NORTHEAST GEORGIA MEDICAL CENTER, INC. et al. v. HEALTHSOUTH REHABILITATION HOSPITAL OF FORSYTH COUNTY, LLC.; GEORGIA DEPARTMENT OF COMMUNITY HEALTH v. HEALTHSOUTH REHABILITATION HOSPITAL OF FORSYTH COUNTY, LLC.
A18A1029, A18A1030
In the Court of Appeals of Georgia
October 29, 2018
BROWN, Judge.
SECOND DIVISION MILLER, P. J., BROWN and GOSS, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
In these consolidated appeals, Georgia Department of Community Health (the “Department“), Northeast Georgia Medical Center, Inc., Gwinnett Hospital System, Inc. d/b/a Gwinnett Medical Center-Duluth, and WellStar North Fulton Hospitals, Inc. (the “Hospital Respondents,” collectively the “appellants“) appeal the trial court‘s dismissal of their appeals from the trial court‘s order reversing the Department‘s decision denying a certificate of need (“CON“) to HealthSouth Rehabilitation Hospital of Forsyth County, LLC to build a 50-bed comprehensive inpatient physical rehabilitation (“CIPR“) hospital in Forsyth County. The appellants argue that the trial court abused its discretion in dismissing their appeals based on findings that the delay in filing the hearing transcript was unreasonable, inexcusable, and caused by the appellants. For the reasons set forth below, we affirm the trial court‘s order dismissing the appeals.
The record shows that on October 12, 2015, HealthSouth filed a petition for judicial review in the Forsyth County Superior Court of the Department‘s decision denying HealthSouth‘s application for a CON to build the CIPR. After the appellants moved to transfer venue, the case was transferred to the Fulton County Superior Court. Following a hearing on the petition on April 11, 2016,1 the trial court remanded the case to the Department for it “to either make a ruling consistent with its precedent or to explain its change from precedent” on three issues. On June 29, 2016, the Department filed a response to the trial court‘s request for clarification, disagreeing with the trial court that it departed from precedent and explaining its reasoning with respect to each issue. On January 27, 2017, the trial court issued an order, granting HealthSouth‘s petition. The trial court found
On March 16, 2017, this Court granted the appellants’ applications for discretionary review of the trial court‘s January 27, 2017 order. Four days later, counsel for Gwinnett Hospital System emailed the court reporter asking if she could please let him know “if anyone in this matter asked that the full transcripts [of the April 11, 2016 hearing] be prepared?” The court reporter responded, “I have a note that it‘s been done. Would you like a copy?”2 That same day, counsel for Gwinnett Hospital System emailed counsel for the other three appellants as follows: “Good news. The Court Reporter believes that she prepared the transcripts, so unless there are any further changes, I will file the attached Notice tomorrow.”3
As contemplated, on March 23, 2017, the Hospital Respondents and the Department all filed their notices of appeal. In their joint notice of appeal, the Hospital Respondents, represented by six lawyers from three law firms, stated the following: “The Clerk will please transmit the entire record to the Court of Appeals along with the attached Order granting the discretionary appeal. The Hospital Respondents request that the Court also file the previously compiled transcript of the April 11, 2016 hearing and oral argument held before this Court for inclusion in the record on appeal.” (Emphasis supplied.) The Department‘s notice of appeal provided, “[t]he Clerk shall omit nothing from the record on appeal. A transcript of evidence and proceedings will be filed for inclusion in the record on appeal.”
Also on March 24, 2017, the Clerk sent a cost bill in the amount of $29.50 to counsel for Northeast Georgia Medical Center, by certified mail, return receipt requested.4 Counsel did not receive the bill, averring that the Clerk mailed the bill to an incorrect address: “303 Peachtree Street, Suite 3600, Atlanta, Georgia 30303.” The zip code for his law firm is 30308, not 30303.5 Six days later, on March 29, 2017, counsel for the Department received a cost bill, dated March 24, 2017, totaling $4,135.50, which included a line item charge of $35, designated as “Transcript Charges.” The appellants agreed to split the total cost amongst themselves, and on April 20, 2017, counsel for the Department notified co-counsel that the cost bill had been paid in full.
On April 23, 2017, 30 days after the notices of appeal were filed, the transcript had not yet been filed and no party moved the trial court for an extension of time to file the transcript. On May 19, 57 days after the notices of appeal were filed, counsel for WellStar North Fulton Hospital called the Clerk‘s office for the first time to inquire as to the status of the appeal and was told that the transcript had not been filed. Counsel for WellStar emailed her colleagues advising as follows: “I just talked to the clerk‘s office and was told that no transcript had been filed yet. I was told that we should be notified when it is.” Another month went by before counsel for WellStar called the Clerk‘s office on June 22, 2017, but was unable to speak with anyone. She called back on June 23, 2017, and was told that the transcript still had not been filed and that there was an outstanding cost bill for $29.50 associated with Northeast‘s notice of appeal.6 On that
On August 2, 2017, HealthSouth filed its motion to dismiss the appeals, on the ground that the appellants had not filed the transcript as required by
Following a hearing on September 22, 2017, in which no witnesses testified, the trial court granted HealthSouth‘s motion to dismiss the appeals under
failed to provide evidence to show that the delay [in filing the transcript] was not unreasonable[, and] that the 133 days that passed between the filing of the Notices of Appeal and the filing of the transcript was unreasonable. . . . The delay was also inexcusable and caused by [the appellants]. The record shows that [the appellants] did not direct the court reporter to file the transcript. Instead [the appellants] contend that they relied on the court reporter‘s representation that the transcript had previously been prepared as evidence that she would file the transcript.
