PATEL v. EPPS (2012)

Because Mrunalini Patel appeals from an order of the superior court reviewing the decision of a special master appointed under the Auditors Statute, OCGA § 9–7–1 et seq., she was required to follow the discretionary appeal procedure mandated by OCGA § 5–6–35(a)(1).   Rather than follow that procedure, Patel filed a direct appeal under OCGA § 5–6–34.   Consequently, we must dismiss this appeal for lack of jurisdiction.

The record shows that Patel and Thomas Epps own adjoining residential lots in an Atlanta subdivision.   When Patel began constructing a concrete wall, a dispute arose between the parties over the location of the boundary line between their lots.   Unable to resolve their dispute, Epps filed suit against Patel in the Superior Court of Fulton County, alleging that the wall crossed the boundary line and encroached onto his property.

With the consent of the parties, the superior court appointed a special master under the Auditors Statute, OCGA § 9–7–1 et seq., “to resolve all issues, factual and legal, presented in the above-captioned matter relating to the boundary lines separating the properties owned by the parties.”   After inspecting the area of the disputed boundary line with the parties' surveyor witnesses and conducting an evidentiary hearing, the special master issued her report containing findings of fact and conclusions of law in which she found in favor of Epps regarding the location of the boundary line.

Pursuant to OCGA § 9–7–13, the superior court subsequently recommitted the report to the special master to evaluate whether to modify it.   A second hearing was conducted by the special master, after which she entered a supplemental report that incorporated the findings of fact contained in the first report and included additional conclusions of law.

The superior court thereafter entered its “Final Order and Judgment” in which the court reviewed and adopted the original and supplemental reports of the special master as the order of the court.   Patel filed a direct appeal from the superior court's order.¹

“Although not raised by the parties, we first must address whether a direct appeal was authorized in this case.”  Martinez v. Martinez, 301 Ga.App. 330(1) (687 S.E.2d 610) (2009).   See Forest City Gun Club v. Chatham County, 280 Ga.App. 219, 220 (633 S.E.2d 623) (2006) (“This [C]ourt has a duty to inquire into its jurisdiction to entertain each appeal and review the alleged errors of the trial court.”) (footnote omitted).  OCGA § 5–6–35(a)(1) provides that an application for a discretionary appeal is required for appeals “from decisions of the superior courts reviewing decisions of ․ auditors.”   Construing this provision, our Supreme Court has held that “the judgment in a case in which the superior court has reviewed an auditor's final report which contains findings of fact and conclusions of law [is] subject to the discretionary appeal procedure.”  (Citation, punctuation, and emphasis omitted.)  McCaughey v. Murphy, 267 Ga. 64, 65(1) (473 S.E.2d 762) (1996).   See Ravan v. Stephens, 248 Ga. 289, 289–290 (282 S.E.2d 312) (1981);  Citizens & Southern Nat. Bank v. Rayle, 246 Ga. 727, 731 (273 S.E.2d 139) (1980).

Here, the superior court expressly stated that it was referring issues relating to the boundary dispute to a special master in accordance with the Auditors Statute, OCGA § 9–7–1 et seq., and pointed out that its use of the term “special master” was synonymous with the term “auditor.”   See OCGA § 9–7–1.   The special master thereafter entered reports containing findings of fact and conclusions of law which the superior court reviewed and adopted as its own.   Accordingly, under OCGA § 5–6–35(a)(1) and the Supreme Court precedent construing it, Patel was required to follow the discretionary appeal procedure in this case.   See McCaughey, 267 Ga. at 65(1);  Ravan, 248 Ga. at 289–290;  Citizens & Southern Nat. Bank, 246 Ga. at 731.²  Because Patel failed to follow that procedure, we have no jurisdiction over this appeal, which must be dismissed.

Appeal dismissed.   Adams and McFadden, JJ., concur.

FOOTNOTES

FN1. Patel appealed directly to the Supreme Court of Georgia, but the appeal was transferred to this Court for lack of Supreme Court jurisdiction..  FN1. Patel appealed directly to the Supreme Court of Georgia, but the appeal was transferred to this Court for lack of Supreme Court jurisdiction.

FN2. The discretionary appeal procedure required by OCGA § 5–6–35(a)(1) does not apply where, in contrast to the present case, the special master is appointed pursuant to Uniform Superior Court Rule 46.   See Standard Bldg. Co. v. Schofield Interior Contractors,_ Ga.App. _ (1) (Case No. A11A1869, decided on Mar 29, 2012);  Alston & Bird LLP v. Mellon Ventures II, LP, 307 Ga.App. 640, 642(1) (706 S.E.2d 652) (2010)..  FN2. The discretionary appeal procedure required by OCGA § 5–6–35(a)(1) does not apply where, in contrast to the present case, the special master is appointed pursuant to Uniform Superior Court Rule 46.   See Standard Bldg. Co. v. Schofield Interior Contractors,_ Ga.App. _ (1) (Case No. A11A1869, decided on Mar 29, 2012);  Alston & Bird LLP v. Mellon Ventures II, LP, 307 Ga.App. 640, 642(1) (706 S.E.2d 652) (2010).

Barnes, Presiding Judge.