Northeast Georgia Medical Center, Inc. v. Healthsouth Rehabilitation Hospital of Forsyth County, LLC

SECOND DIVISION
MILLER, P. J.,
BROWN and GOSS, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 29, 2018

In the Court of Appeals of Georgia
A18A1029. NORTHEAST GEORGIA MEDICAL CENTER, INC.
et al. v. HEALTHSOUTH REHABILITATION HOSPITAL
OF FORSYTH COUNTY, LLC.
A18A1030. GEORGIA DEPARTMENT OF COMMUNITY
HEALTH v. HEALTHSOUTH REHABILITATION
HOSPITAL OF FORSYTH COUNTY, LLC.

BROWN, Judge.

In these consolidated appeals, Georgia Department of Community Health (the

“Department”), Northeast Georgia Medical Center, Inc., Gwinnett Hospital System,

Inc. d/b/a Gwinnett Medical Center-Duluth, and WellStar North Fulton Hospitals,

Inc. (the “Hospital Respondents,” collectively the “appellants”) appeal the trial

court’s dismissal of their appeals from the trial court’s order reversing the

Department’s decision denying a certificate of need (“CON”) to HealthSouth

Rehabilitation Hospital of Forsyth County, LLC to build a 50-bed comprehensive
inpatient physical rehabilitation (“CIPR”) hospital in Forsyth County. The appellants

argue that the trial court abused its discretion in dismissing their appeals based on

findings that the delay in filing the hearing transcript was unreasonable, inexcusable,

and caused by the appellants. For the reasons set forth below, we affirm the trial

court’s order dismissing the appeals.

The record shows that on October 12, 2015, HealthSouth filed a petition for

judicial review in the Forsyth County Superior Court of the Department’s decision

denying HealthSouth’s application for a CON to build the CIPR. After the appellants

moved to transfer venue, the case was transferred to the Fulton County Superior

Court. Following a hearing on the petition on April 11, 2016,1 the trial court

remanded the case to the Department for it “to either make a ruling consistent with

its precedent or to explain its change from precedent” on three issues. On June 29,

2016, the Department filed a response to the trial court’s request for clarification,

disagreeing with the trial court that it departed from precedent and explaining its

reasoning with respect to each issue. On January 27, 2017, the trial court issued an

order, granting HealthSouth’s petition. The trial court found the Department’s

1
The record reflects that the Hospital Respondents all shared in the takedown
cost of the hearing, and that shortly thereafter, the court reporter prepared a copy for
HealthSouth at its request.

2
response regarding precedent deviation “unconvincing” and concluded that the

Department “acted arbitrarily and capriciously in denying [HealthSouth] a CON.”

On March 16, 2017, this Court granted the appellants’ applications for

discretionary review of the trial court’s January 27, 2017 order. Four days later,

counsel for Gwinnett Hospital System emailed the court reporter asking if she could

please let him know “if anyone in this matter asked that the full transcripts [of the

April 11, 2016 hearing] be prepared?” The court reporter responded, “I have a note

that it’s been done. Would you like a copy?”2 That same day, counsel for Gwinnett

Hospital System emailed counsel for the other three appellants as follows: “Good

news. The Court Reporter believes that she prepared the transcripts, so unless there

are any further changes, I will file the attached Notice tomorrow.”3

2
In its brief to this Court and during the motion to dismiss hearing,
HealthSouth states that counsel for Gwinnett Hospital System responded via email
on March 22, 2017, to the court reporter’s email asking if he would like a copy as
follows: “Yes please. Thank you.” But, we have found nothing in the record to
support this factual assertion, and the record cite in HealthSouth’s brief fails to
support it as well.
3
In the motion to dismiss hearing, HealthSouth’s attorney explained that
following the April 11, 2016 hearing, he ordered a copy of the transcript for the
purpose of preparing an order.

3
 As contemplated, on March 23, 2017, the Hospital Respondents and the

Department all filed their notices of appeal. In their joint notice of appeal, the

Hospital Respondents, represented by six lawyers from three law firms, stated the

following: “The Clerk will please transmit the entire record to the Court of Appeals

along with the attached Order granting the discretionary appeal. The Hospital

Respondents request that the Court also file the previously compiled transcript of the

April 11, 2016 hearing and oral argument held before this Court for inclusion in the

record on appeal.” (Emphasis supplied.) The Department’s notice of appeal provided,

“[t]he Clerk shall omit nothing from the record on appeal. A transcript of evidence

and proceedings will be filed for inclusion in the record on appeal.”

