GeorgiaCarry.Org, Inc. v. Bordeaux
Decision Date | 22 July 2021 |
Docket Number | A21A0833 |
Citation | 861 S.E.2d 649,360 Ga.App. 807 |
Court | Georgia Court of Appeals |
Parties | GEORGIACARRY.ORG, INC. et al. v. BORDEAUX, Jr. et al. |
John R. Monroe, for Appellant.
Jennifer R. Davenport, R. Jonathan Hart, for Appellee.
This is the second appearance of this case before this Court. GeorgiaCarry.Org, Inc. ("GeorgiaCarry"), Shane Montgomery, and William Theodore Moore III, (collectively "GCO") appeal from a trial court order dismissing their complaint against Thomas C. Bordeaux, Jr., a Chatham County Probate Court judge. For the following reasons, we affirm in part and reverse in part.
As set forth in our prior opinion, the underlying facts are as follows.
GeorgiaCarry.Org v. Bordeaux , 352 Ga. App. 399, 400, 834 S.E.2d 896 (2019) (punctuation omitted) (" Bordeaux I ").1
GCO appealed the dismissal, and on October 22, 2019, this Court issued an opinion affirming the trial court's finding that (1) because Moore and Montgomery had received their Georgia weapons carry licenses (carry permits), their request for a writ of mandamus was moot, (2) GeorgiaCarry is not an authorized person to bring a mandamus action, and (3) sovereign immunity bars GCO's request for declaratory relief against Bordeaux in his official capacity. Bordeaux I , supra at 399-403 (1) - (3), 834 S.E.2d 896. However, we held that the trial court erred in holding that there is no claim against Bordeaux in his individual capacity. Id. at 403-404 (4), 834 S.E.2d 896. We also noted that while the trial court found Moore and Montgomery's request for a writ of mandamus moot, it did not find their claim for declaratory judgment moot, nor did it determine whether GeorgiaCarry has standing to seek a declaratory judgment. Id. at 401 (1) and (2), 834 S.E.2d 896.
Following this Court's opinion in Bordeaux I , GCO filed a second motion for judgment on the pleadings, and Bordeaux renewed his motion to dismiss. The trial court held a hearing on the matter involving only the argument of counsel. On December 9, 2020, the trial court entered an order dismissing the complaint, thereby denying GCO's motion for judgment on the pleadings. The court dismissed the complaint on two grounds: (1) GCO's claim against Bordeaux in his individual capacity fails because Bordeaux had no authority to issue carry permits in his individual capacity, and (2) because Moore and Montgomery were issued their permits, there was no longer an actual controversy and a ruling would merely be advisory. GCO now appeals, asserting that the trial court erred in granting Bordeaux's motion to dismiss and in denying its motion for judgment on the pleadings.
As we explained in Bordeaux I , Supra at 400, 834 S.E.2d 896 (citation and punctuation omitted).
1. GCO first argues that the trial court erred in dismissing the complaint on the ground that Bordeaux had no authority to issue carry permits in his individual capacity. GCO asserts that the trial court "essentially nullified" this Court's holding in Bordeaux I . We agree.
In the September 2018 dismissal order, the trial court ruled that GCO's claims against Bordeaux in his individual capacity were improper because Bordeaux issues carry permits in his judicial capacity, not in his individual capacity. We rejected that ruling in Bordeaux I .2 Supra at 403-404 (4), 834 S.E.2d 896. Nevertheless, the trial court in the December 2020 order granted Bordeaux's motion to dismiss on the ground that Bordeaux had no authority to issue carry permits in his individual capacity. Because our prior decision on this issue was binding upon the trial court, the court erred in granting Bordeaux's motion to dismiss on this ground. See Ross v. State , 344 Ga. App. 477, 479 (1), 810 S.E.2d 645 (2018) ( ); OCGA § 9-11-60 (h) (); see generally Fortson v. Hardwick , 297 Ga. App. 603, 604-605 (1), 677 S.E.2d 784 (2009) ( ).
2. GCO asserts that the trial court erred in dismissing the action because no actual controversy exists with regard to Moore and Montgomery. Declaratory judgment proceedings, like this one, are governed by the Declaratory Judgment Act, which provides:
Baker v. City of Marietta , 271 Ga. 210, 214 (1), 518 S.E.2d 879 (1999) (citations and punctuation omitted). "Accordingly, declaratory relief is proper only where the party seeking such relief faces some uncertainty or insecurity as to rights, status, or legal relations, upon which its future conduct depends. " SJN Properties v. Fulton County Bd. of Assessors , 296 Ga. 793, 802-803 (2) (b) (iii), 770 S.E.2d 832 (2015) (emphasis supplied).
Here, Moore and Montgomery face no uncertainty or insecurity as to any of their own future conduct, but rather seek a declaration on an issue that will impact the future conduct of Bordeaux. See SJN Properties , supra at 802-803 (2) (b) (iii), 770 S.E.2d 832. They urge that they have a continuing interest in the carry permit process because their permits are only valid for five years, and they will have to apply again when that time period expires. While a party "may not seek a declaratory judgment where no ‘actual controversy’ exists between the relevant parties, a party has standing to pursue a declaratory action where the threat of an injury in fact is actual and imminent, not conjectural or hypothetical." Women's Surgical Center v. Berry , 302 Ga. 349, 351 (1), 806 S.E.2d 606 (2017) (citations and punctuation omitted). But Moore and Montgomery face no imminent or actual threat of an injury. And whether, in a few years, they will again apply for carry permits and whether Bordeaux will again issue them untimely (or whether Bordeaux's stated reason for the untimeliness will still exist), are hypothetical questions based on possible future...
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