CourtListener 10680381

Gesamter Gesetzestext

318 Ga. 350
FINAL COPY

S23G0263. PREMIER PEDIATRIC PROVIDERS, LLC v. KENNE-
SAW PEDIATRICS, P.C.

PINSON, Justice.

Kennesaw Pediatrics, P.C., sued Premier Pediatric Providers,

LLC, and won summary judgment. Premier appealed, which meant

it then had 30 days to have the hearing transcript prepared and filed

as part of the record on appeal. Premier did not do so. Months later,

Kennesaw Pediatrics moved to dismiss the appeal under OCGA § 5-

6-48 (c), arguing that the delay in filing the transcript was unrea-

sonable, inexcusable, and caused by Premier. Premier then realized

its mistake and had the transcript filed within days.

To counter Kennesaw Pediatrics’s motion to dismiss, Premier

explained that it had believed the transcript was filed a few days

after the notice of appeal and presented evidence in support. Hear-

ing that evidence, the trial court found the delay was not inexcusa-
ble and denied Kennesaw Pediatrics’s motion to dismiss. But on ap-

peal, the Court of Appeals concluded that the trial court had abused

its discretion, reversed the trial court’s order, and dismissed the ap-

peal.

We granted review to clarify the standard for appellate review

of a trial court’s decision whether to dismiss an appeal under OCGA

§ 5-6-48 (c), both as to the predicate findings and the ultimate deci-

sion whether to dismiss, and to consider whether the Court of Ap-

peals properly applied that statute in this case.

We now vacate in part and reverse in part the Court of Appeals’

decision. The Court of Appeals was right that the trial court’s order

was subject to review for abuse of discretion, a standard that applied

both to the trial court’s predicate findings and its ultimate decision

to deny the motion. But under that standard, the trial court did not

abuse its discretion in denying Kennesaw Pediatrics’s motion to dis-

miss, for the reasons we set out below. Finally, an appellate court

may not dismiss an appeal challenged under OCGA § 5-6-48 (c) (as

the Court of Appeals did here), and it is generally not proper even to

2
direct the trial court to do so. That statute expressly prohibits an

appellate court from dismissing an appeal based on the failure to

timely file the transcript, and it gives the trial court discretion as to

the ultimate question whether to dismiss an appeal.

1. Kennesaw Pediatrics sued Premier for the right to inspect

Premier’s business records. On July 20, 2021, the court granted

summary judgment in favor of Kennesaw Pediatrics.

Premier filed a timely notice of appeal on August 2, 2021.

Premier’s notice of appeal specified that “[t]ranscripts of evidence

and proceedings for the hearing held on Petitioner’s and Respond-

ent’s cross Motions for Summary Judgment, held on July 19, 2021,

should be filed for inclusion in the record for appeal.” By statute,

Premier then had 30 days, or until September 1, 2021, to have the

transcript filed with the Court of Appeals as part of the record on

appeal. See OCGA § 5-6-42 (“[t]he party having the responsibility of

filing the transcript shall cause it to be filed within 30 days after

filing of the notice of appeal”).

3
Over four months later, on December 16, 2021, Kennesaw Pe-

diatrics moved to dismiss Premier’s appeal under OCGA § 5-6-48 (c).

That statute allows a trial court 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

party responsible for filing the transcript].” Kennesaw Pediatrics

noted that the transcript from the summary judgment hearing had

not yet been filed with the Court of Appeals. Kennesaw Pediatrics

argued that this delay was both unreasonable and inexcusable and

that it was caused by Premier’s failure to order and pay for a tran-

script.

Premier opposed the motion to dismiss. The opposition in-

cluded an affidavit from Premier’s counsel, Roger E. Harris, which

explained why the transcript had not been filed. According to the

affidavit, on the day after the notice of appeal was filed, Harris’s

firm received an invoice from the clerk of superior court for all costs

associated with the record on appeal. The invoice included a $35

“Transcript Charge” as well as a line item for $1,562, representing

4
1,562 “pages in record” at a cost of a dollar per page. Harris’s firm

promptly paid the invoice, and Harris assumed that meant that the

transcript had been included in the record on appeal. As he ex-

plained in his affidavit: “Given that the only oral argument or in-

court proceeding in the entire case was on the Parties’ cross Motions

for Summary Judgment, I reasonably understood that the line item

charge for $35.00 for the ‘Transcript’ represented the only transcript

relating to this case, specifically for oral argument on those mo-

tions.”

