author: Miller, Judge. ANDREWS, Presiding Judge,

text:
    A15A0201.
    TOYO TIRE NORTH AMERICA MANUFACTURING, INC. v. DAVIS et al.
    (775 S.E.2d 796)
   Miller, Judge.

Duron and Lynn Davis (“the Davises”) filed suit against Toyo Tire North America Manufacturing, Inc. (“Toyo Tire”), asserting claims for trespass, continuing trespass, and nuisance, arising out of Toyo Tire’s operation of a tire manufacturing facility in close proximity to real property that the Davises own and where they reside. Toyo Tire filed a motion for summary judgment, which the trial court denied. The trial court certified its order for immediate review, and we granted Toyo Tire’s application for interlocutory review. On appeal, Toyo Tire contends that it was entitled to summary judgment. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga. App. 362 (739 SE2d 801) (2013).

So viewed, the evidence shows that the Davises own and reside on property located at the intersection of U. S. Highway 411 and Shinall Road in Bartow County (the “Property”). The Davises have lived on the Property since 1995. The Toyo Tire manufacturing facility at issue is located on the other side of Highway 411 from the Property, 1,000 feet or less from the Davises’ house.

Construction on the facility began in 2004 and was completed in 2005. Toyo Tire’s facility began operating in January 2006. The Davises subsequently hired counsel, who sent a letter to Toyo Tire on the Davises’ behalf on October 25,2007. The Davises’ counsel enclosed a draft complaint asserting claims for trespass, nuisance, and negligence but stated that the Davises wished to pursue an amicable resolution of the matter and, as such, were requesting that Toyo Tire purchase their home.

The Davises filed their complaint in the instant action on February 27, 2013. The complaint alleges that, since Toyo Tire began operating the manufacturing facility, the Davises have been subjected to: constant noise from, among other sources, truck traffic in and out of the facility, backup alarms on vehicles at the facility, and the facility itself; lights from the truck traffic, equipment and the facility itself; black dust that invades the Property, believed to be carbon black; foul odors from the facility; drastically increased traffic on Highway 411 and Shinall Road from trucks entering and leaving the facility and employees going to and from work; and the unsightliness of the facility.

The record reflects that Toyo Tire’s operations have expanded over time. Toyo Tire’s president and plant manager testified that the Toyo Tire facility and operations have grown in several phases. The initial phase, Phase I, was completed in October 2006, and at that time, the plant was producing approximately 3,000 tires a day and approximately 90,000 per month. In 2008, the facility reached a production level of approximately 4,500 tires a day and approximately 135,000 per month after Phase II, an internal expansion involving the addition of equipment, was complete. By the time a Phase III expansion was completed in the summer of 2011, the factory was producing approximately 13,500 tires a day, 400,000 tires per month, and 4.7 million tires per year. Between 2006 and 2011, the number of employees at the facility increased from approximately 350 or 400 to 1,000. At the time of the plant manager’s deposition, March 10, 2014, Toyo Tire had initiated a Phase IV expansion that was expected to bring production to between 6.7 to 7 million tires per year and the number of employees at the factory to roughly 1,450.

1. Toyo Tire contends that all of the Davises’ claims are barred by the four-year statute of limitation. OCGA § 9-3-30. We disagree.

The resolution of this issue is controlled by the Supreme Court of Georgia’s decision in Cox v. Cambridge Square Towne Houses, Inc., 239 Ga. 127 (236 SE2d 73) (1977). In Cox, a storm drain system was installed in an apartment complex owned by the defendant. Id. at 127. More than four years later the plaintiff, a neighboring property owner, filed a trespass action against the apartment complex owner, alleging that the drain system had increased the flow of surface waters across his land. Id. The trial court granted summary judgment for the defendant on the basis that the action was barred by the four-year statute of limitation applicable to actions for trespass upon or damage to realty. Id. Relying on the Restatement of Torts, our Supreme Court reversed. Id. at 129.

The Supreme Court first quoted Section 930 of the Restatement, which addresses damages for future invasions on land, as follows:

(1) Where, by the maintenance of a structure on his own land or by acts and operations thereon, a person causes continuing or recurrent tortious invasions of the land of another, the other is entitled to recover for future [invasions] if, and only if, it appears that (a) the situation will continue indefinitely and (b) it is incident to (i) an enterprise affected with a public interest, the operation of which as presently operated will not be enjoined, or (ii) other enterprises if the injured person so elects.

Id. at 128, quoting Restatement of Torts § 930. It went on to discuss comment d. to Section 899. Id. Comment d. begins by explaining that “when there is a series of harms caused by the existence of a structure or by the operation of a business outside the land, the time when the statute of limitations begins to run depends upon the rules ... stated in § 930.” Restatement of Torts § 899, cmt. d. Comment d. first explains the accrual rules that apply “[i]n cases where a public utility or governmental agency erects a harmful structure ... or conducts a harmful activity,... and the interference with the plaintiff’s interests is not abatable by a proceeding in equity.” Restatement of Torts § 899, cmt. d. The portion of comment d. upon which the Supreme Court relied in Cox, however, concerns “other cases when there is a series of continuing harms.” The comment explains that in these other cases, “the plaintiff, under the rule[ ] stated in ... § 930 has an election to recover or is permitted to recover damages only for harm to the use of the land up to the time of trial. In cases of this type, the statute does not run from the time of the first harm except as to the harm then caused.” Id.; Cox, supra, 239 Ga. at 128. The Supreme Court in Cox found that it clearly appeared from the record that the situation giving rise to the alleged interference would continue indefinitely such that the plaintiff could elect whether to sue for damages incurred in the past four years or seek all damages, past and prospective. Cox, supra, 239 Ga. at 129. It then construed the relevant portion of comment d., set forth above, as providing that in either event, the statute of limitation “does not preclude recovery for any damages save those which were suffered more than 4 years prior to the filing of the suit.” Id.

The same Restatement rules the Supreme Court relied upon in Cox have been carried forward in the Restatement (Second) of Torts, which the Supreme Court has more recently used to guide its decisions on statute of limitation issues in nuisance cases. See Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333-337 (2), (3) (711 SE2d 641) (2011); City of Atlanta v. Kleber, 285 Ga. 413, 417 (1) (677 SE2d 134) (2009).

Here, the evidence establishes that the Toyo Tire facility is continuing to grow and expand, and while Toyo Tire claims that certain invasions alleged by the Davises cannot be proved or are not actionable, it does not generally dispute that the Davises’ allegations relate to invasions that are enduring in character and not readily alterable. See Restatement (Second) of Torts § 930, cmt. b. (“When the private structure or enterprise that is producing the invasions is substantial and relatively enduring in character and not readily alterable so as to avoid future injury, its maintenance or operation ordinarily indicates that the owner intends to continue indefinitely to cause invasions upon the neighboring land.”). Applying Cox, we conclude that the “permanence” of the invasions alleged here would entitle the Davises to elect to recover all available past and prospective damages but that the Davises’ claims are not time-barred except as to damages for past invasions occurring more than four years before they filed their complaint.

