Razavi v. Emily

903 S.E.2d 153

RAZAVI

v.EMILY.

A24A0289

Court of Appeals of Georgia.

June 5, 2024

Reconsideration Denied June 20, 2024

Ehsan Razavi, Pro Se.

Dale J. Montpelier, for Appellant.

Jay Iyengar Shreenath, Austell, for Appellee.

Hodges, Judge.

Vickie Marie Emily sued Ehsan Razavi in 2021 contending, among other things, that he had trespassed on her property and removed her belongings without her permission. Her verified complaint alleged trespass, and also sought an injunction, damages, and attorney fees. Following a bench trial, the trial court ruled in Emily’s favor, granting a restraining order, finding she had rights of possession and ownership consistent with survey pins delineating property lines, and ordering Razavi to remove encroachments and to pay damages and attorney fees. Razavi appeals, arguing that the trial court erred in (1) denying his application for out-of-state counsel's pro hac vice admission and his resulting motion for a continuance; (2) granting binding relief against a non-party; (3) recognizing criminal trespass as a private cause of action and, in a related contention, (4) finding a conversion claim where none was pled; and (5) awarding attorney fees to Emily. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand the case with direction.

[1] "On appeal from the entry of judgment in a bench trial, the evidence must be viewed in the light most favorable to the trial court’s findings of fact." (Citation and punctuation omitted.) Internal Medicine Alliance v. Budell, 290 Ga. App. 231, 232, 659 S.E.2d 668 (2008).

So viewed, the pertinent evidence shows that Emily owns property located at 1079 Key Road, SE, Atlanta, where she has lived for approximately 20 years. Her property is adjacent to 1083 Key Road, SE, Atlanta, which the trial court found Razavi purchased "through control and ownership of a compa- ny, ZX14, LLC." Razavi testified that ZX14 has owned the property since 2012. A shared garage sits partially on both properties.

In 2018, after the parties disagreed about ownership of the garage, Emily had the property surveyed. Photographic exhibits and other evidence in the record show the location of survey pins demarcating the boundary line between the two properties. Emily presented photographic evidence, tendered without objection, that Razavi had placed various vehicles and other items he owned on her side of the property. Emily testified that she did not give him permission to use her side of the garage or her property. She also testified that she told Razavi where the survey pins were and that he needed to stay on his side of the property. Razavi, who appeared pro se, averred he had worked in real estate for 27 years and understood the survey pins depicted the boundary lines. He also admitted that his vehicles were on Emily’s property. However, he argued at trial that he owned Emily’s side of the garage and some portion of her land through adverse possession because of a fence that had been on Emily’s property for 25 years.¹

Emily additionally testified that either Razavi or people who work for him removed an iron stove and a jacuzzi belonging to her that were on her side of the property, which Razavi denied.

Following a bench trial,² the trial court found that Razavi had continuously trespassed on Emily’s property by, inter alia, having vehicles on her side of the property. It found that Razavi had failed to provide any legal or factual basis for his adverse possession claim, granted Emily’s request for a temporary and permanent restraining order, found that Emily had rights of possession and ownership in the property at issue consistent with the survey pins from the 2018 survey, and ordered Razavi to immediately remove encroaching objects and refrain from further trespass. The court also ordered Razavi to remove a garage door at his expense and directed each party to "install garage doors consistent with the survey pins. Finally, the trial court awarded Emily attorney fees and damages for the removal of her iron stove and jacuzzi. It denied the remainder of the parties’ requests for relief.³ Razavi appealed.

1. Razavi argues that the trial court erred in denying an application for out-of-state counsel to be admitted pro hac vice, and in denying his resulting motion for a continuance.⁴ We disagree.

[2, 3] We review denials of applications for pro hac admission and denials of motions for a Continuance for an abuse of discretion. See Byrne v. Byrne, 365 Ga. App. 240, 244 (3), 878 S.E.2d 95 (2022) (motion for continuance); 2150 Stewart Ave., Inc. v. State, 173 Ga. App. 407 (2), 326 S.E.2d 579 (1985) (pro hac admission).