Harris realized he may have been mistaken only when Kenne-

saw Pediatrics moved to dismiss the appeal under OCGA § 5-6-48

(c). At that time, he contacted the clerk of superior court to investi-

gate, and learned for the first time that the transcript had never

been filed. Harris immediately arranged for the transcript to be pre-

pared and filed with the Court of Appeals. His firm received confir-

mation from the court reporter that the transcript would be filed no

later than noon on December 20, 2021—five days after Kennesaw

Pediatrics filed its motion to dismiss. Premier argued that under

5
these circumstances the delay in filing the transcript was neither

unreasonable nor inexcusable, and that its appeal should therefore

not be dismissed.

The trial court agreed with Premier and denied Kennesaw Pe-

diatrics’s motion to dismiss. Recounting the facts in Harris’s affida-

vit, the trial court found that, “after notice of the misunderstanding

of ‘transcript charges,’ Defendant was diligent in its efforts to have

the record prepared to be transmitted to the Court of Appeals.” The

court found that the delay was therefore not unreasonable or inex-

cusable.

Kennesaw Pediatrics’s appeal of the order denying its motion

to dismiss (Case No. A22A0924) was consolidated with Premier’s un-

derlying appeal of the summary judgment order.1 In the consoli-

dated opinion, the Court of Appeals reversed the denial of the motion

1 To be clear about the procedural posture: there are two appeals in this

case. First, Premier appealed the trial court’s summary judgment order. We
refer to that appeal as Case No. A22A0857 or the “merits appeal.” Then,
Kennesaw Pediatrics moved to dismiss the merits appeal, the trial court denied
that motion, and Kennesaw Pediatrics appealed that order. Kennesaw Pediat-
rics’s appeal of the motion-to-dismiss order, Case No. A22A0924, is our focus
here.
6
to dismiss. The court concluded that Premier’s delay in filing the

transcript was both unreasonable and inexcusable, and that the

trial court thus abused its discretion in finding otherwise and in

denying the motion to dismiss Premier’s appeal. Premier Pediatric

Providers, LLC v. Kennesaw Pediatrics, P.C., 365 Ga. App. 351, 354

(1), 358 (1) (b) (878 SE2d 588) (2022).

As to excuse—the main question here—the Court of Appeals

explained that the delay was “prima facie inexcusable” because it

was Premier’s responsibility to have the transcript prepared. Prem-

ier Pediatric Providers, 365 Ga. App. at 355 (1) (b). It was therefore

up to Premier to “come forth with evidence to rebut the presumption

that the delay was inexcusable.” Id. But the court concluded that

Premier had not done that. Id.

The Court of Appeals reasoned that it was not proper for Prem-

ier to shift the blame to the clerk of court for not filing the transcript.

Premier Pediatric Providers, 365 Ga. App. at 357 (1) (b). The court

compared this case to two others in which, as here, the appellant

mistakenly believed a transcript was filed based on a line item in a

7
clerk of court’s invoice. In one of those cases, Northeast Georgia Med-

ical Center v. HealthSouth Rehabilitation Hospital of Forsyth

County, 347 Ga. App. 852 (821 SE2d 68) (2018), the Court of Appeals

had concluded that the line item did not excuse the appellant’s fail-

ure to monitor the status of its appeal. See Premier Pediatric Pro-

viders, 365 Ga. App. at 356-357 (1) (b) (citing Ne. Ga. Med. Center,

347 Ga. App. at 857-860 (1), (2)). In the other, earlier case, Allan v.

Jefferson Lakeside, L.P., 333 Ga. App. 222 (775 SE2d 763) (2015),

the Court of Appeals reached the opposite conclusion. See Premier

Pediatric Providers, 365 Ga. App. at 356 (1) (b). But the court here

explained that in Allan, the appellant had shown that it “actively

pursued the timely preparation and filing of the transcript by order-

ing it, inquiring as to the cost of its preparation, and by repeatedly

following up with the clerk concerning the status of the transcript

prior to the 30-day deadline for filing.” Id. (citing Allan, 333 Ga. App.

at 224-225 (1)). Here, according to the Court of Appeals, Premier

made no such showing. So the court reasoned that this case was

8
more like Northeast Georgia Medical Center, and that Allan was dis-

tinguishable. See Premier Pediatric Providers, 365 Ga. App. at 356-

357 (1) (b).