Contrary to Toyo Tire’s arguments, Oglethorpe Power, supra, and Kleber, supra, do not require a different result. In each of those cases, the Supreme Court applied the analytical framework the Restatement (Second) of Torts provides for determining when a nuisance claim accrues against an entity providing an essential public service, such as electricity or railroad transportation. For example, both cases relied upon comment c. to Section 930, which explains when a nuisance caused by such an entity is considered non-abatable. See Oglethorpe Power, supra, 289 Ga. at 334 (2); Kleber, supra, 285 Ga. at 417 (1). That comment states:

Damage to neighboring landowners is frequently incident to the construction and operation of establishments employed in necessary public service, which nominally have the right of taking land by eminent domain. A railway embankment with an inadequate culvert diverts water upon nearby land; a municipal electric plant sends smoke and fumes into homes and factories; a city sewage disposal system pollutes a stream to the injury of bordering landowners. If the damage results from some minor feature of construction or management, so that it could be averted at .slight expense, the normal remedy of successive actions for past invasions or relief by injunction would alone be available, as is also true if the harm results from an improper and unnecessary method of operation. But if the invasions are caused by some substantial and relatively enduring feature of the plan of construction or from an essential method of operation, then it will usually not be abatable by injunction and the desirability of granting the injured person complete compensation for past and future invasions is apparent.

(Emphasis supplied.) Restatement (Second) of Torts § 930, cmt. c. In Oglethorpe Power, supra, the Supreme Court also relied on the portion of comment d. to Section 899, which states, among other things:

In cases in which a public utility or governmental agency erects a harmful structure such as a bridge or conducts a harmful activity such as opening a sewer that pollutes a stream and the interference with the plaintiff’s interests is not abatable by a proceeding in equity, the statutory period normally begins when the structure is completed or the activity is begun.

(Emphasis supplied.) Restatement (Second) of Torts § 899, cmt. d.; Oglethorpe Power, supra, 289 Ga. at 333 (2). Cox, supra, by contrast, sets forth the statute of limitation analysis we must apply when an alleged nuisance is created by a private entity that is not engaged in providing a necessary public service. See Provident Mut. Life Ins. Co. of Philadelphia v. City of Atlanta, 938 FSupp. 829, 834 (N.D. Ga. 1995).

Thus, under Cox, the “permanence” of the alleged invasions entitled the Davises to recover all available past and prospective damages, and their claims are not time-barred except as to damages for past invasions occurring more than four years before they filed their complaint.

2. Toyo Tire next contends the Davises failed to show that the alleged nuisances and trespasses proximately caused their property to decrease in value. We disagree.

Causation is an essential element of nuisance, trespass, and negligence claims. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.

(Footnote omitted.) Alexander v. Hulsey Environmental Svcs., Inc., 306 Ga. App. 459, 462 (3) (702 SE2d 435) (2010). “The existence of proximate cause is a question of fact for the jury, except in palpable, clear, and indisputable cases.” (Punctuation and footnote omitted.) Sprayberry Crossing Partnership v. Phenix Supply Co., 274 Ga. App. 364, 365 (1) (617 SE2d 622) (2005).

Here, the Davises submitted the opinion testimony of a property appraiser familiar with properties in Bartow County. The expert appraiser opined that the fair market value of the Property would be $280,000 if not located directly across the street from the Toyo Tire facility, and the property’s value depreciated between 40 and 50 percent because of its proximity to the Toyo Tire facility. The appraiser also testified that, out of the total reduction in value, between 15to25 percent was attributable to particulate emissions contributed in the reduction in value.

Toyo Tire does not challenge the appraiser’s qualifications, but rather argues that the appraiser did not specifically testify that any diminution in value was caused by the alleged nuisances and trespasses. Toyo Tire also argues that the appraiser expert’s opinion was without foundation and, therefore, lacked probative value.

The appraiser testified, however, that he was charged with determining the diminution in value given the communicated characteristics of the Toyo Tire facility’s operations, including the round-the-clock shifts, heavy traffic, and the light and noise from the facility. While the appraiser did not independently analyze the amount of noise, light, or pollution affecting the Property, he could base his opinion on the information that was communicated to him. See OCGA § 24-7-703 (“The facts or data in the particular proceeding upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.”); see also Humphrey v. Morrow, 289 Ga. 864, 872 (II) (B) (1) (717 SE2d 168) (2011) (an expert witness may rely on the statements of others in forming his or her expert opinion).

Moreover, notwithstanding Toyo Tire’s challenges to the expert appraiser’s basis for determining the diminution in value, this presents no basis for excluding the expert’s opinion on summary judgment, because any deficiencies in the expert’s opinion go to the weight and credibility of his testimony.

[Even] if the expert’s opinion was based upon inadequate knowledge, this does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion. If it be developed that the opinion is based on inadequate knowledge, this goes to the credibility of the witness rather than to the admissibility of the evidence. The weight given to expert testimony in negligence cases is for the trier of fact who can, but is not required to give it controlling influence.

(Citations and punctuation omitted.) Layfield v. Dept. of Transp., 280 Ga. 848, 851 (1) (632 SE2d 135) (2006) (reversing this Court’s affirmance of summary judgment to the movant because this Court incorrectly determined that the plaintiff’s expert’s testimony lacked sufficient information to reach a probative opinion). Furthermore, “[t]he appropriate standard for assessing the admissibility of the opinion of an expert is not whether it is speculative or conjectural to some degree, but whether it is wholly so.” (Punctuation and footnote omitted.) Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 862 (2) (b) (686 SE2d 455) (2009).

Given the expert witness’s testimony that he considered the characteristics of Toyo Tire’s facility that give rise to the alleged nuisance and trespass claims, his opinion on the diminution of the value of the Property was not wholly speculative. Therefore, the Davises, as the nonmoving parties, presented sufficient evidence to defeat Toyo Tire’s motion for summary judgment. See Lay field, supra, 280 Ga. at 850 (1) (in the summary judgment context, a nonmoving party is “not required to produce evidence demanding judgment [in their favor], but only to present evidence which raises a material issue of fact”) (citation and punctuation omitted).

3. Toyo Tire contends that it is entitled to summary judgment on the Davises’ claims to the extent they are premised on the Property’s exposure to carbon black emanating from Toyo Tire’s facility because the Davises have no proof that black dust on their Property came from Toyo Tire or is carbon black. We disagree.

