Carson v. Brown

• Decision Date: 20 February 2019
• Docket Number: A18A1951,A18A1979,A18A1978
• Parties: CARSON, Jr. et al. v. BROWN et al. Carson, Jr. et al. v. Brown et al. Brown et al. v. Carson, Jr. et al.
• Court: Georgia Court of Appeals

348 Ga.App. 689

824 S.E.2d 605

CARSON, Jr. et al.

v.BROWN et al.

Carson, Jr. et al.

v.Brown et al.

Brown et al.

v.Carson, Jr. et al.

A18A1951

A18A1978

A18A1979

Court of Appeals of Georgia.

February 20, 2019

Stephen Rothman, Kyler Lee Wise, Atlanta, for Appellant in A18A1951 and A18A1978.

Ken Jarrard, Cumming, for Appellee in A18A1951 and A18A1978.

Ken Jarrard, Cumming, for Appellant in A18A1979.

Stephen Rothman, Kyler Lee Wise, Atlanta, for Appellee in A18A1979.

Dillard, Chief Judge.

These three consolidated appeals concern the partial grant of a motion for judgment on the pleadings with respect to an action by E. Howard Carson, Jr. and Red Bull Holdings II, LLC (collectively, "Carson") against the director of the Forsyth County Department of Planning and Community Development, Tom Brown, in his individual and official capacities, and against the planner technician of the same department, Carroll Williams, in her individual and official capacities (collectively, "Brown and Williams"). Carson filed a "petition for mandamus" seeking to compel Brown and Williams to process his application for a land-disturbance permit submitted in anticipation of developing certain real property in Forsyth County, and the trial court subsequently partially granted Brown and Williams’s motion for judgment on the pleadings.

The procedural history of the various appeals will be further discussed infra , but in both Case Numbers A18A1951 and A18A1978, Carson argues that, in granting the motion, the trial court erred by (1) ruling that he cannot challenge the constitutionality of a Forsyth County moratorium on certain land-disturbance applications via a petition for mandamus; (2) ruling that his challenge to the constitutionality and legality of the County’s moratorium on certain land-disturbance applications really sought declaratory judgment, which was barred by sovereign immunity; and (3) denying his petition for mandamus and dismissing the action against Brown and Williams in their individual capacities. And in Case Number A18A1979, Brown and Williams cross-appeal, arguing that, in partially granting their motion for judgment on the pleadings, the trial court erred in (1) finding that Carson’s action was not barred by res judicata ; (2) finding that Carson’s land-disturbance application was not clearly rejected; and (3) failing to dismiss the action for a failure to first exhaust administrative remedies. For the reasons set forth infra , we affirm in part and reverse in part as to Case Numbers A18A1951 and A18A1978, and affirm as to Case Number A18A1979.

1. Jurisdiction. Before reaching the merits of the various appeals, we must first address our jurisdiction to entertain these cases, which Brown and Williams have challenged from the outset.¹ To that end, it is necessary to first detail how the appeals reached this Court.

(a) Case Numbers A18A1978 and A18A1979.

In Case Number A18A1978, Carson initially filed an application for discretionary appeal with the Supreme Court of Georgia, which then transferred the application to this Court. After reviewing the application for a discretionary appeal, we granted it after concluding that Carson had a right to a direct appeal under OCGA § 5-6-34 (a) (7), which provides, in relevant part, for direct appeals to this Court from "[a]ll judgments or orders granting or refusing to grant mandamus[.]"

Following our grant of Carson’s application on this basis, Brown and Williams filed a motion for reconsideration, arguing that Carson was required to file an application for discretionary appeal under OCGA § 5-6-35 (a) (1) because he was appealing the trial court’s review of a local administrative agency’s decision, citing Selke v. Carson .² We denied the appellees’ motion for reconsideration. Thereafter, Brown and Williams filed their cross-appeal in this Court, which was docketed as Case Number A18A1979.

(b) Case Number A18A1951.

As discussed supra , in Case Number A18A1978, Carson initially filed an application for discretionary appeal in the Supreme Court of Georgia; but he did so out of an abundance of caution after also filing a direct appeal in Case Number A18A1951 (docketed in the Supreme Court as Case Number S18A0817). In light of the Supreme Court of Georgia’s transfer of the application in Case Number A18A1978 to this Court, Carson filed a motion to transfer his direct appeal in A18A1951 from the Supreme Court to this Court as well, and the Supreme Court granted that motion.

