Alvin L. Kendall v. Kathye Dawson, A18A0498

Appellant (Kendall) filed a notice of appeal from a Fulton County bench trial but failed to file the trial transcript within 30 days as required by OCGA §§ 5-6-41(c) and 5-6-42.
Appellant contends he could not order the transcript because the Superior Court administrator could not identify the court reporter who recorded the bench trial.
Appellant did not seek a statutory extension from the trial court under OCGA § 5-6-39(a)(3).
Appellees (Dawson et al.) moved to dismiss the appeal for failure to timely file the transcript.
Appellant moved to remand the case to the trial court for inclusion of the transcript.
The Court of Appeals denied the appellees’ motion to dismiss and remanded the case to the trial court for consideration of that motion, noting the Appellate Practice Act reserves dismissal decisions to the trial court; the appellant’s remand motion was granted with instructions about possible further appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal should be dismissed for failure to file the transcript timely	Kendall: could not identify the reporter, so could not order transcript	Dawson: transcript not filed within 30 days as required; dismissal appropriate	Denied dismissal by appellate court; remanded to trial court to determine whether delay was inexcusable and dismissal warranted
Whether appellant’s failure to seek trial-court extension excuses delay	Kendall: implied excuse based on inability to identify reporter	Dawson: appellant had available remedy (trial-court extension) and did not use it	Appellate court noted appellant offered no reason for failing to seek extension; trial court should evaluate reasonableness/inexcusability
Proper forum to decide dismissal for transcript delay	Kendall: sought remand to include transcript	Dawson: sought dismissal in appellate court	Appellate Practice Act reserves dismissal for trial court; appellate court remanded for trial-court determination
Effect of trial-court dismissal on further appellate requirements	Kendall: sought remand and transmission of transcript if remand granted	Dawson: asked for dismissal and end of appeal	Court ordered that if trial court grants dismissal, clerk need not transmit transcript to Court of Appeals; any appeal from that dismissal must be by timely notice of appeal

Pistacchio v. Frasso, 314 Ga. App. 119 (2012) (delay over 30 days in filing transcript is prima facie unreasonable and inexcusable unless rebutted)
Crown Diamond Co. v. N.Y. Diamond Corp., 242 Ga. App. 674 (2000) (delay is unreasonable if it delays placement on the appellate calendar or docketing/hearing)
Southeastern Plumbing Supply Co. v. Lee, 232 Ga. 626 (1974) (amendment to OCGA § 5-6-48 eliminated automatic appellate dismissal and vested trial court with responsibility to determine reasons for transcript delay)