[4] Out-of-state counsel applied for pro hac admission on June 1, 2023, and on June 16, 2023, the trial court denied the motion in a one-sentence order, citing its discretion pursuant to Uniform Superior Court Rule 4.4. Razavi neither moved for reconsideration nor challenged this order until the day of trial, nearly a month later, on July 11, 2023, when he appeared pro se at trial and asked for a continuance during opening statements. He told the trial court he did not haye time or money to search for a new attorney and that the out-of-state attorney seeking pro hac admission had represented him for three years. Opposing counsel objected, pointing out that Razavi previously had several Georgia attorneys who had withdrawn from the case and that Razavi had shown no effort to hire another Georgia attorney. Counsel also averred that his client wished to try the matter that day as scheduled because a witness already had been subpoenaed.⁵ The trial court denied the motion "based on the age of the case, … [because] the. case is on the calendar, the parties are here, witnesses have been subpoenaed[;] we will move forward"

Uniform Superior Court Rule 4.4 (D) (3) (a) provides that a pro hac application "ordinarily should be granted unless the court or agency finds reason to believe that such admission: … may be detrimental to the prompt, fair and efficient administration of justice[.]" Given that the Razavi did not seek a continuance until after trial had begun, and the trial court in its oral denial noted the age and calendaring of the case, and that parties were present and witnesses subpoenaed, we find no abuse of discretion. See id.; 2150 Stewart Ave., Inc., 173 Ga. App. at 407 (2), 326 S.E.2d 579.

[5–7] 2. In a wide-ranging, compound enumeration,⁶ Razavi asserts that the trial court erred in not joining ZX14, of which he is "a manager[,]" as a necessary party because it is the owner of the real property at issue. He argues that for this reason, the court erred in setting the boundary line of the property and granting other relief that affects ZX14 as a non-party.⁷

However, the defendant [Razavi] did not move to dismiss the complaint based on the failure to join a necessary party, see OCGA §§ 9-11-12 (b) (7), 9-11-19, and [ZX14] did not appear or move to intervene in the proceedings in the trial court, see OCGA § 9-11-24. In addition, [ZX14] did not request special permission to participate in the appeal even though [it] is a non-party, and the defendant [Razavi has] not even attempted to explain why [he] might have third-party standing to press arguments on [ZX14’s] behalf. See Lockey v. Bennett, 244 Ga. 339, 340, 260 S.E.2d 66 (1979) ("‘Only parties to the proceeding below may be parties on appeal.’" (citation omitted)); Feminist Women’s Health Center v. Burgess, 282 Ga. 433, 435, 651 S.E.2d 36 (2007)⁸ (adopting the federal test for third-party standing).

Bishop v. Patton, 288 Ga. 600, 603 (2), 706 S.E.2d 634 (2011) (declining to consider enumerations of error asserted by party arguing that non-party was being wrongfully enjoined from selling property and finding "meritless" claims that interlocutory injunction wrongfully prevented withdrawals from bank accounts partially owned by non-party), disapproved in part on other grounds by SRB Investment Svcs. v. Branch Banking and Trust Co., 289 Ga. 1, 5 (3), n. 7, 709 S.E.2d 267 (2011). This enumeration lacks merit.

3. In this portion of a compound enumeration, Razavi asserts that the trial court erred in recognizing a private cause of action for criminal trespass.

[8] Razavi correctly notes that one of the counts of Emily’s complaint is entitled "Criminal Trespass" In that count she pleads, inter alia, that he (i) entered her property without permission, removing items without permission and causing damage; (ii) parked vehicles on her property without her consent, preventing her from using her property; and (iii) deprived her of access and ingress-egress to her property. As a result, she sought compensatory damages.

[9–11] As Razavi points out, criminal trespass and civil trespass are different causes of action.⁹ This count of Emily’s complaint, despite its nomenclature, asserts claims applicable in the civil trespass context. It is well settled that our appellate courts look to the substance of a pleading, not merely its nomenclature. Manning v. Robertson, 223 Ga. App. 139, 142 (2), 476 S.E.2d 889 (1996); see also Bell v. Sasser, 238 Ga. App. 843, 851 (2), n. 5, 520 S.E.2d 287 (1999) (finding that although claim was pled as fraud, it appeared to be one for breach of contract and would be analyzed as such on appeal). Further, nothing in the trial court’s order or in the record indicates that, despite the nomenclature of Emily’s pleading, it viewed the claim as one for criminal, rather than civil, trespass. It is well settled that we presume, absent some indication otherwise in the record, that trial judges know the law and apply it in making their decisions. See Winslow v. State, 315 Ga. 133, 140-141 (2), 880 S.E.2d 530 (2022).¹⁰ This claim of error fails.

4. In a continuation of his argument regarding trespass, Razavi contends that because there is no civil cause of action for the criminal trespass pled in Emily’s complaint, her claim sounds in conversion, which she likewise did not plead. As...