UNIFUND GENERAL, INC. v. Orr

Deen, Presiding Judge,

dissenting.

The trial court granted summary judgment for the appellees on *839April 21, 1988. On May 20, 1988, Unifund filed its notice of appeal, which designated the entire record for inclusion on appeal. On May 26, 1988, the appeals clerk mailed to Unifund the costs bill for preparing the appeal record, indicating that preparation of the appeal record would not begin until payment of the costs. Unifund received this bill on May 31, 1988. Unifund’s president contacted Unifund’s counsel on July 7, 1988, advising him that he had been told by the clerk’s office that it was behind, and requesting measures to be taken to reduce the size of the appeal record.

By July 15, 1988, Unifund still had not paid the costs, and the appellees filed their motion to dismiss pursuant to OCGA § 5-6-48 (c), on the grounds that Unifund had unreasonably and inexcusably delayed the appeal by failing to pay the costs bill in a timely manner. On July 18, 1988, Unifund’s counsel contacted counsel for the appellees to discuss reduction of the record on appeal. Unifund paid the costs bill on July 19, 1988, 49 calendar days and 34 business days after its receipt of the costs bill. After Unifund’s payment of the costs, the appeals clerk requested copies of documents which were listed on the docket but were not in the court’s file, and on July 21, 1988, Unifund mailed in those requested documents. The trial court denied the appellees’ motion to dismiss on August 29, 1988, and on September 22, 1988, the appeal was docketed with this court.

OCGA § 5-6-48 (c) provides that “the trial court may order the appeal dismissed where 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. . . .” This court has previously held that delays of over 30 days in paying the costs are prima facie unreasonable and inexcusable. Bouldin v. Parker, 173 Ga. App. 526 (327 SE2d 760) (1985); Jones v. State, 123 Ga. App. 672 (182 SE2d 190) (1971).

Unifund contends that (1) any delay was reasonable and excusable becausé of its efforts to reduce the appeal record, and (2) any delay in preparing the record was due to the backlog in the clerk’s office. I do not believe that the record supports either contention. Unifund made no effort to reduce the appeal record until after the appellees filed their motion to dismiss. Although the record contains an affidavit of the appeals clerk, taken after Unifund’s payment of the costs, stating that the delay in preparing the appeal record was due to the backlog of work in the clerk’s office, the record also contains a later affidavit of the same clerk stating that preparation of the appeal record did not begin until the costs were paid. Under these circumstances, a delay of 34 business days must be attributed to Unifund. No valid reason or excuse having been presented, I believe that the trial court abused its discretion in denying the appellees’ motion to dismiss. Jones v. State, supra.

*840Decided June 7, 1989. Weinstock, Scavo & Montalto, Michael Weinstock, John M. Bruce, for appellant. Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Craig A. Nance, for appellees.

Accordingly, I must respectfully dissent.

I am authorized to state that Presiding Judge Banke and Judge Birdsong join in this dissent.