Tracy E. Dennis v. Chanda M. Gordon
341 Ga. App. 795
Ga. Ct. App.2017Background
- Tracy E. Dennis sued Dr. Chanda M. Gordon and Pain Away Dentistry for dental malpractice; a jury returned a verdict for defendants and the trial court denied Dennis’s motion for new trial.
- Dennis timely filed a notice of appeal (March 16, 2016) but failed to timely cause the trial transcript to be filed or obtain a statutory extension within 30 days.
- Defendants moved to dismiss the appeal under OCGA § 5-6-48(c) for unreasonable, inexcusable delay caused by Dennis; Dennis opposed and requested a 60-day extension.
- The trial court held a hearing, then entered a terse written order denying dismissal and granting Dennis until September 30, 2016 to file the transcript, without making findings of fact addressing the statutory factors.
- Defendants appealed the denial of their motion to dismiss (A17A0525); Dennis appealed the denial of her motion for new trial (A17A0847). The transcript was later filed and became part of the appellate record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly denied motion to dismiss appeal for delay in filing transcript | Dennis argued she had been working to obtain the transcript and sought an extension; dismissal was unnecessary | Gordon contended Dennis inexcusably delayed ordering/transmitting the transcript and failed to timely seek an extension, warranting dismissal | Vacated trial court order and remanded because the court failed to make required factual findings (length/reasons/who caused delay/whether inexcusable) before exercising discretion to dismiss or not |
| Whether the appellate appeal from denial of new trial should proceed now | Dennis sought review of denial of new trial | Defendants asserted appeal could be dismissed if the notice of appeal was subject to dismissal for transcript delay | Appeal of denial of new trial (A17A0847) is premature and dismissed without prejudice pending resolution on remand of defendants’ dismissal motion |
Key Cases Cited
- Long v. Midway, 251 Ga. 364 (1983) (appellant responsible for causing transcript to be prepared and transmitted)
- Durden v. Griffin, 270 Ga. 293 (1998) (appellants must timely order transcript or secure extension to meet OCGA deadline)
- Postell v. Alfa Ins. Corp., 327 Ga. App. 194 (2014) (trial court must make findings on length/reason/causal party/inexcusable nature of delay before dismissing appeal)
- Callaway v. Garner, 340 Ga. App. 176 (2017) (trial court findings sufficient where record shows consideration of statutory factors)
- Temple v. Hillegass, 340 Ga. App. 189 (2017) (vacatur/remand required when trial court fails to make requisite findings)
- Rogers v. Norris, 262 Ga. App. 857 (2003) (discussing standards for dismissing appeals for transcript delay)
- Grant v. Kooby, 310 Ga. App. 483 (2011) (dismissal of a premature appeal pending resolution of threshold jurisdictional issue)