Pistacchio v. Frasso
309 Ga. App. 583
| Ga. Ct. App. | 2011Background
- Trial court dismissed notice of appeal for failure to timely file the designated transcript.
- Appellants designated a transcript as necessary to complete the appellate record for transmission to the Court of Appeals.
- OCGA §5-6-48 governs dismissal for delay in filing the transcript; required threshold unreasonable delay findings.
- Trial court found delay was inexcusable and caused by appellants but did not expressly find delay unreasonable.
- Appellants argue dismissal was improper without an explicit unreasonable-delay finding; court remanded for such findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was dismissal proper given lack of explicit unreasonable-delay finding? | Pistacchio argues there was no express finding of unreasonable delay. | Frasso contends the court could rely on overall delay impacting the record. | No; absence of unreasonable-delay finding prevents review of discretion. |
| Is an unreasonable-delay threshold finding required under OCGA 5-6-48? | Pistacchio asserts threshold finding needed to exercise discretion. | Frasso maintains the court appropriately exercised discretion. | Yes; threshold finding of unreasonable delay is required. |
| Can appellate review occur without the threshold finding? | Pistacchio asserts review is unavailable without the finding. | Frasso asserts discretion applied to delay. | No; lack of threshold finding precludes review of discretion. |
| What remedy follows for improper dismissal due to missing finding? | Pistacchio seeks remand for proper findings. | Frasso agrees remand is appropriate to develop findings. | Remand for explicit findings on whether delay was unreasonable. |
Key Cases Cited
- Sellers v. Nodvin, 262 Ga. 205 (1992) (unreasonable delay focus; delay not jurisdictional; avoid unreasonable delay in appellate scheduling)
- Baker v. Southern R. Co., 260 Ga. 115 (1990) (delay must be inexcusable and caused by appellant; trial court's discretion subject to review)
- Wood v. Notte, 238 Ga.App. 748 (1999) (review of trial court's discretionary dismissal)
- Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53 (1976) (discretionary review standard for dismissals under 5-6-48)