SECOND DIVISION MILLER, P. J., HODGES and PIPKIN, 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. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
September 1, 2021
In the Court of Appeals of Georgia A21A1150. KAWANNA BROWN AS THE ADMINISTRATOR OF THE ESTATE OF JERONTA BROWN, DECEASED et al. v. QUIGGLEY et al.
HODGES, Judge.
In this appeal, we are asked to review an order from the Superior Court of
Fulton County dismissing an estates’s appeal due to the estate’s failure to file a
transcript it requested to be included in the appellate record. We conclude that the
estate failed to rebut the presumption that a two-year delay in filing the transcript was
both inexcusable and unreasonable or refute adequately that the delay was caused by
the estate. Therefore, we affirm.
Under Georgia law,
[w]e review a trial court’s ruling on a motion to dismiss an appeal pursuant to [OCGA § 5-6-48 (c)] under an abuse of discretion standard. When making factual determinations based upon evidence presented at a hearing on the question of dismissal, the trial court is vested with broad discretion to decide whether the appeal should be dismissed. Absent an abuse of such discretion, the court’s decision will not be disturbed on appeal.
(Citation omitted.) Webb’s Erection, Inc. v. Colonial Pacific Leasing Corp., 345 Ga.
App. 202 (1) (812 SE2d 602) (2018). So viewed, the record reveals that the estate of
Jeronta Brown (the “Estate”) sued various state and DeKalb County officials, as well
as entities associated with Dismas International, Inc. (collectively, “Defendants”), in
2016 after Brown and his girlfriend, Brianna Brooks, were abducted from a residence
by two men, ransomed, and later found murdered.1 The trial court granted the
Defendants’ motions for summary judgment on July 10, 2018, and the Estate filed a
timely notice of appeal on July 17, 2018. The Estate’s notice of appeal included a
statement requesting that “[t]he clerk will please omit nothing from the record.
Transcript of evidence and proceedings from the Motions and Arguments in this case
1 According to the Estate’s complaint, both of the abductors were convicted felons — one assailant was on state parole at the time of the crimes, while the second assailant was on federal parole and resided at a “halfway house.”
2 will be filed for inclusion in the record of appeal.” The Estate also timely paid the
trial court clerk’s costs for appeal on August 8, 2018.2
More than two years later, with no transcript having been filed, the Defendants
filed motions to dismiss the Estate’s appeal on December 1 and 2, 2020. In its written
response to the motions, the Estate did not request a hearing3 but instead relied upon
the general duty of a court reporter “to file the transcript of evidence and proceedings
within the time allowed by law or order of court. . . .”4 OCGA § 5-6-48 (f). The trial
court granted the Defendants’ motions, finding that “[t]he delay of more than two
2 The record on appeal does not include the Defendants’ motions for summary judgment; the Estate’s responses, if any; the trial court’s order granting the Defendants’ motions; or the Estate’s notice of appeal. Rather, these statements are included in the trial court’s order dismissing the Estate’s appeal. None of the parties have contested the accuracy of the trial court’s statements concerning the procedural history of the case and, therefore, we will accept these statements as accurate. 3 See Uniform Superior Court Rule 6.3 (“Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing. . . .”). 4 In a footnote in its response, the Estate claimed that it learned “from the clerk’s office that one of the court reporters who transcribe[d] one of the motion/argument hearings was now deceased and the clerk was attempting to secure the deceased reporter’s work product.” However, counsel’s statements contained in briefs are not entitled to evidentiary effect. See generally Latimore v. City of Atlanta, 289 Ga. App. 85, 87 (656 SE2d 222) (2008) (holding that assertions of fact in the briefs of parties do not, standing alone, constitute competent evidence).
3 years is presumptively unreasonable and inexcusable” and that the Estate “did not
submit evidence to rebut this presumption[;]” the trial court also attributed the delay
to the Estate because “the law places the burden of filing the transcript upon the
appellant and there is no evidence that [the Estate] made any attempts to file the
transcript as provided by law[.]” This appeal followed.5
In two interrelated enumerations of error, the Estate contends the trial court
erred in finding that the delay in filing the summary judgment transcript was
unreasonable, inexcusable, and caused by the Estate. This argument is without merit.
