Utica Mutual Insurance v. Mitchell

Ruffin, Judge,

concurring specially.

I concur in the court’s opinion, but not without concern over the due process issues Judge Beasley raises in her separate opinion. As she notes, due process may well require that the ward receive personal notice of the guardian’s attempts to end their relationship. As Judge Smith correctly states, however, the statutory scheme as currently designed by the Legislature does not require the guardian to personally serve the ward with a copy of the petition for dismission. Judge Beasley’s partial dissent, in effect, is an effort to declare unconstitutional these statutory notice provisions by finding service by publication to be constitutionally impermissible. Such an action *833exceeds this Court’s power.

As the superior court noted in its ruling, Mitchell argued that the statutory notice provisions at issue failed to provide her procedural due process. Such a claim may have merit, considering the potential effect of the judgment on the ward’s claims that the guardian failed properly to discharge her duties. See Gay v. Gay, 121 Ga. App. 287, 290 (2) (173 SE2d 712) (1970) (order granting letters of dismission creates presumption that guardian fully and completely performed his or her duties); Allan v. Allan, 236 Ga. 199, 206 (223 SE2d 445) (1976) (in year’s support proceeding, statute providing for notice by publication failed constitutional muster because it failed to notify parties whose rights were affected by final judgment).

The trial court, however, did not make any ruling regarding the constitutionality of the statutory scheme. Neither did Mitchell file any cross-appeal raising this issue. Therefore, the question is not before this Court. See Decatur Fed. S & L Assn. v. Litsky, 207 Ga. App. 752, 755 (2) (429 SE2d 300) (1993). Even if it were, we could not decide the matter. “This Court has no jurisdiction to determine the constitutionality of a state law, other than where the law has been held to be constitutional against the same attack being made, and only has jurisdiction to decide questions of law that involve the application, in a general sense, of unquestioned and unambiguous provisions of the Constitution of a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States.” (Citations and punctuation omitted.) Braden v. Bell, 222 Ga. App. 144, 146 (1) (473 SE2d 523) (1996) (physical precedent only); see also Pollard v. State, 229 Ga. 698 (194 SE2d 107) (1972). Because the issue was not addressed in the trial court, we are also unable to transfer this case to the Supreme Court for determination. Decatur Fed., supra.

Whether due process concerns require personal service on the ward is a murky and tangled issue, requiring a court of competent jurisdiction to consider the statutory notice provisions in light of other statutes allowing a ward who had no notice of the dismission to request an accounting. Compare OCGA §§ 29-2-84 and 29-2-77 (allowing dismission without personal notice to ward) with §§ 29-2-74 and 29-2-83 (allowing ward to reopen settlement). Given the limited scope of the issues properly before us, I concur with Judge Smith’s analysis and result.

I am authorized to state that Chief Judge Andrews, Presiding Judge Birdsong, and Judge Smith join in this special concurrence.