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BOVELAND v. YOUNG WOMENS CHRISTIAN ASSOCIATION OF GREATER ATLANTA, INC.

Court of Appeals of Georgia1997-06-18No. A97A0996
227 Ga. App. 241489 S.E.2d 35

Summary

Holding. The trial court did not abuse its discretion in dismissing Boveland's appeals due to his inexcusable nearly two-year delay in obtaining all designated transcripts, and the attorney fee award was not properly reviewable on this appeal. The judgment was affirmed.

Boveland was evicted from a YWCA building in November 1994 and held in contempt for failing to vacate. He appealed both orders but requested that all transcripts be included in the appellate record. Nearly two years later, one transcript remained missing and had not been ordered by Boveland, so the trial court dismissed both appeals. The court also found that Boveland's adverse possession defense was frivolous and awarded the YWCA attorney fees.

On appeal, Boveland challenged the dismissal and the attorney fee award. The appellate court found the dismissal proper because the nearly two-year delay in obtaining transcripts was unreasonable, inexcusable, and caused by Boveland's failure to direct the court reporter to prepare the missing transcript or formally amend his record designation. The court also determined that the attorney fee issue was not properly before the appellate court because the fee award is subject to discretionary appeal procedures and was not tied to review of the underlying ejectment claim.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether dismissal of an appeal for unreasonable delay in filing transcripts constituted an abuse of discretion
  • Whether responsibility for obtaining designated transcripts rests with the appellant or the court clerk
  • Whether an attorney fee award under the frivolous defense statute was reviewable when the underlying claim was not on appeal

Procedural posture

Boveland appealed from a trial court order dismissing his prior appeals from an eviction order and contempt citation, which had been pending for nearly two years due to a missing transcript.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Pope, Presiding Judge.

On November 10, 1994, the trial court issued an order evicting defendant Boveland from a building owned by plaintiff Young Women’s Christian Association of Greater Atlanta, Inc. On November 22, 1994, defendant still had not vacated the premises, and following a hearing, the trial court issued another order holding defendant in contempt. Defendant timely filed notices of appeal from both orders, requesting in each that “the entire record, including all transcripts” be transmitted to the appellate court. In September 1996, these appeals still had not been docketed because one of the transcripts was missing, and the trial court granted plaintiff’s motion to dismiss the appeals. The trial court also concluded that Boveland’s defense to the ejectment based on adverse possession was frivolous and awarded plaintiff $14,965 in attorney fees under OCGA § 9-15-14.

1. The trial court did not abuse its discretion in dismissing defendant’s appeals. A trial court may dismiss an appeal if there has been an unreasonable delay in filing a transcript, and the delay was inexcusable and caused by the appealing party. OCGA § 5-6-48 (c). Although not all delays are unreasonable, see Galletta v. Hillcrest Abbey West, 185 Ga. App. 20 (1) (363 SE2d 265) (1987), a delay of almost two years clearly is, particularly since the pending appeals have clouded plaintiff’s title and prevented it from being able to sell the property in question — which plaintiff has wanted to do since before defendant moved onto the property without permission in October 1993. Nor did the court err in concluding the delay was inexcusable and caused by defendant. As defendant designated “all transcripts” for inclusion in the record, it was his responsibility to ensure all transcripts were prepared and filed. See Burton v. Hamilton, 204 Ga. App. 18, 19 (418 SE2d 398) (1992). Yet the court reporter testified by affidavit that as of December 20, 1995, defendant still had not instructed her to prepare the transcript of the contempt hearing or given her a deposit.

Defendant argues that even if the appeal from the contempt order was properly dismissed, the appeal of the ejectment order was not; since the transcript of the contempt hearing was not necessary for that appeal, he reasons, the clerk’s delay in transmitting the record for that appeal was not his fault. But in defendant’s notice of appeal he designated that “all transcripts” should be included in the record for both appeals, and it is not up to the clerk to go beyond the designation and determine which transcripts are necessary. Cf. Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992) (trial court properly found delay was caused by the appellant where he designated the transcript to be included as part of the record even though there was no transcript). And though defendant’s counsel stated in his place that he told the clerk to go ahead and transmit the record for the appeal of the ejectment order without the missing transcript, he never formally amended his designation of record or notified plaintiff, nor did he follow up on the matter as the months passed and the appeal still remained undocketed. Accordingly, dismissal of both appeals was not an abuse of discretion. See Crocker v. Stevens, 210 Ga. App. 231, 240 (10) (435 SE2d 690) (1993); Burton, 204 Ga. App. at 19-20.

2. Defendant also challenges the propriety of the award of attorney fees against him and his attorney. This issue is not properly before us, however, since an award of attorney fees under OCGA § 9-15-14 is subject to discretionary appeal procedures. See OCGA § 5-6-35 (a) (10). An exception to this rule is made if the attorney fee award is appealed as part of an appeal from the underlying judgment. This is necessary where the basis for the award (i.e., the argument which the lower court said was frivolous) is itself the subject of review, lest the appellate court reverse the lower court’s decision on the “frivolous” argument on the merits, yet leave the award of attorney fees standing. See Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 526 (4) (a) (360 SE2d 566) (1987). But this exception does not apply here, because this appeal is from the dismissal of the prior appeal rather than from the underlying claim, and the basis for the award of attor ney fees — the frivolous nature of Boveland’s adverse possession defense under the circumstances of this case — is not in issue.

Decided June 18, 1997

Reconsideration denied July 11, 1997

Michael B. King, for appellant.

Sutherland, Asbill & Brennan, John A. Chandler, Ann G. Fort, for appellee.

3. Defendant’s remaining enumerations of error are without merit.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

The transcript still had not been filed at the time of the hearing on the motion to dismiss in September 1996.