Georgia law provides that, if an appellant designates a transcript of evidence
and proceedings for inclusion in the record on appeal pursuant to OCGA § 5-6-37,
“the appellant shall cause the transcript to be prepared and filed as provided by
[OCGA §] 5-6-41” and “shall cause it to be filed within 30 days after filing of the
notice of appeal . . ., unless the time is extended as provided in [OCGA §] 5-6-39.”
5 The Defendants contend that the present appeal is untimely because the Estate did not file a notice of appeal from the trial court’s January 7, 2021 order until February 9, 2021. See OCGA § 5-6-38 (a). However, the trial court entered an order on February 12, 2021 closing the case and dismissing all remaining claims against unserved defendants, resulting in a final order in which “the case [was] no longer pending in the court below[.]” OCGA § 5-6-34 (a) (1). Therefore, because the Estate’s notice of appeal was filed within 30 days of this final order, we have jurisdiction.
4 OCGA § 5-6-42. Accordingly, it is clear “the duty to order the transcript and to
monitor timely the progress of the court reporter’s office in transcript preparation
is vested upon the appropriate appealing party” — in this case, the Estate. (Citation
and punctuation omitted; emphasis supplied.) Ashley v. JP Morgan Chase Bank, N.
A., 327 Ga. App. 232, 236 (1) (758 SE2d 135) (2014); see also In the Interest of C.
W., 342 Ga. App. 484, 486 (2) (803 SE2d 618) (2017).
In the event of a delay in filing a transcript,
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION MILLER, P. J., HODGES and PIPKIN, 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. https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
September 1, 2021
In the Court of Appeals of Georgia A21A1150. KAWANNA BROWN AS THE ADMINISTRATOR OF THE ESTATE OF JERONTA BROWN, DECEASED et al. v. QUIGGLEY et al.
HODGES, Judge.
In this appeal, we are asked to review an order from the Superior Court of
Fulton County dismissing an estates’s appeal due to the estate’s failure to file a
transcript it requested to be included in the appellate record. We conclude that the
estate failed to rebut the presumption that a two-year delay in filing the transcript was
both inexcusable and unreasonable or refute adequately that the delay was caused by
the estate. Therefore, we affirm.
Under Georgia law,
[w]e review a trial court’s ruling on a motion to dismiss an appeal pursuant to [OCGA § 5-6-48 (c)] under an abuse of discretion standard. When making factual determinations based upon evidence presented at a hearing on the question of dismissal, the trial court is vested with broad discretion to decide whether the appeal should be dismissed. Absent an abuse of such discretion, the court’s decision will not be disturbed on appeal.
(Citation omitted.) Webb’s Erection, Inc. v. Colonial Pacific Leasing Corp., 345 Ga.
App. 202 (1) (812 SE2d 602) (2018). So viewed, the record reveals that the estate of
Jeronta Brown (the “Estate”) sued various state and DeKalb County officials, as well
as entities associated with Dismas International, Inc. (collectively, “Defendants”), in
2016 after Brown and his girlfriend, Brianna Brooks, were abducted from a residence
by two men, ransomed, and later found murdered.1 The trial court granted the
Defendants’ motions for summary judgment on July 10, 2018, and the Estate filed a
timely notice of appeal on July 17, 2018. The Estate’s notice of appeal included a
statement requesting that “[t]he clerk will please omit nothing from the record.
Transcript of evidence and proceedings from the Motions and Arguments in this case
1 According to the Estate’s complaint, both of the abductors were convicted felons — one assailant was on state parole at the time of the crimes, while the second assailant was on federal parole and resided at a “halfway house.”