Also on March 24, 2017, the Clerk sent a cost bill in the amount of $29.50 to

counsel for Northeast Georgia Medical Center, by certified mail, return receipt

requested.4 Counsel did not receive the bill, averring that the Clerk mailed the bill to

an incorrect address: “303 Peachtree Street, Suite 3600, Atlanta, Georgia 30303.” The

zip code for his law firm is 30308, not 30303.5 Six days later, on March 29, 2017,

4
There is no evidence in the record of the return receipt showing that counsel
signed for the cost bill or that it was returned as undeliverable.
5
Counsel did not learn of this cost bill until June 23, 2017. While a 30303 zip
code is reflected on the actual cost bill, our review of the certified mail receipt

4
counsel for the Department received a cost bill, dated March 24, 2017, totaling

$4,135.50, which included a line item charge of $35, designated as “Transcript

Charges.” The appellants agreed to split the total cost amongst themselves, and on

April 20, 2017, counsel for the Department notified co-counsel that the cost bill had

been paid in full.

On April 23, 2017, 30 days after the notices of appeal were filed, the transcript

had not yet been filed and no party moved the trial court for an extension of time to

file the transcript. On May 19, 57 days after the notices of appeal were filed, counsel

for WellStar North Fulton Hospital called the Clerk’s office for the first time to

inquire as to the status of the appeal and was told that the transcript had not been

filed. Counsel for WellStar emailed her colleagues advising as follows: “I just talked

to the clerk’s office and was told that no transcript had been filed yet. I was told that

we should be notified when it is.” Another month went by before counsel for

WellStar called the Clerk’s office on June 22, 2017, but was unable to speak with

anyone. She called back on June 23, 2017, and was told that the transcript still had

not been filed and that there was an outstanding cost bill for $29.50 associated with

appears to list the correct zip code of 30308.

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Northeast’s notice of appeal.6 On that same date, counsel also emailed the court

reporter to inquire about the status of the transcript, but did not hear back. From July

5, 2017 to July 14, 2017, counsel made several attempts to contact the court reporter,

including speaking to her supervisors. On July 14, 2017, the court reporter left two

voicemails for counsel, the first stating, “‘I’d swear that this is done and I thought I

filed it. Let me take a look and I will call back and let you know,’” and the second

stating that “she had looked into it and the cost of the transcript would be $200.83.”

In her affidavit, counsel explained that when she called back, the court reporter

“indicated that we would need to pay her for a copy of the transcript for her to file it.”

On that same date, the court reporter emailed an invoice, which counsel paid via

check on July 17, 2017. By July 28, 2017, counsel had not heard from the court

reporter and left a voicemail asking for the status of the transcript.

On August 2, 2017, HealthSouth filed its motion to dismiss the appeals, on the

ground that the appellants had not filed the transcript as required by OCGA § 5-6-42.

On August 3, 2017, counsel for WellStar called the court reporter and was told that

6
On June 26, 2017, counsel asked the Clerk to mail the outstanding cost bill
to her attention. When counsel still had not received the cost bill by July 5, 2017, she
contacted the Clerk’s office and a copy was emailed to her. A check was drafted on
June 30, 2017, and counsel paid the outstanding cost bill on July 6, 2017.

6
she had not received the check for the transcript. The court reporter advised that she

had recently moved and was “having issues with her mail,” but that she would file the

transcript that day and work out payment later. On August 4, 2017, counsel received

confirmation from the court reporter that the transcript had been filed. Counsel paid

the court reporter over the phone with a credit card for the cost of the transcript. In

her affidavit counsel affirmed that, “[d]espite paying the so-called copy charge, to

date[, August 29, 2017,] I have not received a copy of the transcript from [the court

reporter].” On August 8, 2017, the envelope with the check counsel sent to the court

reporter on July 17, was returned as undeliverable.

Following a hearing on September 22, 2017, in which no witnesses testified,

the trial court granted HealthSouth’s motion to dismiss the appeals under OCGA §

5-6-48 (c), concluding that the delay in filing the transcript was unreasonable,

inexcusable, and caused by the appellants. Specifically, the trial court ruled that the

appellants

failed to provide evidence to show that the delay [in filing the transcript]
was not unreasonable[, and] that the 133 days that passed between the
filing of the Notices of Appeal and the filing of the transcript was
unreasonable. . . . The delay was also inexcusable and caused by [the
appellants]. The record shows that [the appellants] did not direct the
court reporter to file the transcript. Instead [the appellants] contend that

7
 they relied on the court reporter’s representation that the transcript had
previously been prepared as evidence that she would file the transcript.

