Barmore v. Himebaugh

410 S.E.2d 46, 200 Ga. App. 868, 1991 Ga. App. LEXIS 1163

• Court: Court of Appeals of Georgia
• Decided: July 16, 1991
• Docket: A91A0653
• Status: Published

Opinions

Birdsong, Presiding Judge.

Melissa Barmore and all other adult relatives of Jolinda Jane Rogers, an incapacitated adult, except appellee, appeal the superior court’s grant of summary judgment to appellee Jeffery Himebaugh, Rogers’ son, on the appeal of the probate court’s denial of their petition to remove Himebaugh as Rogers’ guardian. Although expressed in several enumerations of errors, appellants’ primary complaint is that the superior court erred by refusing to consider certain evidence, not presented in the probate court, because the superior court held that it could not consider the evidence as it concerned new issues. Held:

Although the superior court relied upon Williams v. Calloway, 171 Ga. App. 286 (319 SE2d 500) and Mathews v. Mathews, 136 Ga. App. 833 (222 SE2d 609), as authority that new issues may not be raised in the superior court, both Williams and Mathews predate the 1986 amendments to OCGA §§ 5-3-29 and 29-5-11 and our Supreme Court’s decision in Lee v. Wainwright, 256 Ga. 478 (350 SE2d 238).

Contrary to the holdings in Williams and Mathews, supra, Lee v. Wainwright holds that de novo appeals to the superior court are not limited to issues raised in the probate court. Lee states “[t]he purpose of this statute [OCGA § 5-3-29] is to provide the parties to an appeal from probate court a de novo hearing, and ‘all competent evidence’ may be introduced in the superior court regardless of whether it was submitted in the probate court. [Cit.]” Id. at 479. Therefore, under Lee all competent evidence must be admitted on de novo appeal to the superior court regardless of whether it concerned new issues. This rule was reiterated recently in Justice Hunt’s concurring opinion in Shockley v. Fayette County, 260 Ga. 489, 492, n. 1 (396 SE2d 883), “de novo investigations are not limited to issues presented in the lower tribunal. OCGA § 5-3-29.”

Moreover, OCGA § 29-5-11 (a) provides that “[t]he appeal shall, be in the same manner as other appeals from the probate court to the superior court but shall be heard as expeditiously as possible. The appeal shall be de novo unless the parties by agreement specifically limit the issues.”

The general procedure for de novo appeals to the superior court is set forth in OCGA § 5-3-29. This section provides that “[a]n appeal to the superior court ... in any other case where not otherwise provided by law, is a de novo investigation. It brings up the whole record from the court below; and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case.”

Therefore, since all competent evidence may be considered in a de novo appeal to the superior court, it was error for the superior court to exclude any competent evidence relevant to the removal of Himebaugh as Rogers’ guardian. Lee v. Wainwright, supra. Accordingly, the grant of summary judgment to Himebaugh must be reversed. Our ruling on this issue renders moot the other errors enumerated.

Further, to the extent Williams and Mathews conflict with Lee, they are no longer valid precedent. Also, to the extent that Division 2 of Russell v. Flynn, 191 Ga. App. 196, 197 (381 SE2d 142), relies on Williams and Mathews and conflicts with Lee, it is no longer valid precedent.

Judgment reversed.

McMurray, P. J., Carley and Beasley, JJ., concur. Sognier, C. J., and Andrews, J., concur specially. Banke, P. J., Pope and Cooper, JJ., dissent.