It is undisputed that carbon black is a filler and reinforcement material used in large quantities in the tire-manufacturing process at the Toyo Tire facility. For example, in December 2012, 3,999,563 pounds of carbon black were used at the Toyo Tire facility. It is also undisputed that Toyo Tire has an air quality permit from the Georgia Department of Natural Resources (“DNR”) permitting the discharge of particulate matter into the environment. There is evidence in the record that Toyo Tire uses dust collection systems on the mixing lines where carbon black is introduced into the mixing process and that an outside company performed an evaluation of the particulate emissions from three dust collectors in February 2008. While the evaluation demonstrated that the particulate emissions from the dust collectors were below permitted limits, it also provides some evidence that carbon black in at least some amount is emitted in the normal course of operations at the Toyo Tire facility. The record also includes January 30, 2013, July 28, 2011, and January 29, 2008 reports in which Toyo Tire informed the DNR of filter ruptures resulting in brief releases of carbon black dust into the atmosphere.

Here, the Davises testified that they began to observe black dust on the Property after the Toyo Tire facility began operating. Duron Davis recalled first observing the dust during a family gathering in or around the summer of 2007. He testified that his grandchildren were running in the grass, and the adults noticed that everywhere the children ran they were kicking up black dust. The children’s shoes were covered in black and were difficult to clean. Lynn Davis recalled the same event. Duron Davis testified that he sometimes buys and sells motor homes and that if he left one on the Property for long, it would become black and would be difficult to clean. He also recalled pulling an apple off of one of his apple trees that was completely black and that his air conditioning system became clogged with a sticky black substance. Lynn Davis testified that the black dust is on anything outside that you wipe down.

Given the evidence of Toyo Tire’s use and emission of carbon black, the very close proximity of the Davises’ home to Toyo Tire’s facility, and the Davises’ testimony about observing the black dust after the facility began operations, we conclude that a fact issue exists as to whether the black dust the Davises have observed emanates from the Toyo Tire facility and is carbon black.

4. Toyo Tire next contends that the Davises may not recover damages for both diminution in value to their property and personal discomfort and annoyance. It is well settled, however, that a plaintiff in an action for nuisance may recover for both damage to person and damage to property. See City of Atlanta v. Hofrichter/Stiakakis, 291 Ga. App. 883, 890 (4) (663 SE2d 379) (2008); see also OCGA § 41-1-4. Moreover, this argument is premature because it presumes that the jury will award the Davises the damages it seeks on both claims. See Edwards Bros., Inc. v. Overdrive Logistics, Inc., 260 Ga. App. 222, 224 (2) (581 SE2d 570) (2003).

5. Toyo Tire, citing Oklejas v. Williams, 165 Ga. App. 585 (302 SE2d 110) (1983), contends that it was entitled to summary judgment in its favor to the extent that the Davises’ nuisance claim is based on the alleged unsightliness of the Toyo Tire facility. We held in Oklejas that the trial court should have granted the defendant’s motion for directed verdict on the plaintiff’s nuisance claim that was based on the construction of an unsightly wall in between the parties’ properties. 165 Ga. App. at 586 (1). We recited the principle that “the unsightliness of adjacent property alone, tending to devalue the adjoining property, is not such inconvenience as to amount to a nuisance for which an injunction will lie or damages recovered.” (Citations and punctuation omitted.) Id. Oklejas is inapposite, however, as the unsightliness of the Toyo Tire facility is only one aspect of the nuisance the facility allegedly has created. See Segars v. Cleland, 255 Ga. App. 293, 295 (1) (564 SE2d 874) (2002) (distinguishing Oklejas and concluding that unsightliness of roof on house next to plaintiff’s home was among evidence supporting jury’s finding that house constituted nuisance); see also Sowers v. Forest Hills Subdivision, 294 P3d 427, 432, n. 5 (Nev. 2013) (aesthetics-based complaints can be one of several factors to consider in determining the presence of a nuisance). This enumeration of error is without merit.

6. Similarly, Toyo Tire contends that the Davises cannot base their nuisance claim on an alleged increase in traffic caused by the Toyo Tire facility. We disagree.

Even if a nuisance claim based on increased traffic alone would not be viable, the Davises’ nuisance claim identifies increased traffic as only one of the circumstances creating a nuisance. Compare Goddard v. Irby, 255 Ga. 47, 48 (3) (335 SE2d 286) (1985) (trial court did not err in granting summary judgment for defendant on nuisance claim when plaintiff’s only assertion of nuisance was that construction of the townhouses on neighboring lot would lead to an increase in traffic congestion in front of his property) and Prairie Hills Water and Dev. Co. v. Gross, 653 NW2d 745, 752 (S.D. 2002) (trial court authorized to conclude that noise, dust and large vehicle traffic associated with sandblasting business in residential neighborhood constituted nuisance); Fugazzoto v. Brookwood One, 325 S2d 161, 162 (Ala. 1976) (increased traffic may be one element of a nuisance action).

7. Since the Davises concede on appeal that their trespass claim is premised solely on the alleged invasion of their property by black dust, Toyo Tire’s remaining enumeration of error is moot.

In sum, the trial court properly denied Toyo Tire’s motion for summary judgment because the Davises presented sufficient evidence to demonstrate that they had viable claims. Accordingly, we affirm.

Judgment affirmed.

Barnes, P. J., Ellington, P. J., and McFadden, J., concur. Dillard, J., concurs in judgment only. Branch, J., concurs fully in Divisions 1 and 3-7 and dissents to Division 2. Andrews, P. J., concurs in judgment only in Divisions 1 and 3- 7 and dissents to Division 2.

ANDREWS, Presiding Judge,

dissenting in part.

I respectfully dissent to Division 2 because Plaintiffs’ expert appraiser has not offered an opinion that even addresses whether Plaintiffs’ property has suffered a diminution in market value caused by the alleged invasions at issue in this case and Plaintiffs have no other evidence of diminution in market value.

Plaintiffs’ appraiser testified that the fair market value of the Property would be $280,000 if the Toyo Tire facility were not located directly across the street but that its proximity to the Toyo Tire facility caused a market value depreciation of between 40 and 50 percent. The expert explained that in reaching his valuation conclusion, he relied in part on a paired sales analysis, which involved looking for pairs of sales of two similar houses, one of which was located in very close proximity to an industrial facility in or near Bartow County and the other far away from it but still in the same general market area. He ultimately relied on three paired sales, which included pairs of houses located close to and far from Dobbins Air Force Base, a Budweiser plant, and a Shaw plant. The expert testified that the purpose of the analysis was to measure whether there was “any diminution in value to a residential property from being close to industry or a plant or something like that.” He stated that the paired sales analysis showed that the closer a house is to an industry, the greater the depreciation. Based on that analysis and considering the general agricultural and residential character of the area, the expert testified that 35 to 40 percent of the reduction in value he found in this case comes from the mere presence of the Toyo Tire facility across the street from Plaintiffs’ home. The expert testified that the emission of particulates could cause a further reduction in value of up to 50 percent.