The trial court further found that the appellants failed to monitor the timely progress

of the filing of the transcript; the appellants neither monitored the Clerk’s website,

nor did they contact the court reporter to ask about the status of the transcript until

June 22, 2017, two months after the filing deadline had passed. This appeal followed.

The relevant statutory framework governing appellate practice and the filing

of a transcript of the trial proceedings is as follows. OCGA § 5-6-37 requires that the

notice of appeal shall state whether or not any transcript of evidence and proceedings

is to be transmitted as part of the record on appeal. OCGA § 5-6-41 (c) provides that

“where an appeal is taken which draws in question the transcript of the evidence and

proceedings, it shall be the duty of the appellant to have the transcript prepared at the

appellant’s expense.”

OCGA § 5-6-42 elaborates on this duty, specifying that the appellant
must file the transcript within 30 days after the filing of the notice of
appeal unless the time is extended as provided by OCGA § 5-6-39. In
turn, OCGA § 5-6-48 (c) governs the dismissal of appeals and provides
that “the trial court may, after notice and opportunity for hearing, order
that the appeal be dismissed where there has been an unreasonable delay

8
 in the filing of the transcript and it is shown that the delay was
inexcusable and was caused by the appellant.”

(Citation and punctuation omitted; emphasis supplied.) Pistacchio v. Frasso, 314 Ga.

App. 119, 121 (723 SE2d 322) (2012). “Thus, the party seeking dismissal for failure

to file a transcript must show that the delay was unreasonable, inexcusable, and

caused by the appellants themselves.” (Citation and punctuation omitted.) ACCC Ins.

Co. v. Pizza Hut of America, 314 Ga. App. 655, 657 (725 SE2d 767) (2012).

“Appellants are not accountable for delays caused by clerks of court or court reporters

after the transcript has been ordered properly; appellants are held accountable only

for delays that they cause.” Morrell v. Western Svcs., 291 Ga. App. 369, 373 (2) (662

SE2d 215) (2008). But, as this Court has repeatedly held, “the statutory duty to file

timely a transcript does not rest with the court reporter; rather, the duty to order the

transcript and to monitor timely the progress of the reporter’s office in transcript

preparation is vested upon the appropriate appealing party.” Jackson v. Beech Aircraft

Corp., 217 Ga. App. 498, 502 (2) (458 SE2d 377) (1995). See also Ashley v. JP

Morgan Chase Bank, 327 Ga. App. 232, 236 (1) (758 SE2d 135) (2014); In the

Interest of D. M. C., 232 Ga. App. 466, 468 (2) (b), (c) (501 SE2d 305) (1998)

(rejecting appellant’s reliance on OCGA § 5-6-41 (e) where evidence showed counsel

9
took no affirmative steps to monitor appeal despite being told no transcript had been

filed and never receiving confirmation from this Court that appeal had been

docketed).

Our Supreme Court has said that a delay of more than 30 days in filing
a transcript is presumptively unreasonable and inexcusable, but that
presumption may be rebutted if the appellant comes forward with
evidence to show that the delay was neither unreasonable nor
inexcusable.

(Punctuation omitted; emphasis supplied.) ACCC, 314 Ga. App. at 657. A trial court’s

ruling on whether an appeal is subject to dismissal under OCGA § 5-6-48 (c) will be

reversed only for an abuse of discretion. Id. With this deferential standard of review

in mind, we now turn to the appellants’ enumerations of error.

1. The appellants first contend that the trial court abused its discretion in

dismissing their appeals when it found the delay in filing the transcript to be

unreasonable, ignoring evidence of the “misaddressed” cost bill, which they argue

would have been an independent cause of the belated docketing of the appeal in this

Court. We disagree.

In evaluating whether the delay was unreasonable, we consider both the length

and effect of the delay. See Pistacchio, 314 Ga. App. at 121.

10
 Delay is unreasonable where it may affect an appeal by: (a) directly
prejudicing the position of a party by allowing an intermediate change
of conditions or otherwise resulting in inequity; or (b) causing the
appeal to be stale, such as, by delaying just disposition of the case, by
preventing placement of the case on the earliest possible appellate court
calendar, or by delaying the docketing of the appeal and hearing of the
case by an appellate court.

