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

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

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

840 S.E.2d 709

Paul Oliver, Atlanta, for Appellant.

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

Coomer, Judge.

354 Ga.App. 304

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

354 Ga.App. 305

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

840 S.E.2d 710

Ultra to submit what it

354 Ga.App. 306

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[.]

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