All Star, Inc. v. Alford, A19A1011

• Decision Date: 29 October 2019
• Docket Number: A19A1011
• Citation: 835 S.E.2d 672,352 Ga.App. 631
• Parties: ALL STAR, INC. v. ALFORD et al.
• Court: Georgia Court of Appeals

352 Ga.App. 631
835 S.E.2d 672

ALL STAR, INC.
v.
ALFORD et al.

A19A1011

Court of Appeals of Georgia.

October 29, 2019

835 S.E.2d 673

Louis Levenson, George Leotis Lott, Atlanta, for Appellant.

Christopher Michael Carr, Atlanta, Brooke Erin Heinz, for Appellee.

Reese, Judge.

352 Ga.App. 631

All Star, Inc. ("the Appellant") appeals the trial court’s order dismissing its petition for a writ of mandamus in response to a motion to dismiss filed by the Georgia Lottery Corporation ("GLC"), Debbie Alford, and Joseph Kim (collectively "the Appellees").¹ The Appellant argues that the trial court erred in ruling that the Appellant’s request for a hearing on the revocation of its 2017 license was moot and that GLC was not a proper party to this action. For the reasons that follow, we affirm.

Viewed in the light most favorable to the Appellant, as the non-movant,² the verified petition alleges the following facts. In 2017, Kim, on behalf of GLC, and the Appellant corresponded through a series of letters, regarding the Appellant’s license to operate coin-operated amusement machines ("COAMs").³ In a February 1, 2017

352 Ga.App. 632

letter sent to the attention of Thomas Gray,⁴ Kim informed the Appellant of GLC’s intent to revoke the Appellant’s license to operate COAMs due to an alleged violation under OCGA § 50-27-73 (c).⁵ Kim alleged that the Appellant had been recently sold to and had been returned to the control of a former owner, Larry Simmons, Sr., ("Simmons"), who had pled guilty to "gambling and fraud related charges[.]" Kim informed the Appellant that, if it wished to dispute the license revocation, the Appellant could request a hearing in writing, signed by the licensee, within 30 days.⁶

By letter dated March 1, 2017, and signed by Alan Begner, as attorney for the Appellant, and the Appellant’s owner, "Larry Simmons, Jr.[,]" the Appellant denied that Simmons was "again involved in [its] operation[,]" demanded a dismissal of the revocation action, and requested a hearing. GLC, through Kim, responded by letter dated March 6, 2017, denying the Appellant’s request for a hearing because the request was not signed by Thomas Gray, the "registered agent[,] chief executive officer[, and owner] of [the Appellant]."⁷ The Appellant did not respond to GLC’s letter to challenge its ruling as to the validity of the hearing request. GLC remotely disconnected the COAM machines and notified the Appellant that the

835 S.E.2d 674

machines were to be removed no later than March 16, 2017, from the Appellant’s premises.

In July 2017, the Appellant filed a mandamus petition against the Appellees, seeking an order compelling GLC to conduct a hearing on the COAM license revocation and to force GLC to allow the

352 Ga.App. 633

Appellant to continue to operate under its 2017 license until the hearing was held and the ruling on the revocation was appealed, if necessary. The Appellant also sought attorney fees and expenses of litigation.

The Appellees filed an answer by "limited appearance[,]" and, on July 23, 2018, filed a motion to dismiss the petition, asserting that, because the Appellant’s license had been revoked and the Appellant had not tried to renew the 2017 license or applied for a new license, the mandamus action was moot.⁸ The trial court granted the Appellees’ motion, and the Appellant filed this discretionary appeal.⁹

A motion to dismiss ... should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.¹⁰

Mandamus is "an extraordinary remedy to compel a public officer to perform a required duty when there is no other adequate legal remedy."¹¹ "The writ of mandamus is properly issued only if (1) no other adequate legal remedy is available to effectuate the relief sought; and (2) the applicant has a clear legal right to such relief."¹²

352 Ga.App. 634

Further,

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. For 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. The determination of whether official action is required depends on the law governing the subject matter in question. Thus, where the applicable law vests the official or agency with discretion with regard to whether action is required in a particular circumstance, mandamus will not lie, because there is no clear legal right to the performance of such an act.¹³

The party seeking the mandamus "bears the burden to show that it lacks an adequate legal remedy so that an action for mandamus will lie."¹⁴ This Court’s review of the trial

835 S.E.2d 675

court’s ruling on whether to grant a mandamus petition is de novo.¹⁵

With these guiding principles in mind, we turn now to the Appellant’s specific claims of error.

1. The Appellant argues that trial court erred in finding that the mandamus petition was moot. Specifically, the Appellant contends that it could not file a renewal application for its COAM license because the license had been revoked, not because it had expired.

"Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless[.]"¹⁶ "Mandamus proceedings, when instituted, do not relate back to the time of the accrual of a right thereto, and the duty to be enforced must be a duty which exists at the time when the application for mandamus is made or the writ is granted."¹⁷

Here, the Appellant received a letter from Kim, dated February 1, 2017, that stated that under OCGA § 50-27-73 (c), "GLC is providing

352 Ga.App. 635

you with 30 days’ notice of its intent to revoke All Star Inc.’s COAM license." GLC Rule 13.2.9 (1)...