(Citation and punctuation omitted.) Id. at 121-122. The appellants maintain that the

trial court ignored evidence of the “misaddressed” cost bill and/or misapplied the law

by finding that “[a]ny argument . . . as to whether the record could have been prepared

by . . . the end of the April term of court pursuant to Court of Appeals Rule 12, in

light of the misaddressed cost bill[,] is speculation. The courts will not consider such

speculation in determining whether delay is unreasonable. Postell v. Alfa Insurance

Corp., 332 Ga. App. 22, 26 [(2) (a) (i) (772 SE2d 793)] (2015).” In Postell, the

appellant argued that the delay was not unreasonable because the appeal could have

been prepared and transmitted in time to be docketed in the earlier term. Id. at 25-26

(2) (a). This Court rejected appellant’s argument as speculative. Id. See also

Pistacchio, 314 Ga. App. at 122 (rejecting as speculative appellants’ argument that

the delay was not unreasonable because it did not cause the appeal to be docketed into

a later term).

11
 The Department alleges that the trial court’s analysis is backwards:

Instead of rejecting the speculative argument that the record could have
been prepared within the limited time remaining in the term, the [trial]
court relied on this speculation to dismiss the appeal. Any assumption
here that the record would have been transmitted to this Court in time
for docketing in the August term, despite the misaddressed cost bill,
rests on speculation.

We are not persuaded by appellants’ contention that the trial court relied upon

speculation to dismiss their appeal. The trial court clearly found that the

“misaddressed” cost bill did not support the appellants’ contention that the delay in

filing the transcript was not unreasonable and this finding is supported by the record.

The appellants failed to come forward with any affidavits or testimony from a Court

of Appeals or Fulton County Superior Court clerk that the appeal could not have been

docketed within an earlier term of court.7 Accordingly, the appellants have failed to

7
Moreover, as indicated above, the trial court noted in its order that the
appellants failed to monitor the timely progress of the filing of the transcript,
including failing to monitor the Clerk’s website. Specifically, the trial court noted that
“the evidence shows that [the appellants] did not take any action such as monitoring
the Register of Actions page on the Clerk’s Office’s website to verify whether the
court reporter had filed the transcript.” As HealthSouth’s attorney stated during the
motion to dismiss hearing without objection from appellants,

as Your Honor is well aware, the Superior Court of Fulton County

12
rebut the presumption that the 133-day delay in filing the transcript was unreasonable.

See ACCC, 314 Ga. App. at 658-659 (no evidence presented from clerk or staff to

support appellant’s claim that delay in filing transcript was not unreasonable because

appeal inevitably would have been delayed by a maternity leave within the trial

court’s appeals division). Compare Atlantic Geoscience v. Phoenix Dev. and Land

several years ago went to a publicly available docket system and
electronic filing on that docket and the docket is publicly available
online and it is updated in real-time. . . . It is a very robust database that
shows what has been filed in any case at any point in time. And the
evidence would also show that we don’t see that the appellants took a
look at the docket to see whether the transcript had been filed.

And again noted in its brief:

[A]ll court filings in the Fulton County Superior Court are publicly
available for viewing at justice.fultoncountyga.gov, which is updated in
real time. . . . [N]ot only is the register of actions complete and updated
in real time, but it also clearly shows two separate cost bills issued on
March 24, 2017, [only one of which] was paid on April 20, 2017, while
[the other] remained outstanding until processed on July 11, 2017. The
register also showed no transcript had been filed.

The implication is that had the appellants properly monitored the Register of Actions
page, they would have learned that the transcript had not been filed and that the
“misaddressed” cost bill had not been paid.

13
Investment, 341 Ga. App. 81 (799 SE2d 242) (2017) (affirming denial of motion to

dismiss appeal under OCGA § 5-6-48 (c) where undisputed evidence showed that

transcripts could not have been prepared because of court reporter’s health).

In a related enumeration, the Hospital Respondents separately contend that the

trial court erred by failing to make any findings that HealthSouth was prejudiced by

any delay. But, as set out above, a delay in transmitting the appellate record will be

found unreasonable where it directly prejudices the position of a party or causes the

appeal to be stale by preventing its placement on the earliest possible appellate

calendar or by delaying its docketing in the appeals court. See HTTP Hypothermia

Therapy v. Kimberly-Clark Corp., 330 Ga. App. 857, 860 (768 SE2d 542) (2015);

Pistacchio, 314 Ga. App. at 121-122. “Indeed, we have repeatedly recognized that

justice delayed for even one day is justice denied to the litigant who was successful

in the lower court and who is entitled to his judgment unless the case is properly

reversed.” (Punctuation and footnote omitted.) Callaway v. Garner, 340 Ga. App.

176, 179 (796 SE2d 906) (2017). As we have previously explained, the appellants

have failed to meet their burden of showing that the delay was not unreasonable due

to delayed docketing in this Court.

