BlogLine

The Supreme Court of Georgia clarifies the standard for dismissing an appeal based on a failure to file a transcript timely

3/4/24

By: Michael Freed

Under Georgia law, a party appealing a trial court’s order who wishes to include a hearing transcript in the appellate record must ensure that the transcript is prepared and filed within 30 days after filing the notice of appeal. The failure to do so may subject the appeal to dismissal if the trial court, at its discretion, finds that the delay was unreasonable and inexcusable.   

The Supreme Court of Georgia recently confronted this issue in Premier Pediatric Providers, LLC v. Kennesaw Pediatrics, LLC. The trial court entered summary judgment for Kennesaw. Premier appealed but failed to have the hearing transcript filed timely. So Kennesaw moved the trial court to dismiss the appeal. In response to the motion, Premier presented evidence supporting its argument that it believed the transcript had been filed on time. On that basis, the trial court declined to dismiss the appeal.   

The Court of Appeals reversed, holding that the trial court abused its discretion in denying Kennesaw’s motion to dismiss. It then went a step further and dismissed the appeal.  

The Supreme Court granted certiorari “to clarify the standard for appellate review of a trial court’s decision whether to dismiss an appeal under OCGA § 5-6-48 (c), both as to the predicate findings and the ultimate decision whether to dismiss.” The Court interpreted the statute as requiring a two-step process. First, a trial court “must determine whether a delay in filing the transcript was ‘unreasonable,’ ‘inexcusable,’ and ‘caused by’ the party responsible for filing the transcript.” If the court finds that it is, it must then decide whether to dismiss the appeal.  

The Court held that both inquires are reviewed on appeal under the abuse of discretion standard. It rejected Kennesaw’s argument that the trial court’s decision on whether the delay was unreasonable, inexcusable, and caused by the appellate is reviewed de novo when the facts related to the appellant’s delay are undisputed.  

Applying that standard, the Court found “no basis for concluding that the trial court abused its discretion in concluding that the delay here was not ‘inexcusable.’” It reversed the Court of Appeals’ decision on that basis. The Court then held that the Court of Appeals lacked the statutory authority to dismiss the appeal for failure to file the transcript timely. That authority lies exclusively with the trial court. So even if the Court of Appeals had correctly held that the trial court abused its discretion, “the proper course would have been to reverse that finding and then remand for the trial court to reconsider the ultimate question of dismissal consistent with the Court of Appeals’ opinion.” 

This case provides an important reminder that an appealing party’s procedural obligations in the trial court do not end upon filing a notice of appeal. It must timely pay the costs for transmitting the record and ensure that any transcripts are filed by the statutory deadline. If it fails to do so, even the strongest appeal on the merits may never reach the appellate courts.  

For more information, please contact Michael Freed at michael.freed@fmglaw.com or your local FMG attorney.