DEVINE ROBERTS v. CAROLYN POWER EVANS

FIFTH DIVISION
                              BROWN, C. J.,
                       RICKMAN, P. J., and MERCIER, J.

                    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.
                               https://www.gaappeals.us/rules



                                                                        May 4, 2026




In the Court of Appeals of Georgia
 A26A0465. ROBERTS v. EVANS et al.

      RICKMAN, Presiding Judge.

      Devine Roberts, appearing pro se, appeals from the trial court’s final order

dismissing his “breach of trust” lawsuit for failure to state a viable claim. Roberts

claims that the trial court erred by (1) dismissing the lawsuit without requiring

appellees to show cause at the hearing; (2) failing to apply equitable maxims and

constructive trust principles to his claims; (3) misconstruing the substantive equity

issues raised by his claims; and (4) imposing filing restrictions and threats of contempt

against him. We discern no error and affirm.

      The record shows that in June 2024, Roberts was charged with multiple

violations of the Barrow County Code of Ordinances for his alleged failure to maintain
control of his two family pets – a Rottweiler and a German Shepherd (the “dogs”).

The charges alleged, inter alia, that Roberts’s dogs had been repeatedly at large and

had been chasing people (the “code enforcement case”). Roberts’s dogs were

confiscated and held by the County’s Animal Control Division pending a jury trial.

      On September 16, 2024, in response to the underlying code enforcement case,

Roberts filed the instant petition for “Bill in Equity for a Breach of Trust” in the trial

court (the “lawsuit”). The lawsuit was filed against Chief Judge Caroline Power

Evans of the Barrow County Magistrate Court; Andrew Brill; Jeff Perry; Tracy Byrd;

Jaclyn Fryman; and Judge Jaime Crowe of the Barrow County Magistrate Court

(collectively “Appellees”), who took actions in their judicial and official capacities in

the code enforcement case.1 Roberts claimed that he had appointed Brill, Perry, and

Byrd as trustees to settle and close the code enforcement case on his behalf, but that

they had failed to perform their fiduciary duties.2 He also complained that he had been


      1
       Judge Crowe entered the hold order for confiscation of the dogs; Chief Judge
Evans was a prior judge in the code enforcement case; Brill and Perry were the
Assistant District Attorneys who prosecuted the code enforcement case on behalf of
the County; Byrd was a trial court clerk; and Fryman was director of the Barrow
County Animal Control Division.
      2
        Roberts’s trustee appointment allegedly occurred in July 2024, after the filing
of the code enforcement case and the dog confiscations. While Roberts’s allegations
                                            2
deprived of due process by Judge Evans and Judge Crowe because the dogs had been

confiscated without a prior jury trial.

      Appellees denied Roberts’s substantive allegations and filed a motion to dismiss

the lawsuit for failure to state a claim upon which relief can be granted, arguing that

Roberts’s claims merely sought to improperly interfere with the pending code

enforcement case.3 Appellees also argued that the equitable claims were subject to

dismissal since Roberts had an adequate remedy at law in the code enforcement case.

      Following a hearing, the trial court granted Appellees’ motion to dismiss.

Finding that Roberts had repeatedly filed frivolous documents in the lawsuit, the trial

court further ordered the trial court clerk to reject Roberts’s pro se filings unless they

had been reviewed and approved by a trial court judge (the “pro se filing

restrictions”). And although the trial court found that Appellees had demonstrated

entitlement to attorney fees and litigation expenses in the amount of $15,000, it




in the petition are convoluted and largely indecipherable, it is apparent that his claims
directly relate to and arise from the code enforcement case.
      3
        Appellees also raised the defenses of official, prosecutorial, and judicial
immunity. The trial court, however, did not address whether Roberts’s claims were
barred on those grounds.
                                            3
reserved entry of an award.4 Roberts has filed this appeal to challenge the trial court’s

decision.

      1. Roberts argues that at the motion hearing, the trial court erroneously placed

the burden of proof upon him to establish his claim, while defendants failed to offer

any evidence or rebuttal. No error has been shown.

