Glynn Cnty. v. Coleman, s. A15A1522

• Decision Date: 16 November 2015
• Docket Number: A15A1523,A15A1524.,Nos. A15A1522,s. A15A1522
• Citation: 334 Ga.App. 559,779 S.E.2d 753
• Parties: GLYNN COUNTY, Georgia v. COLEMAN, et al. (three cases).
• Court: Georgia Court of Appeals

334 Ga.App. 559

779 S.E.2d 753

GLYNN COUNTY, Georgia

v.COLEMAN, et al. (three cases).

Nos. A15A1522

A15A1523

A15A1524.

Court of Appeals of Georgia.

Nov. 16, 2015.

Certiorari Denied Feb. 22, 2016.

Gregory Todd Carter, Emily Rose Hancock, Brunswick, for Appellant.

James L. Roberts IV, Jason Monroe Tate, St. Simons Island, for Appellee.

BOGGS, Judge.

In these consolidated appeals, Glynn County ("the County") appeals from orders certifying three related class actions brought by Elizabeth and J. Matthew Coleman, IV ("the Colemans"). In each of these cases, the County asserts that the trial court erred by granting the class certification. In Case No. A15A1522, the County also asserts that the trial court should have considered and granted its motion to dismiss the class allegations in the Colemans' complaint. For the reasons explained below, we affirm.

The record shows that the Colemans filed three class action lawsuits against the County seeking a refund of ad valorem taxes under OCGA § 48–5–380, a declaratory judgment, as well as equitable, injunctive, and mandamus relief. In Case No. A15A1522, the trial court certified four classes: (1) taxpayers for whom an exemption was miscalculated in any year between 2001 and 2007; (2) taxpayers for whom an exemption was miscalculated in 2008; (3) taxpayers for whom an exemption was miscalculated in 2009; and (4) taxpayers for whom an exemption was miscalculated in 2010. In Case No. A15A1523, the trial court certified a class for tax years 2011 and 2012, and in Case No. A15A1524, the trial court certified a class for tax years 2013 and 2014. The County appeals from these class certification orders. In Case No. A15A1522, it also appeals from the trial court's denial of its motion to dismiss the class allegations in the Colemans' complaint.

As a preliminary matter, we note that "[o]n appellate review of a trial court's decision on a motion to certify a class, the discretion of the trial judge in certifying or refusing to certify a class action is to be respected in all cases where not abused." (Citation and punctuation omitted.) State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 499–500(1), 556 S.E.2d 114 (2001).

When a court determines the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of OCGA § 9–11–23 have been met. Any assertion that the named plaintiff cannot prevail on [his] claims does not comprise an appropriate basis for denying class certification. Further, any argument that [plaintiff] is not an adequate representative because [he] will not ultimately prevail on [his] claim does not comprise an appropriate basis for denying class certification.

(Citations and punctuation omitted.) Peck v. Lanier Golf Club, 298 Ga.App. 555, 556, 680 S.E.2d 595 (2009).

1. In Case No. A15A1522, the County contends the trial court erred in denying its motion to dismiss as premature. The record shows that the County filed a motion to dismiss "all class action allegations in plaintiff's Complaint pursuant to OCGA § 9–11–12(b)(6). This Motion is based upon the record in this case and is made for the reasons set forth in the brief filed contemporaneously herewith." On the same day, the County filed a "Supplemental Response to Plaintiffs' Motion to Certify Suit as Class Action and in Support of Motion to Dismiss." In this brief, the County asserted that class actions are not generally available in tax refund cases and that the only available remedy is the tax refund statute. It also asserted that a class should not be certified based upon the doctrine of sovereign immunity, asserted limitation periods that would apply to the Colemans, both individually and as representatives of a class, and pointed to alleged flaws in the Colemans' claims for non-monetary relief.

In its orders certifying the class actions, the trial court addressed the County's claim that class actions are not generally available in tax refund cases, and, for the reasons explained below, properly concluded that class actions are permissible in cases involving refunds under OCGA § 48–5–380, and also that class actions, in general, may assert claims for non-monetary relief. The trial court did not, however, address any other portion of the County's motion to dismiss. In a footnote, it stated, "Defendant's remaining arguments against class certification are merits based arguments which will be addressed in this Court's Order on Defendant's Motion to Dismiss."

The trial court's order denying the County's motion to dismiss states, in its entirety:

"Defendant filed a Motion to Dismiss Named Plaintiff's class allegations under OCGA § 9–11–12(b)(6). For the reasons set forth in Whittaker v. Department of Human Resources of State of Georgia, 86 F.R.D. 689, 692 (N.D.Ga.1980), the motion is premature and therefore is DENIED."

