Premier Pediatric Providers v. Kennesaw Pediatrics

898 S.E.2d 481

PREMIER PEDIATRIC PROVIDERS, LLC

v.KENNESAW PEDIATRICS, P.C.

S23G0263

Supreme Court of Georgia.

Decided: February 20, 2024

Superior Court, Fulton County, Kelly Lee Ellerbe, Judge Keith Robert Blackwell, Mark David Boyer, II, Alston & Bird LLP, One Atlantic Center, 1201 West Peachtree Street, Suite 4900, Atlanta, Georgia 30309, Bennie Davis Butler, Jr., Butler Mersereau LLP, 2500 Old Milton Parkway, Suite 210, Alpharetta, Georgia 30009, for Appellant.

Harold David Melton, Michael Gregory Foo, Troutman Pepper Hamilton Sanders LLP, 600 Peachtree Street NE, Suite 3000, Atlanta, Georgia 30308, David Gregory Michell, James Marx Sherman, Stanley, Esrey & Buckley, LLP, 1230 Peachtree Street NE, Suite 2400, Atlanta, Georgia 30309, for Appellee.

Pinson, Justice.

Kennesaw Pediatrics, P.C. sued Premier Pediatric Providers, LLC and won summary judgment. Premier appealed, which meant it then had 30 days to have the hearing transcript prepared and filed as part of the record on appeal. Premier did not do so. Months later, Kennesaw Pediatrics moved to dismiss the appeal under OCGA § 5-6-48 (c), arguing that the delay in filing the transcript was unreasonable, inexcusable, and caused by Premier. Premier then realized its mistake and had the transcript filed within days.

To counter Kennesaw Pediatrics’s motion to dismiss, Premier explained that it had believed the transcript was filed a few days after the notice of appeal and presented evidence in support. Hearing that evidence, the trial court found the delay was not inexcusable and denied Kennesaw Pediatrics’s motion to dismiss. But on appeal, the Court of Appeals concluded that the trial court had abused its discretion, reversed the trial court's order, and dismissed the appeal.

We granted review to clarify the standard for appellate review of a trial court’s decision whether to dismiss an appeal under OCGA § 5-6-48 (c), both as to the predicate findings and the ultimate decision whether to dismiss, and to consider whether the Court of Appeals properly applied that statute in this case.

We now vacate in part and reverse in part the Court of Appeals’ decision. The Court of Appeals was right that the trial court’s Order was subject to review for abuse of discretion, a standard that applied both to the trial court’s predicate findings and its ultimate decision to deny the motion. But under that standard, the trial court did not abuse its discretion in denying Kennesaw Pediatrics’s motion to dismiss, for the reasons we set out below. Finally, an appellate court may not dismiss an appeal challenged under OCGA § 5-6-48 (c) (as the Court of Appeals did here), and it is generally not proper even to direct the trial court to do so. That statute expressly prohibits an appellate court from dismissing an appeal based on the failure to timely file the transcript, and it gives the trial court discretion as to the ultimate question whether to dismiss an appeal.

1. Kennesaw Pediatrics sued Premier for the right to inspect Premier’s business records. On July 20, 2021, the court granted summary judgment in favor of Kennesaw Pediatrics.

Premier filed a timely notice of appeal on August 2, 2021. Premier’s notice of appeal specified that "[t]ranscripts of evidence and proceedings for the hearing held on Petitioner’s and Respondent’s cross Motions for Summary Judgment, held on July 19, 2021, should be filed for inclusion in the record on appeal." By statute, Premier then had 30 days, or until September 1, 2021, to have the transcript filed with the Court of Appeals as part of the record on appeal. See OCGA § 5-6-42 ("[t]he party having the responsibility of filing the transcript shall cause it to be filed within 30 days after filing of the notice of appeal").

Over four months later, on December 16, 2021, Kennesaw Pediatrics moved to dismiss Premier’s appeal under OCGA § 5-6-48 (c). That statute allows a trial court to dismiss an appeal "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 [the party responsible for filing the transcript]." Kennesaw Pediatrics noted that the transcript from the summary judgment hearing had not yet been filed with the Court of Appeals. Kennesaw Pediatrics argued that this delay was both unreasonable and inexcusable and that it was caused by Premier’s failure to order and pay for a transcript.

Premier opposed the motion to dismiss. The opposition included an affidavit from Premier’s counsel, Roger E. Harris, which explained why the transcript had not been filed. According to the affidavit, on the day after the notice of appeal was filed, Harris’s firm received an invoice from the clerk of superior court for all costs associated with the record on appeal. The invoice included a $35.00 "Transcript Charge" as well as a line item for $1,562.00, representing 1,562 "pages in record" at a cost of a dollar per page. Harris’s firm promptly paid the invoice, and Harris assumed that meant that the transcript had been included in the record on appeal. As he explained in his affidavit: "Given that the only oral argument or incourt proceeding in the entire case was on the Parties’ cross Motions for Summary Judgment, I reasonably understood that the line item charge for $35.00 for the ‘Transcript’ represented the only transcript relating to this case, specifically for oral argument on those motions."

