Adams v. Neykov
| Decision Date | 05 October 2020 |
| Docket Number | A20A1217, A20A1500 |
| Citation | 356 Ga.App. 884,849 S.E.2d 712 |
| Parties | ADAMS v. NEYKOV, and vice versa. |
| Court | Georgia Court of Appeals |
Fred D. Bentley Jr., Jamie Steven Wingler, Marietta, for Appellant in A20A1217.
Mason Bradley Rountree, Dallas, for Appellee in A20A1217.
Fred D. Bentley Jr., Jamie Steven Wingler, Marietta, for Appellee in A20A1500.
Mason Bradley Rountree, Dallas, for Appellant in A20A1500.
In this highly litigated struggle, Leann Adams, the clerk of the Municipal Court of the City of Dallas (hereinafter, "the Clerk"), appeals the entry of an order of mandamus requiring her to execute and file a supersedeas bond in connection with Dafiyan Neykov's attempt to appeal an order issued by that court in a nuisance case filed against him. Neykov cross-appeals, challenging one aspect of the court's order. For the reasons that follow, we affirm the grant of mandamus and dismiss the cross-appeal as moot.1
The parties agree that the matter began in the municipal court as a quasi-criminal action against Neykov to abate a nuisance.2 Following an evidentiary hearing, that court entered an order in which it fined Neykov $680 for his continuing nuisance and awarded the City of Dallas $1,500 for its costs of litigation and attorney fees.
Neykov petitioned the Superior Court of Paulding County for a writ of certiorari, and that court sanctioned the petition, issued the writ, and ordered that Neykov had 30 days "to obtain and file the requisite bond with any approval or certification of such bond and certification of payment of costs as required by law." Neykov's ensuing attempts to obtain approval and certification of a bond from the municipal court failed, and he elected to dismiss his petition for a writ of certiorari without prejudice.
Neykov then filed, in superior court, a petition for a writ of mandamus against the municipal court judge, seeking an order requiring the judge to approve a supersedeas bond for his appeal. At some point thereafter, the superior court ruled that the bond would need to be endorsed by the Clerk and not the judge. Neykov thereafter attempted to obtain approval of the bond from the Clerk. The Clerk refused, raising grounds, among others, that the wording of the bond was incorrect in that it stated that the bond would be "void" if Neykov failed to appear and abide the final judgment, rather than "forfeit[ed]."
At this point, Neykov filed a second petition for writ of certiorari in the superior court as a renewal action under OCGA § 9-2-61 (a).
Contemporaneously, Neykov filed the petition for mandamus that is the subject of this appeal. He filed several amendments to the mandamus petition, including a supplement indicating that he had separately submitted a modified proposed bond containing the word "forfeited" instead of "void," and he submitted a modified proposed bond itself, to which the Clerk responded by stating that she did not have time to consider it before the then-impending hearing. In the petition as amended, Neykov requested that the superior court order the Clerk, who had declined Neykov's various requests, to perform her legal duties necessary to accept and approve his request for a supersedeas bond in connection with his second attempt to obtain a writ of certiorari to appeal the municipal court's decision in the nuisance action.3
Following a hearing on the petition for mandamus, the superior court granted mandamus, concluding that the Clerk's refusal to receive and file the amended supersedeas bond was not justified. In Case Number A20A1217, the Clerk appeals the superior court's grant of mandamus. In Case No. A20A1500, Neykov cross-appeals, asserting that the Clerk had no authority to question whether he was authorized to dismiss and renew his petition for writ of certiorari.
The appellate courts will not interfere with a trial court's decision granting mandamus relief "absent a showing that the court manifestly abused its discretion." Burke County v. Askin , 294 Ga. 634, 637 (2), 755 S.E.2d 747 (2014).4 Review of the trial court's determination on a question of law, however, is de novo. See Blalock v. Cartwright , 300 Ga. 884, 885 (I), 799 S.E.2d 225 (2017).
