Smith v. Mitchell Cnty.

334 Ga.App. 374

779 S.E.2d 410

SMITH et al.

v.MITCHELL COUNTY, GA.

No. A15A0958.

Court of Appeals of Georgia.

Nov. 10, 2015.

Edward R. Collier, for Appellant.

Patrick Neill Millsaps, Albany, Russell A. Britt, Atlanta, for Appellee.

McFADDEN, Judge.

This appeal arises from a superior court's final decree adopting the findings of a special master in a boundary line dispute. The appellants challenge the lack of an evidentiary hearing by the special master; however, they waived such a hearing. The appellants also challenge the sufficiency of the evidence supporting the trial court's final decree; however, the record reveals not only that the "any evidence" standard of review has been met, but that the evidence presented creates no genuine issue of material fact. The appellants further argue that the matter should have been submitted to a jury; but because there was no genuine issue of material fact, submission to a jury was not required. Accordingly, we affirm.

The record shows that Mitchell County, Georgia filed a petition to quiet title against all the world as to a tract of land containing approximately 16.7 acres. The petition alleged a boundary line dispute between Mitchell County and defendants Shirley and Linda Smith, owners of an adjacent tract of land to the north of the Mitchell County property. The Smiths answered the petition, disputing Mitchell County's claim of prescriptive title as to the boundary line location. The dispute arose from two surveys showing different locations for the common boundary between the parties' respective properties, with Mitchell County relying on a 1991 survey prepared for its predecessor in title and the Smiths using a 2012 survey prepared for them prior to their purchase of the land north of Mitchell County's property. The trial court submitted the matter to a special master pursuant to OCGA § 23–3–63.

On April 25, 2014, the special master notified the parties that he had reviewed their pleadings and attachments thereto; requested that they provide him with complete title abstracts for the adjoining parcels, including all surveys, by May 23, 2014; and instructed them that if the matter required an evidentiary hearing, to provide him with dates in the month of June 2014 for a hearing. On April 28, 2014, Mitchell County responded to the special master's notice by providing a complete title abstract for its property. On May 5, 2014, the Smiths sent their response to the special master, providing him with the complete title abstract for their property. Neither party requested an evidentiary hearing or provided dates for such a hearing in June as directed by the special master. But, thereafter, on July 8, 2014, the Smiths filed a demand for a jury trial.

Notwithstanding the jury trial demand, the special master filed his report with the trial court on July 22, 2014, stating that he had reviewed the pleadings and all evidence submitted by the parties, and had conducted an independent review of the public records on file with the clerk of court. Noting that neither party had requested an evidentiary hearing as instructed in his April 25 notice, the special master determined that the boundary line dispute could be resolved by "the public record, containing deeds and plats of surveys, combined with the complete title abstracts of each adjoining property [.]" Based on his review of the evidence, the special master concluded that Mitchell County had acquired title by prescription to the disputed area and recommended that the trial court issue a decree that fee simple title to the property belongs to Mitchell County.

The trial court found that the Smiths' jury trial demand was untimely and that there was no question of fact for a jury to decide, and therefore the trial court adopted the special master's report and entered its final decree. The court decreed that fee simple title to the subject property belongs to Mitchell County, that any cloud upon that title from the 2012 survey cited by the Smiths be removed, and that the 1991 survey relied upon by Mitchell County be given full force and effect regarding the location of the property's northern boundary. The Smiths appeal.¹

1. Lack of an evidentiary hearing before the special master.

In their first enumeration, the Smiths claim that the trial court erred in adopting the special master's report because the special master issued the report without holding a hearing. The claim is without merit. Our Supreme Court has summarized the controlling statutory scheme.

The Quiet Title Act of 1966 (OCGA § 23–3–60 et seq. ) creates an efficient, speedy and effective means of adjudicating disputed title claims, and sets out specific rules of practice and procedure with respect to an in rem quiet title action against all the world that take precedence over the Civil Practice Act when there is a conflict. The Quiet Title Act requires a trial court to appoint a special master (OCGA § 23–3–63 ), and requires the special master to make a report of the special master's findings to the trial court. OCGA § 23–3–66.

