Bush v. Reed
311 Ga. App. 328
| Ga. Ct. App. | 2011Background
- Bushs sued Reed and Shaw Center for Women's Health in a wrongful death action; jury verdict favored defendants.
- Plaintiffs sought appellate review but trial court dismissed the appeal due to delay in filing the transcript.
- Judgment for defendants entered October 6, 2009; notice of appeal filed October 27, 2009 with limited record designations.
- Defendants moved to compel complete transcript; plaintiffs sought extension of time under OCGA § 5-6-39(d).
- Trial court granted 20-day extension after completion of transcript; deposit requisite for transcript discussed with court reporter.
- Defendants later moved to dismiss appeal for unreasonable, inexcusable delay caused by plaintiffs; trial court granted dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether delay in filing transcript was unreasonable | Bushs assert delay excusable; extension order tolled timeliness. | Delay was unreasonable and inexcusable, prejudicing defendants. | Delay deemed unreasonable |
| Whether delay was inexcusable and caused by plaintiffs | Deposit timing and extension order excuse conduct. | Plaintiffs failed to act despite notice; delay caused by plaintiffs | Delay inexcusable and caused by plaintiffs |
| Whether January 25, 2010 extension order excused delay | Extension provid es blanket relief for transcript filing. | Extensions do not nullify responsibility to timely initiate transcription. | Order did not excuse delay |
| Whether trial court abused discretion in dismissing appeal | Discretion should be exercised to allow appellate review. | Record shows prejudice and delay prejudiced docketing and review. | No abuse; dismissal affirmed |
Key Cases Cited
- Adams v. Hebert, 279 Ga.App. 158, 630 S.E.2d 652 (Ga. Ct. App. 2006) (delay >30 days prima facie unreasonable; prejudice to docketing)
- Morrell v. Western Svcs., 291 Ga.App. 369, 662 S.E.2d 215 (Ga. Ct. App. 2008) (51-day delay unreasonable; docketing delayed to later term)
- Cox Enterprises v. Southland, Inc., 226 Ga. 794, 177 S.E.2d 653 (Ga. 1970) (extensions not conclusive on delay; duty to initiate transcription remains)
- Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 458 S.E.2d 377 (Ga. Ct. App. 1995) (indefinite extensions do not excuse unreasonable delay)
- Coptic Constr. Co. v. Rolle, 279 Ga.App. 454, 631 S.E.2d 475 (Ga. Ct. App. 2006) (delay in filing transcript inexcusable when appellant failed to contact reporter)
- Crocker v. Stevens, 210 Ga.App. 231, 435 S.E.2d 690 (Ga. Ct. App. 1993) (three-month delay in filing transcript inexcusable)
- McIntyre v. Gulf Oil Corp., 151 Ga.App. 855, 261 S.E.2d 766 (Ga. Ct. App. 1979) (delay in filing transcript inexcusable when payment of deposit was not made)
- Hall v. Bussey, 200 Ga.App. 311, 408 S.E.2d 430 (Ga. Ct. App. 1991) (standard of reviewing trial court's transcript-delay rulings)