The expert admitted that in reaching his conclusions he did not consider the amount of light coming onto the Property from the Toyo Tire facility or the amount of traffic, amount of noise, or any particular odors Plaintiffs were experiencing. He testified that he had never seen the complaint in this case or talked to Plaintiffs, and while he was aware of the general nature of the disturbances Plaintiffs were complaining about, he admitted, among other things, that he had no idea what kind of noise Plaintiffs were complaining about and could not recall with specificity anything Plaintiffs’ counsel had communicated to him about the odors affecting Plaintiffs. The expert did not visit any of the properties involved in his paired sales analysis, and, apart from noise and problems with airplanes dumping fuel from the air near Dobbins Air Force Base, he could not identify any factors other than proximity that would cause a reduction in value in properties close to the other industrial sites involved in his analysis. With respect to his opinion that particulate emissions from Toyo Tire could cause a further reduction in the Property’s value, the expert stated that he was relying on his experience in another case determining the depreciation in value to properties exposed to concrete dust from a nearby concrete recycling plant. But he testified that he had not done any specific analysis regarding the alleged particulate on the Property, stating only that “if in fact this is an analogous situation [to the case involving concrete dust]... there’s a reasonable probability it will sell. . . for 15 to 25 percent less.”

While Plaintiffs’ appraiser’s valuation may validly reflect the reduction of value that may result from a residential property’s proximity to an industrial site generally, that is not an issue presented in this case. Rather, the issue presented is whether the specific invasions allegedly caused by the Toyo Tire facility and its operations proximately caused a diminution in market value. Plaintiffs’ appraiser admittedly did not gather any evidence about the specific invasions involved here or conduct any analysis of whether the other industrial sites in his paired sales analysis involved similar situations. Although Plaintiffs’ appraiser has prior experience in a different case involving concrete dust, he admitted that he simply applied the same reduction in value finding from that case to Plaintiffs’ Property based on a hypothetical assumption that the situations were similar. Given the methodology involved in his appraisal, any opinion that Plaintiffs’ appraiser were to offer that the prospect of future invasions caused by the Toyo Tire facility has reduced the value of Plaintiffs’ Property would be speculative and without foundation or probative value. See Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 305 (425 SE2d 380) (1992). Likewise, to allow a jury to base a damages award on his valuation opinions would be to invite an exercise in speculation, since the jury would be left to guesswork to determine what portion, if any, of the diminution in value he found could be attributed to the tortious conduct at issue.

Decided July 16, 2015

Archer & Lovell, David G. Archer; Morris, Manning & Martin, Robert P. Alpert, Brian M. Blythe, for appellant.

Akin & Tate, W. Morgan Akin, S. Lester Tate III, for appellees.

Causation is an essential element of nuisance [and] trespass . . . claims .... A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

(Punctuation and footnotes omitted.) Lore v. Suwanee Creek Homeowners Assn., 305 Ga. App. 165,172 (2) (699 SE2d 332) (2010). I would hold that the trial court erred in failing to grant partial summary judgment for Toyo Tire on the issue of Plaintiffs’ right to recover damages for prospective diminution in market value.

I am authorized to state that Judge Branch joins in this dissent.

       The Davises stipulated that any claim based on an alleged diversion of the natural flow of surface water on their property was barred by the statute of limitation, and the trial court granted summary judgment for Toyo Tire on that issue.

       That section sets forth the general principle that “[a] cause of action for a tort may be barred through lapse of time because of the provisions of the statute of limitations.” Restatement of Torts § 899.

       Section 930 has been reworded in the interest of clarity. See Restatement (Second) of Torts § 930, reporter’s note.

       Toyo Tire further argues for the first time on appeal that it may rely on Oglethorpe Power, supra, and Kleber, supra, because it qualifies as an “enterprise . . . affected with a public interest” under Restatement (Second) of Torts § 930. We need not consider arguments raised for the first time on appeal. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002).

       The plant manager explained that carbon black is a soot-like material that is manufactured from the carbon black oil that is produced in the oil refining process.


source: Caselaw Access Project

author: Branch, Judge. ANDREWS, Presiding Judge,

license: Public Domain

text:
    A15A0246, A15A0247.
    ALLAN et al. v. JEFFERSON LAKESIDE, L.P; and vice versa. ALLAN et al. v. JEFFERSON LAKESIDE, L.P.
    A15A0479.
    (775 S.E.2d 763)
   Branch, Judge.

A three-year-old boy drowned when his uncle drove the car in which the uncle, the boy’s father, and the boy were all riding into a lake at the apartment complex where the father and son lived. The parents of the boy, Allan Ali Allan and Abeer Allan (the Allans), brought this wrongful death and negligence action against their landlord and the owner of the complex, Jefferson Lakeside, L.P. In Case No. A15A0246, the Allans appeal the trial court’s grant of summary judgment to Jefferson Lakeside; in Case No. A15A0247, Jefferson Lakeside cross-appeals the denial of its motion to exclude an expert’s testimony ruling. After the Allans had filed their notice of appeal, however, the trial court dismissed that notice on the ground that they had not timely completed the record. In Case No. A15A0479, we reverse the dismissal of the Allans’ notice of appeal, but we affirm the grant of summary judgment to Jefferson Lakeside in Case No. A15A0246, and we therefore dismiss Case No. A15A0247 as moot.

Case No. A1SA0479

1. The Allans first argue that the trial court abused its discretion when it dismissed their notice of appeal. We agree.

OCGA § 5-6-48 (c) provides that a trial court is authorized to dismiss an appellant’s notice of appeal “where there has been an unreasonable delay in the filing of [a] transcript and it is shown that the delay was inexcusable and was caused by [the appealing] party.” OCGA § 5-6-48 (f) provides, however, that

. . . [a]n appeal shall not be dismissed nor consideration thereof refused because of failure of the court reporter to file the transcript of evidence and proceedings within the time allowed by law or order of court unless it affirmatively appears from the record that the failure was caused by the appellant.

(Emphasis supplied.) Although the time elapsed between the filing of the notice of appeal and the completion of the appellate record gave rise to a presumption of unreasonable delay by the Allans, the evidence does not support a determination that the delay in this case was inexcusable in that it was caused by them. The trial court thus abused its discretion by dismissing the Allans’ notice of appeal.