      Because a transcript of the hearing has not been included in the record, we are

unable to confirm what transpired during the hearing below. “It is well established

that the burden is on the appellant to arrange for the preparation and filing of the

transcript of the lower court proceedings.”Hensley v. Young, 273 Ga. App. 687 (615

SE2d 771) (2005) (punctuation omitted). OCGA § 5-6-37 requires that the notice of

appeal “shall state whether or not any transcript of evidence and proceedings is to be

transmitted as a part of the record on appeal.” The record before us does not indicate

whether the motion hearing was transcribed, and Roberts’s notice of appeal does not

designate a hearing transcript for inclusion in the appellate record.

      Absent the transcript, we must presume the correctness of the trial court’s

conduct of the proceedings. See Christie v. Rainmaster Irrigation, Inc., 299 Ga. App.

      4
       The trial court’s order reflects that at the hearing, Appellees moved for an
award of attorney’s fees and litigation expenses under OCGA § 9-15-14.
                                           4
383, 387(2) (682 SE2d 687) (2009) (“In the absence of either a record or transcript

of the rule nisi hearing,... this Court must presume the correctness of the trial court’s

actions at the hearing.”); Reynolds v. Kresge, 269 Ga. App. 767, 769 (605 SE2d 379)

(2004) (“Absent a transcript of the hearing, we must presume the correctness of the

proceedings below[.]”).

      Nevertheless, it is apparent that Roberts’s argument misconstrues the standard

to be applied in ruling upon a motion to dismiss under OCGA § 9-11-12(b)(6). While

Roberts complains that Appellees failed to offer evidence or rebuttal at the hearing,

they were not required to do so.5 “When presented with a motion to dismiss for failure

to state a claim, a court must examine the sufficiency of the pleadings.” Kammerer Real

Estate Holdings, LLC v. Forsyth County Bd. of Comm’rs, 302 Ga. 284, 286(2) (806

SE2d 561) (2017). “[O]nly the pleadings — not evidence — are evaluated in a motion

to dismiss pursuant to OCGA § 9-11-12(b)(6).”McCloud v. Lowndes County Bd. of

Comm’rs, 369 Ga. App. 756, 759 (1) (894 SE2d 505) (2023). The trial court’s order

states and applies the proper legal standard.

      5
        To the extent that Roberts also argues that the Rule Nisi issued by the trial
court placed the burden of proof upon Appellees to present evidence supporting the
motion to dismiss, his argument is baseless. The Rule Nisi made no mention of the
burden of proof.
                                            5
         2. Roberts also contends that the trial court erred by failing to apply the proper

equitable maxims and constructive trust principles. Again, his contention is without

merit.

         We review de novo a trial court’s ruling on a motion to dismiss. Auto-Owners

Ins. Co. v. Tracy, 344 Ga. App. 53, 54 (806 SE2d 653) (2017). “A motion to dismiss

for failure to state a claim should be granted where it appears to a certainty that the

plaintiff would be entitled to no relief under any state of facts which could be proved

in support of his claim.”Voyles v. McKinney, 283 Ga. 169, 170(1) (657 SE2d 193)

(2008) (punctuation omitted). In ruling upon a motion to dismiss, “the pleadings to

be construed include any exhibits attached to and incorporated into the complaint and

the answer.” Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 750 (751 SE2d

545) (2013). See also OCGA § 9-11-10(c) (“[a] copy of any written instrument which

is an exhibit to a pleading is a part thereof for all purposes”). We note that the Georgia

Civil Practice Act only requires notice pleading, the complaint must be construed in

the light most favorable to Roberts as the plaintiff, and pro se pleadings are held to less

stringent standards. See Zephaniah v. Ga. Clinic, P.C., 350 Ga. App. 408, 411-12(1)




                                              6
(829 SE2d 448) (2019). Applying these standards, the trial court’s dismissal of

Roberts’s petition was proper.