1. In her first three enumerations of error, the Clerk challenges three rulings by the superior court concerning whether Neykov had satisfied the prerequisites for filing a petition for certiorari in the superior court and whether he was authorized to renew his petition. The Clerk had raised these alleged procedural irregularities as justification for her failure to approve Neykov's supersedeas bond. As explained below, because the clerk had no authority to challenge Neykov's compliance with the prerequisites of his petition for certiorari or the validity of his renewal action, we find these enumerations of error to be without merit.
"[T]he writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights[.]"
OCGA § 9-6-20. OCGA § 9-6-21 (a) ; see also Bibb County v. Monroe County , 294 Ga. 730, 734 (2), 755 S.E.2d 760 (2014) (); Gwinnett County v. Ehler Enterprises , 270 Ga. 570, 570 (1), 512 S.E.2d 239 (1999) ().
Chapter 4 of Title 5 governs certiorari to the superior courts, and the various steps necessary to appeal are set forth therein. See OCGA § 5-4-1 et seq. The legal duty underlying Neykov's motion for mandamus is found in OCGA § 5-4-20 (a), which provides that in criminal and quasi-criminal actions, such as the present action, a petitioner for a writ of certiorari is "entitled to a supersedeas of the judgment" if he files with the clerk an appearance bond, payable to the municipality, "in an amount and with security acceptable to and to be approved by the clerk[.]"5
The Clerk justified her refusal to approve Neykov's bond on what she determined to be three shortcomings in Neykov's petition for certiorari: (a) that Neykov failed to satisfy the requirements of OCGA § 5-4-5 (a)6 ; (b) that Neykov was not authorized to dismiss and renew a petition for a writ of certiorari under OCGA § 9-11-61 (a)7 ; and (c) that, given that Neykov was not authorized to renew his petition for certiorari, his renewed petition was untimely. In granting mandamus, the superior court rejected the Clerk's reasoning as being contrary to the law or the facts, and, in addressing ground (c), the superior court held that the Clerk's discretion arising out of her duty to accept and approve a supersedeas bond did not authorize her to assess whether a petition for a writ of certiorari was properly filed in the superior court. This latter reasoning disposes of all three of these enumerations of error.
When rejecting the Clerk's position on ground (c), the superior court held that the Clerk exceeded the scope of her authority when she assessed whether Neykov's petition for a writ of certiorari was properly filed in the superior court:
[The Clerk] indicated that the bond was rejected in part because the Original Petition for Writ of Certiorari was flawed and the revival petition filed on April 22, 2019 was invalid. The Court finds these determinations to be outside of the scope of the clerk's discretion in issuing a bond. OCGA § 5-4-20 permits a clerk to review and approve a bond as to its amount and security, and while Spain v. Clements [, 63 Ga. 786, 787 (1879) ] acknowledges that a clerk may review a bond for its legality and sufficiency under the plain provisions of the statute, the statute does not intend, nor would it be prudent, for a clerk of court to perform a complex legal analysis on the validity of a Petition for Writ of Certiorari before issuing a supersedeas bond. Therefore the Court finds that the clerk of court was not entitled to refuse to receive and file the amended bond as submitted by the Petitioner.
We agree with the superior court. In the present setting, OCGA § 5-4-20 (a) provides that a person, such as Neykov, convicted of a quasi-criminal offense in municipal court who desires a writ of certiorari is "entitled" to a supersedeas of the judgment "if he files with the clerk of the court ... a bond ... payable to the municipality, in amount and with security acceptable to and to be approved by the clerk ..., conditioned that the defendant will personally appear and abide the final judgment[.]" Thus, the Clerk is given discretion to accept and approve the bond itself, nothing more. The language of OCGA § 5-4-20 does not authorize a municipal court clerk to investigate whether the applicant has timely filed a petition for writ of certiorari in the superior court or obtained a certificate showing that costs have been paid. The Clerk's reliance on Spain v. Clements , is flawed for this same reason. That case dealt with the legality of the bond itself, over which a clerk does have discretion, not the validity of the petition for writ of certiorari filed in the superior court. See Id.8
In sum, pretermitting whether the trial court correctly ruled that OCGA 5-4-5 does not apply to criminal cases or that Neykov was authorized to file a renewal, we hold that the Clerk was not authorized to refuse to accept and approve Neykov's request for a supersedeas bond on any of the above grounds because they fall outside of...
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