The Court of Appeals also concluded that the trial court abused

its discretion by focusing only on Premier’s diligence after Kennesaw

Pediatrics filed its motion to dismiss. See Premier Pediatric Provid-

ers, 365 Ga. App. at 357 (1) (b). The court explained: “[W]e cannot

ignore our precedent establishing Premier’s duty to ensure timely

filing of the transcript at the time of filing its notice of appeal, before

the 30-day deadline for filing, and during the ensuing nearly four-

month period before Kennesaw [Pediatrics] filed its motion to dis-

miss the appeal.” Id. at 357-358 (1) (b) (emphasis in original).

Having concluded that the trial court abused its discretion, the

Court of Appeals reversed the order denying the motion to dismiss,

and then it dismissed Premier’s appeal. Premier Pediatric Providers,

365 Ga. App. at 358 (1) (b). We granted review.

2. OCGA § 5-6-48 (c) says that a trial court “may” dismiss an

appeal “where there has been an unreasonable delay in the filing of

9
the transcript and it is shown that the delay was inexcusable and

was caused by” the party responsible for filing the transcript.2 With

that language, the statute calls for the trial court to make up to two

decisions. First, the trial court must determine whether a delay in

filing the transcript was “unreasonable,” “inexcusable,” and “caused

by” the party responsible for filing the transcript (usually the appel-

lant). If so, the trial court must then decide whether to dismiss the

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

(2011) (“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 ap-

peal.”).

2 The relevant portion of OCGA § 5-6-48 (c) provides:

No appeal shall be dismissed by the appellate court nor con-
sideration of any error therein refused because of failure of any
party to cause the transcript of evidence and proceedings to be filed
within the time allowed by law or order of court; but the trial court
may, after notice and opportunity for hearing, order that the ap-
peal be dismissed where there has been an unreasonable delay in
the filing of the transcript and it is shown that the delay was inex-
cusable and was caused by such party.
10
The trial court’s decision whether to dismiss an appeal under

OCGA § 5-6-48 (c) is appealable. All agree, and our precedent holds,

that the trial court’s ultimate decision whether to dismiss the appeal

is reviewed for abuse of discretion. See Propst, 288 Ga. at 863. The

parties also agree, at least on the surface, that the trial court’s pred-

icate findings under OCGA § 5-6-48 (c)—that is, the court’s findings

whether a delay in filing the transcript was “unreasonable,” “inex-

cusable,” and “caused by” the responsible party—are reviewed for

abuse of discretion. That is what our precedent says, too. See Kelly

v. Dawson County, 282 Ga. 189, 189 (646 SE2d 53) (2007) (“In re-

viewing a finding of unreasonable and inexcusable delay in filing a

transcript, an appellate court will not disturb the lower court’s find-

ing absent an abuse of discretion.” (cleaned up)); Durden v. Griffin,

270 Ga. 293, 294 (1) (509 SE2d 54) (1998) (trial court’s decision un-

der the statute “must be affirmed, absent an abuse of discretion”);

Sellers v. Nodvin, 262 Ga. 205, 206 (1) (a) (415 SE2d 908) (1992) (the

trial court’s “passing upon the[ ] issues” of whether a delay was un-

11
reasonable and inexcusable is reviewed for abuse of discretion (cita-

tion and punctuation omitted)). Generally, that means the trial

court’s conclusions will be affirmed so long as they are “in conformity

with the governing legal principles,” Ford Motor Co. v. Conley, 294

Ga. 530, 538 (2) (757 SE2d 20) (2014), based on “correct facts” that

are “relevant to determining whether [any] legal requirements [are]

satisfied,” id. (citation and punctuation omitted), and within the

“range” of possible outcomes “in which there could be room for rea-

sonable and experienced minds to differ,” Greyling Realty Corp. v.

