Cornerstone Quarry 2010 a Trust v. Heath. ( 2018 )

THIRD DIVISION
ELLINGTON, P. J.,
BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 18, 2018
In the Court of Appeals of Georgia
A18A0650. CORNERSTONE QUARRY 2010 A TRUST v. BE-022
HEATH.
BETHEL, Judge.
Cornerstone Quarry 2010 A Trust filed a purportedly verified complaint against
Chrislon Heath, seeking unpaid amounts due on a note secured by property owned by
Heath. Heath did not file a verified answer in the case.1 Less than a year later, the trial
court scheduled a final hearing on the case as part of a bench trial calendar. Counsel
1
The trust also claims in its brief that Heath did not file a responsive pleading
to the complaint and that by failing to deny the allegations of the complaint or raise
any affirmative defenses, all allegations in the complaint are deemed admitted. The
record before us does not contain any document styled as a formal answer to the
trust’s complaint. The only appearance of Heath in the record is a handwritten note,
headed with the style of the case, in which Heath appears to acknowledge that the
property in question was foreclosed upon and sold. The handwritten note goes on to
convey Heath’s apparent impression that the foreclosure and resale of the property
had ended all business relative to the note secured by the property. Heath’s filing does
not explicitly deny the allegations of the complaint.
for the trust appeared but was not prepared to go forward with a final hearing,
indicating to the trial court that no witnesses were present and that he had no evidence
to present. Heath, proceeding pro se, did not attend the hearing. Following the
hearing, the trial court dismissed the action with prejudice, noting that although Heath
had not appeared in court to contest the trust’s claims, the trust had not been prepared
to present any evidence to the court.
Following an appeal by the trust, this Court vacated the dismissal order and
remanded the case with direction to the trial court to clarify the basis upon which the
case was being dismissed.2 On remand, the trial court issued a subsequent order again
dismissing the action with prejudice, clarifying that the trust had failed to meet its
burden of proof due to a lack of evidence. This appeal followed.
The threshold issue in this case is whether the trial court improperly excluded
the trust’s purported verification of the complaint. In its original order, the trial court
noted that “[a]lthough a verification was attached to the complaint, said verification
was not an original document, but a copy.” Following the remittitur from this Court,
the trial court made the same observation. On this basis, in both of its orders, the trial
court deemed the trust’s complaint to not have been verified. Neither of the trial
2
See Case No. A17A1334.
2
court’s orders cite to any authority under Georgia law to support its conclusion that
the trust’s purported verification was legally defective.
We note that nothing in the language of the relevant Georgia statutes appears
to dictate that the document filed with the trial court purporting to be a verification
must be the original signed document. OCGA § 9-10-112 only requires that such
verification be given “as provided by law.” OCGA § 9-10-113 provides, in relevant
part, that
All affidavits, petitions, answers, defenses, or other proceedings
required to be verified or sworn to under oath shall be held to be
sufficient when the same are sworn to before any notary public,
magistrate, judge of any court, or any other officer of the state or county
where the oath is made who is authorized by the laws thereof to
administer oaths. The oath if made outside this state shall have the same
force and effect as if it had been made before an officer of this state
authorized to administer the same. The official attestation of the officer
before whom the oath or affidavit is made shall be prima-facie evidence
of the official character of the officer and that he was authorized by law
to administer oaths.
In this case, the verification submitted by the trust contained the signature of
its authorized representative and was attested to by a notary public commissioned in
Ohio. Thus the purported verification appears to meet the very minimal requirements
3
set forth in OCGA § 9-10-113, as nothing in the language of that code section
suggests that the document filed with the court must be the original signed version.3
Moreover, the trial court’s revised order points to no authority under the
Uniform Superior Court Rules which would suggest that a purported verification is
defective because the original signed version of the document is not filed with the
court. Nor does the trial court’s order indicate that a local standing order is the basis
for its ruling.
Absent citation to authority, this Court is unable to determine on what basis the
trial court deemed the verification defective and whether the trial court’s order is
consistent with such authority. We therefore vacate the order of the trial court and
again remand this case for further consideration and clarification, or correction of its
order as necessary.
Judgment vacated and case remanded with direction. Ellington, P. J., and
Senior Appellate Judge Herbert E. Phipps, concur.
3
We further note that to the extent Heath objected to the use of a photocopy
of the original document, he failed to do so through motion practice or at the hearing.
4