McALISTER v. ABAM SAMSON (2012)

Court of Appeals of Georgia.

McALISTER v. ABAM–SAMSON, et al.

No. A12A0862.

Decided: October 12, 2012

Peter Andrew Lampros, Jane Natalie Wilkes, Atlanta, for David McAlister. Russell B. Davis, Marietta, Stephen W. Adkins Jr., Dana B. Miles, Cumming, for Edith Abam–Samson.

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]ranscript 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] said 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) provides 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 means 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 And here, 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.

But even if we were to assume arguendo that there was indeed a conflict between OCGA §§ 5–6–43, 5–6–48(c), and Supreme Court Rules 67 and 69 (and thus the prior version of Court of Appeals Rule 17), this Court—as the intermediate appellate court in Georgia—is entirely lacking in authority to pass judgment on either the legality or constitutionality of our Supreme Court's rules.¹⁴ Suffice it to say, as an inferior appellate court we properly assume that our Supreme Court's rules are both legal and constitutional.

In sum, we conclude that the trial court did not err in reading the rules of our Court—and thus, by incorporation, Supreme Court of Georgia Rules 67 and 69—in pari materia with OCGA § 5–6–48(c), and applying that particular code section to a situation involving the judicially sanctioned record appendix,¹⁵ which is merely an alternative method by which the parties were permitted to transmit the documents relevant and necessary to the appeal.¹⁶

It is true that ordinarily, once the notice of appeal has been filed, “the obligation for the preparation of the record rests with the clerk” and the appellant has the responsibility of timely paying costs and “filing the requisite transcript or portions thereof within 30 days.”¹⁷ But here, McAlister took upon himself the duty otherwise delegated to the clerk of court (i.e., transmission of the record),¹⁸ and he therefore cannot now complain about his appeal being dismissed pursuant to OCGA § 5–6–48(c) when he expressly elected to file a record appendix in his notice of appeal. Thus, while the Appellate Practice Act is to “be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein,”¹⁹ this forgiving canon of statutory construction has its limits. Indeed, were we to hold that OCGA § 5–6–48(c) does not encompass a party's decision to take on the responsibility of transmitting a record appendix, an appeal for a delay in filing same could never be dismissed—a result which is patently absurd.²⁰ Thus, we conclude that the trial court did not err in applying OCGA § 5–6–48(c) to resolve this issue.

2. McAlister also argues that even if OCGA § 5–6–48(c) applies to a delay in transmitting the record appendix, the delay here was not unreasonable, was not inexcusable, and was not caused by McAlister. Once again, we disagree.

As explained supra, 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.”²¹ And the trial court in the case sub judice found that the delay in this case equaled 55 days, was caused by McAlister, and was inexcusable.

We have previously held that “[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.”²² Here, the notice of appeal was filed February 17, 2011; the clerk of court transmitted the transcript on June 2, 2011;²³ and the motion to dismiss was filed August 5, 2011, at which point no record appendix had been transmitted because McAlister was “under the assumption” that the clerk of court had transmitted the record. Thus, at that point, transmission of the record appendix had been delayed by approximately two months.²⁴

McAlister argues that this delay was not unreasonable because the delay did not prevent the case from being docketed for the September term of this court. A delay is unreasonable when it may affect an appeal by (1) prejudicing a party through a change in conditions or other inequity or (2) “causing the appeal to be stale, such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.”²⁵ This Court's docket for the January, April, and September terms closes “at noon on the 15th day of December, April and August, respectively.”²⁶ Thus, had McAlister transmitted the record appendix between August 5 and August 15, 2011, the case would have been docketed in the same term of court—the September term—as would have occurred had the transmission been timely.²⁷ Nevertheless, McAlister has asserted that he was not even aware that the clerk of court had not transmitted the record until the motion to dismiss was filed, and the court did not hear argument on the motion to dismiss until October 10, 2011, well after the closing of the docket for our September term.²⁸ It is conjecture, then, to speculate that either (1) the clerk of court would have transmitted the record to this Court between August 5 and August 15 or that (2) McAlister's error would have been discovered in this period without the motion to dismiss.²⁹ Thus, McAlister has “failed to come forward with evidence to rebut the presumption that the delay was unreasonable.”³⁰

McAlister has also failed to show that the delay was not inexcusable or that it was not his fault, attributing it to a “miscommunication” with the clerk of court. But the record reflects that McAlister elected to take responsibility for transmitting the record by stating in the notice of appeal that he would file a record appendix (and never amending his notice of appeal to provide that the clerk would be responsible for transmission of the record),³¹ but he failed in that responsibility by relying solely on an assumption that the clerk of court would transmit the record with the transcript after a vague conversation, and McAlister never made an effort to confirm same. Thus, the trial court did not abuse its discretion by dismissing the appeal.³²

Accordingly, for all the foregoing reasons, we affirm the trial court's dismissal of McAlister's appeal.

Judgment affirmed.

DILLARD, Judge.

ELLINGTON, C.J., and PHIPPS, P.J., concur.