2 will be filed for inclusion in the record of appeal.” The Estate also timely paid the
trial court clerk’s costs for appeal on August 8, 2018.2
More than two years later, with no transcript having been filed, the Defendants
filed motions to dismiss the Estate’s appeal on December 1 and 2, 2020. In its written
response to the motions, the Estate did not request a hearing3 but instead relied upon
the general duty of a court reporter “to file the transcript of evidence and proceedings
within the time allowed by law or order of court. . . .”4 OCGA § 5-6-48 (f). The trial
court granted the Defendants’ motions, finding that “[t]he delay of more than two
2 The record on appeal does not include the Defendants’ motions for summary judgment; the Estate’s responses, if any; the trial court’s order granting the Defendants’ motions; or the Estate’s notice of appeal. Rather, these statements are included in the trial court’s order dismissing the Estate’s appeal. None of the parties have contested the accuracy of the trial court’s statements concerning the procedural history of the case and, therefore, we will accept these statements as accurate. 3 See Uniform Superior Court Rule 6.3 (“Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing. . . .”). 4 In a footnote in its response, the Estate claimed that it learned “from the clerk’s office that one of the court reporters who transcribe[d] one of the motion/argument hearings was now deceased and the clerk was attempting to secure the deceased reporter’s work product.” However, counsel’s statements contained in briefs are not entitled to evidentiary effect. See generally Latimore v. City of Atlanta, 289 Ga. App. 85, 87 (656 SE2d 222) (2008) (holding that assertions of fact in the briefs of parties do not, standing alone, constitute competent evidence).
3 years is presumptively unreasonable and inexcusable” and that the Estate “did not
submit evidence to rebut this presumption[;]” the trial court also attributed the delay
to the Estate because “the law places the burden of filing the transcript upon the
appellant and there is no evidence that [the Estate] made any attempts to file the
transcript as provided by law[.]” This appeal followed.5
In two interrelated enumerations of error, the Estate contends the trial court
erred in finding that the delay in filing the summary judgment transcript was
unreasonable, inexcusable, and caused by the Estate. This argument is without merit.
Georgia law provides that, if an appellant designates a transcript of evidence
and proceedings for inclusion in the record on appeal pursuant to OCGA § 5-6-37,
“the appellant shall cause the transcript to be prepared and filed as provided by
[OCGA §] 5-6-41” and “shall cause it to be filed within 30 days after filing of the
notice of appeal . . ., unless the time is extended as provided in [OCGA §] 5-6-39.”
5 The Defendants contend that the present appeal is untimely because the Estate did not file a notice of appeal from the trial court’s January 7, 2021 order until February 9, 2021. See OCGA § 5-6-38 (a). However, the trial court entered an order on February 12, 2021 closing the case and dismissing all remaining claims against unserved defendants, resulting in a final order in which “the case [was] no longer pending in the court below[.]” OCGA § 5-6-34 (a) (1). Therefore, because the Estate’s notice of appeal was filed within 30 days of this final order, we have jurisdiction.
4 OCGA § 5-6-42. Accordingly, it is clear “the duty to order the transcript and to
monitor timely the progress of the court reporter’s office in transcript preparation
is vested upon the appropriate appealing party” — in this case, the Estate. (Citation
and punctuation omitted; emphasis supplied.) Ashley v. JP Morgan Chase Bank, N.
A., 327 Ga. App. 232, 236 (1) (758 SE2d 135) (2014); see also In the Interest of C.
W., 342 Ga. App. 484, 486 (2) (803 SE2d 618) (2017).
In the event of a delay in filing a transcript,
[n]o 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,[6] order that the appeal be dismissed where there has been an unreasonable delay 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). Under OCGA § 5-6-48 (c), a trial court shall exercise discretion
in deciding whether to dismiss an appeal only after determining “the length of the
6 The “opportunity for hearing” requirement “is satisfied if the complaining party is given an opportunity to respond on the record to the motion to dismiss.” Ashley, 327 Ga. App. at 238 (2) (affirming dismissal of appeal in which complaining party failed to request a hearing but “was given an opportunity to file her various briefs in opposition to the motion to dismiss”).
5 delay, the reasons for the delay, whether the appealing party caused the delay, and
whether the delay was inexcusable[.]” (Citation and punctuation omitted.) Webb’s
Erection, 345 Ga. App. at 203 (1).
“[T]he threshold question whether [a] delay was unreasonable refers principally
to the length and effect of the delay.” (Citation, punctuation, and emphasis omitted.)
