Mrunalini Patel v. Thomas Epps

• Court: Court of Appeals of Georgia
• Decided: May 31, 2012
• Docket: A12A0480
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

May 31, 2012

In the Court of Appeals of Georgia A12A0480. PATEL v. EPPS.

BARNES, Presiding Judge.

Because Mrunalini Patel appeals from an order of the superior court reviewing

the decision of a special master appointed under the Auditors Statute, OCGA § 9-7-1

et seq., she was required to follow the discretionary appeal procedure mandated by

OCGA § 5-6-35 (a) (1). Rather than follow that procedure, Patel filed a direct appeal

under OCGA § 5-6-34. Consequently, we must dismiss this appeal for lack of

jurisdiction.

The record shows that Patel and Thomas Epps own adjoining residential lots

in an Atlanta subdivision. When Patel began constructing a concrete wall, a dispute

arose between the parties over the location of the boundary line between their lots.

Unable to resolve their dispute, Epps filed suit against Patel in the Superior Court of Fulton County, alleging that the wall crossed the boundary line and encroached onto

his property.

With the consent of the parties, the superior court appointed a special master

under the Auditors Statute, OCGA § 9-7-1 et seq., “to resolve all issues, factual and

legal, presented in the above-captioned matter relating to the boundary lines

separating the properties owned by the parties.” After inspecting the area of the

disputed boundary line with the parties’ surveyor witnesses and conducting an

evidentiary hearing, the special master issued her report containing findings of fact

and conclusions of law in which she found in favor of Epps regarding the location of

the boundary line.

Pursuant to OCGA § 9-7-13, the superior court subsequently recommitted the

report to the special master to evaluate whether to modify it. A second hearing was

conducted by the special master, after which she entered a supplemental report that

incorporated the findings of fact contained in the first report and included additional

conclusions of law.

The superior court thereafter entered its “Final Order and Judgment” in which

the court reviewed and adopted the original and supplemental reports of the special

2 master as the order of the court. Patel filed a direct appeal from the superior court’s

order.1

“Although not raised by the parties, we first must address whether a direct

appeal was authorized in this case.” Martinez v. Martinez, 301 Ga. App. 330 (1) (687

SE2d 610) (2009). See Forest City Gun Club v. Chatham County, 280 Ga. App. 219,

220 (633 SE2d 623) (2006) (“This [C]ourt has a duty to inquire into its jurisdiction

to entertain each appeal and review the alleged errors of the trial court.”) (footnote

omitted). OCGA § 5-6-35 (a) (1) provides that an application for a discretionary

appeal is required for appeals “from decisions of the superior courts reviewing

decisions of . . . auditors.” Construing this provision, our Supreme Court has held that

“the judgment in a case in which the superior court has reviewed an auditor’s final

report which contains findings of fact and conclusions of law [is] subject to the

discretionary appeal procedure.” (Citation, punctuation, and emphasis omitted.)

McCaughey v. Murphy, 267 Ga. 64, 65 (1) (473 SE2d 762) (1996). See Ravan v.

Stephens, 248 Ga. 289, 289-290 (282 SE2d 312) (1981); Citizens & Southern Nat.

Bank v. Rayle, 246 Ga. 727, 731 (273 SE2d 139) (1980).

1 Patel appealed directly to the Supreme Court of Georgia, but the appeal was transferred to this Court for lack of Supreme Court jurisdiction.

3 Here, the superior court expressly stated that it was referring issues relating to

the boundary dispute to a special master in accordance with the Auditors Statute,

OCGA § 9-7-1 et seq., and pointed out that its use of the term “special master” was

synonymous with the term “auditor.” See OCGA § 9-7-1. The special master

thereafter entered reports containing findings of fact and conclusions of law which

the superior court reviewed and adopted as its own. Accordingly, under OCGA § 5-6-

35 (a) (1) and the Supreme Court precedent construing it, Patel was required to follow

the discretionary appeal procedure in this case. See McCaughey, 267 Ga. at 65 (1);

Ravan, 248 Ga. at 289-290; Citizens & Southern Nat. Bank, 246 Ga. at 731.2 Because

Patel failed to follow that procedure, we have no jurisdiction over this appeal, which

must be dismissed.

Appeal dismissed. Adams and McFadden, JJ., concur.

2 The discretionary appeal procedure required by OCGA § 5-6-35 (a) (1) does not apply where, in contrast to the present case, the special master is appointed pursuant to Uniform Superior Court Rule 46. See Standard Bldg. Co. v. Schofield Interior Contractors, __ Ga. App. __ (1) (Case No. A11A1869, decided on Mar 29, 2012); Alston & Bird LLP v. Mellon Ventures II, LP, 307 Ga. App. 640, 642 (1) (706 SE2d 652) (2010).