Lawson, 179 Ga. 188, 193 (175 SE 453) (1934).

Kennesaw Pediatrics, however, advances a novel take on what

review for abuse of discretion means in this context. It says that the

“‘basic’ or ‘historical’ factual findings” that underpin the predicate

findings are reviewed for clear error, but the court’s “actual deter-

minations” about “whether those facts amounted to a delay that was

unreasonable, inexcusable, and caused by the appealing party” are

reviewed de novo “with no deference to the trial court’s findings.”

Put another way, Kennesaw Pediatrics contends that if there is no

12
dispute about what happened—i.e., the historical facts—an appel-

late court’s “abuse of discretion” review of the predicate findings is

really just de novo review.

That view is mistaken. As both parties acknowledge, the pred-

icate findings themselves are “mixed” findings: deciding whether a

given delay is “unreasonable,” or “inexcusable,” or “caused by” the

appellant requires a court to make a “nuanced judgment whether

given historical facts meet or add up to an abstract legal concept or

standard.” Efficiency Lodge, Inc. v. Neason, 316 Ga. 551, 565 (2) (b)

(ii) n.6 (889 SE2d 789) (2023). And we have consistently held that

the mixed findings that a trial court makes under OCGA § 5-6-48 (c)

are committed to the trial court’s discretion, and so are reviewed on

appeal only for abuse of that discretion. See Kelly, 282 Ga. at 189;

Sellers, 262 Ga. at 206 (1) (a). As with any mixed findings, to make

these predicate findings a trial court will have to make factual find-

ings or rely on undisputed facts (or a combination) about “what hap-

pened in the real world,” see Efficiency Lodge, 316 Ga. at 565 (2) (b)

(ii) n.6—for example, what steps the appellant took or did not take

13
to get the transcript filed, how quickly it took those steps, and the

date the transcript was filed. But whether those historical facts

come from undisputed evidence or from the trial court’s findings

about disputed facts, the nature of the trial court’s task in making

the mixed findings is the same: deciding whether those historical

facts add up to an “unreasonable” and “inexcusable” delay that is

“caused by” the responsible party. See OCGA § 5-6-48 (c). Either

way, that inquiry remains a mixed question that is committed to the

trial court’s discretion, and so the court’s predicate findings are still

reviewable only for abuse of that discretion.3

Review for abuse of discretion makes good sense for the predi-

cate findings a trial court makes under OCGA § 5-6-48 (c). As with

many mixed questions involving the conduct of litigants during trial

3 This is not to say that all mixed findings are reviewed for abuse of dis-

cretion. For instance, a “mixed question of constitutional law,” even if “fact-
intensive,” generally calls for de novo review. Efficiency Lodge, 316 Ga. at 565
(2) (b) (ii) n.6 (punctuation omitted) (quoting Lilly v. Virginia, 527 U.S. 116,
136-137 (V) (119 SCt 1887, 144 LE2d 117) (1999) (reasoning that for “fact-in-
tensive, mixed questions of constitutional law, . . . independent review is nec-
essary to maintain control of, and to clarify, the legal principles governing the
factual circumstances necessary to satisfy the protections of the Bill of Rights”
(cleaned up))).
14
proceedings, the trial court is generally in the better position to re-

solve questions about the nature of and fault for the delay in filing

a transcript, having had “the opportunity to observe and assess the

conduct, demeanor, and credibility of the parties and their counsel

throughout the proceedings.” Resurgens, P.C. v. Elliott, 301 Ga. 589,

598 (2) (b) (800 SE2d 580) (2017) (citation and punctuation omitted).