In Whittaker, supra, the Northern District of Georgia ruled as follows:

The other pending motions relate to the issue of class certification. They are defendant's motion for partial dismissal of class allegations and defendant's motion to strike class allegations, and plaintiff's motion for class determination. The court DENIES defendant's motion for partial dismissal of class allegations relating to discrimination on the basis of sex. The defendant does not state which of the Federal Rules of Civil Procedure forms the basis of the motion for partial dismissal of class allegations. One leading commentator has stated that "one opposing the class action may move for an order determining that the action may not be maintained as a class suit." 3B Moore's Federal Practice P 23.50, p. 23–421. Professor Moore points out in a footnote that "[t]he proper way to test class action treatment is a motion under Rule 23(c)(1), not a motion to dismiss ... under Rule 12(b)(6)." The court finds that the motion dismiss class allegations, filed with defendant's answer, is premature. The motion is DENIED.

Id. at 693.

It is well-established that [in determining whether a class action should proceed under OCGA § 9–11–23, "the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits, but whether the requirements of OCGA § 9–11–23(a) have been met." (Citations and punctuation omitted.) MCG Health, Inc. v. Perry, 326 Ga.App. 833, 835(1), 755 S.E.2d 341 (2014). Here, the County's motion sought to dismiss only the class action allegations in the complaint based upon legal theories that would apply to both the individual and class action claims of the Colemans. In essence, the County asked the trial court to dismiss only the class action claims because the complaint generally was subject to dismissal based upon sovereign immunity, limitation periods in the refund statute, and alleged flaws with the Colemans' claims for non-monetary relief. As the trial court apparently recognized when it denied the motion to dismiss the class allegations in the Colemans' complaints, this is not the proper procedure to avoid certification of a class under OCGA § 9–11–23.

While a defendant can certainly seek a ruling on a dispositive motion before certification of a class, it cannot use a dispositive motion as a vehicle to deny class certification. See 5–23 Moore's Federal Practice–Civil § 23.81[2] (court may rule on dispositive motion before deciding whether to certify class); Village Auto Ins. Co. v. Rush, 286 Ga.App. 688, 692(2), 649 S.E.2d 862 (2007) ("merit-based disputes are not ripe for resolution at the class certification stage"). We therefore affirm the trial court's denial of the County's motion to dismiss only the class allegation portions of the Colemans' complaint. We express no opinion about whether the certified class actions are subject to dismissal for the reasons asserted in the motion to dismiss that have not yet been considered by the trial court. See Taylor Auto Group v. Jessie, 241 Ga.App. 602, 604(2), 527 S.E.2d 256 (1999) (refusing to consider merits of defense in appeal from order certifying a class action).

2. In each of the three cases before us, the County asserts that trial court erred by granting the Colemans' motion for class certification because class action certification is generally improper in a tax refund lawsuit. As the trial court ruled on this issue in its certification order, we will consider it.

In support of its argument that class certification is improper in a tax refund action, the County relies upon the Supreme Court of Georgia's decisions in Sawnee Elec. Membership Corp. v. Ga. Dept. of Revenue, 279 Ga. 22, 608 S.E.2d 611 (2005) and Henderson v. Carter, 229 Ga. 876, 195 S.E.2d 4 (1972), as well as a 2003 amendment to a different tax refund statute, OCGA § 48–2–35. The Colemans assert that the Supreme Court's decisions in City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110 (2003) (Barnes I ) and Barnes v. City of Atlanta, 281 Ga. 256, 637 S.E.2d 4 (2006) (Barnes II ), expressly authorize class actions for refund claims under the statute at issue here, OCGA § 48–5–380. The trial court reviewed this body of law in its orders certifying the classes and correctly concluded that class actions can be maintained in tax refund cases involving OCGA § 48–5–380.

In Henderson, supra, the Supreme Court concluded that a statute authorizing a tax refund against the State

provides the method by which refunds and suits for refunds may be made by taxpayers. It does not provide for the bringing of a class action in either instance. The State has waived her sovereign immunity only to the extent provided by the express terms of this statute. It follows that a class action in the instant case is not authorized.

229 Ga. at 879(2), 195 S.E.2d 4. In Barnes I, the Supreme Court reconsidered its decision in Henderson, and concluded, in a case involving a tax refund claim under the same statute at issue here (OCGA § 48–5–380 ):

When a statute

...