While the quiet title statutory scheme provides that the special master, once appointed, shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner's title and all other interests in the land or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge of the court, (OCGA § 23–3–66 ), the trial court is not divested of its overall jurisdiction of the case and its sole authority under OCGA § 23–3–67 to issue the final decree.

Nelson v. Georgia Sheriffs Youth Homes,

286 Ga. 192, 192–193, 686 S.E.2d 663 (2009) (citations and punctuation omitted).

In the instant case, before making his report to the court, the special master sent notice to the parties setting a deadline for them to request an evidentiary hearing if such a hearing was necessary. However, the Smiths did not request such a hearing, let the deadline for a hearing pass without objection, and instead simply submitted their evidence to the special master. As noted above, the special master had "complete jurisdiction" to determine the extent of Mitchell County's title and all other interests in the land. Id. Such jurisdiction included the authority to set a deadline for the parties to request a hearing. See Boyd v. JohnGalt Holdings, 294 Ga. 640, 643–644(3), 755 S.E.2d 675 (2014) (upholding authority of special master to enter a scheduling order including deadlines for motions). As the Smiths did not request a hearing by the deadline or object to the lack of a hearing prior to the entry of the special master's order, they waived any objection to the lack of a hearing. See Id. at 644(3), 755 S.E.2d 675. Indeed, it is well established that a party will not be heard to complain of a procedure induced by his own conduct. In re A. A., 334 Ga.App. 37, 39(2), 778 S.E.2d 28 (2015) ; Affatato v. Considine, 305 Ga.App. 755, 758(1), 700 S.E.2d 717 (2010).

Moreover, the Smiths have not identified any further evidence that they would have presented had an evidentiary hearing been held before the special master. The record plainly shows that the special master considered all the evidence submitted by the parties, determined that the matter could be resolved without a hearing, and fully complied with the statutory mandate that "in making his decision, ‘the master shall examine the petition, plat, and all documents filed therewith and may require other evidence to be filed, including, but not limited to, an abstract of title.’ " Cernonok v. Kane, 280 Ga. 272, 274(4), 627 S.E.2d 14 (2006) (quoting OCGA § 23–3–64 ). Under these circumstances, not only did the Smiths waive the opportunity to have an oral hearing before the special master, but they also were not prejudiced since they were given notice and an opportunity to respond to the petition. See generally Mitchell v. 3280 Peachtree 1, LLC, 285 Ga. 576(1), 678 S.E.2d 880 (2009) (no reversible error in failing to hold oral hearing on motion to dismiss appeal where opposing party was given notice and opportunity to respond to the motion); Bell v. Waffle House, 331 Ga.App. 443, 446, 771 S.E.2d 132 (2015) (finding that appellant who received notice and opportunity to respond to request for attorney fees waived the right to a hearing by failing to request such a hearing in his written response and by raising only an issue that did not require a hearing); Jacobsen v. Muller, 181 Ga.App. 382, 383(2), 352 S.E.2d 604 (1986) (appellant given opportunity to request oral hearing on motion for summary judgment but failed to avail herself of that opportunity). "To hold otherwise would not be in the interest of judicial economy and would be contrary to the underlying policy behind the statute—that of providing an efficient, speedy and effective means to settle these disputes." Griffeth v. Griffin, 245 Ga.App. 619, 620, 538 S.E.2d 521 (2000) (involving an untimely jury trial demand in quiet title case).

2. Sufficiency of the evidence.

The Smiths' second enumeration of error challenges the sufficiency of the evidence supporting the special master's report and the trial court's adoption of it. "In an action to quiet title brought under OCGA § 23–3–60 et seq., the findings of the [s]pecial [m]aster [which are] adopted by the trial court will be upheld unless clearly erroneous. Therefore, if there is any evidence supporting the judgment of the trial court, it will not be disturbed." Cernonok, supra at 273(1), 627 S.E.2d 14 (citations and punctuation omitted). The judgment of the trial court in this case is not clearly erroneous.

The evidence shows that in 2001, Mitchell County acquired 16.7 acres of land via a warranty deed from Talmadge Edwards, who had acquired the property in 1962. The deed more particularly described the tract of land according to the metes and bounds contained in the plat of survey prepared by registered surveyor Larry Grogan...