A trial court’s discretion to dismiss an appeal under OCGA § 5-6-48 “is a legal discretion which is subject to review in the appellate courts.” Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976) (citation omitted). Specifically, and as the Supreme Court of Georgia has held, a trial court “has discretion to dismiss an appeal for failure to timely file a transcript only if 1) the delay in filing was unreasonable; [and] 2) the failure to timely file was inexcusable in that it was caused by some act of the party responsible for filing the transcript.” (Emphasis supplied.) Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990), citing OCGA § 5-6-48 (f); see also Welch v. Welch, 212 Ga. App. 667, 668-669 (442 SE2d 857) (1994) (following Baker); Barmore v. Himebaugh, 205 Ga. App. 381, 382 (422 SE2d 255) (1992) (same); Boulden v. Fowler, 202 Ga. App. 237-238 (414 SE2d 263) (1991) (same).

The Allans filed their timely notice of appeal from the trial court’s grant of summary judgment on September 30, 2013. The notice of appeal designated inclusion of the transcript of the oral argument hearing on summary judgment as part of the appellate record. Only four days later, on October 4,2013, counsel for the Allans e-mailed the trial court’s official court reporter, ordered the transcript of the hearing on the summary judgment motion, and inquired as to the cost of preparing that transcript. On October 7, the court reporter informed counsel that the cost of preparation would be “extra” and in addition to the “shared takedown amount” paid at the hearing, but that she needed to “get back to [counsel] with an estimate” of the preparation cost. A few minutes later, counsel repeated to the court reporter that he needed to know what and where to pay, to which the court reporter replied, “I will get back to you and I will begin the transcript as soon as possible.”

Counsel for the Allans averred that in the three weeks following this exchange with the court reporter, and having been promised that the reporter would ££begin the transcript as soon as possible,” counsel made “several inquiries with the Clerk ... regarding the transmittal of the record to the appellate court,” in response to which the clerk first told counsel that the clerk was “waiting for the transcript to be filed before finalizing the Cost Billing Form,” but later said that “the transcript was filed” and then that “the record was complete and that the Cost Billing Form was finalized.” The trial court thus clearly erred when it found that counsel for the Allans “made no further inquiry into the status of the transcript [after October 7, 2013] until Defendant filed the [motion to dismiss the notice of appeal].”

Further, on October 22, 2013, or more than a week before the expiration of 30 days after the filing of the Allans’ notice of appeal, counsel received the Cost Billing Form from the clerk, the total amount of which included a line item charge of $35, designated as “Transcript.” Counsel paid this bill on November 8,2013. Nowhere in the record or the trial court’s order is there any evidence to contradict counsel’s reasonable inference that this line item charge referred to the transcript of the only in-court proceeding in the case, which counsel had tried to obtain from the court reporter for the purpose of filing it with the clerk. Rather, and as counsel testified, “given that the Cost Billing Form indicated that the record was complete,” counsel had “no reason to believe that [he] would have been told that the transcript was filed and billed for a transcript, if in fact the [c]lerk . .. had not received it, as the [trial court] knew how much to bill for the transcript.” Counsel therefore reasonably if erroneously believed that the transcript, the cost of which had been itemized on the bill he paid, had been prepared by the court reporter and filed with the clerk before the preparation of that bill, which counsel promptly paid. Not until July 2014, when Jefferson Lakeside moved to dismiss the notice of appeal, did the Allans learn that no transcript of the hearing had ever been filed with the clerk of the trial court.

This undisputed evidence makes clear that the Allans’ delay in filing the transcript of the oral argument hearing was excusable and not caused by them. See Welch, 212 Ga. App. at 669 (reversing dismissal of a notice of appeal when the record left “ ‘no doubt as to whether the delay in filing the transcript was caused by the appellants but establishes beyond dispute that it was [not] attributable ... to any act or omission on the part of the appellants’ ”), quoting Boulden, 202 Ga. App. at 238 (reversing dismissal of notice of appeal). Accordingly, the trial court abused its discretion when it dismissed the Allans’ notice of appeal.

Case Nos. A15A0246, A15A0247

2. In Case No. A15A0246, the Allans argue that the trial court erred when it granted Jefferson Lakeside summary judgment on the Allans’ negligence claims because genuine issues of material fact remain as to those claims. We disagree.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (emphasis omitted).

Although we view the record in a light most favorable to the Allans, the relevant facts are not in dispute. The Allans moved into an apartment owned by Jefferson Lakeside in January 2010. On May 1, 2010, a sunny day, the decedent’s uncle entered the complex in a car he had rented for more than two weeks. The uncle had driven this same car into and out of the complex on the access road at least twice before. At approximately 12:30 p.m., the uncle was driving out of the complex with his brother (the decedent’s father) in the front seat and the decedent strapped into a car seat in the back seat when the uncle pulled over to the side of the access road in order to obtain a pack of cigarettes from the glove compartment. The access road was two lanes wide. The right side of the access road ended at a curb, with a sidewalk beginning a few feet from that curb. A slope led up from the sidewalk to at least 14 feet from the edge of the road, where it turned downward for at least 36 feet to the edge of a lake.

As the father retrieved the cigarettes, the uncle saw a navigation system in the glove compartment and asked his brother to give it to him. When the father did so, and as the uncle attached the navigation system to the dashboard, the uncle lifted his foot off the brake, pressed the accelerator, saw that the contents of the glove compartment were falling onto the floor, and “found [him] self in the air.” The car struck the curb, went over it, the sidewalk, up 14 feet of slope, and down an additional 36 feet into the lake, where the car briefly floated. The father opened the front passenger door in an attempt to reach his son, at which water rushed into the car, cutting off its engine and electricity. Although the father could not swim, he managed to escape from the water with help from a bystander, but neither the father nor the uncle was able to free the child before the car became almost completely submerged and the child drowned. Although the uncle was not charged with any crime, a Cobb County police sergeant testified that had the incident occurred on a public road, rather than private property, the uncle would have been charged with failure to maintain lane and second-degree vehicular homicide.

In this wrongful death and negligence action filed against Jefferson Lakeside in March 2012, the Allans allege that their son died as a proximate result of Jefferson Lakeside’s negligence in failing to install a guardrail between the access road and the lake. The Allans also assert claims for negligent infliction of emotional distress and loss of consortium, seeking compensatory and punitive damages. The Allans retained expert witness Richard Rice, who averred that Jefferson Lakeside owed the public a duty to install a guardrail between the road and the lake and that its failure to do so violated applicable design standards and was the proximate cause of the child’s death. Jefferson Lakeside moved to exclude Rice’s testimony on the grounds that his methodology was not scientifically valid as required by Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993), and that his testimony was therefore irrelevant. The trial court denied Jefferson Lakeside’s motion to exclude Rice’s testimony, but granted its motion for summary judgment.

