McMILLIAN, Judge.
Ruth L. Ashley filed suit against JP Morgan Chase Bank, N.A. ("JP Morgan"), McCurdy & Candler, LLC, and McCalla Raymer, LLC (collectively the "Appellees") to set aside the foreclosure sale of her property. The trial court awarded summary judgment to defendants, and Ashley timely filed a notice of appeal. However, the trial court later dismissed her appeal because of a delay in filing the transcript of the proceedings. It is from that dismissal order that Ashley now appeals. For the reasons that follow, we affirm.
The record reflects that Ashley filed her suit against Appellees in August 2011. Shortly thereafter, the parties filed cross-motions for summary judgment, and following two hearings in November and December 2011, the trial court entered an order denying Ashley's motion for summary judgment and granting summary judgment to Appellees on September 24, 2012. Ashley then filed her notice of appeal on October 2, 2012, specifically appealing "the Trial Court's entire order of September 26, 2012 in its entirety" and requesting the clerk to "forward its entire file to the Georgia Court of Appeal[s] and exclude nothing from the record, including the transcript of the proceeding."
On October 23, 2012, after issuance of the bill of costs for the record on appeal (in the amount of $1025), Ashley moved to proceed in forma pauperis. The trial court entered an order granting Ashley's motion on January 9, 2013, instructing the clerk to "transmit the record of the within matter to the Georgia Court of Appeals without Plaintiff's payment of the cost bill." But it was not until March 25, 2013 that Ashley first contacted the court reporter who took down the two summary judgment hearings. In her March 25, 2013 letter, Ashley's counsel informed the court reporter that a copy of the transcript for the November 2011 hearing was needed for her appeal and asked her to "advise [her] of the cost of the transcript." Ashley's counsel further asked the court reporter to "let [her] know if the order of Judge Campbell approving the application for Ms. Ashley to proceed in forma pauperis will cover the cost of the transcript."
On March 27, 2013, the court reporter responded to Ashley's counsel via email, notifying her that the cost for the preparation of the November 2011 hearing transcript was estimated to be around $100 and explaining that she did not know whether Judge Campbell's order would cover the cost of the transcript. Ashley's counsel alleges that she did not receive this email because it was sent to her prior email address, which she had changed sometime between the November 2011 hearing and March 2013 when she contacted the court reporter. However, Ashley's counsel took no further steps to pay for the cost of the transcript, order the transcript, or otherwise contact the court reporter.
On June 4, 2013, JP Morgan filed a motion to dismiss Ashley's notice of appeal, arguing that Ashley failed to timely file the transcripts designated in her notice of appeal for inclusion in the record. JP Morgan's motion was supported by an affidavit of the court reporter. Finally, after receiving the motion to dismiss, Ashley's counsel submitted payment, via letter dated June 11, 2013, to the court reporter for the cost of the November 2011 hearing transcript. In her letter, Ashley's counsel called the court reporter's affidavit into question, stating, "Although you maintain in your affidavit that you forwarded an email to my attention on March 25, 2011, I did not receive the email as the email address
On July 3, 2013, Ashley filed the November 2011 hearing transcript, and on July 5 and July 22, 2013, Ashley filed various oppositions to JP Morgan's motion to dismiss. On September 4, 2013, the trial court entered an order granting the motion and dismissing Ashley's notice of appeal, making the following findings:
1. In her first and second enumerations of error, Ashley argues that the trial court erred in dismissing her appeal by failing to consider her indigent status and Uniform Superior Court Rule 41.3.
In the Interest of D.M.C., 232 Ga.App. 466, 467(2)(b), 501 S.E.2d 305 (1998). In addition,
(Citation and punctuation omitted.) Pistacchio v. Frasso, 314 Ga.App. 119, 121, 723 S.E.2d 322 (2012).
A trial court's ruling on whether an appeal is subject to dismissal will be reversed only for an abuse of discretion. McAlister v. Abam-Samson, 318 Ga.App. 1, 2, 733 S.E.2d 58 (2012). OCGA § 5-6-48(c) requires the trial court to "determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable before exercising its discretion in deciding whether to dismiss the appeal." (Citation and punctuation omitted.) Id. A delay of more than 30 days in filing a transcript is "prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable." (Citation and punctuation omitted.) Pistacchio, 314 Ga.App. at 121, 723 S.E.2d 322. The question of whether a delay was unreasonable "refers principally to the length and effect of the delay." (Citation and punctuation omitted.) Id. "Generally, a delay is unreasonable if it affects an appeal, either by directly prejudicing the position of a party... or by causing the appeal to become stale, for instance by delaying docketing and hearing in this court." (Citation and punctuation omitted.) Adams v. Hebert, 279 Ga.App. 158, 159, 630 S.E.2d 652 (2006).
