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Patel v. Patel

Court of Appeals of Georgia, Third Division

June 27, 2017

PATEL et al.
v.
PATEL.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Rickman, Judge.

         In this quiet title action, Roshni Patel and Chandani Patel ("the Patels"), acting at all times pro se, appeal the trial court's dismissal of their notice of appeal as well as numerous orders preceding that dismissal, commencing with the trial court's refusal to grant them a default judgment and its sua sponte appointment of a special master. Because we conclude that the error in this case began when the Patels were denied the entry of a default judgment and permeated throughout essentially every stage of these proceedings, we reverse in part, vacate in part, and remand this case for further proceedings consistent with this opinion.

          The record shows that in September 2013, the Patels, who are brother and sister, filed a verified petition against their former stepmother, [1] Deepali Patel (the "Defendant"), pursuant to OCGA § 23-3-40 et. seq., seeking to quiet title to four tracts of real property located in Gwinnett County, Georgia ("the Properties"). The petition alleged that the Patels were the lawful owners of the Properties, and included copies of four deeds purporting to convey interest in the Properties to them, either jointly or individually. The petition further alleged that the Patels' title to the Properties was clouded by four separate and allegedly defective deeds purporting to convey interest in the Properties to the Defendant. Of the deeds alleged to have been defective, two were allegedly signed by the Patels' father, acting as the Patels' attorney in fact, although the petition included a sworn affidavit in which he denied having executed the deeds on their behalf. The remaining two deeds were alleged to have been executed by an individual lacking the authority to do so.

         After numerous attempts to serve the Defendant were unsuccessful, on December 3, 2013, the trial court issued an order authorizing the Patels to serve her by publication, and service by publication was thereafter effected.[2] The Defendant never filed an answer or otherwise made an appearance in the case.

         In March 2014, the Patels moved for a default judgment against the Defendant.[3]Following a hearing attended by Roshni Patel, the trial court acknowledged that the Patels were seeking a default judgment, but instead of granting their motion, sua sponte appointed a special master pursuant to OCGA § 23-3-63, a statutory scheme not invoked by the Patels' petition (the "Appointment Order").[4] The Appointment Order gave the special master full authority to control case management; entertain all motions and discovery; hold evidentiary hearings; and submit a report, which was to include findings of fact, conclusions of law, and a proposed a final judgment and order, to the trial court. It further required the Patels to bear the costs of the special master at an hourly rate of $275.00.[5]

         The following week, the special master sent out a request pursuant to OCGA § 23-3-60 et seq. that the Patels file with the clerk "[a]ny abstract of title, title examination, and/or title report upon which [they] rely in the prosecution of this case; and . . . [p]lat of survey for each of the tracts of real property at issue in this case to the extent [the] same are not filed as part of any title examination." Additionally, the special master filed an "initial report and recommendation, " in which he stated that the Defendant had not been served; noted that the petition lacked certain information required by OCGA § 23-3-62, namely a plat of survey and a recorded lis pendens for each of the Properties; and recommended that the Patels amend their petition to include the missing documents or face dismissal and serve the amended petition upon the Defendant.

         The Patels filed a timely motion to set aside the Appointment Order, strenuously objecting to the appointment of a special master and explicitly stating that they were unable and unwilling to pay for a special master's services. The Patels reasserted their position that they were entitled to a default judgment and encouraged the trial court to rule on their motion. Alternatively, the Patels requested that the trial court issue a ruling based solely upon the petition and exhibits submitted.

         The Patels contemporaneously forwarded their motion directly to the special master, requesting that he not perform any work on the case and informing him that they "[were] not in position to incur any additional cost" and "[would] not be able to pay [his] invoice." The Patels also informed the special master that the Defendant had been served by publication in accordance with the trial court's order authorizing such service, and they objected to the special master's assertion that plats of surveys were needed to resolve the action, which alleged cloud on title caused solely by fraudulent or defective deeds as set forth and included in the verified petition.

         In a summary order, the trial court denied the Patels' motion to set aside the Appointment Order. In a separate order, the trial court adopted the special master's initial report and recommendation, thereby commanding the Patels to comply with the special master's direction to amend their petition to submit the additional documentation and to serve the amended petition upon the Defendant.

          The Patels filed a timely motion to reconsider, again reiterating their objection to the appointment of a special master and reemphasizing that they "are NOT WILLING to spend"[6] money on a special master. They further pointed to alleged inaccuracies in the special master's initial report and recommendation regarding the lack of service on the Defendant and repeated their belief that a special master was unnecessary to address the allegations against the named Defendant as set forth in the petition. Finally, the Patels stated that "[i]f [the] court deems that [it] cannot make [a] determination without [a special master's] report, [the Patels] ask the court to enter default judgment or dismiss the action, " noting that the court's imposition "of [an] additional financial burden on [them]" would "forc[e] [them] to withdraw a legitimate claim."