      Roberts’s claims in the lawsuit directly related to the pending code enforcement

case.6 The trial court correctly ruled that Roberts could not assert the equitable claims

to interfere with the code enforcement case. See OCGA § 9-5-2 (“Equity will take no

part in the administration of the criminal law. It will neither aid criminal courts in the

exercise of their jurisdiction, nor will it restrain or obstruct them.”); Mohwish v.

Franklin, 291 Ga. 179, 180 (728 SE2d 240) (2012) (affirming the trial court’s dismissal

of a civil complaint when plaintiff’s claims wanted the trial court to interfere with his

ongoing criminal prosecution); Sarrio v. Gwinnett County, 273 Ga. 404, 405(1) (542

SE2d 485) (2001) (affirming the dismissal of equitable claims and ruling that equity

courts should not intervene in prosecutions involving the violation of municipal

ordinances); Talbot State Bank v. Columbus, 261 Ga. 850 (413 SE2d 194) (1992)

(affirming the trial court’s refusal to enjoin the prosecution of the violation of a city

ordinance because “equity will not interfere with criminal proceedings”).




      6
        Roberts conceded that his equity and fiduciary breach claims in the lawsuit
were related to and overlapped the pending code enforcement case.
                                            7
      Roberts’s response to the dismissal motion claims that this case is “about

property rights.” Roberts’s property rights must be adjudicated in the code

enforcement proceedings, which provide an adequate remedy at law. See OCGA § 23-

1-4 (“Equity will not take cognizance of a plain legal right where an adequate and

complete remedy is provided by law[.]”); Pendleton v. Atlanta, 236 Ga. 479, 480(2)

(224 SE2d 357) (1976) (appellants’ civil action seeking relief related to a pending

criminal case against them was properly dismissed since all questions set forth in the

petition concerning the process and authority by which appellants were brought to

trial could be attacked in the criminal proceedings, giving the appellants an adequate

remedy at law).

      3. Roberts further argues that the trial court misconstrued his equitable claims

as “sovereign citizen” contentions. In light of our conclusion that Roberts’s claim was

legally barred, we need not address this contention of error.

      4. Lastly, Roberts claims that the trial court erred by imposing the pro se filing

restrictions and by considering an award of attorney fees for frivolous litigation under

OCGA § 9-15-14. We discern no error.




                                           8
      (a) Based upon Roberts’s pattern of frivolous filings, the trial court’s imposition

of the pro se filing restriction was authorized. The record amply supports the trial

court’s finding that Roberts had submitted multiple filings and documents that

presented convoluted, frivolous arguments and demands in both this lawsuit and the

underlying code enforcement case. According to Appellees, Roberts also had filed a

quo warranto petition against several Appellees in another lawsuit that was dismissed

as improperly filed.

             No person is free to abuse the courts by inundating them with
      frivolous suits [and filings] which burden the administration of the courts
      for no useful purpose. This limitation on [Roberts’s] ability to file pro se
      [submissions] does not totally deprive him of meaningful access to the
      courts and is reasonable under the circumstances.


Higdon v. Higdon, 321 Ga. App. 260, 266(4) (739 SE2d 498) (2013) (citation and

punctuation omitted).

      (b) The trial court did not enter an attorney fees award and instead took the

issue under advisement. Because there has been no final award, Roberts’s claim of

error need not be addressed in this appeal. See U-Haul Co. of Arizona v. Rutland, 348

Ga. App. 738, 751(2)(b) n. 10 (824 SE2d 644) (2019) (where the trial court reserved



                                           9
ruling on the award of attorney fees under OCGA § 9-15-14, there was nothing for this

Court to review as to that issue); Homelife on Glynco v. Gateway Ctr. Commercial Ass’n,

348 Ga. App. 97, 106(6) (819 SE2d 723) (2018) (“Where there is no final ruling upon

an issue by the trial court, there is nothing for the appellate court to pass upon, for this

court is a court for the correction of errors made in the trial court.”) (punctuation

omitted).

       Judgment affirmed. Brown, C. J., and Mercier, J., concur.




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