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City of Sandy Springs Board of Appeals v. Traton Homes, LLC

Court of Appeals of Georgia, Fourth Division

June 5, 2017

CITY OF SANDY SPRINGS BOARD OF APPEALS et al.
v.
TRATON HOMES, LLC.

          DILLARD, P. J., RAY and SELF, JJ.

          Dillard, Presiding Judge.

         The City of Sandy Springs Board of Appeals and members of the Board[1](collectively, "the Board") filed this interlocutory appeal to the superior court's denial of a motion to dismiss Traton Homes, LLC's petition for writ of certiorari. The Board maintains that the trial court erred in denying its motion to dismiss when Traton Homes failed to (1) meet the mandatory requirements of OCGA § 5-4-6 (b) for service of the certiorari petition and writ on the Board as the respondent and (2) name the City of Sandy Springs as the opposite party and, thus, separately failed to meet the mandatory requirements of OCGA § 5-4-6 (b) with regard to service upon an opposite party. Because we agree that Traton Homes failed to satisfy these mandatory statutory requirements, we reverse.

         The record reflects that on December 11, 2015, Traton Homes filed a petition for writ of certiorari in superior court, seeking to appeal the City of Sandy Springs Board of Appeals's decision to affirm a zoning interpretation that had been made by the community development director for the City of Sandy Springs. The superior court subsequently entered an "Order Sanctioning Petition for Certiorari and Directing Service." Also on that day, the court issued summonses to the named respondents in certiorari, to wit, the Board and its members.

         On January 19, 2016, the Board filed a special appearance and responsive pleading to the petition, asserting that a writ had never been issued; the writ had therefore not been properly served; and Traton Homes had not named the City of Sandy Springs ("the City"), the opposite party, as a defendant, and thus had not served the petition or writ on the City. On the same day, the Board also moved to dismiss the petition for these reasons. Traton Homes responded, maintaining that the court's order sanctioning the filing was the writ; that alternatively, the summonses issued by the clerk of court were tantamount to the required writ; and that, in any event, it was the clerk of court's duty to issue the writ, not the petitioner's. Traton

          Homes also argued that its failure to name the City as a defendant was not fatal to its petition, and it filed an amended petition to that effect, citing OCGA § 5-4-10 as authority for doing so.[2] Finally, Traton Homes contended that by serving counsel for the City within five days of filing its original petition, the City had been properly served. But the Board replied, countering that the summonses were not tantamount to the required writ, and that the City could not be added as a party through an amendment. The trial court summarily denied the motion and then issued a certificate of immediate review. The Board's application for an interlocutory appeal followed, which we granted.

         At the outset, we note that if a motion to dismiss for lack of jurisdiction is "decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard."[3] And as for motions to dismiss for insufficient service, a trial court's ruling "will be upheld on appeal absent a showing of an abuse of discretion."[4] Of course, when an appeal from the denial of a motion to dismiss presents a question of law, we review the trial court's decision de novo.[5] With these guiding principles in mind, we turn now to the Board's contentions on appeal.

         1. First, the Board argues that the trial court erred in denying the motion to dismiss when Traton Homes failed to meet the mandatory requirements of OCGA § 5-4-6 (b) for service of the certiorari petition and writ upon the Board. We agree.

         Following the 1966 Civil Practice Act, "certiorari proceedings are considered 'special statutory proceedings[, ]'" which are proceedings "to which the Civil Practice Act applies 'except to the extent that specific rules of practice and procedure in conflict . . . are expressly prescribed by law.'"[6] And turning to the certiorari- proceedings statute relevant to this appeal, we are mindful that in considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant."[7] Toward that end, we must afford the statutory text its plain and ordinary meaning, [8] consider the text contextually, [9] read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would, "[10] and seek to "avoid a construction that makes some language mere surplusage."[11] In summary, when the language of a statute is "plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly."[12]

         Turning to the statutes in question, under OCGA § 5-4-3, whenever any party in a case brought "before any inferior judicatory or before any person exercising judicial powers" is dissatisfied with the ultimate decision or judgment, that party "may apply for and obtain a writ of certiorari by petition to the superior court for the county in which the case was tried, in which petition he shall plainly and distinctly set forth the errors complained of." The statute further provides as follows:

