Morris v. Mullis

¶1Ellie 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.

¶2On 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.

¶3On 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 farther alleged that the *429Morrises 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.

¶4At 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.

¶5Before we consider the issues properly before this court, we must briefly address the dissent. The dissent accuses the Morrises of “improper judge shopping” because they dismissed an action in one court and filed a similar action in another. Its characterization of this case as “foiled judge shopping” and its accusations of dishonesty draw attention from the numerous procedural errors committed by the superior court. The record shows that after the Morrises filed their action in superior court, they obtained new counsel who determined that the proper way to obtain the relief sought by his clients was to file an action in probate court to remove the obstruction the Mullises had erected. He therefore dismissed the superior court action and filed a petition to remove an obstruction in probate court. *430There is no merit to the dissent’s “judge-shopping” characterization because

it has been repeatedly held that the intent of the legislature in enacting OCGA § 9-11-41 (a)[, which allows a plaintiff to dismiss an action without prejudice at any time before the plaintiff rests his case,]3 was to give plaintiffs the opportunity to escape untenable positions and relitigate the case. There is no bad faith exception to the right to dismiss and later relitigate, despite whatever inconvenience and irritation this may cause the defendants.4

¶6Although 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

¶7To 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.

¶8*431The 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.

¶91. The Morrises claim that the superior court erred by consolidating the probate court action with the superior court action without their consent.

¶10Pursuant 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.

¶11Although 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

¶12The 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 *432erred by consolidating the probate court action with the superior court action.14

¶132. 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.

¶14OCGA § 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

¶15Although 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 actually heard” by the superior court on August 8, 2002, not the declaratory judgment action. The dissent finds that, therefore, the superior court had no obligation to comply with the time requirements of OCGA § 9-4-5. In fact, after an extensive discussion of whether the court would hear only the declaratory judgment action or both actions, the court decided, “I think I’m going to go ahead and hear it all.” In addition, contrary to the dissent’s claim, the Mullises did present evidence supporting their declaratory judgment action. Thus, the court should have complied with the time requirements of OCGA § 9-4-5.

¶16In addition, the dissent takes the position that even if OCGA § 9-4-5 does apply, its requirements were met because the hearing was conducted more than 20 days after the Morrises filed their probate court action. Equating the filing of the Morrises’ own action in probate court with receipt of a declaratory judgment action filed against them is inconsistent with statutory requirements. The 20-day requirement relates to service of the declaratory judgment action and that requirement clearly was not met.

¶173. The Morrises claim that they were entitled to a jury trial in the declaratory judgment action.

¶18OCGA § 9-4-5 provides for a jury trial in declaratory judgment actions if there is an issue of fact which requires submission to a jury. But the Morrises have not pointed to any such factual issues. The only disputed fact that arose at the superior court hearing was *433whether Ellie Morris had made repairs to the road at issue. The superior court accepted as true Mr. Morris’s testimony that he had graded the road in the 1970s, but drew a different conclusion than the one argued by the Morrises. Under the circumstances, a jury trial was not required.16

¶194. The Morrises correctly point out that the Mullises failed to comply with OCGA § 9-11-65 (b) and claim that the trial court should not have granted their request for a temporary restraining order.

¶20It is clear from the Mullises’ petition that they did not provide the Morrises with notice of their intent to seek a temporary restraining order. OCGA § 9-11-65 (b) provides that a temporary restraining order may be granted without notice only if:

(1) It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and (2) The applicant’s attorney certifies to the court, in writing, the efforts, if any, which have been made to give the notice and the reasons supporting the party’s claim that notice should not be required.

¶21The only part of this statute with which the Mullises complied is the written certification by their attorney about the efforts made to give notice to the Morrises. Their attorney certified that he had given no notice to the Morrises.

¶22Because the requirements of OCGA § 9-11-65 (b) were not met, the superior court lacked authority to grant a temporary restraining order without notice to the Morrises.17 Thus, the superior court erred by granting the Mullises’ request for a temporary restraining order.18

¶23The dissent takes the position that because the court may have given the Morrises injunctive relief without requiring proper notice, the Mullises are entitled to the same treatment and the Morrises have no right to complain. The fact that the court may have repeatedly failed to follow the rules regarding the grant of injunctive relief does not preclude either party from complaining of one of those failures.

¶245. Finally, the Morrises claim that the superior court erred by assuming jurisdiction of the probate court action.

¶25The parties agree that the probate court had jurisdiction to hear *434the Morrises’ petition to remove an obstruction from a private way,19 and that the superior court had concurrent jurisdiction to hear the petition. Where a probate court (formerly a court of ordinary) and a superior court have concurrent jurisdiction over an action, the general rule is that the court first taking jurisdiction will retain it unless some good reason is shown for equitable interference.20 The only reason given by the superior court for assuming jurisdiction over the probate court action was that Kay Mullis was not a party to the probate court action. But that could have been remedied easily by adding her as a party.21 We find no valid reason for the superior court to have interfered with the probate court action and reverse its decision on the Morrises’ petition to remove an obstruction.

¶26Judgment reversed.