As Jefferson Lakeside pointed out below, the outcome of this appeal is controlled by longstanding law to the effect that a landowner cannot be liable as a matter of law for injury resulting from a substantially unforeseeable event because the landowner owes no duty to guard against such an event.

Under OCGA § 51-3-1, an owner or occupier of land is liable to invitees “for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” To state a cause of action for such negligence, a plaintiff must prove “a legally attributable causal connection between the defendant’s conduct and the alleged injury.” Southern Bell Tel. & Tel. Co. v. Dolce, 178 Ga. App. 175, 176 (1) (342 SE2d 497) (1986) (citations and punctuation omitted). “The inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery.” Id.

Under Georgia law, “questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law.” (Citations and punctuation omitted.) Hercules v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865) (1983). Specifically,

[a]n event is not regarded as being foreseeable if it is one in the nature of an extraordinary coincidence, or a conjunction of circumstances, or which would not occur save under exceptional circumstances; if it is unusual and unlikely to happen, or if it is a rare event in experience, or if other and contingent experiences preponderate largely in causing the injurious effect.

Standard Oil Co. v. Harris, 120 Ga. App. 768, 774 (5) (172 SE2d 344) (1969) (citations and emphasis omitted). It follows that

[a] prior and remote cause can not be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause.

Southern Bell, 178 Ga. App. at 176 (1). In other words,

[o]ne is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what is only remotely and slightly probable.

Feldman v. Whipkey’s Drug Shop, 121 Ga. App. 580, 581 (2) (174 SE2d 474) (1970) (citations omitted); see also Prosser and Keeton on The Law of Torts, 5th ed. 1984, § 44, p. 312 (due to “virtually unanimous agreement” that liability must be limited to cover “only those intervening causes which lie within the scope of the foreseeable risk,” courts hold that a defendant “is not liable for . . . the reckless or unusual driving of vehicles”).

Some of the above restatements of Georgia law come from cases in which, like the appeal before us, a car has ended up in a place improbably far from where it was supposed to remain, with catastrophic results. Feldman involved a plaintiff who was using a telephone booth at the edge of the sidewalk adj acent to the front of the defendant’s drug store when a vehicle jumped the sidewalk and crashed into the booth, seriously injuring the plaintiff. 121 Ga. App. at 580-581. We held that a trial court correctly dismissed the action because the sequence of events consisting of a car suddenly jumping the curb and sidewalk and crushing the plaintiff against the brick wall of the drugstore was not reasonably foreseeable, with the result that the defendant could not have been negligent as a matter of law for failing to install a guardrail between the parking lot and the telephone booth. Id. at 580-581 (1), (2). Likewise, in Eckerd-Walton, Inc. v. Adams, 126 Ga. App. 210 (190 SE2d 490) (1972), the plaintiff was sitting on a counter stool at the defendant’s drug store when a car crashed through the plate glass window fronting the store and pinned her against the counter. Id. at 212 (2). To reach the plaintiff, the car crossed over a five-inch curb, six feet of sidewalk, and a nearly eight-inch high brick foundation wall; went through a plate glass window; and traveled six feet inside the drug store. Id. at 211-212 (2). We held that the trial court should have granted Eckerd’s motion for a directed verdict because the defendant “did nothing which proximately caused the plaintiff to be injured” and could not be held liable for such a “remote and improbable” act that could “not reasonably... be anticipated ... in the exercise of ordinary care.” Id. at 213 (2); see also Sotomayor v. Tama I, LLC, 274 Ga. App. 323, 327-329 (2) (617 SE2d 606) (2005) (physical precedent only) (parents could not recover for death of child killed by a driver who crossed a curb, four feet of sidewalk, and thirteen feet of grass before striking the child because the landowner could not be negligent as a matter of law in failing to foresee such an event); Southern Bell, 178 Ga. App. at 176 (1) (telephone company could not be negligent for failing to construct a physical barrier between a parking lot and telephones because it was not foreseeable that a car would suffer brake failure and hit the plaintiff).

By contrast, when a car may be anticipated to intrude upon a space sufficiently close to a place where invitees are expected to stand or sit, we have held that a jury may consider whether a landowner could be held liable for the outcome of such an event, which was reasonably foreseeable under the circumstances. See Chatmon v. Church’s Fried Chicken, 133 Ga. App. 326, 327-328 (211 SE2d 2) (1974) (when car struck plaintiff from the rear while he was standing in front of an outside ordering window, and had jumped a three-to-four inch curb in a parking lot without car guard stops, “reasonable [minds] might differ as to whether [the] accidental injury should have been anticipated” and protection barriers installed); Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 155 (1) (256 SE2d 916) (1979) (when employee had directed the plaintiff to use defendant restaurant’s outside window, requiring him to stand on a concrete pad that was 66 inches away from the adjacent parking area, and when the restaurant had failed to install car guards in front of the area where patrons were required to stand, a question of material fact was raised as to the foreseeability of the plaintiff’s injury).

The Allans argue that Jefferson Lakeside can be held liable for the results of the uncle’s driving here because such erratic driving may reasonably be anticipated. On the contrary, it was not foreseeable that any driver on this access road would unintentionally accelerate from a full stop and cross a curb, a sidewalk, 14 feet up a slope, and 36 feet downward from the top of that slope before entering the lake at issue. Because Jefferson Lakeside could not be negligent as a matter of law for failing to foresee the events at issue here, notwithstanding its failure to install a guardrail along the lake, the trial court did not err when it granted summary judgment to Jefferson Lakeside. Feldman, 121 Ga. App. at 580-581 (1) (affirming grant of motion to dismiss complaint of plaintiff injured by a car that drove into telephone booth adjacent to defendant’s store); Eckerd-Walton, 126 Ga. App. at 211-212 (2) (affirming grant of summary judgment to defendant drug store concerning plaintiff’s complaint for injuries suffered when car jumped curb and entered the store).

3. Because we affirm the trial court’s grant of summary judgment to Jefferson Lakeside on the ground that it owed no duty of care to foresee or take precautions to avoid the death of this decedent by installing a guardrail, the matter of the admissibility of Rice’s expert testimony is moot. We therefore dismiss Case No. A15A0247.

Judgment affirmed in Case No. Al 5A0246. Judgment reversed in Case No. A15A0479. Appeal dismissed in Case No. Al 5A0247.

Barnes, P. J., Ellington, P. J., Miller, Dillard and McFadden, JJ., concur. Andrews, P. J., concurs in part and dissents in part.