See also, e.g., Gen. Motors, LLC v. Buchanan, 313 Ga. 811, 815 (2)

(a) (874 SE2d 52) (2022) (decision to issue a protective order re-

viewed for abuse of discretion); Resurgens, 301 Ga. at 597-598 (2) (b)

(decision to impose discovery sanctions reviewed for abuse of discre-

tion); Horn v. Shepherd, 292 Ga. 14, 17-18 (4) (732 SE2d 427) (2012)

(decision to find a party in contempt reviewed for abuse of discre-

tion); Sanders v. Am. Liberty Ins. Co., 225 Ga. 796, 796-797 (171

SE2d 539) (1969) (trial courts “may exercise a sound and legal dis-

cretion” when deciding whether to open default (citation and punc-

tuation omitted)). As with those questions, the trial court is the court

best suited to weigh a party’s conduct, the status of the litigation,

and other matters relevant to whether the responsible party has

15
acted unreasonably and inexcusably in failing to file a transcript be-

fore the statutory deadline.

So, when a litigant appeals a trial court’s dismissal decision

under OCGA § 5-6-48 (c) and challenges the trial court’s predicate

findings—whether a delay was unreasonable, inexcusable, and

caused by the appellant—an appellate court reviews those findings

for abuse of discretion. Of course, a litigant can mount that challenge

by attacking conclusions of law (for example, what period of time the

law sets for filing a transcript) or findings of fact (for example, what

steps the appellant took to get the transcript filed) that are made

along the way to the predicate findings. Those subsidiary legal con-

clusions and factual findings are reviewed on appeal de novo and for

clear error respectively, see, e.g., Charles v. State, 315 Ga. 651, 657

(3) (884 SE2d 363) (2023) (explaining that while a trial court’s “ulti-

mate decision” whether to grant a motion for mistrial is reviewed for

abuse of discretion, the factual findings or credibility determinations

underlying the court’s decision are reviewed for clear error); Ford

Motor Co., 294 Ga. at 538 (2) (same for extraordinary motions for

16
new trial), and if error is found in reviewing those conclusions and

findings, that informs the ultimate judgment whether the trial court

abused its discretion in making the predicate findings, see Rockdale

Hosp., LLC v. Evans, 306 Ga. 847, 851 (2) (b) (834 SE2d 77) (2019)

(“A trial court abuses its discretion when the exercise of discretion

was infected by a significant legal error or a clear error as to a ma-

terial factual finding.”); State v. Porter, 288 Ga. 524, 526 (2) (a) (705

SE2d 636) (2011) (deference owed to trial court in abuse-of-discre-

tion review is “diminished” if the trial court “has clearly erred in

some of its findings of fact and/or has misapplied the law to some

degree” (citation and punctuation omitted)). For example, if the rec-

ord shows that the trial court clearly got the date of the transcript

filing wrong—a clearly erroneous finding of fact—and that, under

the correct filing date, the delay was presumptively unreasonable,

that could support the conclusion that the trial court abused its dis-

cretion in finding that the delay was not unreasonable. See Rockdale

Hosp., 306 Ga. at 851 (2) (b); Ford Motor Co., 294 Ga. at 538 (2). But

the mixed findings a trial court makes under OCGA § 5-6-48 (c)—

17
both the predicate findings and the ultimate decision whether to dis-

miss an appeal—remain subject to review for abuse of discretion. So

those findings will generally not be disturbed as long as they are

within the bounds of the law, based on “correct,” “relevant” facts,

and within the range in which reasonable jurists could disagree. See

Ford Motor Co., 294 Ga. at 538 (2); Greyling Realty Corp., 179 Ga.

at 193.

3. Applying that standard of review here, we see no basis for

concluding that the trial court abused its discretion in concluding

that the delay here was not “inexcusable.” The trial court did not

rely on any incorrect facts or misunderstandings of the law. The se-

quence of events was not disputed: on August 2, Premier filed its

notice of appeal; on August 3, Premier got an invoice from the clerk

of court that included a “transcript charge” and a line item for “pages

in record”; on December 16, Kennesaw Pediatrics moved to dismiss

the appeal; and by December 20, Premier had caused the transcript

to be filed. Along with those facts, the trial court credited Premier’s

18
explanation that the “transcript charge” in the invoice made Prem-

ier think the transcript was already filed by August 3 and that it did

not know otherwise until December 16. Those credibility determina-

tions were the trial court’s to make and were not clearly erroneous.

