Jоhn and Kathleen Stamps sued Armando Rois-Mendez, seeking a declaratory judgment as to a disputed easement, and after the case was tried in September 2008 by a Fulton County jury, the trial court entered judgment for the Stampses. Rois-Mendez appealеd from this judgment in 2009, but we remanded the case to the trial court because the record was incomplete. On remand, the trial сourt determined that Rois-Mendez had unreasonably and inexcusably failed to cause a complete transcript of thе trial proceedings to be filed, even after learning of substantial omissions from the record, and pursuant to its authority under OCGA § 5-6-48, the triаl court ordered that the appeal be dismissed. Rois-Mendez now appeals from the order dismissing his earlier appeal, and we affirm.
Rois-Mendez initiated his first appeal on May 26, 2009 by filing a timely notice of
On remand, the Stampses filed a motion to dismiss the appeal, alleging that Rois-Mendez had instructed the court reporter to copy none of the trial exhibits because he did not want to pay the associated сosts. The trial court set the motion for hearing on November 12, 2009, and the hearing apparently occurred, although no transсript of it appears in the record. It also appears that Rois-Mendez did not cause the omitted trial exhibits to be filеd until after the November 12, 2009 hearing, more than a year after the trial of this case, more than five months after Rois-Mendez initiated his first appeal, and more than two months after our Court remanded the case because the record was incomplete. In any event, on November 18, 2010, the trial court entered an order granting the motion and dismissing the appeal. In its order, the triаl court found that when Rois-Mendez became aware of the omission of the trial exhibits from the record, “he took no steрs to correct the record,” and instead “he chose to do nothing.” Rois-Mendez now appeals from the dismissal of his first appeal.
A trial court properly may dismiss an appeal for unreasonable delay in the filing of a transcript or a dеlay in the transmission of the record to the appellate court that is attributable to the inexcusable failure of the appellant to cause a transcript to be filed:
No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delаy in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party. . . .
OCGA § 5-6-48 (c) (emphasis supplied). Whether to dismiss an appeal
for unreasonable delay in the preparation or transmission of the record is committed tо the sound discretion of the trial court, and we will reverse a decision to dismiss an appeal under OCGA § 5-6-48 (c) only upon a showing thаt the trial court abused its discretion.
Propst v. Morgan,
In appeals from civil proceedings in which the transcript of the evidence and proceedings is drawn into question, “it shall be the duty of the appellant to have the transcript prepared at the appellant’s expense,” OCGA § 5-6-41 (c), and unless the appellant designates a particular transcript to be omitted from the record, “the appellant shall cause the transcript to be prepared and filed” within 30 days of filing the notice of aрpeal. OCGA § 5-6-42. Rois-Mendez failed to ensure that a complete record was prepared and sent to this Court in his first apрeal. Even by his own account, he became aware of the omission of the trial exhibits on August 4, 2009, but he apparently did not cause the trial exhibits to be filed until sometime after November 12, 2009. In the meantime, the Stampses moved this Court to remand the case, wе remanded it, the Stampses moved to dismiss the appeal, the trial court set the motion for a hearing, and the trial court сonducted a hearing, but Rois-Mendez, as the trial court put it, “chose to do nothing.”
Rois-Mendez now contends that the omission of thе trial exhibits from the record on the first appeal and the delay in correcting the omission following remand were not his fault, but instead were the fault of the clerk of the trial court.
1
But the trial court evidently
Judgment affirmed.
Notes
Rois-Mendez does not contend that the court below lacked jurisdiction to dismiss his appeal. Our remand of the first appeal returned jurisdiction of this case to the trial court, and we think our remand permitted the court to exercise its authority under OCGA § 5-6-48 to dismiss the appeal. Compare
Noorani v. Sugarloaf Mills &c. of Ga.,