Pistacchio v. Frasso

This is the second appearance of this case before this court. We remanded this appeal in Pistacchio v. Frasso , 309 Ga. App. 583 711 SE2d 98 2011, because the trial court’s grant of the appellee’s motion to dismiss failed to make an express finding concerning whether the appellants’ delay in filing the transcript was unreasonable. On remand, the trial court made the requisite finding, and now we address the merits of the court’s dismissal of the appeal. For the following reasons, we affirm. The trial court entered a judgment in favor of the appellee, Jerry Frasso, following a jury verdict in favor of Frasso and against Michael Pistacchio and Mary Lou Harris the appellants in this breach of contract action. On September 28, 2009, the appellants filed a motion for new trial which the trial court heard on March 4, 2010, and denied on April 19, 2010. The appellants filed a notice of appeal on May 18, 2010, requesting that the transcript of the proceedings be included on appeal, including the March 4, 2010 motion for new trial hearing. On the same day appellants filed the notice of appeal, counsel for the appellants contacted the trial judge’s official court reporter to inquire about the March 4, 2010 hearing transcript, but was unable to reach her and left a message.

The deputy clerk prepared the record and mailed a bill of costs to the appellants in a letter dated June 9, 2010. The bill of costs was return receipt dated for June 10, 2010, and filed on June 11, 2010. The deputy clerk received a call from the appellants’ counsel on June 17, 2010 informing her that appellants had received the bill of costs and were waiting on the judge’s court reporter to contact them. According to counsel, the deputy clerk advised “that she would wait on the transcript in order to update our final cost bill and would hold the appeal for us.” On June 18, the trial judge’s official court reporter contacted counsel for the appellants, and explained that another court reporter took down the March 4 hearing, and provided counsel with a phone number for the reporting agency.