347 Ga. App. 852
Ga. Ct. App.2018Background
- HealthSouth sought a certificate of need (CON) to build a 50‑bed inpatient rehabilitation hospital in Forsyth County; the Department denied the CON and HealthSouth sought judicial review. The trial court granted HealthSouth’s petition, concluding the Department acted arbitrarily and capriciously. Appellants (Department and three hospital systems) appealed to the Court of Appeals.
- Appellants timely filed notices of appeal that indicated a transcript would be included; under OCGA §§ 5-6-41, 5-6-42 the appellant must have the transcript prepared and file it within 30 days of the notice of appeal.
- Appellants believed a transcript had already been prepared by the court reporter; they did not confirm filing, did not pay or properly order the transcript within the 30‑day window, and did not monitor the clerk’s online register of actions.
- The transcript was not filed until 133 days after the notices of appeal; appellants did not seek an extension under OCGA § 5-6-39 before the deadline expired.
- HealthSouth moved to dismiss the appeals under OCGA § 5-6-48(c) for unreasonable, inexcusable delay caused by appellants; after a hearing the trial court granted dismissal. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Appellants) | Defendant's Argument (HealthSouth) | Held |
|---|---|---|---|
| Was the 133‑day delay in filing the transcript unreasonable? | Delay excused by misaddressed cost bill and belief transcript had been prepared and would be filed. | Delay exceeded 30 days and appellants presented no evidence to rebut the presumption of unreasonableness. | Court: Delay was presumptively unreasonable and appellants failed to rebut that presumption. |
| Was the delay inexcusable (i.e., justified by good faith reliance)? | Good faith belief transcript was already prepared and the cost bill’s transcript line item supported that belief. | Appellants had duty to order, pay for, and monitor transcript; reliance on reporter or clerk was not reasonable. | Court: Delay was inexcusable—counsel failed to follow up or monitor and waited too long to act. |
| Was the delay caused by appellants (as opposed to court reporter/clerk)? | Transcript preparation completed by reporter; any filing failure was reporter’s fault under OCGA § 5‑6‑41(e). | Appellants never properly ordered or paid for filing within statutory period and did not monitor status. | Court: Delay was caused by appellants because they did not take required steps to procure and file the transcript. |
| Could dismissal be based on failure to seek an extension? | Dismissal improperly relied solely on failure to request extension (Baker). | Trial court made independent findings that delay was unreasonable, inexcusable, and caused by appellants. | Court: Dismissal was proper—the court based decision on substantive findings, not solely failure to seek extension. |
Key Cases Cited
- Pistacchio v. Frasso, 314 Ga. App. 119 (party seeking dismissal must show delay was unreasonable, inexcusable, and caused by appellant)
- ACCC Ins. Co. v. Pizza Hut of America, 314 Ga. App. 655 (delay over 30 days presumptively unreasonable; burden to rebut)
- Morrell v. Western Svcs., 291 Ga. App. 369 (appellants not accountable for delays after properly ordering transcript; accountable for delays they cause)
- Jackson v. Beech Aircraft Corp., 217 Ga. App. 498 (duty to order and monitor transcript rests with appellant)
- Allan v. Jefferson Lakeside, 333 Ga. App. 222 (transcript line item on cost bill not dispositive where appellant actively ordered and monitored transcript)
- Postell v. Alfa Ins. Corp., 332 Ga. App. 22 (court will not accept speculative arguments that record could have been prepared sooner)
- Alpha Balanced Fund v. Irongate Performance Fund, 342 Ga. App. 93 (delay not caused by appellant where evidence showed proper ordering and system glitch prevented filing)
- Baker v. Southern R. Co., 260 Ga. 115 (dismissal should not rest solely on failure to seek extension; court must find appellant caused delay)