ACCC Insurance Co. v. Pizza Hut of America, Inc.

Citations: 725 S.E.2d 767; 314 Ga. App. 655; 2012 Fulton County D. Rep. 467; 2012 WL 414466; 2012 Ga. App. LEXIS 127Docket: A11A1905

Court: Court of Appeals of Georgia; February 10, 2012; Georgia; State Appellate Court

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Pizza Hut of America, Inc. initiated a legal action against ACCC Insurance Company in Cobb County, seeking a declaratory judgment to establish itself as an additional insured under an automobile insurance policy issued to a Pizza Hut employee. The trial court granted summary judgment in favor of Pizza Hut. ACCC Insurance appealed this decision, but a significant delay occurred in filing the necessary transcript for the appeal, leading Pizza Hut to move for dismissal of the appeal due to this unreasonable delay as per OCGA § 5-6-48(c). 

ACCC Insurance had initially filed a notice of appeal on October 10, 2008, designating the complete record, including transcripts, for the appeal. After inquiry about the record preparation, ACCC Insurance learned from the civil appeals clerk that no progress had been made due to her maternity leave. The bill for the record preparation was received and paid by ACCC Insurance in February 2009, but the transcript from the summary judgment hearing had not yet been filed. The court reporter indicated she was unable to expedite the transcript due to existing commitments.

ACCC Insurance filed a motion for an extension to prepare and file the transcript, which was granted despite being untimely, allowing until April 11 for submission. Following this, Pizza Hut filed a motion to dismiss the appeal, supported by communications between ACCC Insurance and the court reporter regarding the transcript. ACCC Insurance responded with additional documentation of their attempts to secure the transcript. Ultimately, the transcript was submitted on April 8, 2009. A hearing on the motion to dismiss was held, but no additional evidence was presented by either party. The court affirmed the dismissal of ACCC Insurance's appeal, concluding there was no abuse of discretion by the lower court.

ACCC Insurance contended that the delay in filing the transcript was not caused by the clerk's actions, citing her recent return from maternity leave. The court requested proof of this claim, but the attorney was unable to provide specific details on the clerk’s leave. The judge expressed the need for testimony from the clerk's office to clarify the delay, yet no representative appeared. The lower court dismissed the appeal, noting that under OCGA 5-6-42, appellants must ensure the transcript is filed within 30 days of the notice of appeal. OCGA 5-6-48(c) allows dismissal for unreasonable delays if shown to be inexcusable and caused by the appellant. The court found ACCC Insurance failed to act from October 10, 2008, until February 4, 2009, and the delay beyond 30 days was deemed presumptively unreasonable, with no evidence provided to counter this presumption. ACCC Insurance argued dismissal was erroneous since the transcript was filed within a granted extension, but the court ruled the extension invalid as it was requested after the filing deadline. Consequently, the court concluded there was no abuse of discretion in dismissing the appeal.

ACCC Insurance argues that the delay in filing the transcript should not be deemed unreasonable as it did not hinder the docketing of the appeal. The distinction between an inexcusable delay and an unreasonable delay is emphasized, with unreasonable delays defined as those that either make the appeal stale or directly prejudice a party due to changing conditions. The court reiterates that strict punctuality should not obstruct the appeal process unless the delay negatively impacts the appeal itself. 

ACCC Insurance claims that delays were exacerbated by a maternity leave within the trial court's appeals division, implying that such circumstances contributed to the delay in preparing the record on appeal. However, there is insufficient evidence to demonstrate the extent to which maternity leave affected the clerk's ability to prepare records. Notably, ACCC Insurance failed to take action from the notice of appeal until nearly four months later, resulting in a filing delay of approximately five months beyond the deadline.

The court compares this case to prior rulings, illustrating that an 11-day delay was deemed reasonable while a 119-day delay was not. The law mandates that the clerk must transmit the record to the Court within five days of receiving the transcript, which was delayed for months. Without credible evidence refuting that the delay in filing the transcript affected the docketing of the appeal, the trial court's finding of the delay being unreasonable and inexcusable stands unchallenged.

The trial court's dismissal of ACCC Insurance's earlier appeal was affirmed, as there was no abuse of discretion. The court referenced Durden v. Griffin, where a delay in preparing the transcript led to dismissal, emphasizing that appellants must act timely to avoid such outcomes. ACCC Insurance had not taken action to prepare the transcript until facing a motion to dismiss and had amended its notice of appeal to omit the transcript only after Pizza Hut's motion to dismiss. The delay in preparing the record was attributed to the clerk's workload, not to any fault of ACCC Insurance's attorneys. The court noted that the deputy clerk's certificate regarding the delay was submitted after the dismissal and could not influence the decision. There was no indication that Pizza Hut suffered any prejudice from the situation. The judgment was affirmed with judges Barnes and Adams concurring.