Wood v. Notte., 238 Ga. App. 748, 519 S.E.2d 923 (1999)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: A99A0457

Parts: SMITH, Judge.

Linked as:

Summary

Judgment reversed and case remanded with direction. Pope, P. J., and Eldridge, J., concur.

Summary

Judgment reversed and case remanded with direction. Pope, P. J., and Eldridge, J., concur.

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Arnall, Golden & Gregory, Scott F. Bertschi, Ann S. Infinger, for appellee.Craig T. Jones, for appellant.

Henry Wood appeals from the order of the trial court dismissing his appeal. Because the trial court did not make the necessary findings, we cannot determine whether the trial court abused its discretion in dismissing the appeal. We must therefore reverse the trial court's order and remand this case to the trial court with instruction that findings be made.

1. Wood contends the trial court erred in dismissing his appeal. OCGA 5-6-48 (c) authorizes a trial court, in its discretion, to dismiss an appeal if "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." Several elements therefore must be present: an unreasonable delay that was inexcusable and that was caused by failure of a party to pay costs or file an affidavit of indigence. In deciding whether these elements exist, the trial court exercises a legal discretion, and we review that discretion only for abuse. Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, 611 (414 SE2d 915) (1992). A delay of more than 30 days is prima facie unreasonable and inexcusable. Id. But the trial court must make findings on these issues before we may determine whether its discretion was abused. Ga. Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431) (1990).

In this case, as in Patillo, the order merely granted the motion to dismiss. Here, as there, the trial court's failure to make findings with regard to the reasonableness and excusability of the delay, as well as on the issue of causation, mandates a reversal of the trial court's order and a remand with direction that findings of fact be entered on these issues. Id. 2. Wood's remaining enumerations address the grant of summary judgment to Notte in the underlying malpractice action. But that appeal was dismissed by the trial court, and we cannot address the issues in the underlying action unless and until Wood's appeal is reinstated, either by the trial court upon remand, or upon appeal from the trial court's dismissal of the appeal after making findings upon remand.