Grogan v. City of Dawsonville

• Decision Date: 04 February 2019
• Docket Number: S18A1425
• Citation: 823 S.E.2d 763,305 Ga. 79
• Parties: GROGAN v. CITY OF DAWSONVILLE.
• Court: Georgia Supreme Court

305 Ga. 79

823 S.E.2d 763

GROGAN

v.CITY OF DAWSONVILLE.

S18A1425

Supreme Court of Georgia.

Decided: February 4, 2019

Steven Keith Leibel, Paul David Menair, STEVEN LEIBEL, P.C., 6150 GA Highway 400, Suite C, Cumming, Georgia 30028, for Appellant.

Dana B. Miles, Jonah Blue Howell, MILES, HANSFORD & TALLANT, LLC, 202 Tribble Gap Road, Suite 200, Cumming, Georgia 30040-2540, Anthony O. L. Powell, POWELL & EDWARDS, P. O. Box 1390, Lawrenceville, Georgia 30046, for Appellee.

Peterson, Justice.

The Dawsonville City Council voted to remove W. James Grogan as mayor in May 2017. Grogan sought review of the removal decision by filing a direct appeal and a petition for certiorari in the superior court. Grogan continued to serve as mayor pending the appeal, and the City then filed counterclaims against Grogan for attorneys’ fees and for money had and received to recoup salary paid and other benefits provided to Grogan if the City prevailed before the superior court. Grogan moved to dismiss the City’s counterclaims under the Anti-SLAPP statute, OCGA § 9-11-11.1. The superior court dismissed Grogan’s appeal from the removal decision, found his certiorari petition was "procedurally defective," denied his motion to dismiss the City’s counterclaims, and granted partial summary judgment on the City’s money-had-and-received counterclaim.¹

On appeal before this Court, Grogan argues that he had the right to a direct appeal to the superior court and that his certiorari petition was not procedurally defective. Grogan also argues that the superior court erred in denying his motion to dismiss under the Anti-SLAPP statute because the City’s counterclaims were filed to punish Grogan for exercising his constitutional rights to petition and free speech and the City did not establish a reasonable probability of success on the merits of those counterclaims. Grogan further argues that the court erred in granting relief to the City on its money-had-and-received counterclaim because it lacked subject matter jurisdiction over that claim and failed to apply the voluntary payment doctrine. The City argues that Grogan’s claims are meritless and that we lack jurisdiction over this appeal because Grogan failed to file a discretionary application for appeal. We conclude that we do have jurisdiction over this appeal. We do not consider Grogan’s challenges concerning the superior court’s dismissal of his appeal and certiorari petition from the removal decision because those claims are now moot, and we conclude that the trial court erred in granting relief to the City on its money-had-and-received counterclaim. Therefore, we affirm in part and reverse in part.

1. Background relevant to this appeal

Following a May 15, 2017 hearing, at which the City’s municipal court judge presided, the Dawsonville City Council voted to remove Grogan from his position as mayor. Grogan sought review first by filing a direct appeal against the City in the superior court on May 17, 2017, citing the procedural provisions of former Section 5.16 (1) of the Dawsonville Charter, and later by filing a petition for writ of certiorari on June 14, 2017. Grogan obtained a writ of certiorari but inadvertently omitted the writ from the package of documents he attempted to serve on the City by mail, and, when the City later declined to acknowledge service, Grogan personally served the City Manager and the municipal court judge who presided over his removal hearing. Grogan continued to work as mayor during the pendency of the appeal and received his salary and benefits.

The City filed an answer and counterclaimed for money had and received (to force Grogan to return the salary paid and the value of other benefits provided to Grogan during the pendency of the appeal should the City prevail) and for attorneys’ fees under OCGA § 13-6-11. The City also filed a motion to dismiss Grogan’s appeal and to revoke the supersedeas bond. The City argued that Grogan’s direct appeal should be dismissed because, although Grogan claimed he had a right to a direct appeal under former Section 5.16 (1) of the Dawsonville Charter,² the local ordinance was preempted by the certiorari procedures under OCGA § 5-4-1 and must give way to conflicting general law under the Uniformity Clause of the Georgia Constitution. See Ga. Const. of 1983, Art. III, Sec. VI, Par. IV (a). The City also argued that Grogan’s writ of certiorari should be dismissed because he did not comply with the requirements of OCGA § 5-4-1 et seq.

