Ultra Grp. of Cos. v. Inam Int'l, Inc.

• Decision Date: 10 March 2020
• Docket Number: A19A2063
• Citation: 354 Ga.App. 304,840 S.E.2d 708
• Parties: ULTRA GROUP OF COMPANIES, INC. v. INAM INTERNATIONAL, INC. et al.
• Court: Georgia Court of Appeals

354 Ga.App. 304

840 S.E.2d 708

ULTRA GROUP OF COMPANIES, INC.

v.INAM INTERNATIONAL, INC. et al.

A19A2063

Court of Appeals of Georgia.

March 10, 2020

Paul Oliver, Atlanta, for Appellant.

Scott Robert Hoopes, Timothy S. Walls, Lawrenceville, for Appellee.

Coomer, Judge.

Ultra Group of Companies, Inc. ("Ultra") appeals the superior court’s dismissal of its petition for certiorari and entry of judgment in favor of Inam International, Inc., Sono Merchants, Inc., Farooq Gandhi, Omar Enterprises, Inc., Abdul Ghulamhussain, and Hasina Kebani ("Inam Group"). On appeal, Ultra argues that the superior court erred in (i) dismissing the petition on the basis that the Georgia Lottery Corporation ("GLC") failed to file an answer, and (ii) entering judgment for Inam Group. For the following reasons, we affirm in part and reverse in part.

The underlying dispute between Ultra and Inam Group involves claims pertaining to the leasing and operation of coin operated amusement machines ("COAMs"). Disputes among COAM licensees are governed by the statutory framework associated with the GLC. Pursuant to OCGA § 50-27-102 (d), any disputes between COAM operators must be submitted to arbitration before a hearing officer or arbitration service approved by GLC.

In compliance with this procedure, the parties’ case was heard by an arbitrator approved by GLC. Dissatisfied with the result at arbitration, Ultra appealed to GLC’s CEO pursuant to OCGA § 50-27-102 (d) (5) and GLC Rules and Regulations 13.2.5 (1) (b) (4). After the CEO failed to take any action within 30 days, Ultra filed a petition for certiorari in the Fulton County Superior Court.¹

When it filed its petition, Ultra complied with OCGA § 5-4-6 (b) and served the respondent — GLC — with a copy of the petition. However, GLC failed to file an answer within 30 days of receipt of the petition as required by OCGA § 5-4-7, and Ultra neither requested an extension of time for GLC to answer nor sought to compel an answer from GLC. Inam moved to dismiss the petition in the absence of GLC’s answer. The superior court granted the motion to dismiss, finding that it was Ultra’s responsibility to compel an answer from GLC or request additional time from the trial court to secure an answer. After dismissing the petition, the trial court then entered judgment in favor of Inam, as set forth in the arbitration award. Ultra filed an application for discretionary review, which we granted. It then filed a notice of appeal two days later.

1. Ultra argues that the superior court erred in dismissing its petition because an answer from GLC was not required. We disagree.

"We apply a de novo standard of review to the trial court’s grant of a motion to dismiss." Alcatraz Media, LLC v. Yahoo! Inc. , 290 Ga. App. 882, 882, 660 S.E.2d 797 (2008).

As noted, when a petition for certiorari is filed in superior court, the respondent — in this case GLC — must file an answer within 30 days after service of the writ. OCGA § 5-4-7. The answer is not a pleading, but is a form of return that constitutes a copy of the entire record in the case. Herault v. Dept. of Human Resources , 137 Ga. App. 446, 446-447 (1), 224 S.E.2d 480 (1976). The burden is on the petitioner to see that an answer to the petition is filed in a timely manner. Copeland v. White , 172 Ga. App. 198, 198, 322 S.E.2d 523 (1984). If an answer is not filed, dismissal of the petition is the proper remedy. Id.

Ultra asserts that because it attached a copy of the transcript and final order from the arbitration hearing to its petition, GLC was not required to file an answer.² Permitting Ultra to submit what it says constitutes the record below would circumvent the statutory requirement that the lower tribunal, not the parties, "certify and send up all the proceedings in the case to the superior court, as directed in the writ of certiorari." OCGA § 5-4-3 (emphasis supplied).