On the filing of the petition in the office of the clerk of the superior court, with the sanction of the appropriate judge endorsed thereon, together with the bond or affidavit, as provided in Code Section 5-4-5, it shall be the duty of the clerk to issue a writ of certiorari, directed to the tribunal or person whose decision or judgment is the subject matter of complaint, requiring the tribunal or person to certify and send up all the proceedings in the case to the superior court, as directed in the writ of certiorari.[13] Giving further direction, OCGA § 5-4-6 (a) and (b) provide as follows:
(a) All writs of certiorari shall be applied for within 30 days after the final determination of the case in which the error is alleged to have been committed. Applications made after 30 days are not timely and shall be dismissed by the court.
(b) The certiorari petition and writ shall be filed in the clerk's office within a reasonable time after sanction by the superior court judge; and a copy shall be served on the respondent, within five days after such filing, by the sheriff or his deputy or by the petitioner or his attorney. A copy of the petition and writ shall also be served on the opposite party or his counsel or other legal representative, in person or by mail; and service shall be shown by acknowledgment or by certificate of the counsel or person perfecting the service.[14]

         Looking to the plain and unambiguous language of these two statutes, OCGA § 5-4-3 and OCGA § 5-4-6, it is evident that the petition for certiorari filed by the dissatisfied party, the writ of certiorari issued by the superior court clerk, and the sanction of the writ by the superior court judge are separate entities, as we and our Supreme Court have indicated in prior cases.[15] Additionally, in further contradiction of Traton Homes' contentions, neither the order sanctioning the petition nor the summonses issued in this case satisfied the requirements of a writ of certiorari which, according to statute, must be "directed to the tribunal or person whose decision or judgment is the subject matter of complaint, requiring the tribunal or person to certify and send up all the proceedings in the case to the superior court, as directed in the writ of certiorari."[16] Indeed, the order directed that (1) the petition for certiorari be filed in the clerk's office within a reasonable time after sanction, (2) that the petition be served on the respondent within five days of filing, (3) that a copy of "the petition and writ . . . also be served on the opposite party, "[17] and (4) that the respondent answer the writ within thirty days of service of the "petition and writ upon the [r]espondent"[18] in accordance with OCGA § 5-4-6. And the summonses directed the Board and its members to "serve upon plaintiff's attorney" an "answer to the complaint which is herewith served upon you" and warned that the failure to do so could result in a default judgment. Thus, neither the order nor the summonses satisfied the dictates of the statute as applied to the contents of a writ.[19]

         Accordingly, although the Board was served with a copy of the petition for certiorari, a sanction of the writ by the superior court, and summonses, there was a failure to comply with the express terms of OCGA § 5-4-3 and OCGA § 5-4-6 because no writ has been issued and served.[20] And while it is true that it was the clerk's duty to issue the writ, it is also separately the petitioner or his counsel's duty to ensure that a writ is served.[21] Thus, Traton Homes cannot completely divorce itself from the failure that occurred in this case.[22] Accordingly, the superior court erred in denying the Board's motion to dismiss when there was a complete failure to even issue a writ of certiorari, let alone serve same upon the respondent, the Board.[23] And even if we assume, without deciding, that dismissal with prejudice was not required by this error, [24] the failure to comply with the certiorari requirements as to the opposite party, as discussed in Division 2 infra, did require dismissal with prejudice. Consequently, we turn to this second enumerated error.

         2. The Board next argues that the trial court erred in denying its motion to dismiss the petition for certiorari when Traton Homes failed to name the City of Sandy Springs as the opposite party, further failing to comply with the mandatory requirements of OCGA § 5-4-6 (b). Once again, we agree.

         Looking to the statute at issue, OCGA § 5-4-6 (b) plainly provides not only that a copy of the certiorari petition and writ be served upon the respondent within five days of filing same in the clerk's office, but additionally that "[a] copy of the petition and writ shall also be served on the opposite party or his counsel or other legal representative, in person or by mail; and service shall be shown by acknowledgment or by certificate of the counsel or person perfecting the service."[25]As we have previously explained, "the judicatory body whose decision is appealed is the 'respondent' on whom service is required"[26] or, in other words, the "respondent" is "the judicatory body in the dispute, "[27] while the "opposite party" is the "party to a dispute."[28] The judicatory body/respondent and the opposite party/party to a dispute are, thus, "separate entities with possibly conflicting interests."[29] And because the Board (as respondent) and the City (as the proper opposite party) are two separate entities with possibly conflicting interests, we reject Traton Homes's argument that ...


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