Burke Cnty. v. Askin

• Court: Georgia Supreme Court
• Writing for the Court: HINES
• Citation: Burke Cnty. v. Askin, 291 Ga. 697, 732 S.E.2d 416 (Ga. 2012)
• Decision Date: 15 October 2012
• Docket Number: Nos. S12A0649,S12X0650.,s. S12A0649
• Parties: BURKE COUNTY v. ASKIN. Askin v. Burke County.

291 Ga. 697

732 S.E.2d 416

BURKE COUNTY

v.ASKIN.

Askin

v.Burke County.

Nos. S12A0649, S12X0650.

Supreme Court of Georgia.

Oct. 15, 2012.

Barry Abbott Fleming, Evans, Frank Adam Nelson, Augusta, Fleming & Nelson, LLP, for appellants.

Thomas Reuben Burnside, III, James W. Ellison, Burnside Wall, LLP, Augusta, for appellees.

HINES, Justice.

In Case No. S12A0649, Burke County, its Board of Commissioners, and various members of the Board, individually and in their official capacities (collectively “the County”) appeal the superior court's grant of a writ of mandamus involving the obligation to maintain roads dedicated to the County. In Case No. S12X0650, Otis F. Askin, Sr., and Tiger, Inc. cross-appeal the failure of the superior court to grant certain other relief that Askin had requested. As to each appeal, we vacate the judgment of the superior court and remand with direction.

The evidence presented before the superior court showed that Pineview Subdivision was established in Burke County in 1954. In 1962, the roads shown on a plat of the subdivision were dedicated by deed to, and accepted by, Burke County, and the Burke County Board of Commissioners passed a resolution to “cut or build roads” in the subdivision; the streets appearing on the subdivision plat are Frances Avenue, Maple Drive, Poplar Drive, Elm Drive, and Sycamore Drive. The deed conveying these streets to Burke County stated that it was made “in consideration of the benefits to the property of the undersigned by the construction and maintenance [sic] of said roads.” At some point, Maple Drive, Elm Drive, and a portion of Frances Avenue were constructed as unpaved roads; it does not appear that the other roads were constructed, nor can it be established what person or entity constructed the roads that were built.

In 2004, Askin purchased several lots in Pineview Subdivision, and Tiger, Inc., a corporation affiliated with Askin (collectively “Askin”), purchased a tract of land outside of Pineview, but bordering on Frances Avenue. After attempts to have the County maintain the subdivision roads, Askin sought a writ of mandamus to compel the County to, inter alia, repair and maintain the roads. After a hearing, the superior court granted certain mandamus relief, concluding that the County was obligated to maintain Maple and Elm Drives, as well as complete the construction of Frances Avenue and maintain that entire street. But, the court also found that the County had no obligation to maintain Poplar and Sycamore Drives.

Case No. S12A0649.

1. The County contends that OCGA § 9–6–21(b) is the exclusive authority under which a party can seek a writ of mandamus for road maintenance against a county board of commissioners. Under OCGA § 9–6–21(b), upon application of “one or more citizens” of the county, a writ of mandamus will lie to compel the appropriate authority to place the public roads at issue in condition “up to the standard required by law, so that ordinary loads, with ordinary ease and facility, can be continuously hauled over such public roads.” ¹ The County argues that, as it is uncontroverted that none of the Askin plaintiffs is a resident of Burke County, OCGA § 9–6–21(b) therefore provides no authority for a grant of a writ of mandamus, and the trial court thus erred in failing to grant the County's motion to dismiss.

The trial court was correct to reject the County's argument. The trial court granted relief under the general mandamus statute, OCGA § 9–6–20,² which Askin asserted as an alternative basis for relief in an amended complaint. OCGA § 9–6–20 predates OCGA § 9–6–21(b), and “[a] statute instituting a new remedy for an existing right does not take away a pre-existing remedy, without express words or necessary implication; the new remedy is cumulative, and either may be pursued.” Fountain v. Suber, 225 Ga. 361, 364, 169 S.E.2d 162 (1969). See also Van Valkenburg v. Stone, 172 Ga. 642, 647, 158 S.E. 419 (1931) (“However, the adoption of [ OCGA § 9–6–21(b) in] 1903 did not in any way affect the general law of mandamus or the rules of practice and procedure as to this remedy previously existing.”) And a county has a duty to maintain public roads in its county road system. See OCGA § 32–4–41(1).³ See also OCGA § 32–1–2.⁴Accordingly, the trial court did not err in addressing the petition for a writ of mandamus under OCGA § 9–6–20.