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

Allan Ali Allan and Abeer Issa Allan, the parents of the minor child who died in the automobile accident described in the majority opinion, filed a notice of appeal from the trial court’s grant of summary judgment in favor of Jefferson Lakeside, L.P. (Case No. A15A0246). Jefferson Lakeside filed a motion in the trial court to dismiss the appeal because of a delay in the filing of a transcript designated by the parents as necessary for consideration of the appeal. The trial court granted the motion and dismissed the appeal, and the parents appealed from the dismissal order in Case No. A15A0479. Because I conclude that the trial court did not abuse its discretion by dismissing the appeal, I respectfully dissent from the majority’s reversal of the dismissal order in Case No. A15A0479. Because the trial court correctly dismissed the parents’ appeal from the grant of summary judgment in favor of Jefferson Lakeside, the appeal in Case No. A15A0246 should be dismissed. Accordingly, I respectfully dissent from the majority’s consideration of the merits and affirmance in Case No. A15A0246. In Case No. A15A0247, Jefferson Lakeside cross-appealed in the same action from the denial of its motion to exclude expert testimony presented by the parents. Because the trial court properly dismissed the parents’ appeal, I concur with the majority (although for a different reason) that the appeal in Case No. A15A0247 should be dismissed.

The parents’ September 30, 2013 notice of appeal designated inclusion of the transcript of the proceedings of the oral argument hearing on summary judgment as part of the appellate record. Where the notice of appeal designates for inclusion in the appellate record a transcript of proceedings in the trial court, it is the appellant’s duty to have the court reporter prepare the transcript at the appellant’s expense and file the transcript with the clerk of the trial court within 30 days after filing the notice of appeal, unless the appellant obtains an extension of time before the expiration of the period for filing. OCGA §§ 5-6-37; 5-6-39; 5-6-41 (c), (e); 5-6-42. Accordingly, the parents had a duty to pay the court reporter to prepare and file the transcript no later than October 30,2013, or to obtain an extension of time before the filing deadline. On July 30, 2014, Jefferson Lakeside filed a motion in the trial court to dismiss the appeal pointing out that 302 days had passed since the parents filed their notice of appeal on September 30, 2013 designating inclusion of the transcript; that the transcript had not been filed with the clerk of the trial court; and that no extension of time for doing so had been requested or obtained. The record shows that, only after receiving the motion to dismiss did counsel for the parents determine from the court reporter the cost of having the reporter prepare and file the transcript. At that point, the parents paid the court reporter, and the reporter prepared and filed the transcript with the clerk of the trial court on July 30, 2014 — over eight months after the transcript was due to be filed.

Pursuant to OCGA § 5-6-48 (c), the trial court is authorized to dismiss an appeal “where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by [the appealing] party.” To dismiss an appeal, the trial court must find all three criteria set forth in OCGA § 5-6-48 (c). First, the trial court must make a threshold finding that the delay in filing was unreasonable, which “refers principally to the length and effect of the delay.” Sellers v. Nodvin, 262 Ga. 205, 206 (415 SE2d 908) (1992) (citation and punctuation omitted). In considering this criteria, “it should be remembered that the time provided for filing the transcript or record is not jurisdictional, but merely a means of avoiding unreasonable delay so that the case can be presented on the earliest possible calendar in the appellate courts.” Id. (citation and punctuation omitted). Second and third, the trial court must find that the unreasonable delay in filing was inexcusable in that it was caused by the appellant. Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990); Sellers, 262 Ga. at 206.

Thus, 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, and then to exercise discretion in deciding whether to dismiss the appeal. The trial court’s ruling will be reversed on appeal only for abuse of discretion.

Propst v. Morgan, 288 Ga. 862, 863 (708 SE2d 291) (2011).

On appeal, the parents contend that the court reporter was at fault, asserting that “the trial court’s Official Court Reporter had failed to file the transcript, and that Appellant’s counsel had taken extensive measures to ensure that the transcript was filed.” The parents’ response to the motion to dismiss in the trial court showed that, within 30 days of their September 30, 2013 notice of appeal, their counsel contacted the court reporter by e-mail on October 4, 2013, ordered the transcript of the hearing, and asked the reporter about the cost of having the transcript prepared. On October 7, 2013, the court reporter responded by e-mail and informed counsel that the cost of preparation would be “an extra cost” in addition to the “shared takedown amount” that was paid at the hearing, and stated that she needed to look at the estimated pages “and get back to you with an estimate” of the cost. On October 7, 2013, counsel told the court reporter by e-mail to let him know what to pay and where to send payment, and the court reporter responded by e-mail on the same day that “I will get back to you and I will begin the transcript as soon as possible.” That was the last communication between counsel and the court reporter until counsel received Jefferson Lakeside’s motion to dismiss the appeal filed on July 30, 2014. After the dismissal motion was filed, counsel immediately contacted the court reporter to determine the cost of preparing the transcript, and immediately paid the court reporter to prepare the transcript. The court reporter responded to counsel by e-mail on August 1,2014 thanking counsel for payment, attaching a receipt for payment, and informing counsel that the reporter prepared the transcript and filed it in the clerk’s office on July 30, 2014.

Nevertheless, the parents contend that filing the transcript over eight months late was excusable and not their fault. In response to Jefferson Lakeside’s motion to dismiss, counsel for the parents showed that from October 10, 2013 to October 21, 2013, he “made several inquiries with the Clerk of Court regarding the transmittal of the record to the appellate court.” According to counsel: “During conversations with staff members, the Clerk of Court first told me that they were waiting on the transcript to be filed before finalizing the Cost Billing Form. In a subsequent conversation I was told the transcript was filed, the record was complete and the Cost Billing Form was finalized.” Counsel further stated that, when he received the Cost Billing Form from the trial court clerk, it showed the cost of the record on appeal was $1,070.50, and that it included a line item charge for $35 for “Transcript.” Counsel paid the total amount of $1,070.50 to the trial court clerk on November 8, 2013 (39 days after the notice of appeal), and assumed that the $35 charge for “Transcript” on the clerk’s bill for the record on appeal was for the designated transcript prepared and filed by the court reporter. According to counsel,

I had no reason to believe or suspect that the transcript had not been filed given the e[-]mail communications with the court reporter communicating to me that it would be done... [and] [i]t was not until I received Defendant^’] Motion to Dismiss that I realized that the transcript had not actually been filed as agreed upon.