See Charles, 315 Ga. at 657 (3) (credibility determinations that fall

within trial court’s discretion are reviewed for clear error). Together,

those facts and credibility determinations were obviously “those rel-

evant to determining whether” Premier’s delay in filing the tran-

script was inexcusable.4 See Ford Motor Co., 294 Ga. at 538 (2). And

the trial court, relying on those facts, exercised its discretion to con-

clude that, under the “governing legal principles,” see id., Premier’s

explanation was a sufficient excuse.

4 The Court of Appeals reasoned that the trial court “failed to consider”

Premier’s actions before Kennesaw Pediatrics’s motion to dismiss. See Premier
Pediatric Providers, 365 Ga. App. at 357-358 (1) (b). But as we noted above, the
trial court laid out the sequence of events in its order. And it pointed out that
Premier “alleges that it had no reason to suspect that the transcript had not
been filed given the reference to the $35.00 transcript charges on the Cost Bill.”
So it is clear that the court took into account why Premier did not act until
receiving the motion to dismiss. And as discussed above, the court found that
the excuse Premier gave was good enough to conclude that the delay was not
“inexcusable.”
19
In concluding that the trial court abused its discretion in con-

cluding that the delay was not “inexcusable,” the Court of Appeals

relied primarily on two prior Court of Appeals opinions, Allan and

Northeast Georgia Medical Center, which involved similar but

slightly distinguishable facts and came out on opposite sides of the

dismissal question. The Court of Appeals reasoned that this case

was more like Northeast Georgia Medical Center, where the Court of

Appeals held that the trial court did not abuse its discretion in dis-

missing the appeal, and so it concluded that the trial court abused

its discretion by not dismissing the appeal under similar circum-

stances here. See Premier Pediatric Providers, 365 Ga. App. at 356-

358 (1) (b).

We disagree. To begin with, the facts of Northeast Georgia Med-

ical Center are not so different from those of Allan, and reasonable

minds could differ as to which set of facts is more similar to this

case.5 But even if Northeast Georgia Medical Center were the closer

5 In Northeast Georgia Medical Center, counsel received an invoice which

suggested the transcript had been filed. See Ne. Ga. Med. Center, 347 Ga. App.

20
comparator, that would not demand the conclusion that the trial

court abused its discretion here. In Northeast Georgia Medical Cen-

ter, unlike here, the trial court had granted the motion to dismiss

after concluding that the appellant’s delay was unreasonable, inex-

cusable, and caused by the appellant, see Ne. Ga. Med. Center, 347

Ga. App. at 855, and the Court of Appeals held merely that the trial

court’s dismissal and a challenged predicate finding were not an

abuse of discretion. See id. at 857-858 (1) (trial court did not abuse

its discretion in finding the delay unreasonable); id. at 860 (2) (“[t]he

at 854-855. Relying on that invoice, counsel did not ask the clerk of court about
the transcript until 57 days after filing the notice of appeal. See id. And when
counsel learned the transcript had not been filed, counsel waited another
month before checking in again. See id. In Allan, by contrast, counsel was in
contact with the clerk of court about the transcript right after filing the notice
of appeal, but a few weeks later, when counsel got an invoice suggesting the
transcript was filed, counsel relied on that invoice and did nothing for several
months. See Allan, 333 Ga. App. at 224-225 (1). Then, when counsel learned
the transcript had not been filed, counsel acted promptly. See id. at 232 (An-
drews, P. J., concurring) (noting that counsel caused the transcript to be filed
the same day the appellee moved to dismiss the appeal). Here, Premier re-
ceived a misleading invoice soon after filing its notice of appeal (like in North-
east Georgia Medical Center) and as a result did not contact the clerk of court
to inquire about the transcript (like in Northeast Georgia Medical Center), but
when Premier learned the transcript had not been filed, it acted promptly (like
in Allan). It was within the trial court’s discretion to determine that the way
in which this case is like Allan—the appellant acting promptly as soon as it
knew the transcript was not filed—rendered the appellant’s conduct excusable.
21
trial court did not abuse its discretion in finding the delay inexcus-

