Durden v. Griffin

509 S.E.2d 54, 270 Ga. 293

• Court: Supreme Court of Georgia
• Decided: December 4, 1998
• Docket: S98A0907; S98A0908; S98A0909
• Status: Published

Opinions

Thompson, Justice.

These consolidated appeals are before the Court from an order dismissing appellants’ notices of appeal in an action to reform a deed, for a constructive trust, and injunctive relief. Finding no reversible error, we affirm.

Appellee Sarah Griffin brought suit against her daughter-in-law, appellant Jennie Joyner, both individually and as representative of the estate of Griffin’s deceased son, Ralph Edward Joyner, to reform a deed to certain real property which had been jointly titled in the Joyners. Griffin claimed that although she provided the funds to purchase the property, her name had not been placed on the deed, as the Joyners had promised. Thereafter, appellant Melonie Dale Durden, daughter of the decedent and heir-at-law, was named as a necessary party-defendant and was served with the complaint. Durden made no appearance at trial and was unrepresented. A verdict was directed against her at the conclusion of the evidence.

A jury returned a verdict for Griffin and against all defendants, awarding her title to the real property in dispute. Notices of appeal were timely filed on June 30, 1997, by Durden and Joyner, both individually and in her capacity as administratrix of Ralph’s estate. Those notices specified that a transcript of evidence would be filed for inclusion in the record on appeal.

After the expiration of the 30-day time in which to file the transcript under OCGA § 5-6-42, plaintiff filed a “motion to dismiss and strike notice of appeal.” An evidentiary hearing was held on the motion one month later, at which time no transcript had yet been filed. The trial court found that none of defendants had even requested a transcript from the court reporter until four days after the 30-day period, nor had defendants requested an extension of time in which to file a late transcript under OCGA § 5-6-39 (a) (3). Concluding that there had been an unreasonable delay in filing the transcript, that such delay was inexcusable, and was caused by defendants, the court dismissed the notices of appeal of all defendants under OCGA § 5-6-48 (c). Defendants filed these appeals from the order dismissing the appeals of the underlying judgment.¹

1. It is jointly asserted by all defendants that the trial court erred in dismissing their appeals.

Plaintiff supported her motion to dismiss with an affidavit from the court reporter that as of the thirty-fourth day following the filing of the notice of appeal, defendants had neither requested preparation of the transcript nor paid a fee for such services, although they had specified in their notices of appeal that a transcript of evidence would be filed for inclusion in the record. Defendants offered no evidence in opposition to plaintiffs motion.²

The court found the defendants’ conduct in failing to order a transcript until four days after the date it was due to be filed, or to make financial arrangements with the court reporter until the statutory time had expired, both unreasonable and inexcusable, and that the delay was caused by the parties responsible for its preparation. A trial court’s findings in this regard must be affirmed, absent an abuse of discretion. Sellers v. Nodvin, 262 Ga. 205 (415 SE2d 908) (1992); DuBois v. DuBois, 240 Ga. 314 (1) (240 SE2d 706) (1977).

The defendants in this case had done nothing to cause the transcript to be prepared, as was their obligation under OCGA § 5-6-42. They had neither ordered the transcript, nor sought an extension of time in which to file it until they faced a motion to dismiss. Under the circumstances, it cannot be said that dismissal of the appeals constituted an abuse of the court’s discretion. Id.

2. Because our ruling in Division 1 is dispositive of these appeals, we do not reach Durden’s remaining enumeration of error.

Decided December 4, 1998. Richard S. Lord, for appellants. Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, for appellees.

Judgment affirmed.

All the Justices concur.

1 A transcript was finally filed on November 14, 1997, 167 days after the notices of appeal had been filed.

2 Defendants attempted to introduce their own affidavit at the hearing to the effect that the transcript would not have been filed within the statutory time even if it had been timely requested because of the court reporter’s heavy workload. The trial court determined that their affidavit was untimely under OCGA § 9-11-6 (d), and refused to consider it. While this ruling is not enumerated as error on appeal, we note that consideration of an untimely affidavit is within the trial court’s discretion. Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111 (1) (281 SE2d 583) (1981).