CRONIN v. HOMESALES, INC.

Court of Appeals of Georgia2009-01-29No. A08A2219

296 Ga. App. 293674 S.E.2d 35

Summary · law.co

Holding. The appellate court affirmed the trial court's judgment granting the writ of possession, holding that Cronin's failure to provide a trial transcript prevented appellate review of her factual claims and that the trial court properly retained jurisdiction to hear a dispossessory action despite a counterclaim for equitable relief.

Patricia Cronin appealed a trial court's issuance of a writ of possession favoring Homesales, Inc. in a dispossessory action. Cronin argued that the trial court erred by entering judgment despite disputed facts and that the court lacked jurisdiction because she had counterclaimed for equitable relief, specifically seeking an injunction and restraining order to prevent Homesales from taking possession.

The appellate court affirmed the trial court's judgment, finding that Cronin failed to meet her burden as the appealing party. Most critically, Cronin did not provide a trial transcript or an authorized substitute record, which was necessary given that her arguments hinged on factual disputes. Without a transcript, the court presumed the trial evidence supported the writ of possession. Additionally, the court rejected Cronin's jurisdictional challenge, holding that the trial court properly maintained jurisdiction because any equitable relief Cronin sought was inherently within the court's power to grant or deny the writ itself.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an appellant must provide a trial transcript to challenge trial court factual findings on appeal
Whether a trial court retains jurisdiction to decide a dispossessory action when the defendant counterclaims for equitable relief
Whether a party adequately preserved appellate arguments by attaching exhibits without specific record references

Procedural posture

Cronin appealed the trial court's grant of a writ of possession in a dispossessory action brought by Homesales, Inc.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

JOHNSON, Presiding Judge.

In this dispossessory action, Patricia Cronin appeals the state court’s grant of a writ of possession in favor of Homesales, Inc. Because Cronin failed to file a transcript of the trial, we affirm.

The record shows that Homesales instituted dispossessory proceedings against Cronin, claiming Cronin was a tenant at sufferance following a foreclosure sale. Cronin answered, denying the property was in foreclosure and praying for injunctive relief and a restraining order barring Homesales from taking possession of the property. Following a bench trial, the trial court entered a writ of possession in favor of Homesales.

Cronin appeals the trial court’s order, alleging the trial court erred in entering its judgment because there were questions of disputed facts, and claiming the trial court did not have jurisdiction because she had counterclaimed for equitable relief. We find no error and affirm the trial court’s order.

We first note that while Cronin attaches a number of exhibits to her appellate brief, her brief fails to provide any references to the record to support her enumerations of errors. Court of Appeals Rule 25 (c) (2) (i) provides that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” “It is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” Moreover, allegations of fact appearing only in appellate briefs and unsupported by evidence in the record will not be considered on appeal.

Most importantly, we note that Cronin makes various arguments based on factual issues that would require consideration of the evidence presented before the trial court. Cronin, however, failed to file a transcript of the bench trial and apparently did not attempt to reconstruct the proceedings in accordance with OCGA § 5-6-41 (g) and (i). “When a transcript of the evidence is necessary, as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the grant of a writ of possession.” Cronin had the burden to affirmatively show error by the record, and she has failed to provide this Court with any evidence to support her allegations of error. We must presume that the trial court’s judgment and orders are correct.

Although Cronin claims the state court improperly entered judgment without holding a trial or taking evidence, the record shows that the court heard and considered evidence before entering judgment. Nothing supports Cronin’s claim that the trial court entered its judgment on the pleadings.

We likewise find no merit in Cronin’s claim that the state court lacked jurisdiction to render its judgment because Cronin’s answer requested equitable relief. This question was addressed in Davita, Inc. v. Othman, in which we found that since the only equitable relief sought by the appellant was to enjoin the appellees from pursuing their dispossessory action, the state court maintained jurisdiction and properly refused to grant such relief. Because the relief sought by Cronin was “inherent within the state court’s power to refuse to issue a writ of possession,” the trial court properly exercised jurisdiction in this case.

Decided January 29, 2009

Reconsideration denied February 24, 2009

Francis X. Moore, for appellant.

McCalla Raymer, Adam M. Silver, Elizabeth A. George, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

(Citation and punctuation omitted.) Dwyer v. Mortgage Electronic Registration Systems, 258 Ga. App. 220 (573 SE2d 489) (2002).

See Hallisy v. Snyder, 219 Ga. App. 128, 129 (2) (464 SE2d 219) (1995).

(Punctuation omitted.) Olubajo v. Deutsche Bank Nat. Trust Co., 280 Ga. App. 154 (633 SE2d 543) (2006).

Id. at 155.

270 Ga. App. 93, 95-96 (1) (606 SE2d 112) (2004); see also Speir v. Davis, 235 Ga. 788, 789 (221 SE2d 575) (1976).

Davita, supra at 96 (1).