ROIS-MENDEZ v. Stamps
312 Ga. App. 136
| Ga. Ct. App. | 2011Background
- Rois-Mendez and the Stampses contested a disputed easement; Fulton County jury trial in Sept. 2008; trial court entered judgment for Stampses.
- Rois-Mendez filed a timely notice of appeal May 26, 2009 and amended notice June 12, 2009; designated the whole record except voir dire.
- After trial exhibits were omitted from the record, this Court remanded on Sept. 2, 2009 to complete the record.
- On remand, the Stampses moved to dismiss alleging Rois-Mendez instructed court reporter not to copy exhibits; a hearing occurred Nov. 12, 2009 but no transcript appears in the record; exhibits were not filed until after that hearing, over a year after trial.
- On Nov. 18, 2010, the trial court dismissed the appeal under OCGA § 5-6-48; the court found Rois-Mendez did not correct the record after learning of omissions and chose to do nothing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the appeal properly dismissed for unreasonable delay? | Rois-Mendez argues the delay was not his fault and the clerk caused omissions. | The trial court found delay unreasonable and inexcusable by Rois-Mendez. | Yes; dismissal affirmed. |
| Did Rois-Mendez fail to ensure a complete record on the first appeal in violation of OCGA 5-6-41/42? | Rois-Mendez contends omissions were not his fault and should not bar review. | Appellant had duty to prepare/complete the transcript at his expense and failed. | Yes; record completion was Rois-Mendez's responsibility and omission supported dismissal. |
| May the appellate court reverse a 5-6-48 dismissal for abuse of discretion when record omissions occurred and remand followed? | Rois-Mendez argues the trial court abused its discretion by dismissing. | Court properly exercised discretion given uncorrected omissions and delay. | No abuse of discretion; dismissal affirmed. |
Key Cases Cited
- Propst v. Morgan, 288 Ga. 862 (2011) (abuse-of-discretion standard for 5-6-48 dismissal)
- Atlanta Orthopedic Surgeons v. Adams, 254 Ga. App. 532 (2002) (record completion duties; noncompliant party consequences)
- In the Interest of T.H., 311 Ga. App. 641 (2011) (remand/record-omission considerations in appeals)
- Coptic Constr. Co. v. Rolle, 279 Ga. App. 454 (2006) (remand/record-omission remedies in appeals)
- Noorani v. Sugarloaf Mills, etc. of Ga., 308 Ga. App. 168 (2011) (remand authority and appellate jurisdiction nuances)
- Scott Brothers, Inc. v. Warren, 261 Ga. App. 285 (2003) (trial court findings binding on appeal of record issues)