able”). That holding does not mean that the trial court necessarily

would have abused its discretion had it declined to dismiss the ap-

peal or determined that the delay was excusable under those cir-

cumstances. Indeed, that is the whole point of the abuse-of-discre-

tion standard: when questions are committed to a trial court’s dis-

cretion, the court is afforded substantial deference that allows for a

range of permissible outcomes, see Kelly, 282 Ga. at 189, as long as

that discretionary decision is based on a correct understanding of

the law and facts. See Rockdale Hosp., 306 Ga. at 851 (2) (b). In other

words, it may well have been within the court’s discretion in North-

east Georgia Medical Center to conclude that the delay was reason-

able and excusable, or not, and to dismiss the appeal, or not. Simply

put, a holding that a trial court’s decision was not an abuse of its

discretion under particular circumstances does not stand for the

proposition that the opposite decision would be an abuse of discre-

tion. So here, even assuming the facts of Northeast Georgia Medical

Center are materially similar to the facts of this case, its holding that

22
the trial court did not abuse its discretion in dismissing that appeal

is at most persuasive authority: it does not control the question

whether the trial court abused its discretion in finding the delay ex-

cusable and not dismissing the appeal in this case.

Finally, in connection with dismissal decisions under OCGA §

5-6-48 (c), we note the legislature’s direction that the Appellate Prac-

tice Act is to be “liberally construed so as to bring about a decision

on the merits of every case appealed and to avoid dismissal of any

case or refusal to consider any points raised therein.” OCGA § 5-6-

30. In other words, OCGA § 5-6-30 puts a legislative thumb on the

scale in favor of reaching the merits. See also, e.g., Felix v. State, 271

Ga. 534, 534-535 (523 SE2d 1) (1999) (the Appellate Practice Act

was passed to “simplify the procedure for bringing a case to the ap-

pellate court,” not to “set traps and pitfalls by way of technicalities

for unwary litigants,” and was intended to “get away from the harsh

practice of treating every minor departure from prescribed proce-

dures as a jurisdictional defect on the same level as a violation of the

23
Bill of Rights” (cleaned up)). This direction from the legislature nec-

essarily informs the discretionary decision of a trial court under

OCGA § 5-6-48 (c) to dismiss an appeal, and it adds support to the

trial court’s decision here to allow the appeal of this case to proceed

to a decision on its merits.

In sum, the trial court did not abuse its discretion in concluding

Premier’s delay in filing the transcript was not inexcusable and

denying Kennesaw Pediatrics’s motion to dismiss, and the Court of

Appeals’ opinion holding otherwise is reversed.

4. Because the trial court did not abuse its discretion in declin-

ing to dismiss the appeal in this case, we need not resolve our ques-

tion about the proper disposition in the appellate court when a trial

court does abuse its discretion. But two points of law are worth not-

ing here. First, the statute makes plain (and the parties agree) that

an appellate court may not dismiss an appeal under OCGA § 5-6-48

that “[n]o appeal shall be dismissed by the appellate court nor con-

sideration of any error therein refused” because any party has failed

24
to timely cause the transcript to be filed). Second, it is generally not

appropriate for the appellate court even to direct the trial court to

dismiss the appeal if it determines that a trial court abused its dis-

cretion in finding that the delay was reasonable, excusable, or not

caused by the appellant. As we explained above, even if a trial court

makes all the predicate findings necessary for dismissal under the

statute—that the delay in filing the transcript was unreasonable,

inexcusable, and the fault of the appellant—the statute does not re-

quire dismissal. See id. (providing the trial court “may, after notice

and opportunity for hearing, order that the appeal be dismissed”

when the predicate findings are satisfied (emphasis added)). In-

stead, the trial court still must “exercise discretion in deciding

whether to dismiss the appeal.” Propst, 288 Ga. at 863. See also

Jackson v. Sanders, 299 Ga. 332, 335 (788 SE2d 387) (2016) (“may”

is permissive). So here, even if the Court of Appeals had been right

that the trial court abused its discretion in finding that the delay

was excusable, the proper course would have been to reverse that

25
finding and then remand for the trial court to reconsider the ulti-

mate question of dismissal consistent with the Court of Appeals’

opinion.

