Temple v. Hillegass

340 Ga.App. 189

796 S.E.2d 899

TEMPLE

v.HILLEGASS et al.

A16A1616

Court of Appeals of Georgia.

February 8, 2017

Michael Andrew Clark, Andy Clark Law, for Appellant.

Nola Dillon Jackson, Robert Neil Friedman, Norcross, Cruser & Mitchell, for Appellee.

McFadden, Presiding Judge.

The trial court's order dismissing the appeal in this case failed to include the findings of fact required for this court to conduct a review under the abuse of discretion standard. So, the order dismissing the appeal is vacated and the case is remanded with direction that the trial court make the requisite findings.

On February 12, 2015, Tandra Temple filed the underlying pro se complaint on behalf of her minor son against various defendants for breach of fiduciary duty, breach of contract, fraud, and other claims. On that same date, she filed an affidavit of poverty with the complaint and the trial court granted her request to proceed in forma pauperis. On April 23, 2015, George Hillegass and other defendants moved to dismiss the complaint on grounds that Temple lacked standing to bring the action, that she had failed to file a required expert's affidavit with the complaint, and that the statute of limitation had expired. On June 16, 2015, the trial court granted the motion to dismiss the complaint.

Temple filed a timely notice of appeal on July 16, 2015. On August 4, 2015, the clerk of the superior court sent Temple a bill of costs for the appeal in the amount of $284.50, and Temple received the bill on August 6. On September 14, 2015, Temple filed an affidavit and motion to proceed in forma pauperis, requesting that the court relieve her from paying all costs associated with the appeal because of her indigence. Approximately two weeks later, on September 29, 2015, Hillegass and other defendants moved to dismiss the appeal, arguing that there had been an unreasonable delay in the transmission of the record to the appellate court based on Temple's failure to pay costs or file an affidavit of indigence as required by OCGA § 5–6–48 (c). On November 16, 2015, the trial court granted Temple's motion to proceed in forma pauperis and ordered that she "be permitted to waive fees and costs of appeal." Almost three months later, on February 11, 2016, the trial court entered an order granting the defendants' motion to dismiss the appeal, providing only: "After full review of the entire record before the Court, Defendants[‘] ... Motion to Dismiss Plaintiff's Appeal is GRANTED. IT IS HEREBY ORDERED that Defendants[‘] Motion to Dismiss Plaintiff's Appeal is GRANTED.’' Temple appeals from that dismissal order.

The dismissal order lacks the required findings.

[I]n 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

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