The trial court further found that the appellants failed to monitor the timely progress of the filing of the transcript; the appellants neither monitored the Clerk‘s website, nor did they contact the court reporter to ask about the status of the transcript until June 22, 2017, two months after the filing deadline had passed. This appeal followed.
The relevant statutory framework governing appellate practice and the filing of a transcript of the trial proceedings is as follows.
the appellant must file the transcript within 30 days after the filing of the notice of appeal unless the time is extended as provided by
OCGA § 5-6-39 . In turn,OCGA § 5-6-48 (c) governs the dismissal of appeals and provides that “the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonabledelay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by the appellant.”
(Citation and punctuation omitted; emphasis supplied.) Pistacchio v. Frasso, 314 Ga. App. 119, 121 (723 SE2d 322) (2012). “Thus, the party seeking dismissal for failure to file a transcript must show that the delay was unreasonable, inexcusable, and caused by the appellants themselves.” (Citation and punctuation omitted.) ACCC Ins. Co. v. Pizza Hut of America, 314 Ga. App. 655, 657 (725 SE2d 767) (2012). “Appellants are not accountable for delays caused by clerks of court or court reporters after the transcript has been ordered properly; appellants are held accountable only for delays that they cause.” Morrell v. Western Svcs., 291 Ga. App. 369, 373 (2) (662 SE2d 215) (2008). But, as this Court has repeatedly held, “the statutory duty to file timely a transcript does not rest with the court reporter; rather, the duty to order the transcript and to monitor timely the progress of the reporter‘s office in transcript preparation is vested upon the appropriate appealing party.” Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 502 (2) (458 SE2d 377) (1995). See also Ashley v. JP Morgan Chase Bank, 327 Ga. App. 232, 236 (1) (758 SE2d 135) (2014); In the Interest of D. M. C., 232 Ga. App. 466, 468 (2) (b), (c) (501 SE2d 305) (1998) (rejecting appellant‘s reliance on
Our Supreme Court has said that a delay of more than 30 days in filing a transcript is presumptively unreasonable and inexcusable, but that presumption may be rebutted if the appellant comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.
(Punctuation omitted; emphasis supplied.) ACCC, 314 Ga. App. at 657. A trial court‘s ruling on whether an appeal is subject to dismissal under
1. The appellants first contend that the trial court abused its discretion in dismissing their appeals when it found the delay in filing the transcript to be unreasonable, ignoring evidence of the “misaddressed” cost bill, which they argue would have been an independent cause of the belated docketing of the appeal in this Court. We disagree.
In evaluating whether the delay was unreasonable, we consider both the length and effect of the delay. See Pistacchio, 314 Ga. App. at 121.
Delay is unreasonable where it may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.
(Citation and punctuation omitted.) Id. at 121-122. The appellants maintain that the trial court ignored evidence of the “misaddressed” cost bill and/or misapplied the law by finding that “[a]ny argument . . . as to whether the record could have been prepared by . . . the end of the April term of court pursuant to Court of Appeals Rule 12, in light of the misaddressed cost bill[,] is speculation. The courts will not consider such speculation in determining whether delay is unreasonable. Postell v. Alfa Insurance Corp., 332 Ga. App. 22, 26 [(2) (a) (i) (772 SE2d 793)] (2015).” In Postell, the appellant argued that the delay was not unreasonable because the appeal could have been prepared and transmitted in time to be docketed in the earlier term. Id. at 25-26 (2) (a). This Court rejected appellant‘s argument as speculative. Id. See also Pistacchio, 314 Ga. App. at 122 (rejecting as speculative appellants’ argument that the delay was not unreasonable because it did not cause the appeal to be docketed into a later term).
The Department alleges that the trial court‘s analysis is backwards:
Instead of rejecting the speculative argument that the record could have been prepared within the limited time remaining in the term, the [trial] court relied on this speculation to dismiss the appeal. Any assumption here that the record would have been transmitted to this Court in time for docketing in the August term, despite the misaddressed cost bill, rests on speculation.