         The trial court issued a notice of hearing on the Patels' motion to reconsider. The Patels in turn filed a motion for summary judgment and contemporaneously therewith, filed a motion to continue the hearing, requesting that the hearing be rescheduled until a date and time on which the trial court would be willing to consider their summary judgment and all other outstanding motions.

          On August 8, 2014, following the originally scheduled hearing date and without ruling on the Patels' motion for a continuance, the trial court issued an order noting that the Patels failed to appear at the hearing and thereafter "grant[ed] their motion to dismiss" and dismissed the case "for want of prosecution" (the "Dismissal Order"). The trial court then ordered that the Patels remit payment to the special master "for all costs incurred for his work"[7] in the case within 60 days of its order and warned that "[f]ailure to comply may result in contempt proceedings" against them.

         The Patels filed a motion to set aside and/or modify the Dismissal Order, arguing that the trial court's dismissal of their petition under these circumstances was unjust and constituted an abuse of judicial power. The Patels again asserted that they were entitled to a default judgment and that the trial court erred in appointing a special master sua sponte, explicitly noting that the statutory scheme invoked by their petition authorized the appointment of a special master only "[a]t the option of the complainant."[8] They further objected to the trial court's order requiring them to pay the special master without any evidence or testimony in the record justifying his expenses, and asked at the very least that the order be modified to eliminate the mandate to pay. The Patels also filed a notice of appeal seeking review of the Dismissal Order.

         Approximately two months later, the special master filed a "report on nonpayment of fees, " informing the trial court that his "fees in the amount of $1, 155.00 remain unpaid" despite the mandate in the Dismissal Order that they be paid within 60 days. This is the first mention in the record of the special master's claimed expenses and it was otherwise unsupported by any documentation or other evidence.

         The trial court noticed a hearing to address the Patels' motion to set aside and/or modify the Dismissal Order, to "[s]how cause why [the Patels] shouldn't be held in contempt for failure to pay the [s]pecial [m]aster as ordered, " and to "[s]how cause why [the Patels'] [n]otice of [a]ppeal shouldn't be dismissed for their failure to comply with the [c]lerk's deficiency memo." The record does not contain a copy of a "deficiency memo" or any other correspondence sent from the court clerk to the Patels related to their notice of appeal, nor is any such correspondence reflected on the trial court's record index of filings.[9]

         The Patels filed a motion to waive and/or continue the hearing, or alternatively, for permission to be represented at the hearing by their father. In the motion, the Patels asserted that they were students living in Texas caring for their mentally impaired mother, and that they did not have the financial means to travel to Georgia or to retain an attorney. They again set forth the procedural history of the case and asserted that they should not be held in contempt because they did not request the special master and his appointment constituted legal error, and maintained that they did not have the funds to pay his fees. The Patels repeated their request that the trial court make a ruling based upon the filings and/or grant them a continuance; alternatively, they requested that their father be permitted to attend and represent their interests. Finally, the Patels denied having received any "deficiency memo" or other correspondence from the clerk of the court with regard to their notice of appeal.

         On December 4, 2014, following the date of the scheduled hearing and without ruling on the Patels' motion to waive and/or continue the hearing, the trial court noted that the Patels failed to attend and entered a summary order denying their motion to set aside and/or modify the Dismissal Order. In addition, the trial court dismissed the Patels' notice of appeal "for failure to comply with the statutory mandates regarding the same." And finally, the trial court stated that it had "received evidence from" the special master, who had attended the hearing, and found the Patels "jointly and severally, in willful contempt in the amount of $1, 358.09" (the "Contempt Order").[10]The trial court ordered that the Patels pay that amount to the special master within ten days, and stated that the failure to pay "shall result in an order for [their] immediate incarceration."[12]

         The Patels timely filed a motion to set aside the Contempt Order. They again repeated the history of the case, citing statutory and other legal authority in support of their objection to the special master's appointment, and reiterated that they had promptly communicated to both the court and the special master that they could not afford to pay for his services. They reasserted that they did not receive any "deficiency notice" or other correspondence from the clerk regarding their notice of appeal. Finally, they objected to the reasonableness of the special master's fees, requesting that the court set aside the Contempt Order or, alternatively, "reduce the amount of billing from the [s]pecial [m]aster to [a] reasonable amount that [they] can pay."[13]

         Around the same time, the Patels filed a notice of appeal seeking review of the Contempt Order, a motion to stay the order pending appeal, and a motion to transfer venue. The special master filed a "response" to the Patels' various motions, asserting that they each lacked merit.[14]

         The trial court summarily denied the Patels' motions and on December 17, 2014, issued an order of incarceration based upon their failure to pay the special master's fees (the "Incarceration Order"). The trial court ordered the Patels "to be immediately incarcerated . . . and held . . . until such time when they purges (sic) themselves of this contempt by paying the arrearages of $1, 358.09 by payment of cash . . . including any interest therein accrued."[15]

         Due to a procedural deficiency in the Patels' pro se appellate brief, this Court was unable to reach the merits of their appeal of the Contempt Order and in an unpublished opinion, affirmed the trial court's dismissal of their notice of ...


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