4 July 27, 2012

ON MOTION FOR RECONSIDERATION

Patel has filed a motion for reconsideration of our decision. Citing to

McCaughey v. Murphy, 267 Ga. 64 (473 SE2d 762) (1996), and Sorrentino v. Boston

Mut. Life Ins. Co., 206 Ga. App. 771, 772 (1) (426 SE2d 594) (1992), Patel argues

that the superior court’s order was directly appealable because the report and

supplemental report submitted to the court by the special master appointed under the

Auditors Statute did not resolve all of the underlying factual and legal issues in the

case. But McCaughey and Sorrentino stand only for the proposition that a direct

appeal is authorized when the auditor’s report fails to contain separate findings of fact

and conclusions of law. Because the report and supplemental report submitted to the

superior court in the present case contained separate findings of fact and conclusions

of law, McCaughey and Sorrentino are inapposite.

Furthermore, it is clear from the superior court’s “Final Order and Judgment”

adopting the original and supplemental reports of the special master that the superior

court itself treated the reports as addressing and resolving all of the underlying factual

and legal issues pertaining to the claims still pending in the case. Thus, Patel’s

contention is really that the superior court erred in how it construed the special

master’s reports, a contention that goes to the merits of the superior court’s ruling

rather than the threshold question of jurisdiction. See Horne v. Andrews, 264 Ga. App. 145, 147 (2) (589 SE2d 719) (2003) (“Jurisdiction either exists or does not exist

without regard to the merits of the case.”) (punctuation and footnote omitted).

Patel also argues that the superior court’s order is directly appealable under

OCGA § 5-6-34 (d) because the order went beyond simply reviewing and adopting

the original and supplemental reports of the special master.1 The superior court’s

order, when read in conjunction with the briefs filed by the parties in the court below,

addressed and ruled on two interrelated issues: (1) whether to approve Patel’s

exceptions filed pursuant to OCGA § 9-7-14 of the Auditors Statute and modify the

special master’s reports, and (2) whether to grant Patel’s request to have her

exceptions of fact to the special master’s reports tried before a jury pursuant to OCGA

§ 9-7-17 of the Auditors Statute. In its order, the superior court rejected Patel’s

exceptions and instead adopted the special master’s reports as the order of the court.

The superior court also denied Patel’s request to have the exceptions of fact tried

1 OCGA § 5-6-34 (d) provides in relevant part: “Where an appeal is taken under any provision of subsection (a), (b), or (c) of [OCGA § 5-6-34], all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.”

2 before a jury, based upon the court’s finding that all non-equitable claims had been

voluntarily abandoned by Epps.

Contrary to Patel’s suggestion, the superior court’s denial of Patel’s request to

have the exceptions of fact tried before a jury does not render the court’s order

directly appealable under OCGA § 5-6-34 (d).

[T]he underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal. A party should review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5-6-35. This approach fulfills the legislature's intent to give appellate courts more discretion in managing their caseload. Otherwise, any party could avoid the discretionary review procedure by seeking relief, however inappropriate, that would trigger the right to a direct appeal.

(Footnote omitted.) Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994). See

Ferguson v. Composite State Bd. of Medical Examiners, 275 Ga. 255, 256-257 (1)

(564 SE2d 715) (2002). Here, the underlying subject matter involved the superior

court’s review of a decision by a special master appointed under the Auditors Statute

for which an application for discretionary appeal was required under OCGA § 5-6-35

(a) (1). And Patel’s request for a jury trial was not independent of her challenge to

3 the special master’s decision, given that her request was predicated on a provision of

the Auditors Statute itself (OCGA § 9-7-17) and addressed the same exceptions of

fact forming her challenge to the special master’s decision. Consequently, in light of

the underlying subject matter, Patel was required to file an application in accordance

with that statute irrespective of the superior court’s ruling on her request for a jury

trial. See Ravan v. Stephens, 248 Ga. 289 (282 SE2d 312) (1981) (concluding that

discretionary appeal was required in case where superior court reviewed and

approved auditor’s report, but also issued a permanent injunction).

This conclusion is supported by Citizen & Southern Nat. Bank v. Rayle, 246

Ga. 727, 728 (273 SE2d 139) (1980). In that case, our Supreme Court dismissed an

appeal for failure to follow the discretionary appeal procedure, where the appellant

was seeking to appeal a superior court order reviewing and approving an auditor’s

report, although one of the enumerated errors was the superior court’s “denial of a

jury trial.” The Supreme Court held that “[i]n accordance with the intended purpose”

of the discretionary appeal statute, “all of the enumerated errors in [the] case [were]

subject to the application requirement” imposed by that statute. Id. at 731. Rayle

directly controls and is binding precedent supporting the dismissal of this appeal.

4 For these combined reasons, Patel has failed to show that we overlooked a

material fact that would require a different result on appeal. Nor has Patel shown that

we overlooked controlling authority or erroneously construed or misapplied any of

the authorities cited in the original opinion. Therefore, Patel’s motion for

reconsideration is DENIED. See Court of Appeals Rule 37 (e).