Ashley v. JP Morgan Chase Bank, N.A.
327 Ga. App. 232
| Ga. Ct. App. | 2014Background
- Ruth L. Ashley sued JP Morgan Chase and two law firms to set aside a foreclosure sale; the trial court granted summary judgment to the defendants on September 24, 2012.
- Ashley filed a notice of appeal on October 2, 2012 and requested the entire record, including transcripts; a bill of costs issued for $1,025.
- Ashley moved to proceed in forma pauperis on October 23, 2012; the trial court granted that motion on January 9, 2013, relieving her of payment to transmit the record but not expressly addressing transcript preparation costs.
- Ashley first contacted the court reporter about the November 2011 hearing transcript on March 25, 2013, and did not pay for the transcript until June 11, 2013; the transcript was filed July 3, 2013 — 274 days after the notice of appeal.
- JP Morgan moved to dismiss the appeal for failure to timely file designated transcripts; the trial court found Ashley caused the delay, that it was unreasonable and inexcusable, and dismissed the appeal; Ashley appealed that dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal of appeal for untimely transcript filing was erroneous | Ashley argued the trial court should have considered her indigent status and USC Rule 41.3 and not dismiss the appeal | Appellees argued Ashley failed to timely order/pay for and file the transcript, causing an unreasonable delay | Court affirmed dismissal: delay was prima facie unreasonable, Ashley failed to rebut excusability, dismissal not an abuse of discretion |
| Whether the court reporter’s conduct excused the delay | Ashley blamed the court reporter for using an incorrect e-mail address and causing delay | Appellees asserted responsibility for ordering the transcript rests with appellant, not the reporter | Held appellant bears duty to order and monitor transcript; reporter’s conduct did not excuse Ashley’s delay |
| Whether a hearing was required before dismissal | Ashley argued a hearing was required under precedent | Appellees relied on later authority that notice and opportunity to respond suffices | Held no hearing required; opportunity to respond on the record satisfied OCGA § 5-6-48(c) per Grant v. Kooby |
| Whether appellees needed to show prejudice from delay | Ashley argued dismissal required showing prejudice to appellees | Appellees argued prejudice need not be shown where delay was unreasonable and caused docketing delay | Held no showing of appellee prejudice required once delay is prima facie unreasonable and unexcused; docketing delay sufficed |
Key Cases Cited
- Pistacchio v. Frasso, 314 Ga. App. 119 (appellant must file transcript within 30 days; delay prima facie unreasonable)
- Mercer v. Munn, 321 Ga. App. 723 (duty to order and monitor transcript rests with appellant; dismissal appropriate for untimely transcript)
- Grant v. Kooby, 310 Ga. App. 483 (notice and opportunity to respond on the record satisfies hearing requirement before dismissing an appeal)
- Wright v. Southern Investment Properties, 204 Ga. App. 538 (in forma pauperis status does not relieve appellant of duty to ensure transcript is prepared)
- Miller v. State, 222 Ga. App. 641 (even when state pays for transcript, appellant must take affirmative steps to ensure timely filing)
- ACCC Ins. Co. v. Pizza Hut of America, Inc., 314 Ga. App. 655 (affirming dismissal where appellant took no steps for months to prepare transcript)