Levine v. Regions Bank

354 Ga.App. 116

840 S.E.2d 498

LEVINE

v.REGIONS BANK.

A19A1951

Court of Appeals of Georgia.

March 6, 2020

William Ralph Carlisle, Sugar Hill, for Appellant.

Myles Daniel Levelle, Brian Thomas Moore, Vivian Bridges Fisher, Atlanta, for Appellee.

Doyle, Presiding Judge.

Craig Levine appeals from the trial court’s dismissal of his appeal of the trial court’s final order in favor of Regions Bank. For the reasons that follow, we vacate the trial court’s order dismissing the appeal and remand for further proceedings consistent with this opinion.

Regions Bank initially filed the underlying action against Levine. Following a bench trial on Regions Bank’s complaint,¹ which trial was not taken down, the trial court entered a final judgment in favor of Regions Bank against Levine for $220,070.54. Levine filed a notice of appeal from that order, stating that he would file a transcript of the trial proceedings for inclusion with the appellate record "pursuant to the procedures outlined in OCGA § 5-6-41 (g) and/or (i)," which refers to the creation of substitute transcripts. The same day on which Levine filed his notice of appeal of the final order, he also filed a "Request for Stipulation as to the Court’s Rulings on Evidence and Objections, Findings of Fact and Conclusions of Law." Regions Bank responded to this request, but the trial court did not rule on the matter. The clerk of the court did not transmit the record to this Court apparently because a substitute transcript was not prepared or decided upon. Six months later, Regions Bank filed a motion to dismiss the appeal, which the trial court granted.

1. Levine argues, and Regions Bank concedes, that the trial court failed to make the requisite findings of facts in its order granting Regions Bank’s motion to dismiss the appeal.

In order for a trial court to dismiss an appeal for unreasonable delay in the filing of the transcript or in the transmission of the record, 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, and then to exercise discretion in deciding whether to dismiss the appeal. Although we review the trial court’s decision for an abuse of discretion, the trial court must make findings on these issues before we may determine whether its discretion was abused. Failure to make these findings mandates that we vacate the order dismissing the appeal and remand the case with the direction that findings of fact be entered on these issues.²

2. Levine also argues that the trial court erred by failing to approve his request for a substitute transcript pursuant to OCGA § 5-6-41. Levine filed a request for stipulation the same day that he filed his notice of appeal of the final order, and although Regions Bank filed a response to that request, the trial court failed to enter any order related to Levine’s request prior to dismissing the appeal. On remand the trial court is directed to address Levine’s request prior to addressing the motion to dismiss the appeal.³

3. Finally, Levine contends that the trial court erred by failing to make findings of fact and conclusions of law related to its final order in the underlying action. This issue, however, is not ripe for review at this time.

Judgment vacated and case remanded with direction.

Coomer and Markle, JJ., concur.

1 The complaint does not appear in the appellate record.

2 (Punctuation omitted.) Temple v. Hillegass , 340 Ga. App. 189, 189-190, 796 S.E.2d 899 (2017), quoting Postell v. Alfa Ins. Corp. , 327...