[291 Ga. 700]2. The County contends that the trial court erred in directing it to construct the portion of Frances Avenue that had not yet been built and to open it as a public road. The superior court found that all of the roads in Pineview Subdivision had been dedicated to the County and expressly accepted. That is correct; the express dedication of the streets in the subdivision by deed, together with the County's resolution regarding the streets, evidenced an acceptance of all streets in the dedication. Hobbs v. Ware County, 247 Ga. 385, 385–386(2), 276 S.E.2d 575 (1981). See also Ketchum v. Whitfield County, 270 Ga. 180, 182, 508 S.E.2d 639 (1998). However, the fact that a county has accepted an express dedication of roads in a subdivision does not mean that the county is without discretion to leave certain of the roads therein unopened. As this Court held in Chatham County v. Allen, 261 Ga. 177, 178, 402 S.E.2d 718 (1991), a public road is one that is open to the public, see OCGA § 32–1–3(24),⁵ and it is within a county's discretion whether to open a subdivision road that has been dedicated to it. ⁶

Askin asserts that Chatham County is inapposite because in that case the county's acceptance of the dedication was implied rather than there being an express dedication of the sort at issue here. We think that is a distinction without a difference. In Chatham County, as here, the county accepted the dedication of all streets in the subdivision, yet was still vested with the discretion to decide whether to open them all. Similarly, Burke County was vested with the legal authority to open or keep closed streets it had accepted.

In its order, the superior court recognized the principle that the County had discretion whether to open the roads at issue, and cited that discretion as the basis for denying mandamus relief as to Poplar and Sycamore Drives. However, in granting mandamus relief in so far as the County was ordered to open the currently unopened section of Frances Avenue, the court did not properly respect the County's discretion. “Mandamus will issue against a public official only where the petitioner has demonstrated a clear legal right to relief or a gross abuse of discretion.” Gwinnett County v. Ehler Enters., 270 Ga. 570(1), 512 S.E.2d 239 (1999). “[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.” Massey v. Georgia Bd. of Pardons & Paroles, 275 Ga. 127, 128(2), 562 S.E.2d 172 (2002) (Citations and punctuation omitted). The court's order, correctly, did not find that Askin had a clear legal right to the full opening of Frances Avenue. In granting relief, the court stated that the County's decision not to open all of Frances Avenue was an abuse of discretion, but at no point in its order did the court find that the decision was arbitrary, capricious, and unreasonable, or that it was a “gross abuse” of discretion; indeed, nowhere in the order was the proper standard articulated. Inasmuch as the trial court granted relief based upon an incorrect legal standard, the judgment must be vacated and the case remanded for the court to reconsider its decision in light of the applicable legal standard. See Gwinnett County v. Davis, 268 Ga. 653, 654, 492 S.E.2d 523 (1997). Although the superior court stated that a road over the full length of Frances Avenue was a “necessity,” the case nonetheless must be remanded “because we cannot say what the trial judge would have concluded if [the judge] had been relying on the correct theory.” Id. (Citations and punctuation omitted.)

3. The County also argues that the evidence did not authorize the superior court to determine that the entirety of Frances Avenue was in a state such that “ordinary loads, with ordinary ease and facility” could not be transported over them. To the extent that this argument may be relevant on remand, it must be noted that, in determining in what condition the roads had to be maintained, the superior court applied the standard found in OCGA § 9–6–21(b), i.e., that “ordinary loads, with ordinary ease and facility, can be continuously hauled over such public roads.” Of course, as noted above, see Division 1, supra, OCGA § 9–6–21(b) does not apply as no plaintiffs are citizens of the county. Rather, the trial court granted relief under OCGA § 9–6–20. But, the specific application of OCGA § 9–6–21(b) is not necessary for the superior court to apply the standard it did. A county's duty under OCGA § 32–4–41(1) includes maintaining its roads, and “ ‘[m]aintenance’ means the preservation of a public road, including repairs and resurfacing not amounting to construction....” OCGA § 32–1–3(15). Although the superior court did not explicitly state that the general obligation to maintain roads under OCGA § 32–4–41(1) embraces the specific standard set forth in OCGA § 9–6–21(b), such a conclusion is implicit in the order, and it is one with which we agree.⁷ To construe the obligation to maintain roads under OCGA § 32–4–41(1) so as to permit public roads to be “maintained” in a manner other than one in which ordinary traffic could be taken over them would be an absurd result, defying common sense. See State v. Mulkey, 252 Ga. 201, 204(2), 312 S.E.2d 601 (1984).⁸

4. The superior court's order also states that the County would be obligated to pave all of the roads in Pineview Subdivision if, in the future, the County denies Askin a building permit within the subdivision “on such dirt roads because of [the County's] existing ordinances or...