With three appeals then pending in this Court, we granted a consent motion by the parties to consolidate the cases. Accordingly, the issues and parties’ arguments in Case Numbers A18A1978 and A18A1951 are one and the same.

(c) Our jurisdiction to entertain these appeals .

(i) The right to a direct appeal .

Brown and Williams continue to challenge our earlier determination that Carson had a right to directly appeal in Case Number A18A1978 and, by extension, Case Number A18A1951. They also concede that, if this Court lacks jurisdiction over A18A1978, it likewise lacks jurisdiction to entertain their cross-appeal in A18A1979.³ Brown and Williams assert that Carson was required to file an application for discretionary appeal under OCGA § 5-6-35 (a) (1) because his appeal was from the trial court’s review of a decision by a local administrative agency. And once again, they rely on Selke v. Carson⁴ in support of this argument.

In Selke , the Supreme Court of Georgia dismissed a direct appeal filed by former deputy sheriffs who had been required to file an application for discretionary review. The appellants in Selke were terminated from their positions without notice and appealed their terminations to the Forsyth County Personnel Services Director, requesting that their appeals be forwarded to the Forsyth County Civil Service Board.⁵ The Personnel Services Director denied the appeals because the sheriff claimed that the former deputies were terminated due to a reduction in force, and layoffs were not an appealable event; thus, the director refused to forward the appeals to the Board for its consideration.⁶ The former deputies then filed a petition for writ of mandamus against the director, the board, and the county, seeking to compel the director to forward the appeals to the board.⁷ The superior court thereafter granted a motion to dismiss that was filed by the appellees in Selke , and the appeal of the grant of that motion to dismiss was brought before our Supreme Court by a direct appeal.⁸

The Supreme Court dismissed the appeal in Selke after determining that the director "made an administrative department decision refusing to forward appellants’ appeals to the Civil Service Board"⁹ and because that "decision was reviewed by the superior court, it was incumbent upon appellants to proceed [to the Supreme Court] by discretionary appeal."¹⁰ Thus, the Selke Court recognized that while the general rule is that "judgments or orders granting or refusing to grant mandamus are appealable directly[,]"¹¹ a direct appeal will not lie "if the underlying subject matter of a mandamus petition concerns an administrative ruling which is reviewed by a superior court[.]"¹²

And the Court further explained that OCGA § 5-6-35 (a) (1)"requires an appellant to file an application for a discretionary appeal from a decision of a superior court reviewing the decision of a state or local administrative agency."¹³ Stated another way, when "both the direct and discretionary appeal statutes are implicated, it is always the underlying subject matter that will control whether the appeal must be brought [under] OCGA § 5-6-34 or OCGA § 5-6-35."¹⁴

Here, the record shows that in March 2016, Carson purchased Forsyth County property in the name of Red Bull and, at the time of purchase, that property was zoned in an RES3 district, which allowed for property to be developed into residential lots with a 9,000-square-foot minimum size. Later, in August 2016, the Forsyth County Board of Commissioners imposed a 30-day moratorium on land-development permits for RES3 property that sought to develop lots with a size of less than 14,750 square feet.¹⁵ Then, on September 7, 2016, Carson submitted a land-disturbance permit application to the Forsyth County Department of Planning and Community Development, seeking to develop the subject property with residential lots at a minimum of 9,000 square feet.

The department initially accepted the application, but the next day, Williams, a planner technician, released the application back to Carson to make certain corrections. With the application amended accordingly, Carson resubmitted it, but on September 9, 2016, Williams wrote that she was "releasing this plan back to [Carson] because of the moratorium on RES3 LDP applications." Even so, she still asked Carson to provide additional information. Carson complied with this request, and the application remained pending after resubmission. Thereafter, when Carson asked Williams in writing to process the application, he received a response from the county attorney, who advised Carson that the application would not be processed and that the September 9, 2016 communication from Williams had been a rejection of same.

As previously detailed, Carson proceeded by filing a verified petition for writ of mandamus against Brown and Williams, individually and in their official capacities, seeking an order declaring the moratorium void and ultra vires , and directing Brown and Williams to process the land-disturbance permit application. These appeals follow the trial court’s partial grant of Brown and Williams’s motion for judgment on the pleadings.

Looking to Brown and Williams’s jurisdictional challenge on appeal, it is undisputed that the Forsyth County Department of Planning and Community Development is a "local administrative agency" for purposes of OCGA § 5-6-35 (a) (1).¹⁶ What is in dispute is whether a "decision" of a local administrative agency is being reviewed.

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