Haygood v. Haygood

• Decision Date: 09 July 2010
• Docket Number: A10A1227 and A10A1225.,A10A0757,No. A10A0756,A10A1226,A10A0756
• Parties: HAYGOOD et al.v.HEAD et al.Haygood et al.v.Rogers et al.Haygood et al.v.Tilley.
• Court: Georgia Court of Appeals

305 Ga.App. 375
699 S.E.2d 588

HAYGOOD et al.
v.
HEAD et al.
Haygood et al.
v.
Rogers et al.
Haygood et al.
v.
Tilley.

Nos. A10A0756, A10A1226, A10A0757, A10A1227 and A10A1225.

Court of Appeals of Georgia.

July 9, 2010.

699 S.E.2d 589

COPYRIGHT MATERIAL OMITTED

699 S.E.2d 590

Johnny Haygood, pro se.

Donna Haygood, pro se.

699 S.E.2d 591

James S. Astin, Cedartown, for appellees (case nos. A10A0756 and A10A1226).

Larry H. Rogers, pro se (case nos. A10A0757 and A10A1227).

Cox Byington, Christopher P. Twyman, Rome, for appellee (case no. A10A1225).

MILLER, Chief Judge.

Polk County property owners Johnny and Donna Haygood commenced lawsuits below against Claude E. Head, Richie Hatch and their land surveying company, Head, Hatch & Associates Land Surveyors (collectively “Head”) and Larry H. Rogers and his land surveying company, Larry H. Rogers Land and Engineer Surveys (collectively, “Larry Rogers”), arising out of alleged faulty surveys Larry Rogers and Head performed for Dan Forsyth, who previously owned property near the Haygoods. The Haygoods were already involved in litigation with Forsyth's successor in title, Phil Tilley, who filed a petition for injunctive relief against the Haygoods seeking to prohibit them from blocking a driveway Tilley used to access his property.¹

In Case Nos. A10A0756 and A10A0757, the Haygoods appeal from the trial court's September 10, 2009 orders of dismissal in the Head and Larry Rogers actions, arguing that the trial court erred in its application of the collateral estoppel doctrine and that its orders are confusing. In Case Nos. A10A1226 and A10A1227, the Haygoods appeal from the trial court's December 1, 2009 amended orders of dismissal in the Head and Larry Rogers actions, issued to correct clerical errors in the prior dismissal orders, asserting violation of their due process rights. In Case No. A10A1225, the Haygoods appeal from the trial court's order dismissing their appeal of an adverse summary judgment order in the Tilley action for failure to pay costs, arguing, inter alia, that such failure was excused by their affidavit of indigence. Given the interrelated nature of the Haygoods' appeals, we have consolidated them for disposition.

In Case Nos. A10A0756 and A10A0757, we conclude that the trial court erred in applying the collateral estoppel doctrine to dismiss the Head and Larry Rogers actions and therefore reverse the trial court's September 10, 2009 orders of dismissal. With respect to Case Nos. A10A1226 and A10A1227, we conclude that the trial court's amended orders of dismissal, entered after Haygood filed notices of appeal from the September 10, 2009 orders, are nullities, and we therefore lack jurisdiction over the appeals. Finally, we conclude that the trial court did not abuse its discretion in granting Tilley's motion to dismiss the Haygoods' appeal for failure to pay costs and therefore affirm in Case No. A10A1225.

The Tilley action. The trial court granted Tilley's motion for summary judgment on his claim for permanent injunctive relief and dismissed, sua sponte, the Haygoods' counterclaims.² According to the trial court's summary judgment order,³ Tilley owns property in Polk County identified by the Polk County Tax Commissioner's office as Tax Parcel 047A023B (“Parcel B”) while the Haygoods own nearby property identified as Tax Parcel 047A023C (“Parcel C”). In granting summary judgment in Tilley's favor, the trial court relied on the survey Head prepared for Forsyth as well an earlier survey incorporated by reference into the Haygoods' deed to conclude that a driveway easement running past Parcel C to Parcel B was not owned by the Haygoods but was a nonexclusive easement providing access to the properties it adjoins. Alternatively, the trial court found that Tilley was entitled to a prescriptive easement as well as an easement by implication under OCGA § 44-9-1.

699 S.E.2d 592

The trial court entered its summary judgment order on August 26, 2009, and the Haygoods filed their notice of appeal from the same on August 31, 2009. Shortly thereafter, on September 2, 2009, the Polk County Superior Court Clerk's office mailed the Haygoods a notice requesting payment of appeal costs. On September 23, 2009, the clerk's office sent a second notice of costs to the Haygoods via certified mail, return receipt requested. The return receipt shows that Johnny Haygood signed for the notice on October 9, 2009. In addition, the Haygoods were personally served with the notice of costs on October 8, 2009. The Haygoods filed a “Paupers Affidavit” on October 27, 2009 stating “we are unable to pay the appeal costs at this time because I only have disability income and cannot afford it.” Tilley filed a motion to dismiss the Haygoods' appeal on November 12, 2009, which the trial court granted on December 21, 2009.

The Head and Larry Rogers actions. The Haygoods sued Larry Rogers on claims of fraud, gross negligence, and slander of title and, in a later lawsuit, asserted these claims and a trespass claim against Head. While the Haygoods allege that both Head and Larry Rogers failed to show their exclusive ownership of the driveway easement, they also complain more broadly that land surveys the defendants prepared did not accurately depict the boundaries of Parcel C and the boundaries and/or their ownership of Tax Parcel 047A023E.

The trial court entered identical orders on September 10, 2009 dismissing the complaints in both actions, sua sponte, concluding that the Haygoods were collaterally estopped from pursuing their claims by the summary judgment order in the Tilley action. Each order contained the caption of the Larry Rogers action while purporting to dismiss case 2009-CV-1003, the number assigned to the Head action. After the Haygoods filed notices of appeal from the dismissal orders, the trial court issued orders on December 1, 2009, nunc pro tunc September 10, 2009, in each case to correct clerical errors and to clarify its intent to dismiss both cases.

Case Nos. A10A0756 and A10A0757

1. The Haygoods contend that the trial court erred in dismissing their complaints sua sponte in the Head and Larry Rogers actions based on its conclusion that collateral estoppel barred their claims. We agree.

We review a trial court's sua sponte order of dismissal de novo. Perry Golf Course Dev. v. Housing Auth. of City of Atlanta, 294 Ga.App. 387, 393(6), 670 S.E.2d 171 (2008).

The trial court's application of collateral estoppel was erroneous in several respects. First, the trial court lacked authority to rule, sua sponte, on the merits of a collateral estoppel defense under the circumstances of this case. Collateral estoppel is an affirmative defense that must be pleaded and...