Case No. S01A1232.
March 25, 2002
The Honorable Supreme Court met pursuant to adjournment. The following order was passed.
Because the findings of the special master dated June 30, 2000 and adopted in the trial court's decree dated November 20, 2000 are dependent upon the plat of survey prepared "by Marvin D. Clements, Registered Land Surveyor dated August 18, 1989 and identified as Defendants' Exhibit No. 16" and said plat is not included in the transcript and record filed with this appeal in this Court, and, because this Court cannot determine from the transcript whether the defendants' exhibits were admitted in evidence at the hearing held on June 3, 1999, this case is remanded to the trial court. On remand, the trial court shall vacate the decree and refer the case back to the special master for such proceedings as may be necessary to complete the record and make additional findings of fact and conclusions of law. The special master may, if necessary, re-open the record to accept evidence and hold an evidentiary hearing, as he deems appropriate. The special master is reminded that findings of fact must include specific legal descriptions, either by reference to a plat or plats in the record or by valid metes and bounds descriptions, and the evidence must be sufficiently developed, including the completion of any additional surveys, to permit the special master to make specific legal descriptions. The special master's report also must include specific findings of fact and conclusions of law. See generally Andrews v. Boykin, 273 Ga. 386, 389 ( 543 S.E.2d 12) (2001); Childs v. Sammons, 271 Ga. 161, 161-62 ( 516 S.E.2d 779) (1999). When the special master's report on remand is completed and filed, the trial court shall enter a final decree in this case. When the final order is entered, any party may appeal to this Court following the procedures outlined in OCGA § 5-6-30 et seq.
All the Justices concur, except Carley, J., who dissents.
The majority remands this case because the defendants' exhibits do not appear in the transcript and record filed in this Court. However, I believe that a remand is completely unnecessary and that we are required to affirm the judgment below.
The majority proceeds on an erroneous premise because Ms. Peterson does not contend that the evidence is insufficient or that the record is incomplete. Instead, she argues that the special master erred in relying upon the defendants' exhibits because they were never admitted into evidence. Thus, there is no necessity for this Court actually to view the documents considered by the special master, so as to determine whether his findings are supported by the record. If there was no procedural error in the special master's consideration of the documents, Ms. Peterson implicitly concedes that they, coupled with the additional evidence considered below, authorized the findings.
Although the defendants' exhibits are not included in the record on appeal, the transcript does show that, at the outset of the hearing, Ms. Peterson's counsel agreed to a broad stipulation as to the admissibility of relevant documentary evidence, including deeds, surveys and tax maps. When subsequently asked during the course of the hearing, appellant's lawyer did not object to any of the defendants' exhibits. Instead, he requested that "we just wait till the end and tender them all." At the conclusion of the hearing, there was an unreported conference between the special master and the attorneys. The transcript contains the court reporter's notation that the special master retained the exhibits. The special master's report refers to a plat specifically "identified as Defendant's Exhibit No. 16." On this record, it is clear that no formal tender of the defendants' exhibits occurred in the presence of the court reporter. However, it is also clear that, at the specific request of Ms. Peterson's own lawyer, the documents that were marked and identified as the defendants' exhibits during the hearing were tendered at the conclusion to the special master, who thereafter retained and relied upon them in preparing the report. Ms. Peterson does not contend that, considering her expansive stipulation as to the admissibility of documentary evidence, any of the defendants' exhibits were inadmissible. Indeed, since the transcript does not show that she ever objected to the admission of any of the documents, we must presume that there was no error in their submission to and consideration by the special master. See Cotherman v. Cotherman, 218 Ga. 486, 488 ( 128 S.E.2d 728) (1962). Under these circumstances, a remand is not necessary and we should hold that, under the record before us, there was no procedural error in the special master's reliance upon the defendants' exhibits.
Ms. Peterson, as the appellant, has the affirmative burden of showing error by the record. Graham v. Ault, 266 Ga. 367 (2) ( 466 S.E.2d 213) (1996); Forio v. Forio, 217 Ga. 813, 814 (2) ( 125 S.E.2d 486) (1962); Cobb v. DeLong, 216 Ga. 794, 797 ( 120 S.E.2d 177) (1961); Garrett v. McDowell, 242 Ga. App. 78 (1) ( 527 S.E.2d 918) (2000); CNL Ins. America v. Moreland, 226 Ga. App. 57, 58 ( 485 S.E.2d 515) (1997). The record she has provided to this Court does not contain defendant's exhibits, including the survey to which the special master expressly referred in his report. That record does, however, show that the documentary evidence was tendered to and considered by the special master. Under these circumstances, we must assume that the special master's findings of fact are correct and are fully supported by the evidence submitted to him. Woelper v. Piedmont Cotton Mills, 266 Ga. 472, 474 (3) ( 467 S.E.2d 517) (1996); Higdon v. Gates, 238 Ga. 105, 106 ( 231 S.E.2d 345) (1976); Glenn v. Allen, 239 Ga. 646, 647 (1) ( 238 S.E.2d 438) (1977); Forio v. Forio, supra at 814 (2); Cobb v. DeLong, supra at 797. Thus, a remand of this case is inconsistent with the long-established presumption of evidentiary sufficiency which arise when the record provided by the appellant fails to include all that was proffered to and considered by the trier of fact.
Ms. Peterson raises two other enumerations of error. Contrary to her contention, the report of the special master contains extensive and adequate findings of fact and conclusions of law. Compare Andrews v. Boykin, 273 Ga. 386, 388 (3) ( 543 S.E.2d 12) (2001) (failure to address theory of recovery raised by petition); Childs v. Sammons, 271 Ga. 161 ( 516 S.E.2d 779) (1999) (report contained no legal basis for its ruling). Her assertion that the special master erred in allowing hearsay evidence is likewise without merit. Shuman v. State, 84 Ga. App. 585, 587 (2) ( 66 S.E.2d 152) (1951). Thus, I dissent to the majority's failure to affirm the judgment of the superior court.