I find no reasonable basis for the parents’ counsel to assume, based on conversations with the clerk’s office, that the court reporter prepared the designated transcript, filed it with the clerk, and authorized the clerk to include a bill for the transcript (in the amount of $35) as part of the clerk’s bill for the record. To the contrary, the last e-mail communication between counsel and the court reporter on October 7, 2013, indicated that counsel asked the court reporter to inform him of the cost of preparing the designated transcript and where to send payment, and the court reporter responded, “I will get back to you and I will begin the transcript as soon as possible.” As the record shows, the court reporter did not thereafter contact counsel to inform him of the cost of preparing the transcript, and the reporter did not prepare or file the transcript because she had not been paid. Under these circumstances, it was not reasonable for counsel to let the deadline expire for having the transcript prepared and filed without making any further effort to contact the court reporter to inquire about the status of the transcript preparation. Where the appellant has designated a transcript for inclusion in the record on appeal, OCGA § 5-6-42 provides that, “the appellant shall cause the transcript to be prepared and filed [by the court reporter].” Instead of contacting the court reporter to determine the cost and status of the transcript preparation, counsel said he asked the clerk’s office about “transmittal of the record to the appellate court” and was told “the transcript was filed [and] the record was complete.” It was not reasonable for counsel to simply assume, based on these conversations with the clerk’s office, that, contrary to counsel’s prior communications with the court reporter, the reporter prepared and filed the designated transcript without being paid, and that a $35 charge for “transcript” in the clerk’s bill for the record represented the reporter’s charge for the designated transcript. In fact, the August 1, 2014 e-mail from the court reporter to counsel shows that the $35 “transcript” charge in the clerk’s bill for the record (paid by counsel on November 8, 2013) was not the reporter’s charge for the designated transcript. Rather, the August 1, 2014 e-mail shows that counsel did not determine from the court reporter the cost of the designated transcript, and did not pay the reporter to prepare and file the designated transcript, until July 30, 2014. The record shows that counsel failed to cause the designated transcript to be prepared and filed by the court reporter because counsel failed to timely p.ay the court reporter to prepare and file the designated transcript, and failed to stay informed about and monitor the progress of transcript preparation for the appeal.

“[T]he burden to keep accurately informed of the status of transcript preparation remains with the party having the responsibility to file the transcript and it cannot be shifted to the court reporter .’’Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 501 (458 SE2d 377) (1995). Accordingly, “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. . . .” Id. at 502. Based on this duty, we found in Jackson that an unreasonable delay in filing the transcript was inexcusable where a party failed to communicate with the court reporter for five months “to obtain an accurate report of transcript preparation status. . . .” Id. at 504. Similarly, in Coptic Constr. Co. v. Rolle, 279 Ga. App. 454, 456 (631 SE2d 475) (2006) we concluded that, even though the appealing party had ordered the hearing transcript at issue from the court reporter (and had timely filed a trial transcript and timely paid the costs for preparing the record), the unreasonable delay in filing the hearing transcript was inexcusable where the appellant never communicated with the court reporter during a nine-month period of time after ordering the transcript. In the present case, although counsel for the parents ordered the transcript from the court reporter during the 30-day period for timely filing (and paid the clerk’s bill for record preparation), no payment was made to the court reporter for the transcript, there was no assurance by the court reporter that the transcript would be prepared or filed by a certain date, and counsel failed to initiate any further communication with the court reporter for over eight months. Under these circumstances, the parents failed to carry their burden to order the transcript, pay for it, and make sure it was timely filed. Atlanta Orthopedic Surgeons v. Adams, 254 Ga. App. 532, 536 (562 SE2d 818) (2002).

Decided July 16, 2015.

The Mitchell Law Group, Thomas P. Mitchell, for appellants.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Jason D. Hergenroether, for appellee.

The record shows that the delay in filing the transcript delayed the docketing of the appeal and delayed any decision on appeal for at least one term of this Court. For this reason, the trial court did not abuse its discretion in making the threshold finding that the delay in filing the transcript was unreasonable. The trial court also found, as set forth above, that the record showed a failure to communicate with the court reporter about the status of transcript preparation. Accordingly, the trial court did not abuse its discretion by granting the motion to dismiss the appeal on the additional basis that the unreasonable delay in filing was inexcusable and was caused by the parents.

Because the trial court correctly dismissed the parents’ appeal from the trial court’s grant of summary judgment in favor of Jefferson Lakeside, the dismissal order in Case No. A15A0479 should be affirmed, and the appeal in Case No. A15A0246, and the related cross-appeal in Case No. A15A0247, should be dismissed.

       In the first sentence of the argument section of its appellee’s brief in Case No. A15A0479, involving the dismissal of the Allans’ notice of appeal, Jefferson Lakeside states its belief that the underlying appeals “should be decided on their merits.” To do so would require reversing the trial court’s dismissal of the notice of appeal.

       The trial court’s order also consistently misnames the parties and their positions. After first stating that “the ultimate duty to ensure timely preparation and filing of a transcript falls with Defendant [rather than plaintiffs], not the Official Court Reporter,” the court repeated its error three more times: that “Defendant,” rather than plaintiffs, “failed to follow up” with the reporter; that “Defendant failed to seek appropriate relief from the Court”; and that “the delay [in filing the transcript] was unreasonable, inexcusable, and caused by Defendant” such that “Defendant’s notice of appeal is hereby dismissed.”

       Only Jefferson Lakeside’s reply briefs in support of its summary judgment motion and the exclusion of Rice’s testimony, and not its initial briefs, appear in the appellate record.

       In a footnote quoting the appellee’s brief filed by Jefferson Lakeside in Case No. A15A0479, the majority opinion states: “Jefferson Lakeside states its belief [in the brief] that the underlying appeals ‘should be decided on their merits.’ ” The majority then concludes that, to reach the merits, “would require reversing the trial court’s dismissal of the notice of appeal.” The footnote appears to suggest that Jefferson Lakeside has conceded on appeal that the trial court erred by dismissing the parents’ appeal. To be clear, the appellee, Jefferson Lakeside, did not concede that the trial court’s grant of its motion to dismiss the appeal should be reversed. The appellee’s brief in Case No. Á15A0479 argues that the trial court’s order dismissing the appeal should be affirmed, while alternately urging this Court to affirm the trial court’s grant of summary judgment to appellee on the merits in Case No. A15A0246. There is nothing unusual about the appellee’s alternative contentions.

       The trial court’s order entered on September 16, 2014 dismissing the appeal correctly states that the matter before the court is the “Defendant’s ‘Motion to Dismiss Plaintiffs’ Appeal.’ ” But in some places the order mistakenly transposes the terms Defendant and Plaintiff, and mistakenly states that “Defendant’s notice of appeal is hereby dismissed.” This is a mere misnomer, and the Court’s order plainly and undisputedly dismisses the Plaintiff’s notice of appeal. Moreover, the parents’ notice of appeal in Case No. A15A0479 confirms this by stating that their appeal is from “the Order Granting Defendant’s Motion to Dismiss Plaintiffs’ Appeal. . . entered in this action with the Clerk of Court on September 16, 2014.”