Collins v. Lombard Corp.

• Decision Date: 09 November 1998
• Docket Number: No. S98G0548, No. S98G0553.
• Parties: COLLINS v. LOMBARD CORPORATION et al. SCOTT v. LOMBARD CORPORATION et al.
• Court: Georgia Supreme Court

508 S.E.2d 653

270 Ga. 120

COLLINS v. LOMBARD CORPORATION et al.

SCOTT v. LOMBARD CORPORATION et al.

Nos. S98G0548, S98G0553.

Supreme Court of Georgia.

November 9, 1998.

Thurbert E. Baker, Atty. Gen., Daniel M. Formby, Senior Asst. Atty. Gen., Harold David Melton, Stefan Ernst Ritter, Asst. Attys. Gen., Department of Law, Atlanta, for Marcus E. Collins, Sr., Comr.

Jonathan A. Weintraub, County Attorney, Joan F. Roach, Chief Asst. County Atty., Kathleen Ann Wasch, Asst. County Atty., DeKalb County Law Department, Decatur, for Tom Scott, Tax Comr.

Marvin P. Nodvin, The Nodvin Firm, LLC, Atlanta, for Lombard Corporation et al.

BENHAM, Chief Justice.

This case began in the trial court as a constitutional challenge to OCGA § 48-6-20 et seq., Georgia's intangible personal property tax statute, but has become an appeal concerning the doctrine of mootness in Georgia law. Lombard Corporation (hereinafter "Lombard"), which had been assessed a tax of $56.29, began the action by filing suit against Collins, in his official capacity as Commissioner of the Georgia Department of Revenue, and Scott, in his official capacity as Tax Commissioner of DeKalb County. Lombard sought a declaration that the intangible personal property tax statute was unconstitutional, and a permanent injunction forbidding Collins to make any further assessments and forbidding Scott to attempt to collect the tax from Lombard. While the suit was pending, the General Assembly repealed the intangible personal property tax statute and a third party associated neither with Lombard nor with either defendant paid the taxes assessed against Lombard. The trial court, without ruling on the constitutional issue, granted the defendants' motion for dismissal of the suit as moot. An appeal by Lombard to this Court was transferred to the Court of Appeals because the constitutional issue had not been decided in the trial court. The Court of Appeals first posed a series of certified questions¹ which this Court, by an unpublished order, declined to answer because the answers to those questions were not necessary to resolution of the appeal. The Court of Appeals then reversed the trial court's dismissal of the suit as moot, creating a "public policy exception" to the mootness doctrine, holding "that it violates public policy of this state to allow a case to be mooted by the intervention of a third-party who is not a party to the litigation, ... that a legitimate exception exists to the usual rules of mootness under these existing circumstances, and that the suit was not rendered moot by the payment of the tax assessments by the third-party." Lombard Corp. v. Collins, 229 Ga. App. 654(2), 494 S.E.2d 538 (1997). This court granted the writ of certiorari to review that ruling, posing to the parties this question: "Whether the Court of Appeals erred in creating a `public policy' exception to the mootness doctrine under the facts of this case."

1. At the outset, we deem it appropriate to clarify the doctrine of mootness. In Chastain v. Baker, 255 Ga. 432, 433, 339 S.E.2d 241 (1986), this Court explained the doctrine, holding that a case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights, and that mootness is a mandatory ground for dismissal. However, Chastain also held that "a case may be moot, but, because the error is capable of repetition and yet evades review, the appeal will be considered." Id. at 433, 339 S.E.2d 241. That latter holding has been referred to in case law as an "exception" to the doctrine of mootness (see, e.g., Citizens for Ethical Government v. Gwinnett Place Assoc., L.P., 260 Ga. 245(1), 392 S.E.2d 8 (1990); Bowers v. Board of Regents &c. of Georgia, 259 Ga. 221, fn. 1, 378 S.E.2d 460, (1989); Atlanta Gas Light Co. v. Georgia Public Svc. Comm., 212 Ga.App. 575(1), 442 S.E.2d 860 (1994)), and this Court has spoken of "discretionary jurisdiction" to consider cases where the issue is likely to recur, yet evade review. See Atlanta Gas Light Co. v. Georgia Textile Mfrs. Ass'n, 266 Ga. 738, 470 S.E.2d 230 (1996).

The problem with denominating cases which present an issue capable of repetition yet evading review as moot, but subject to an exception to the mootness doctrine, is that the exception is inconsistent with the holding in Chastain that dismissal of moot cases is mandatory. A sound analytical approach to the doctrine of mootness, one which avoids the contradiction and which we now hold to be correct, was enunciated in In the Interest of I.B., 219 Ga.App. 268, 464 S.E.2d 865 (1995). There, after a careful analysis of the doctrine of mootness as an element of jurisdiction, Judge Beasley (then Chief Judge Beasley) explained that the term "moot" must be narrowly construed to exclude from mootness those matters in which there is "[i]ntrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers...."...