Harris realized he may have been mistaken only when Kennesaw Pediatrics moved to dismiss the appeal under OCGA § 5-6-48 (c). At that time, he contacted the clerk of superior court to investigate, and learned for the first time that the transcript had never been filed. Harris immediately arranged for the transcript to be prepared and filed with the Court of Appeals. His firm received confirmation from the court reporter that the transcript would be filed no later than noon on December 20, 2021—five days after Kennesaw Pediatrics filed its motion to dismiss. Premier argued that under these circumstances the delay in filing the transcript was neither unreasonable nor inexcusable, and that its appeal should therefore not be dismissed.

The trial court agreed with Premier and denied Kennesaw Pediatrics’s motion to dismiss. Recounting the facts in Harris’s affidavit, the trial court found that, "after notice of the misunderstanding of ‘transcript charges,’ Defendant was diligent in its efforts to have the record prepared to be transmitted to the Court of Appeals." The court found that the delay was therefore not unreasonable or inexcusable.

Kennesaw Pediatrics’s appeal of the order denying its motion to dismiss (Case No. A22A0924) was consolidated with Premier’s underlying appeal of the summary judgment order.¹ In the consolidated opinion, the Court of Appeals reversed the denial of the motion to dismiss. The court concluded that Premier’s delay in filing the transcript was both unreasonable and inexcusable, and that the trial court thus abused its discretion in finding otherwise and in denying the motion to dismiss Premier’s appeal. Premier Pediatric Providers, LLC v. Kennesaw Pediatrics, P.C, 365 Ga. App. 351, 354 (1), 358 (1) (b), 878 S.E.2d 588 (2022).

As to excuse—the main question here—the Court of Appeals explained that the delay was "prima facie inexcusable" because it was Premier’s responsibility to have the transcript prepared. Id. at 355 (1) (b), 878 S.E.2d 588. It was therefore up to Premier to "come forth with evidence to rebut the presumption that the delay was inexcusable." Id. But the court concluded that Premier had not done that. Id.

The Court of Appeals reasoned that it was not proper for Premier to shift the blame to the clerk of court for not filing the transcript. Id. at 357 (1) (b), 878 S.E.2d 588. The court compared this case to two others in which, as here, the appellant mistakenly believed a transcript was filed based on a line item in a clerk of court’s invoice. In one of those cases, Northeast Georgia Medical Center v. Health-South Rehabilitation Hospital of Forsyth County, 347 Ga. App. 852, 821 S.E.2d 68 (2018), the Court of Appeals had concluded that the line item did not excuse the appellant’s failure to monitor the status of its appeal. See Premier Pediatric Providers, 365 Ga. App. at 356-357 (1) (b), 878 S.E.2d 588 (citing Ne. Ga. Med. Ctr., 347 Ga. App. at 857-860 (1), (2), 821 S.E.2d 68. In the other, earlier case, Allan v. Jefferson Lakeside, L.P., 333 Ga. App. 222, 775 S.E.2d 763 (2015), the Court of Appeals reached the opposite conclusion. See Premier Pediatric Providers, 365 Ga. App. at 356 (1) (b), 878 S.E.2d 588. But the court here explained that in Allan, the appellant had shown that it "actively pursued the timely preparation and filing of the transcript by ordering it, inquiring as to the cost of its preparation, and by repeatedly following up with the clerk concerning the status of the transcript prior to the 30-day deadline for filing." Id. (citing Allan, 333 Ga. App. at 224-225 (1), 775 S.E.2d 763). Here, according to the Court of Appeals, Premier made no such showing. So the court reasoned that this case was more like Northeast Georgia Medical Center, and that Allan was distinguishable. See Premier Pediatric Providers, 365 Ga. App. at 356-357 (1) (b), 878 S.E.2d 588.

The Court of Appeals also concluded that the trial court abused its discretion by focusing only on Premier’s diligence after Kennesaw Pediatrics filed its motion to dismiss. See id. at 357 (1) (b), 878 S.E.2d 588. The court explained: "[W]e cannot ignore our precedent establishing Premier’s duty to ensure timely filing of the transcript at the time of filing its notice of appeal, before the 30-day deadline for filing, and during the ensuing nearly four-month period before Kennesaw [Pediatrics] filed its motion to dismiss the appeal." Id. at 357-358 (1) (b), 878 S.E.2d 588.

Having concluded that the trial court abused its discretion, the Court of Appeals reversed the order denying...