Pistacchio v. Frasso, 314 Ga. App. 119, 121 (723 SE2d 322) (2012). “Generally, a
delay is unreasonable if it affects an appeal, either by directly prejudicing the position
of a party or by causing the appeal to become stale, for instance by delaying
docketing and hearing in this court.” (Citation and punctuation omitted.) Ashley, 327
Ga. App. at 235 (1). “A delay of more than 30 days in filing a transcript is prima facie
unreasonable and inexcusable, but this presumption is subject to rebuttal if the party
comes forward with evidence to show that the delay was neither unreasonable nor
inexcusable.” Id.; see also Pistacchio, 314 Ga. App. at 121.
Here, in its July 17, 2018 notice of appeal, the Estate indicated that a
“[t]ranscript of evidence and proceedings from the Motions and Arguments in this
case will be filed for inclusion in the record of appeal.” Pursuant to OCGA § 5-6-42,
the Estate had 30 days in which to file the transcript or seek an extension of time to
file the transcript. Yet in the more than two years that followed, the Estate neither
6 filed a transcript nor sought an extension. See Pistacchio, 314 Ga. App. at 123
(“[T]he failure to obtain the required extension of time is one of the factors
considered in whether a delay in filing a transcript is unreasonable and inexcusable.”)
(citation omitted). In fact, the record does not contain any correspondence or other
evidence demonstrating that the Estate ever even contacted the court reporter, or any
associate or representative of the court reporter, to learn the status of the transcript.
Therefore, we conclude that this two-year unexplained delay in securing a transcript
is prima facie unreasonable and inexcusable. See Ashley, 327 Ga. App. at 235-236
(1); see also Pistacchio, 314 Ga. App. at 121, 122-123.
Furthermore, the Estate has not presented any evidence to rebut the
presumption that the delay is unreasonable and inexcusable. Rather, the Estate’s
argument is singularly bottomed on OCGA § 5-6-48 (f), which provides in part that
“[a]n appeal shall not be dismissed nor consideration thereof refused because of
failure of the court reporter to file the transcript of evidence and proceedings within
the time allowed by law or order of court. . . .” However, contrary to the Estate’s
argument, a party responsible for filing a transcript may not simply abdicate that
responsibility to the court reporter. See Jackson v. Beech Aircraft Corp., 217 Ga.
App. 498, 501 (2) (458 SE2d 377) (1995) (“the burden to keep accurately informed
7 of the status of transcript preparation remains with the party having the responsibility
to file the transcript and it cannot be shifted to the court reporter”). In addition, the
Estate’s argument necessarily ignores the remainder of OCGA § 5-6-48 (f), which
authorizes the dismissal of an appeal if “it affirmatively appears from the record that
the failure [to file a transcript] was caused by the appellant.”
Finally, “[t]he delay here discernibly delayed docketing of the record in the
appellate court and prevented an appellate decision on the merits at the earliest
possible date.” Pistacchio, 314 Ga. App. at 122. This Court’s terms commence on the
first Mondays of December, April, and August. See Court of Appeals Rule 12.
Currently assigned to the April 2021 term of court, the Estate’s initial appeal could
have conceivably been docketed during the August 2018 term of court. This delay,
for which the Estate bears sole responsibility, buttresses the trial court’s conclusions
that the delay was unreasonable, inexcusable, and caused by the Estate.
In sum, it is clear that the Estate requested that a transcript of a summary
judgment hearing be included in the record on appeal. The Estate never filed such a
transcript. Moreover, during the more than two-year delay that followed the Estate’s
notice of appeal, the record conclusively demonstrates — through the absence of
correspondence, pleadings, or evidence in any form — that the Estate never moved
8 for an extension of time or undertook any effort to contact the court reporter or
otherwise monitor the progress in preparing a transcript. Not only is this delay
presumed unreasonable and inexcusable, but the record confirms that the sole
responsibility for the delay rests with the Estate. Accordingly, we conclude that the
trial court did not abuse its discretion in finding the failure to file a transcript was
unreasonable, inexcusable, and caused by the Estate. See Ashley, 327 Ga. App. at 237
(1); see also Pistacchio, 314 Ga. App. at 123. Therefore, we affirm the trial court’s
order granting the Defendants’ motions to dismiss the Estate’s appeal.
Judgment affirmed. Miller, P. J., and Pipkin, J., concur.