We are not persuaded by appellants’ contention that the trial court relied upon speculation to dismiss their appeal. The trial court clearly found that the “misaddressed” cost bill did not support the appellants’ contention that the delay in filing the transcript was not unreasonable and this finding is supported by the record. The appellants failed to come forward with any affidavits or testimony from a Court of Appeals or Fulton County Superior Court clerk that the appeal could not have been docketed within an earlier term of court.7 Accordingly, the appellants have failed to rebut the presumption that the 133-day delay in filing the transcript was unreasonable. See ACCC, 314 Ga. App. at 658-659 (no evidence presented from clerk or staff to support appellant‘s claim that delay in filing transcript was not unreasonable because appeal inevitably would have been delayed by a maternity leave within the trial court‘s appeals division). Compare Atlantic Geoscience v. Phoenix Dev. and Land Investment, 341 Ga. App. 81 (799 SE2d 242) (2017) (affirming denial of motion to dismiss appeal under
In a related enumeration, the Hospital Respondents separately contend that the trial court erred by failing to make any findings that HealthSouth was prejudiced by any delay. But, as set out above, a delay in transmitting the appellate record will be found unreasonable where it directly prejudices the position of a party or causes the appeal to be stale by preventing its placement on the earliest possible appellate calendar or by delaying its docketing in the appeals court. See HTTP Hypothermia Therapy v. Kimberly-Clark Corp., 330 Ga. App. 857, 860 (768 SE2d 542) (2015); Pistacchio, 314 Ga. App. at 121-122. “Indeed, we have repeatedly recognized that justice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed.” (Punctuation and footnote omitted.) Callaway v. Garner, 340 Ga. App. 176, 179 (796 SE2d 906) (2017). As we have previously explained, the appellants have failed to meet their burden of showing that the delay was not unreasonable due to delayed docketing in this Court.
2. The appellants next contend that trial court erred in finding the delay inexcusable and rejecting their good faith belief that the transcript had been filed. In support of this contention, the appellants rely on (a) counsel‘s collective past appellate experience, (b) the manual for court reporters
What the evidence shows is that counsel for Gwinnett Hospital System failed to follow-up with the court reporter when she asked if he wanted a copy of the transcript and then filed a notice of appeal requesting that the trial court file the “previously compiled transcript.” Regardless of counsels’ collective past experience, it is not the duty of the trial court or the court reporter to file the transcript on behalf of an appellant. See
Similarly, the appellants are not absolved of these duties simply because they learned that HealthSouth had requested a transcription of the hearing. The appellants contend that the delay here was even more justified than the delay in other cases because the transcript in this case already had been prepared; the trial court should have given proper weight to the fact that the appellants believed the transcript had been filed because it already had been transcribed. We disagree.8 The evidence before the trial court authorized it to conclude that the appellants’ “good faith [belief] that the court reporter would file the transcript because it had already been prepared does not excuse [the appellants‘] failure to follow-up with the court reporter at any time before the end of the 30[-]day filing deadline.”
The trial court also was authorized to reject appellants’ claim that the line item for transcript charges in the cost bill justified their belief that the transcript had been filed. In Allan v. Jefferson Lakeside, 333 Ga. App. 222, 223-225 (1) (775 SE2d 763) (2015), this Court reversed the dismissal of an appeal where the cost bill form included a line item charge designated as “‘Transcript.‘” Id. at 224 (1). In that case, however, counsel ordered the transcript from the court reporter, inquired as to the cost for preparation, and continually followed-up with the clerk before the 30-day deadline. Id. at 224-225 (1). In this case, not one of the appellants’ six attorneys monitored the status of the appeal until May 19, 2017, 27 days after the deadline for filing the transcript, at which point counsel for all the appellants were put on notice that the transcript had not been filed. Despite this knowledge, the appellants then waited another month to attempt to remedy the problem. The trial court did not abuse its discretion in finding the delay inexcusable.
3. The appellants next contend that the trial court abused its discretion in finding that they caused the delay in filing the transcript. They argue that the evidence shows the transcript had been completed by the court reporter, but that the court reporter did not file it as required by
Here, the appellants did not properly order the transcript. There is no evidence that they followed-up with the court reporter‘s March 20 email or paid for the transcript before the 30-day deadline. There is ample evidence set out above demonstrating that the appellants caused the delay in filing the transcript and the trial court did not abuse its discretion in so finding. Compare Alpha Balanced Fund v. Irongate Performance Fund, 342 Ga. App. 93, 96 (802 SE2d 357) (2017) (delay not caused by appellant where possible glitch in new electronic filing system prevented transcript from being filed, and evidence showed that appellant‘s attorneys asked for transcript to be filed, submitted a check for the transcript, and received a copy of the transcript).
4. Relying on Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990), the Hospital Respondents separately contend that the trial court improperly relied on the appellants’
Judgment affirmed. Miller, P. J., and Goss, J., concur.
Notes
as Your Honor is well aware, the Superior Court of Fulton County several years ago went to a publicly available docket system and electronic filing on that docket and the docket is publicly available online and it is updated in real-time. . . . It is a very robust database that shows what has been filed in any case at any point in time. And the evidence would also show that we don‘t see that the appellants took a look at the docket to see whether the transcript had been filed.And again noted in its brief:
[A]ll court filings in the Fulton County Superior Court are publicly available for viewing at justice.fultoncountyga.gov, which is updated in real time. . . . [N]ot only is the register of actions complete and updated in real time, but it also clearly shows two separate cost bills issued on March 24, 2017, [only one of which] was paid on April 20, 2017, while [the other] remained outstanding until processed on July 11, 2017. The register also showed no transcript had been filed.The implication is that had the appellants properly monitored the Register of Actions page, they would have learned that the transcript had not been filed and that the “misaddressed” cost bill had not been paid.