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Riley v. Southern LNG, Inc.

Supreme Court of Georgia

March 6, 2017

RILEY
v.
SOUTHERN LNG, INC.

          Boggs, Justice.

         This is the third appeal of this case arising from the efforts of appellee Southern LNG, Inc. ("Southern") to compel State Revenue Commissioner Lynnette T. Riley[1] ("the Commissioner") to recognize Southern as a "public utility" under OCGA § 48-5-511 and to accept Southern's ad valorem property tax returns.[2] In Southern LNG, Inc. v. MacGinnitie, 290 Ga. 204 (719 S.E.2d 473) (2011) ("Southern I"), we reversed the trial court's dismissal of Southern's petition for a writ of mandamus, holding that Southern's claim was not barred by sovereign immunity. Id. at 205. On remand, the trial court granted summary judgment to the Commissioner on the mandamus claim, holding that Southern had an adequate alternative remedy to mandamus in its Chatham County property tax appeals under OCGA § 48-5-311. In Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 (755 S.E.2d 683) (2014) ("Southern II") we vacated the grant of summary judgment because the trial court did not determine, and the parties did not brief, whether the Commissioner could be made a party to or be bound by a judgment in the Chatham County tax appeals, and thus did not reach the essential question of whether the alleged alternative remedy was "equally convenient, complete and beneficial' to the petitioner. [Cit.]" Id. at 657-658. We therefore remanded the case to the trial court for further proceedings. Id. at 658. Additionally, we laid out for the parties in considerable detail the potential legal and procedural issues bearing on the question of whether the Commissioner could become a party or be bound by a judgment rendered in the Chatham County tax appeals. Id. at 666-669 (3) (c).

         On remand, Southern and the Commissioner filed renewed cross-motions for summary judgment. The trial court granted summary judgment in favor of Southern, holding that it had no "equally convenient, complete and beneficial" remedy other than mandamus, and that its petition for mandamus therefore would lie. It denied the Commissioner's motion for summary judgment, granted Southern's motion for summary judgment and a writ of mandamus, and directed the Commissioner "to accept [Southern's] ad valorem property tax returns pursuant to OCGA § 48-5-511 (a) instanter." (Emphasis in original.) From this judgment the Commissioner appeals. Pretermitting whether an adequate legal remedy has been shown, we reverse the trial court's judgment because Southern has failed to show that the Commissioner violated a clear legal duty in refusing to conclude that Southern is a "gas company" and therefore a "public utility" within the meaning of OCGA § 48-1-2 (21).

         1. In Southern II, we laid out in some detail the potential issues that could determine whether a "equally convenient, complete and beneficial" legal remedy is available to Southern, including venue, sovereign immunity, and

whether the CPA rules on joinder of persons necessary for a just adjudication, permissive joinder of parties, interpleader, or intervention, or any other procedural devices, allow or require the Commissioner to become a party to, or otherwise become bound by, a judgment rendered on the statutory issue in the Chatham County tax appeals, and whether Southern controls that process or can be or has been thwarted by the Commissioner.

(Citations and footnotes omitted.) Id. at 667-669 (3) (c). We also noted that such issues may depend on the litigation strategy of the parties, and could result in conflicting rulings. Id. at 666 n.17.[3]

         The Commissioner, in a motion before this court, states that she filed a motion to intervene in the Chatham County proceedings on November 2, 2016, after this case was orally argued.[4] But in the same pleading as well as in her brief, the Commissioner asserts that the Chatham County litigation has been stayed pending the outcome of these proceedings. But even if the Commissioner has moved to intervene, there is no indication that the Chatham County Superior Court has ruled on that motion, which could be withdrawn before a ruling or denied if any stay is lifted. Whether Southern could raise the dispositive issue in the Chatham County tax appeal, as the Commissioner argues both here and below, begs the question of whether that issue could be decided in the Chatham County tax appeal, as well as whether it could bind the Commissioner.

         In sum, the legal, procedural, and strategic obstacles outlined in Southern II remain unresolved, particularly in light of the asserted stay of proceedings. But we need not address those issues, because Southern's petition for mandamus fails on an alternative ground: the trial court erred in finding that the Commissioner had a clear legal duty to accept Southern's ad valorem property tax returns pursuant to OCGA § 48-5-511 (a).

         2. In considering a petition for writ of mandamus,

[a] clear legal right to the relief sought may be found only where the claimant seeks to compel the performance of a public duty that an official or agency is required by law to perform. [F]or mandamus to issue, the law must not only authorize the act to be done, but must require its performance. Where performance is required by law, a clear legal right to relief will exist either where the official or agency fails entirely to act or where, in taking such required action, the official or agency commits a gross abuse of discretion.

(Citations and punctuation omitted.) Bibb County v. Monroe County, 294 Ga. 730, 735 (2) (b) (755 S.E.2d 760) (2014); see also Forsyth County v. White, 272 Ga. 619, 620 (2) (532 S.E.2d 392) (2000). Moreover,

a public official's exercise of discretion will not be disturbed by a mandamus order unless the official's actions were arbitrary, capricious and unreasonable. A mandamus complaint cannot succeed merely by urging that the public action it seeks to compel would be "reasonable" - mandamus is not available to remedy anything other than a public official's (or a public body's) discretionary abuse as evidenced by action that was arbitrary, capricious, and unreasonable.

(Citations and punctuation omitted.) Gilmer County v. City of East Ellijay, 272 Ga. 774, 777 (2) (533 S.E.2d 715) (2000).

         The trial court granted the writ of mandamus on the basis that Southern is a "gas . . . company" and therefore a "public utility" within the meaning of OCGA § 48-1-2 (21). In its decision, the trial court relied upon Undercofler v. Colonial Pipeline, 114 Ga.App. 739 (152 S.E.2d 768) (1966). In that declaratory judgment action, Colonial, which owned a pipeline system spanning 35 counties in Georgia, sought a ruling as to whether it was required to make its tax return to the Commissioner or to the individual counties. The Court of Appeals noted that Colonial was not actually "doing a gas business" as it did not produce or market any product but merely transported it. But the court then relied upon a lengthy enumeration of "the nature of taxpayer's business" in Colonial's charter, including in addition to transportation the "'purchase, sales, marketing and distribution of crude petroleum and the products and by-products thereof, . . . artificial gas, natural gas, and the products and by-products thereof, '" id. at 739, and concluded that ...


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