BCG Operations, LLC v. Town of Homer

• Decision Date: 26 January 2023
• Docket Number: A22A1314,A22A1183
• Parties: BCG OPERATIONS, LLC v. TOWN OF HOMER et al.; and vice versa.
• Court: Georgia Court of Appeals

BCG OPERATIONS, LLC
v.
TOWN OF HOMER et al.; and vice versa.

Nos. A22A1314, A22A1183

Court of Appeals of Georgia, Third Division

January 26, 2023

MILLER, P. J., DOYLE, P. J., and SENIOR APPELLATE JUDGE PHIPPS

DOYLE, PRESIDING JUDGE.

BCG Operations, LLC ("BCG"), filed a petition for writ of mandamus and a complaint for inverse condemnation and damages after the Town of Homer ("the Town") refused to accept BCG's application for a distilled spirits consumption license ("liquor license"). The trial court granted BCG's writ of mandamus, ordering the Town to process and grant BCG's application. BCG then filed a motion for partial summary judgment seeking damages related to the Town's refusal to accept its application for a liquor license. The court denied BCG's motion. BCG appeals the trial court's denial of its motion for partial summary judgment, and the Town, the Town's council, and the Town's mayor (collectively, "cross-appellants") appeal from

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the trial court's award of writ of mandamus to BCG. For the reasons set forth infra, we affirm the trial court's denial of BCG's motion for partial summary judgment and dismiss the cross-appeal as moot.

In 2014, Banks County Golf, LLC ("Banks County Golf"), which is operated by BCG, purchased the Chimney Oaks Development. The intent behind the purchase was to improve the golf course and build a clubhouse, which would serve beer, wine, and liquor. Jim Prichard, a principal owner of Banks County Golf, testified at the hearing before the trial court that he met with the Town's mayor and the downtown development authority before the property was purchased, and stated that the Town's representatives were supportive of plans to improve the golf course. Prichard also testified that the Town's representatives were informed that the clubhouse needed liquor sales to be competitive with other venues in the area, and that no concerns regarding the Town's liquor license ordinance were noted. Prichard testified that based on assurances BCG could obtain a liquor license, they moved forward with building the clubhouse. Ground was broken on the clubhouse in September 2019.

The Town's attorney testified that he first became aware of the Town's ordinance governing liquor licenses in approximately June 2019. After researching the ordinance, the attorney determined that it constituted an impermissible ultra vires

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act, and consequently the Town could not award licenses to sell liquor by the drink.^[1]The attorney decided to address this issue by including a question concerning the Town's ability to issue liquor licenses in the upcoming referendum, which was already scheduled to contain questions regarding the Sunday sale of alcohol. However, the attorney also testified that he did not inform the Town's mayor or council of his findings regarding the ordinance, and he confirmed that before his analysis the ordinance had not been challenged.

In January 2020, BCG applied for licenses to serve beer, wine, and liquor with the clerk's office. An employee of the clerk's office contacted the Town's attorney, who advised the clerk not to accept BCG's application to serve liquor. The attorney, however, did not consult with the mayor or city council prior to advising the city clerk. The clerk subsequently informed BCG that the Town could not accept BCG's application for a liquor license, but the Town did accept, and subsequently grant, BCG's application for a beer and wine license.

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BCG filed a petition for writ of mandamus and declaratory judgment, and a complaint for inverse condemnation and damages asking that the trial court require the Town to accept and grant its application for a liquor license. BCG also filed an emergency motion for preliminary injunction and a motion for permanent injunction asking the court, in part, to prevent the Town from including in the referendum a question regarding whether the Town could issue licenses to serve liquor by the drink. The trial court held a hearing and granted BCG's petition for writ of mandamus, thereby directing the Town to accept and award BCG a liquor license, but denied BCG's motions for preliminary and permanent injunctions. BCG then filed a motion for partial summary judgment seeking damages related to the Town's refusal to accept its application for a liquor license, which the trial court denied. BCG now appeals from the court's denial of its motion for partial summary judgment, and the cross-appellants appeal from the grant of BCG's petition for a writ of mandamus.

"[A]ppellate courts will not interfere with a trial court's decision granting mandamus relief absent a showing that the court manifestly abused its discretion. Review of the trial court's determination on a question of law, however, is de novo."^[2]

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Additionally,

[i]n order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.^[3]

With these guiding principles in mind, we now turn to the parties' claims of error.

Case No. A22A1314

1. Cross-appellants argue that the trial court erred in granting BCG's petition for writ of mandamus because its liquor license ordinance constituted an ultra vires act, and alternatively, that the court erred in dictating the exercise of the Town's discretionary authority under OCGA § 3-4-160 (c).

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However, before examining the substance of the cross-appellants' arguments, we must first consider whether, as BCG maintains, this appeal is now moot as the liquor license has expired.

Mootness is a jurisdictional question because it concerns a court's power to decide a case. Georgia's Article VI^[4] courts are vested with the judicial power of the state. As traditionally understood, that power allows courts to decide cases: "live disputes" between adverse parties, in which one party has asserted an injury in fact that was caused by the other and that can be redressed by a favorable decision. A claim of mootness is a claim that, for one reason or another, the asserted injury can no longer be redressed by a favorable decision. So, at bottom, a case that is moot is not a case within the reach of the judicial power. And so we address mootness, like other jurisdictional questions, before reaching the merits.^[5]

Here, the liquor license, which the trial court ordered the Town to issue through a writ of mandamus, has expired. As we have held previously, "[a] case becomes moot on appeal if the appellants can no longer get their desired relief, and so a

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favorable decision on appeal would be of no benefit to them."^[6] Moreover,...