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 2. The appellants next contend that trial court erred in finding the delay

inexcusable and rejecting their good faith belief that the transcript had been filed. In

support of this contention, the appellants rely on (a) counsel’s collective past

appellate experience, (b) the manual for court reporters in Fulton County Superior

Court, (c) a fee schedule for services of court reporters published by the Judicial

Council of Georgia, (d) the cost billing form received from the Clerk, and (e) OCGA

§ 5-6-41 (c). But, none of this evidence rebuts the presumption that the delay was

inexcusable.

What the evidence shows is that counsel for Gwinnett Hospital System failed

to follow-up with the court reporter when she asked if he wanted a copy of the

transcript and then filed a notice of appeal requesting that the trial court file the

“previously compiled transcript.” Regardless of counsels’ collective past experience,

it is not the duty of the trial court or the court reporter to file the transcript on behalf

of an appellant. See OCGA §§ 5-6-41 (c) and 5-6-42. Moreover, neither the manual,

the fee schedule, nor OCGA § 5-6-41 (c) relieve the appellants of their duty to have

the transcript prepared at their expense and to file it within 30 days after the filing of

their notice of appeal.

15
 Similarly, the appellants are not absolved of these duties simply because they

learned that HealthSouth had requested a transcription of the hearing. The appellants

contend that the delay here was even more justified than the delay in other cases

because the transcript in this case already had been prepared; the trial court should

have given proper weight to the fact that the appellants believed the transcript had

been filed because it already had been transcribed. We disagree.8 The evidence before

the trial court authorized it to conclude that the appellants’ “good faith [belief] that

the court reporter would file the transcript because it had already been prepared does

not excuse [the appellants’] failure to follow-up with the court reporter at any time

before the end of the 30[-]day filing deadline.”

The trial court also was authorized to reject appellants’ claim that the line item

for transcript charges in the cost bill justified their belief that the transcript had been

filed. In Allan v. Jefferson Lakeside, 333 Ga. App. 222, 223-225 (1) (775 SE2d 763)

(2015), this Court reversed the dismissal of an appeal where the cost bill form

included a line item charge designated as “‘Transcript.’” Id. at 224 (1). In that case,

8
We reiterate the trial court’s observation that the appellants easily could have
monitored the “Register of Actions page” on the Fulton County Superior Court
Clerk’s website/online docket to verify whether the transcript had been filed in the
case.

16
however, counsel ordered the transcript from the court reporter, inquired as to the cost

for preparation, and continually followed-up with the clerk before the 30-day

deadline. Id. at 224-225 (1). In this case, not one of the appellants’ six attorneys

monitored the status of the appeal until May 19, 2017, 27 days after the deadline for

filing the transcript, at which point counsel for all the appellants were put on notice

that the transcript had not been filed. Despite this knowledge, the appellants then

waited another month to attempt to remedy the problem. The trial court did not abuse

its discretion in finding the delay inexcusable.

3. The appellants next contend that the trial court abused its discretion in

finding that they caused the delay in filing the transcript. They argue that the evidence

shows the transcript had been completed by the court reporter, but that the court

reporter did not file it as required by OCGA § 5-6-41 (e). We find no merit in this

enumeration.

Here, the appellants did not properly order the transcript. There is no evidence

that they followed-up with the court reporter’s March 20 email or paid for the

transcript before the 30-day deadline. There is ample evidence set out above

demonstrating that the appellants caused the delay in filing the transcript and the trial

court did not abuse its discretion in so finding. Compare Alpha Balanced Fund v.

17
Irongate Performance Fund, 342 Ga. App. 93, 96 (802 SE2d 357) (2017) (delay not

caused by appellant where possible glitch in new electronic filing system prevented

transcript from being filed, and evidence showed that appellant’s attorneys asked for

transcript to be filed, submitted a check for the transcript, and received a copy of the

transcript).

4. Relying on Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990),

the Hospital Respondents separately contend that the trial court improperly relied on

the appellants’ failure to request an extension pursuant to OCGA § 5-6-42 in finding

dismissal appropriate. There is no merit in this argument. In Baker, the Georgia

Supreme Court remanded the case because the trial court made no finding as to

whether the appellant caused the delay, basing its dismissal of the appeal solely on

appellant’s failure to seek an extension. Id. at 116. As set out extensively above, the

trial court here did not base its dismissal of the appeal solely on the appellants’ failure

to request an extension.

Judgment affirmed. Miller, P. J., and Goss, J., concur.

18