcript was valid under OCGA § 5-6-39(d). | ACCC Insurance contends the extension was valid because it complied with statutory extension procedures. | Pizza Hut contends the extension was void because it was requested after the original period expired with no proper prior request. | Extension was nugatory and void; did not rescue the appeal. |
| Whether the delay actually delayed docketing of the appeal. | ACCC Insurance asserted the delay did not delay docketing due to clerk's backlog being unrelated to the transcript. | Pizza Hut argued delay impeded timely transmission of the record to this Court. | Delay supported the trial court's finding that the delay affected the appeal. |
| Whether the appeal should be dismissed for failure to timely file the transcript. | ACCC Insurance argued dismissal was improper given efforts to obtain the transcript and alleged lack of prejudice. | Pizza Hut argued dismissal was proper under OCGA § 5-6-48(c) given unreasonable delay caused by ACCC Insurance. | Trial court did not abuse its discretion; dismissal affirmed. |
Key Cases Cited
- Dye v. U.S. Bank Nat. Assn., 273 Ga.App. 652 (Ga. Ct. App. 2005) (burden on appellant to show delay was not unreasonable or inexcusable)
- Kelly v. Dawson County, 282 Ga. 189 (Ga. 2007) (delay beyond 30 days presumptively unreasonable and inexcusable unless rebutted)
- PJ Svcs. v. Equity Technologies Assocs., 295 Ga.App. 214 (Ga. Ct. App. 2008) (presumption of delay abroad; corroborating authority on exceptions)
- Rois-Mendez v. Stamps, 312 Ga.App. 136 (Ga. Ct. App. 2011) (standard of review for abuse of discretion on dismissal for delay)
- Galletta v. Hillcrest Abbey West, 185 Ga.App. 20 (Ga. Ct. App. 1987) (short delays may be non-prejudicial; context matters)
- Griffis v. Branch Banking & Trust Co., 268 Ga.App. 588 (Ga. Ct. App. 2004) (unreasonable delay may delay docketing or prejudice party)
- Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga.App. 674 (Ga. Ct. App. 2000) (connection between filing delay and transmission delay to appellate court)
- Sellers v. Nodvin, 262 Ga. 205 (Ga. 1992) (unreasonableness of delay tied to impact on appeal; back-end considerations)