Http Hypothermia Therapy, Ltd. v. Kimberly-Clark Corporation
330 Ga. App. 857
| Ga. Ct. App. | 2015Background
- HTTP Hypothermia Therapy appealed a trial court grant of summary judgment for Kimberly-Clark on HTTP’s counterclaims in a declaratory-judgment action.
- The appeal was dismissed by the trial court for an excessive, inexcusable delay in transmitting the record on appeal.
- The delay stemmed from HTTP’s mistaken notice of appeal that referenced a non-existent transcript and its amended notice that mis-stated required deposition transcripts.
- Approximately 15 months passed from HTTP’s original notice to the trial court’s dismissal.
- The record on appeal is voluminous (over 10,000 pages in 45 volumes), but size alone does not excuse noncompliance with OCGA § 5-6-48(c).
- On appeal, the Georgia Court of Appeals affirmed the trial court’s dismissal, concluding the delay was unreasonable and caused by HTTP.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion. | HTTP argued delay was not inexcusable and not solely its fault. | Kimberly-Clark contends delay was unreasonable, inexcusable, and caused by HTTP. | No; trial court did not abuse discretion. |
| Whether the remaining summary-judgment arguments are reviewable. | HTTP contends genuine issues exist on counterclaims. | Kimberly-Clark argues issues are moot due to dismissal. | Not reviewed; affirmed by disposition in Division 1. |
Key Cases Cited
- Bush v. Reed, 311 Ga. App. 328 (2011) (delay in transcript filing reviewed for abuse of discretion)
- Teston v. Mills, 203 Ga. App. 20 (1992) (delay due to erroneous notice of appeal)
- Pistacchio v. Frasso, 314 Ga. App. 119 (2012) (delay threshold hinges on length and effect)
- Am. Nat. Prop. & Cas. Co. v. Potts, 243 Ga. App. 645 (2000) (delay threshold considers length and effect)
- Hameed v. Hall, 234 Ga. App. 890 (1998) (74-day delay deemed unreasonable regardless of need)
- Lindstrom v. Forsyth County, 221 Ga. App. 581 (1996) (mistaken transcript designation upheld dismissal)
- Pirkle v. Bell, 270 Ga. 438 (1999) (affirming dismissal when record delay caused by appellant)
- Ashley v. JP Morgan Chase Bank, N.A., 327 Ga. App. 232 (2014) (delay in transcript filing supports dismissal)