Ultra obtained a writ of certiorari from the superior court which directed the GLC CEO to "certify and send up to the Fulton Superior Court all of the proceedings in the case." It is undisputed from the record that the GLC failed to file an answer, and Ultra did not compel GLC to respond or request additional time to seek compulsion. Because Ultra failed to compel GLC to file an answer or seek additional time for it to do so, no certified record from the lower tribunal was ever filed in the superior court. See Maddox v. City of Newnan , 118 Ga. App. 347, 347, 163 S.E.2d 756 (1968) ("Assignments of error and recitals of fact contained in a petition for certiorari to the superior court from the judgment of a recorder’s court which have not been verified by the answer of the magistrate, no answer having been filed, cannot be considered [.]" (emphasis supplied)); Herault , 137 Ga. App. at 448 (1), 224 S.E.2d 480 ("The return or answer must constitute a verification or denial, from the record or otherwise, of material assertions in the petition."); Gornto v. City of Brunswick , 119 Ga. App. 673, 673 (3), 168 S.E.2d 323 (1969) ("[T]he [dismissal of the petition for certiorari] was correct for the additional reason that there was no certification of the record of the trial from the recorder’s court to the superior court." (citation omitted)). See also Copeland, 172 Ga. App. at 198, 322 S.E.2d 523. Because no certified record from GLC was ever filed, and Ultra failed to take any steps to ensure its filing, the superior court did not err in dismissing the petition.

2. Ultra next argues that the trial court erred when, following dismissal of the petition, it entered a judgment on the merits "as set forth in the Final Award in the Arbitration." We agree.

In its order entering judgment for Inam, the trial court cited to OCGA § 5-4-17. That code section states, in pertinent part, that

[i]f the certiorari is dismissed and a final decision is made in the case by the superior court, the defendant in certiorari may have judgment entered in the superior court against the plaintiff and his security for the sum recovered by him, together with the costs in the superior court[.]

OCGA § 5-4-17.

On the face of the statute, it appears as though a superior court can both dismiss a petition for certiorari and simultaneously enter a judgment on the merits. However, we previously interpreted section 5205 of Civil Code 1910, which was nearly identical to the current version of OCGA § 5-4-17, and found that "the word ‘dismiss’ is in fact used in a sense synonymous with ‘overrule’ throughout the sections of the Code dealing with the subject of certioraries." Ray v. Cruce , 21 Ga. App. 539, 540, 94 S.E. 899 (1918). Thus, "if the certiorari is dismissed in the sense that it is overruled, and consequently a final decision can properly be entered in the case, then such a judgment can also be taken against the surety on the certiorari bond." Id. (citation omitted). The trial court’s dismissal here for GLC’s failure to file an answer was not a dismissal in the sense that it overruled the petition. Instead, it was a dismissal on procedural grounds.

When a superior court dismisses a petition on procedural grounds, rather than overrules it, it is without jurisdiction to enter a judgment on the merits. Ray , 21 Ga. App. at 540-541, 94 S.E. 899 ; Dykes v. Twiggs County. , 115 Ga. 698, 700, 42 S.E. 36 (1902) (where petition for certiorari was dismissed on procedural grounds, "there was really no case at all lawfully before the superior court."). In Kirkland v. Luke , we held that

[t]he petition for certiorari being void, the superior court had no power concerning it except to dismiss it, and to enter a judgment for the costs against the petitioner and his security on the certiorari bond. To this extent the judgment is affirmed. But the further action of the court in ordering a judgment against them to be entered for the sum recovered in the [lower] court by the defendant in certiorari was erroneous, and is reversed.

30 Ga. App. 203, 204 (4), 117 S.E. 259 (1923) (citations omitted) (emphasis supplied).

In the instant case, after dismissing the petition, the superior court was without power to adopt the final arbitration award below as its own judgment. That portion of the order is vacated and reversed.

Judgment affirmed in part and reversed in part.

Doyle, P. J., concurs; McFadden, C.J., concurs dubitante.

McFadden, Chief Judge, concurring dubitante.

I concur dubitante¹ in the majority opinion. While it is a correct application of a longstanding rule of Georgia law, I doubt the soundness of that rule.

The rule at issue is that a superior court may dismiss a petition for writ of certiorari if the inferior judicatory (the respondent) fails to answer because it is the duty of the petitioner to see that the respondent files a timely answer. Our Supreme Court articulated this rule in City of Atlanta v. Schaffer , 245 Ga. 164, 264 S.E.2d 6 (1980) :

It is well established that the plaintiff in certiorari to a superior court has the duty of ascertaining whether the [respondent] has filed [an] answer and, if not, to move the superior court to order it filed. ... It has been held that the failure of the [respondent] to file a proper answer will be a sufficient reason to dismiss the certiorari, where no timely motion is made to perfect the same. In such a case, a plaintiff in certiorari is at fault in failing to make an appropriate motion in due time, and the dismissal results from this fault, and not from the bare failure of the [respondent] to file [the] answer.

Id. at 165-166, 264 S.E.2d 6 (citations and punctuation omitted). Citing a decision of this court that relied on City of Atlanta v. Schaffer , the majority opinion correctly applies that rule to affirm the dismissal of the petition in this case.

But the rule troubles me. It is not found anywhere in the statutes establishing the procedure for obtaining certiorari to the superior court, OCGA §§ 5-4-1 through 5-4-20. None of those Code sections imposes a...