McAlister v. Abam-Samson

733 S.E.2d 58, 318 Ga. App. 1
CourtCourt of Appeals of Georgia
DecidedOctober 12, 2012
DocketA12A0862
StatusPublished
Cited by9 cases

This text of 733 S.E.2d 58 (McAlister v. Abam-Samson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McAlister v. Abam-Samson, 733 S.E.2d 58, 318 Ga. App. 1 (Ga. Ct. App. 2012).

Opinion

Dillard, Judge.

David McAlister appeals the trial court’s dismissal of his appeal related to an order to pay an attorney’s lien to John C. Dabney, Jr., for his representation of McAlister in a personal-injury action against Edith Abam-Samson.1 McAlister argues that the trial court (1) lacked statutory authority to dismiss the appeal for a delay in transmitting the record appendix and (2) erred in dismissing the appeal when the delay was not unreasonable, inexcusable, or caused by him. For the reasons set forth infra, we affirm.

The record reflects that McAlister filed a notice of appeal in the underlying case on February 17, 2011, which directed that a “[t]ran-script of evidence and proceedings will be filed for inclusion in the record on appeal, and the parties will undertake the responsibility of filing their own record.” On August 5, 2011, Dabney—as an intervenor in the McAlister/Abam-Samson case—filed a motion to dismiss McAlister’s appeal due to a failure to file the record appendix.

At a hearing on the matter, McAlister’s counsel testified that he spoke to the clerk’s office in the State Court of Forsyth County; that the clerk advised that the office would “send everything to the Court of Appeals”; that he thereafter received and made payment on a bill from the clerk’s office “for preparing [the] transcript and everything”; and that he was then “under the assumption that when [the clerk] [2]*2said we’ll send everything over to the Court of Appeals, that everything had been sent to the Court of Appeals____” McAlister’s attorney thus attributed the delay in sending the record appendix to a miscommunication with the clerk’s office, which had left him “under the impression that everything had been sent when, in reality, only the transcript had been sent.”

Thereafter, the trial court granted Dabney’s motion to dismiss under OCGA § 5-6-48 (c), finding that the delay of 55 days was unreasonable, caused by McAlister, and inexcusable. This appeal by McAlister follows.

At the outset, we note that a trial court’s ruling on whether an appeal is subject to dismissal will be reversed only for an abuse of discretion.2 And OCGA § 5-6-48 (c) requires the trial court to “determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable before exercising its discretion in deciding whether to dismiss the appeal.”3 With these guiding principles in mind, we turn now to McAlister’s enumerations of error.

1. McAlister first argues that the trial court lacked authority under OCGA § 5-6-48 (c) to dismiss the appeal for failure to transmit the record appendix. We disagree.

Prior to December 17, 2011,4 this Court accepted for consideration “any record or substitute therefor which the Supreme Court of Georgia accepts under its rules.”5 And Rule 67 of the Supreme Court of Georgia provides for the submission of a record appendix by the parties to an appeal,6 which is to be transmitted “within 5 days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee” or, when no transcript of evidence and proceedings is sent, the record appendix must be transmitted “within 30 days after the date of filing of the notice of appeal.”7 Although it does not reference the record appendix, which is a creation of our Supreme Court and not that of the General Assembly, OCGA § 5-6-48 (c) [3]*3provides that after notice and opportunity for hearing, a trial court may

order that the appeal be dismissed [when] 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. In like manner, the trial court may order the appeal dismissed [when] there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence . . . .8

McAlister argues that the trial court erred in applying OCGA § 5-6-48 (c) to dismiss his appeal because that Code section does not contemplate a failure to transmit the record appendix and because he paid costs as billed by the clerk of court. We find this argument unavailing.

The record appendix is a judicially sanctioned (at the highest level) method of transmitting the documents relevant and necessary to an appeal. Our Supreme Court adopted this alternative means of submitting the appellate record on June 2, 2010, by amending Supreme Court of Georgia Rules 67 and 69;9 and, as noted supra, this Court—prior to December 17, 2011—accepted for consideration “any record or substitute therefor which the Supreme Court of Georgia accepts under its rules.”10 The question at the heart of this appeal, then, is whether the Supreme Court’s rules authorizing the record appendix, and the Court of Appeals rule incorporating same, can be reconciled with the dictates of OCGA § 5-6-48 (c). We conclude that they can be.

While it is certainly true that OCGA §§ 5-6-43 and 5-6-48 (c) make no mention of a record appendix, and that there is nothing in the text of these statutory subsections evincing an intent by the General Assembly to authorize litigants to transmit some or all of the documents relevant or necessary to an appeal, this does not necessarily end our inquiry. This is because the prior version of Court of Appeals Rule 17 in place at the time McAlister filed his notice of appeal explicitly authorized him—by way of incorporating Supreme Court Rules 67 and 69—to file a record appendix as an alternative [4]*4means of transmitting the appellate record; and appellate court rules have the force of law unless they are in conflict with federal or state law.11 Andhere, we see no conflict whatsoever between the statutorily prescribed method of transmitting the appellate record and the alternative means authorized by our Supreme Court. Indeed, the General Assembly makes clear in OCGA § 5-6-30 that “[i]t is the intention of this article to provide a procedure for taking cases to the Supreme Court and the Court of Appeals . . .”12—not the exclusive procedure,13 but a procedure for bringing an appeal before this Court and our Supreme Court.

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Cite This Page — Counsel Stack

Bluebook (online)
733 S.E.2d 58, 318 Ga. App. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcalister-v-abam-samson-gactapp-2012.