Hatfield v. Great American Management & Investment, Inc.

379 S.E.2d 544, 190 Ga. App. 534, 1989 Ga. App. LEXIS 293

• Court: Court of Appeals of Georgia
• Decided: February 15, 1989
• Docket: 77484, 77485
• Status: Published

Opinions

McMurray, Presiding Judge.

Plaintiff Hatfield filed this action against eight defendants. The six counts of plaintiff’s complaint set forth claims for affirmative injunctive relief, wrongful termination of an employment relationship, breach of contract, tortious interference with an employment relationship, and rescission and restitution.

The superior court entered a succession of orders granting various defendants’ motions to dismiss or for summary judgment relating to one or more but fewer than all of the claims or parties to the action. Finally, on June 25, 1986, the superior court entered a final order granting a summary judgment in favor of defendants as to all remaining issues. On July 3,1986, plaintiff filed his notice of appeal. On April 17, 1987, defendants filed their motion pursuant to OCGA § 5-6-48 (c) to dismiss plaintiff’s appeal, arguing that there had been an unreasonable and inexcusable delay in the transmission of the record to this court due to plaintiff’s failure to timely pay the cost of preparing the appellate record. On July 20, 1987, the superior court granted defendants’ motion to dismiss plaintiff’s appeal initiated by the July 3, 1986, notice of appeal. The appeal in Case No. 77484 is taken by plaintiff from the superior court’s order of July 20, 1987, dismissing his earlier appeal, filed July 3, 1986.

On April 26, 1988, defendants filed, in the superior court, their motion to dismiss plaintiff’s appeal now identified as Case No. 77484. Defendants’ motion to dismiss plaintiff’s appeal in Case No. 77484 was denied on June 3, 1988. Case No. 77485 is defendants’ appeal from the denial of their motion to dismiss Case No. 77484. Held:

1. While plaintiff’s complaint seeks affirmative injunctive relief in addition to other remedies, jurisdiction is properly in this court since the issues on appeal do not involve injunctions or equity. The Supreme Court of Georgia has recently held “[i]t is not what is in the complaint before the trial court that determines [the Supreme] Court’s jurisdiction, but the issues on appeal.” Hatfield v. Great American Management &c., 258 Ga. 640 (373 SE2d 367).

2. “ ‘The provision (of OCGA § 5-6-48 (c)) authorizing the trial court to dismiss an appeal specifies that two elements must be present: One is that the delay was unreasonable and the other is that the unreasonable delay was inexcusable. In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts.’ [Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53, 55 (226 SE2d 737)].” Smith v. Ga. Power Co., 183 Ga. App. 295, 296 (358 SE2d 879). In the order which is the subject of the appeal in Case No. 77484, the superior court found that plaintiff’s failure to pay timely the cost for preparing the record has caused an unreasonable delay in the transmission of the record to this court and that this delay is inexcusable.

In Case No. 77484, plaintiff contends his late payment of costs on appeal was not so “unreasonable” as to justify dismissal of his appeal by the superior court. Plaintiff does not challenge the superior court’s finding that the delay was inexcusable.

Following the filing of plaintiff’s notice of appeal on July 3, 1986, the record for appeal was completed in early December 1986. A notice for payment of costs was received by plaintiff’s counsel on December 3, 1986. Costs were not paid pursuant to the first notice and a second notice was received by plaintiff’s counsel on February 9, 1987. The plaintiff failed to pay the costs of preparing the record for appeal pursuant to the second notice. Plaintiff finally paid the cost of preparing the appellate record on July 8, 1987, the eve of the hearing of defendant’s motion to dismiss the appeal. In his brief before this court, plaintiff concedes that the late payment delayed the docketing in this court.

A delay of over 30 days is prima facie unreasonable and inexcusable. Bouldin v. Parker, 173 Ga. App. 526, 527 (1) (327 SE2d 760). The only reason proffered by plaintiff for his late payment of the costs was his inability to raise the funds. We find no abuse of the superior court’s discretion in its grant of defendants’ motion to dismiss plaintiff’s appeal filed in the superior court on July 3, 1986. See Bowen v. Clayton County Hosp. Auth., 172 Ga. App. 204, 205 (322 SE2d 528); McDonald v. Garden Svcs., 163 Ga. App. 851, 853 (295 SE2d 551); Pickett v. Paine, 139 Ga. App. 508 (229 SE2d 90); In re G. W. H., 168 Ga. App. 845, 846 (310 SE2d 573). Plaintiff’s reliance upon our decision in Galletta v. Hillcrest Abbey West, 185 Ga. App. 20 (363 SE2d 265), is misplaced as that case involved a delay of only 11 days in filing a transcript which did not discernibly delay the docketing of the record in this court.

Inasmuch as the dismissal of plaintiff’s appeal, filed July 3, 1986, was not error, it is unnecessary to consider the remaining enumerations of error in Case No. 77484. See McDonald v. Garden Svcs., 163 Ga. App. 851, 853, supra.

3. In Case No. 77485, defendants contend that the superior court erred in denying their motion to dismiss the appeal in Case No. 77484. However, in view of our decision affirming the superior court’s ruling in Case No. 77484, the issues raised by the appeal in Case No. 77485 are moot.

Judgment affirmed in Case No. 77484. Appeal dismissed in Case No. 77485.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Benham and Beasley, JJ., dissent.