WYATT Et Al. v. HIZER

788 S.E.2d 866, 337 Ga. App. 767, 2016 Ga. App. LEXIS 402
CourtCourt of Appeals of Georgia
DecidedJuly 7, 2016
DocketA15A1706
StatusPublished

This text of 788 S.E.2d 866 (WYATT Et Al. v. HIZER) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
WYATT Et Al. v. HIZER, 788 S.E.2d 866, 337 Ga. App. 767, 2016 Ga. App. LEXIS 402 (Ga. Ct. App. 2016).

Opinions

Branch, Judge.

Villa Hizer brought an action to quiet title against Greg and Beth Wyatt, who counterclaimed, and a special master was appointed to hear the issues. At the beginning of the ensuing hearing, which was not transcribed, the Wyatts presented a demand for a jury trial to the special master; nevertheless, the hearing proceeded, following which the special master made findings of fact and conclusions of law in favor of Hizer. The superior court then held a hearing regarding the effectiveness of the jury demand and found asa matter of fact that the Wyatts had not filed the demand prior to the special master’s hearing. The court then adopted the special master’s findings, and the Wyatts appeal. For the reasons that follow, we reverse.

The record shows that in her September 2012 complaint, Hizer alleged that she was the fee simple owner of Lot 2, Block 2 of the Buena Vista Brow Subdivision in Chattooga County, as shown on an August 23, 2012 plat referred to by the parties as the Campbell plat. Hizer alleged that the Wyatts claimed an interest in the same property and had entered onto the subject property without authorization. Hizer asked the court, among other things, to appoint a special master, to refer the proceeding to the special master, and to quiet title to Lot 2.

The Wyatts answered and filed a counterclaim in which they asserted that they were the owners of the subject property; they also alleged that the same property was shown as Lot 1 on a January 10, 2012 plat referred to by the parties as the Morrison plat and that they have an interest in the property as a result of a quitclaim deed transferring that lot to them on June 14, 2012. The Wyatts alleged that the confusion between the two plats needed to be resolved, and they asked the court to declare that the Morrison survey showed the true location of the subject property and to eject Hizer from possession. The Wyatts also asked the court to appoint a special master and that the proceeding be referred to the special master.

Thereafter, the court appointed a special master, and he entered an order in which he assumed jurisdiction under applicable law and ordered each party to file copies of the public record title documents for their respective chains of title for a minimum of 40 years or back to when the two properties were conveyed by a common grantor. The record shows that Hizer supplied record title documents in response to the special master’s order, but the record does not clearly show what documents the Wyatts provided. In a brief, Hizer argued that the relevant issues could be determined from the documentary evidence but that in the alternative, the evidence would establish [768]*768that Hizer had adversely possessed the property at issue sufficient to establish title. A hearing was then scheduled for June 13, 2013, at 9:30 a.m.

Neither party requested that the special master hearing be recorded, and no transcript nor any recreation of the events of the special master hearing has been provided to this court. But a “Demand For Jury Trial,” prepared by the Wyatts and file-stamped June 13, 2013 (but not time-stamped), is contained in the trial court record; the Demand states that it was made “prior to the hearing of the Special Master”; it does not state that it was “filed” prior to the hearing. In their Demand, the Wyatts demanded a jury trial on “any disputed issue of fact.” Hizer admitted in her post-hearing brief that

[a]t the start of the [special master] hearing, but before oral testimony was given, attorney for Defendants Wyatt presented opposing attorneys and the Special Master with an unfiled copy of a Demand for Jury Trial, stating that he wished to reserve the issue of adverse possession for determination by a jury.

Hizer also admitted that at the hearing, the Wyatts’ counsel “made the statement that he was reserving the right of jury trial regarding defendants’ claim of adverse possession.” Four months after the hearing, the special master issued a report in favor of Hizer.

The Wyatts filed an objection to the special master’s report and an additional request for a jury trial, to which Hizer objected. The Wyatts asserted that they

d[id] not take issue with the findings of the Special Master as to Hizer having title as to Lot 2 and Wyatts as to Lot 1 and agree that the issue is between the parties as to the boundary between Lot 1 and Lot 2 which is a question of fact that was reserved for jury determination.

The case was then set for a hearing in the superior court. At the hearing, Hizer explained that two affidavits of the clerk of court had been filed in the trial court record. In the first, the clerk averred that the Wyatts’ first jury demand had been filed prior to the special master hearing on June 13, 2013. But in the second affidavit, the same clerk averred that his first affidavit was incorrect, and that, in fact, he had no knowledge to the effect that the jury demand was filed prior to the special master hearing that day and that there was “no official record in [his] office that would reflect that it was filed prior to the Special Master hearing.” At the hearing, counsel for the Wyatts [769]*769stated that he did file the jury demand prior to the special master hearing and that he gave a copy to Hizer and the special master before the hearing.

The superior court took the matter under advisement and eventually entered an order adopting the special master’s findings. With regard to the jury demand, the court found that to invoke their statutory right to a trial by jury and thereby divest the special master of jurisdiction, the Wyatts had to file the demand with the clerk prior to the special master hearing: “The filing of the jury demand is a jurisdictional action. The demand must be filed and stamped prior to the Special Master commencing the hearing to be effective.” The court also found as a matter of fact that the second affidavit executed by the clerk indicated that the Wyatts had not filed a jury demand prior to the hearing. The Wyatts appeal from the trial court’s order.

“[Ojnce the trial court adopts the special master’s findings and enters judgment, the court’s decision is upheld by the appellate court unless clearly erroneous.” McGregor v. River Pond Farm, 312 Ga. App. 652, 653 (1) (719 SE2d 546) (2011) (citation omitted). Conclusions of law are reviewed de novo. Id.; see also McMillan v. Siver, 233 Ga. App. 350, 352 (504 SE2d 208) (1998) (“[wjhere a trial court . . . makes a factual finding, the court’s determination will be affirmed unless it is clearly erroneous”) (citation omitted).

1. The Wyatts first contend the trial court erred by ruling that they failed to demand a trial by jury in a timely manner. As explained below, we find the trial court’s determination to be clearly erroneous.

“When the trial court appoints a special master to hear a quiet title claim, the special master is the arbiter of law and fact and decides all the issues in the case unless a party to the proceeding demands a jury trial pursuant to OCGA § 23-3-66.” Paul v. Keene, 272 Ga. 357, 358 (529 SE2d 135) (2000) (citations omitted). If such a demand “is timely made, the case must be submitted to a jury if a question of fact is presented by the evidence.” Id. (citations omitted); Addison v. Reece, 263 Ga. 631, 632 (1) (436 SE2d 663) (1993).

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Bluebook (online)
788 S.E.2d 866, 337 Ga. App. 767, 2016 Ga. App. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wyatt-et-al-v-hizer-gactapp-2016.