For the reasons set out above, we reverse the Court of Appeals’

decision in Case No. A22A0924, which reversed the denial of Kenne-

saw Pediatrics’s motion to dismiss, and we vacate the Court of Ap-

peals’ order in Case No. A22A0857, which dismissed Premier’s ap-

peal. The case is remanded to the Court of Appeals for further pro-

ceedings consistent with this opinion.

Judgment reversed in part and vacated in part, and case re-
manded with direction. All the Justices concur, except Boggs, C. J.,
not participating.

26
Decided February 20, 2024.

Certiorari to the Court of Appeals of Georgia — 365 Ga. App.

351.

Alston & Bird, Keith R. Blackwell, M. David Boyer II; Butler

Mersereau, B. Davis Butler, for appellant.

Troutman Pepper Hamilton Sanders, Harold D. Melton, Mi-

chael G. Foo; Stanley Esrey & Buckley, James M. Sherman, D. Greg-

ory Michell, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: February 20, 2024

S23G0263. PREMIER PEDIATRIC PROVIDERS, LLC v. KENNE-
SAW PEDIATRICS, P.C.

PINSON, Justice.

Kennesaw Pediatrics, P.C. sued Premier Pediatric Providers,

LLC and won summary judgment. Premier appealed, which meant

it then had 30 days to have the hearing transcript prepared and filed

as part of the record on appeal. Premier did not do so. Months later,

Kennesaw Pediatrics moved to dismiss the appeal under OCGA § 5-

6-48 (c), arguing that the delay in filing the transcript was unrea-

sonable, inexcusable, and caused by Premier. Premier then realized

its mistake and had the transcript filed within days.

To counter Kennesaw Pediatrics’s motion to dismiss, Premier

explained that it had believed the transcript was filed a few days
after the notice of appeal and presented evidence in support. Hear-

ing that evidence, the trial court found the delay was not inexcusa-

ble and denied Kennesaw Pediatrics’s motion to dismiss. But on ap-

peal, the Court of Appeals concluded that the trial court had abused

its discretion, reversed the trial court’s order, and dismissed the ap-

peal.

We granted review to clarify the standard for appellate review

of a trial court’s decision whether to dismiss an appeal under OCGA

§ 5-6-48 (c), both as to the predicate findings and the ultimate deci-

sion whether to dismiss, and to consider whether the Court of Ap-

peals properly applied that statute in this case.

We now vacate in part and reverse in part the Court of Appeals’

decision. The Court of Appeals was right that the trial court’s order

was subject to review for abuse of discretion, a standard that applied

both to the trial court’s predicate findings and its ultimate decision

to deny the motion. But under that standard, the trial court did not

abuse its discretion in denying Kennesaw Pediatrics’s motion to dis-

miss, for the reasons we set out below. Finally, an appellate court

2
may not dismiss an appeal challenged under OCGA § 5-6-48 (c) (as

the Court of Appeals did here), and it is generally not proper even to

direct the trial court to do so. That statute expressly prohibits an

appellate court from dismissing an appeal based on the failure to

timely file the transcript, and it gives the trial court discretion as to

the ultimate question whether to dismiss an appeal.

1. Kennesaw Pediatrics sued Premier for the right to inspect

Premier’s business records. On July 20, 2021, the court granted

summary judgment in favor of Kennesaw Pediatrics.

Premier filed a timely notice of appeal on August 2, 2021.

Premier’s notice of appeal specified that “[t]ranscripts of evidence

and proceedings for the hearing held on Petitioner’s and Respond-

ent’s cross Motions for Summary Judgment, held on July 19, 2021,

should be filed for inclusion in the record on appeal.” By statute,

Premier then had 30 days, or until September 1, 2021, to have the

transcript filed with the Court of Appeals as part of the record on

appeal. See OCGA § 5-6-42 (“[t]he party having the responsibility of

filing the transcript shall cause it to be filed within 30 days after

3
filing of the notice of appeal”).

Over four months later, on December 16, 2021, Kennesaw Pe-