To the contrary, "[i]t is well settled that the duty to order the transcript and to monitor timely the progress of the [court] reporter's office in transcript preparation is vested upon the appropriate appealing party." (Citation and punctuation omitted.) Mercer v. Munn, 321 Ga.App. 723, 726(1), 742 S.E.2d 747 (2013); see also Atlanta Orthopedic Surgeons v. Adams, 254 Ga.App. 532, 536, 562 S.E.2d 818 (2002) ("The burden for making sure the transcript was filed, not just paying for it, belonged to [Appellant]."). Therefore, even where an indigent appellant may be relieved of having to pay for the transcript, she still has the duty of diligently ensuring it is timely prepared. See Wright v. Southern Investment Properties, 204 Ga.App. 538, 538, 419 S.E.2d 764 (1992) ("It is the duty of the appellant to have the transcript prepared pursuant to OCGA § 5-6-41. The filing of a pauper's affidavit does not relieve the appellant in a civil action from such a duty."). Even where the State is obligated to pay for a trial transcript for an indigent criminal defendant who appeals, this Court has held that it is nonetheless the obligation of the defendant to take affirmative steps to request that a transcript be filed and the State billed. See Miller v. State, 222 Ga.App. 641, 642, 475 S.E.2d 690 (1996) ("In light of defendant's failure to take any steps to ensure the transcript was filed in a timely manner, regardless of who was going to pay for it, the trial court's findings were supported and its dismissal of the appeal was not an abuse of discretion.").
We also find Ashley's attempts to blame the court reporter for the delay in
This Court's docket for the January, April and September terms closes at noon on the 15th day of December, April and August, respectively.
(Citation and punctuation omitted.) Mercer, 321 Ga.App. at 726-727, 742 S.E.2d 747. Under these circumstances, we cannot say that the trial court abused its discretion in finding that the delay was unreasonable, inexcusable and caused by Ashley. See ACCC Ins. Co. v. Pizza Hut of Am., Inc., 314 Ga.App. 655, 659, 725 S.E.2d 767 (2012) (affirming dismissal of appeal where appellant did nothing from the time the notice of appeal was filed until approximately four months later to cause the transcript to be prepared).
2. In her third enumeration of error, Ashley argues that the trial court erred in failing to hold a hearing prior to dismissing her appeal. In support, she cites McCorvey Dev., Inc. v. D.G. Jenkins Dev. Corp., 260 Ga.App. 276, 581 S.E.2d 308 (2003). However, McCorvey was later overruled by this Court:
(Citation and punctuation omitted; emphasis in original.) Grant v. Kooby, 310 Ga.App. 483, 486-487, 713 S.E.2d 685 (2011) (expressly abrogating McCorvey and holding "it is no longer of any precedential utility" as to the hearing requirement). The record clearly reflects that Ashley was given an opportunity to file her various briefs in opposition to the motion to dismiss, all of which were considered by the trial court, and it does not appear from our review of the record that Ashley ever asked for a hearing. Therefore, this enumeration is without merit.
3. In her fourth enumeration of error, Ashley contends that the trial court erred in dismissing her appeal in the absence of any showing of prejudice to the Appellees. However, where Ashley's delay was prima facie unreasonable and she has failed to rebut that presumption, there is no requirement that Appellees prove they were prejudiced by the delay. See Mercer, 321 Ga.App. at 726, 742 S.E.2d 747 (finding dismissal of appeal warranted even where appellee was not directly prejudiced but appellant's failure to timely file transcript delayed docketing of the record in the appellate court and prevented an appellate decision on the merits at the earliest possible date). Accordingly, we find no error.
4. In her final enumeration of error, Ashley argues that the trial court erred in failing to consider the settlement negotiations of the parties that allegedly took place at some point after she filed her notice of appeal. However, this attempt to relieve
Judgment affirmed.
PHIPPS, C.J., and ELLINGTON, P.J., concur.