GROVNOR v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA (1998)

The sole issue before us on appeal is whether the trial court erred in denying Eva Grovnor's Extraordinary motion for Extension of Time to File Notice of Appeal.   Because we find no error, we affirm.

This case arose when Grovnor filed suit against the University System over a grade she received in one of her nursing classes.   Because the grade was one point below the grade necessary to advance to the next course, Grovnor was effectively prevented from pursuing a degree in nursing at Brunswick College.

The Board of Regents filed a motion to dismiss the claim, which the trial court granted on February 26, 1997.   On June 25, 1997, Grovnor filed her motion for an extension of time to file the appeal.   The trial court denied the motion and this appeal followed.

1. In Grovnor's request for an extension of time in which to appeal, she claimed the reason she could not file the notice timely was because she was out of the state and her attorney could not discuss with her whether or not she wanted to appeal the dismissal.   Grovnor cites two cases in support of her contention that the trial court erred in denying her motion for extension of time;  however, they are not on point.   See Ponder v. State, 260 Ga. 840, 400 S.E.2d 922 (1991) (holding that the proceeding in which the out-of-time appeal is sought is the appropriate time to raise ineffective assistance of counsel);  Boulden v. Fowler, 202 Ga.App. 237, 414 S.E.2d 263 (1991) (trial court abused its discretion in dismissing appeal when delay in filing the transcript was attributable to the backlog of the court reporter and not the appellant).

 OCGA § 5-6-38(a) provides that “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of․”  OCGA § 5-6-39 states that an extension of time may be granted but it shall not exceed 30 days and must be made before the initial 30-day period for filing the notice of appeal expires.  OCGA § 5-6-39(c) and (d).  “OCGA § 5-6-39 provides no jurisdiction to either the trial court or this Court to grant an extension of more than 30 days for the filing of a notice of appeal.”  Dillard v. State, 223 Ga.App. 405, 477 S.E.2d 674 (1996), citing Rockdale County v. Water Rights Committee, 189 Ga.App. 873, 874, 377 S.E.2d 730 (1989).   As set out above, Grovnor did not file her motion for extension of time until almost three months after entry of the dismissal.   Accordingly, the trial court did not err in denying Grovnor's motion for an extension of time in which to file her notice of appeal.

 2. Under the facts of this case, Grovnor could have no reasonable basis for believing this appeal would result in a reversal of the trial court's judgment.   Therefore, pursuant to Court of Appeals Rule 15(b), we assess a frivolous appeal penalty of $1,000 against Grovnor and her attorney.   On remittitur, the trial court shall enter judgment in favor of the Board of Regents against Eva Grovnor and her attorney, Roy L. Allen II, in the amount of $1,000.

Judgment affirmed.

Although this Court has found no merit in this appeal and while I agree that this case should be affirmed, I cannot conclude this appeal was solely for purposes of delay.   Consequently, I oppose this Court's sua sponte imposition of frivolous appeal damages.

ANDREWS, Chief Judge.

BLACKBURN, J., concurs. McMURRAY, P.J., concurs in part as to Division 1 and dissents in part as to Division 2.