Morris v. Mullis
| Decision Date | 01 December 2003 |
| Docket Number | No. A03A1301.,A03A1301. |
| Citation | 264 Ga. App. 428,590 S.E.2d 823 |
| Parties | MORRIS et al. v. MULLIS et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Cheney & Cheney, Curtis V. Cheney, Jr., Reidsville, for appellants.
Berrien L. Sutton, Homerville, Bryant H. Bower, Jr., Waycross, for appellees. PHIPPS, Judge.
Ellie Morris, Martha Sue Morris, and Debra M. Muth (the Morrises) appeal an order of the Superior Court of Atkinson County in which the court declared that they had not acquired a private way or easement across the property of Kay Mullis and Lamar Mullis. They claim that the court made five procedural errors and that its order should be reversed. We find that the court made four errors, and therefore we reverse.
On July 15, 2002, pursuant to OCGA § 44-9-59, the Morrises filed a "Petition to Remove Obstruction from Private Way" in the Probate Court of Atkinson County.1 In their petition, they alleged that for more than 29 years they had been in continuous and uninterrupted use of a permanent private way over and across land belonging to Lamar Mullis; that Mullis had never taken any steps to prevent them from enjoying the private way; and that Mullis had now obstructed the private way, thereby preventing them access. They sought an order requiring Mullis to remove the obstruction.
On July 22, 2002, Kay and Lamar Mullis filed a "Petition for Declaratory Judgment; for Injunctive Relief; for Damages and for Stay of Proceedings in Probate Court" in the Superior Court of Atkinson County. In their petition, the Mullises alleged that the probate court action was not valid because Kay Mullis, part owner of the land at issue, was not a party to the action. They further alleged that the Morrises had no right to use a road on the Mullises' property without permission and that the Morrises had full access to their property over a road owned by another property owner. The Mullises sought a temporary restraining order precluding the Morrises from entering their property, a stay of the probate court proceedings, a declaration that the Morrises had no right to enter their property, and general damages for any trespass by Ellie Morris. In the petition, counsel for the Mullises certified that he had given no notice to the Morrises of the application for temporary relief. The same day the petition was filed, the superior court: (1) issued a temporary restraining order prohibiting the Morrises from entering or attempting to enter the Mullises' land; (2) stayed the probate court action; (3) consolidated the probate court action and the superior court action; and (4) set a hearing to address both actions for August 8, 2002.
At the August 8 hearing, the superior court announced that it would hear both the probate court action and the superior court action. Counsel for the Morrises objected. At the conclusion of the hearing, the court issued no ruling, but requested briefs from the parties. On August 19, the Morrises filed an answer and counterclaim2 in the superior court action in which they objected to the consolidation of the probate court action with the superior court action and requested a jury trial. In an order filed on September 13, the superior court denied the Morrises' request to remand their obstruction petition to probate court because Kay Mullis had not been made a party to the probate court action. The court held that the Morrises had failed to acquire a prescriptive private way or easement over the Mullises' property and denied the Morrises' request for removal of an obstruction.
Although it cites no authority for its position, the dissent claims that the Morrises could not utilize OCGA § 9-11-41(a) because their pleadings were totally inconsistent. In fact, in the superior court action the Morrises dismissed, they claimed to have acquired a prescriptive easement, and in their probate court petition, which was not a verified pleading, they set forth facts that would support a prescriptive easement. Even if it was apparent from the facts set forth in their initial pleading that they would not prevail, the Morrises were entitled to dismiss that action without prejudice.5
To support its claim of "improper judge shopping," the dissent relies upon Sears v. Citizens Exchange Bank of Pearson.6 In Sears, the defendant against whom a default judgment had been taken moved to reopen the default. When that motion was denied and the time for appeal had passed, the defendant retained new counsel who moved before a different judge of the same superior court circuit a second time to reopen the default judgment. When the trial court granted the second motion to reopen, the plaintiff filed an interlocutory appeal. The Sears court stated that "[t]o allow a losing party to bring before a different judge a renewed motion and dispute a ruling on a motion already heard and denied, after the time for appeal has passed, makes a mockery of the principle of res judicata and wholly disregards the rules of appellate procedure."7 In this case, when the Morrises dismissed their superior court action, no adverse ruling had been issued against them. They did not engage in conduct even remotely similar to the conduct criticized in Sears.
The dissent states that it considers the merits of the underlying cases "to provide the parties with a full and complete resolution of the issues involved in this appeal." But the Morrises do not assert as error or even discuss the ruling on the merits of either case presented to the superior court. Instead, they point out numerous procedural errors committed by the superior court and seek the opportunity to proceed with their action in probate court. We do not consider issues not raised on appeal.8 Instead, our jurisdiction is limited to the consideration of legal points raised by enumeration of error.9 In considering the merits and reaching its conclusion that the right party won, the dissent excuses the trial court's errors. We cannot condone such an approach.
1. The Morrises claim that the superior court erred by consolidating the probate court action with the superior court action without their consent.
Pursuant to OCGA § 9-5-3(a), "[e]quity will not enjoin the proceedings and processes of a court of law, absent some intervening equity or other proper defense of which a party, without fault on his part, cannot avail himself at law." "Even then it should be interposed cautiously."10 In their petition seeking relief from the superior court and a stay of the probate court proceedings, the Mullises claimed that they had no other adequate remedy to determine their rights because the probate court lacked the power to grant injunctive relief or to award damages.
Although the probate court could not grant the temporary restraining order the Mullises sought, it was clear from their petition, because the required notice was not given, that they were not entitled to such relief.11 Further, the Mullises never pointed to any damages they suffered. Their petition merely alleged that Ellie Morris may have come onto their property without permission and that, if he did so, they were entitled to any damages he may have caused. Courts of equity will not exercise the power granted by OCGA § 9-5-3(a) "to allay mere apprehensions of injury, but only where the injury is imminent and irreparable...."12
The only real issue was whether the Morrises had acquired a prescriptive right of way across the Mullises' property. The probate court had jurisdiction to decide that issue.13 Thus, the superior court erred by consolidating the probate court action with the superior court action.14
2. The Morrises claim that the superior court erred by trying the declaratory judgment action less than 20 days after the petition was served without the consent of all parties.
OCGA § 9-4-5 provides that an action seeking a declaratory judgment "may be tried at any time designated by the court not earlier than 20 days after the service [of the action], unless the parties consent in writing to an earlier trial." Here, the Mullises' action was served on July 29, and the trial took place ten days later. The Morrises did not consent in writing to an early trial. Under OCGA § 9-4-5, the superior court was not authorized to make an early ruling on any declaratory judgment issue presented in the two cases and its order must be reversed.15
Although the dissent initially states that the trial court "properly and timely considered and ruled upon the declaratory judgment action," it then takes the position that "it was the [Morrises'] petition regarding the private way that was...
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