The superior court granted the City’s motion to dismiss Grogan’s appeal to the superior court because he failed to comply with the statutory requirements for initiating an appeal. Specifically, the court found Grogan was required to seek review through a writ of certiorari, and rejected Grogan’s position that the City Charter could validly create a right of direct appeal. The superior court also found that it lacked jurisdiction over Grogan’s certiorari petition because he failed to properly name the City Council in the petition and failed to properly serve the members of the Council or the City itself. Grogan stopped working as mayor following the court’s order.

The City later moved for partial summary judgment on its counterclaim for money had and received. Grogan filed a cross-motion for partial summary judgment and also a motion to dismiss the counterclaims pursuant to the Anti-SLAPP statute, arguing that the City’s counterclaims were filed for the sole purpose of punishing him for the exercise of his right to appeal his removal from elected office — an act which he claimed was taken in furtherance of his First Amendment right to free speech and to petition on an issue of public interest.

The superior court denied Grogan’s motion to dismiss, adopting the City’s argument that the counterclaims stemmed from Grogan’s invocation of supersedeas rather than his First Amendment rights and because the City had shown a likelihood that it would prevail on its counterclaims. The court also granted the City’s motion for partial summary judgment and denied Grogan’s on the money-had-and-received counterclaim.

Grogan filed a direct appeal to this Court. In his notice of appeal, Grogan states that he is appealing from the order denying his motion to dismiss and that he is also appealing other orders pursuant to OCGA § 5-6-34 (d), including the dismissal of his appeal and petition for certiorari before the superior court and the superior court’s grant of partial summary judgment to the City.

2. We have jurisdiction over this appeal.

The City argues that we lack jurisdiction over Grogan’s enumerations of error related to the dismissal of his appeal and certiorari petition from the removal action, arguing that Grogan was required to follow the discretionary appeal procedure under OCGA § 5-6-35 (a) (1) because he was appealing from the superior court’s review of an administrative agency’s adjudicatory decision. The City also argues that the case is not a final judgment because the superior court has not ruled on the City’s counterclaim for attorneys’ fees. The City misunderstands the interplay between our direct, interlocutory, and discretionary appeal statutes.³

Two code sections primarily govern the method for pursuing appeals to this Court and the Court of Appeals. The first, OCGA § 5-6-34, governs what trial court orders may be reviewed immediately by an appellate court. Specifically, subsection (a) of the statute lists the trial court judgments and orders that may be appealed immediately, while subsection (b) provides that for other orders a party must follow the interlocutory appeal procedure to obtain permission to seek appellate review. OCGA § 5-6-34 (a), (b). Once the trial court and then an appellate court grants a party permission to appeal an interlocutory order, the party must file a notice of appeal within a specified period to confer jurisdiction on the appellate court. See OCGA § 5-6-34 (b) ; see also Rollins v. Rollins, 300 Ga. 485, 489 (1) n.8, 796 S.E.2d 721 (2017) ("When an attempt is made to appeal an interlocutory order without following the statutory requirements of OCGA § 5-6-34 (b) for a certificate of immediate review from the trial court and an order from the appellate court expressly granting permission to appeal," a notice of appeal is unauthorized and "ineffective to confer jurisdiction on the appellate court to hear the appeal." (citation omitted) ).

The second code section, OCGA § 5-6-35, governs the process by which a party must file an application for discretionary review for certain orders that are immediately appealable. The discretionary application procedure must be followed if the "underlying subject matter" is listed in OCGA § 5-6-35 (a), "even when the party is appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34 (a)." Rebich v. Miles, 264 Ga. 467, 468, 448 S.E.2d 192 (1994). As relevant here, a discretionary application is required for "[a]ppeals from decisions of the superior courts reviewing decisions of ... state and local administrative agencies." OCGA § 5-6-35 (a) (1). Because certain orders that are subject to immediate review may still require a discretionary application, we have repeatedly advised "litigants that they must review the discretionary application statute to see if it covers the underlying subject matter of the appeal." Schumacher v. City of Roswell, 301 Ga. 635, 636 (1), 803 S.E.2d 66 (2017). If the underlying subject matter is covered, the party must follow the discretionary appeal procedure of OCGA § 5-6-35. Id.⁴

Grogan was not required to follow the interlocutory review process. He filed a notice of appeal from the denial of his motion to dismiss based on OCGA § 9-11-11.1. He was entitled to an immediate appeal pursuant to OCGA § 5-6-34 (a) (13), which provides that a party may immediately appeal "[a]ll judgments or orders entered pursuant to Code Section 9-11-11.1." Because Grogan was entitled to appeal under subsectio...