Haggard v. Board of Regents of University System of Georgia

• Decision Date: 09 September 1987
• Docket Number: 44636,Nos. 44635,s. 44635
• Citation: 360 S.E.2d 566,257 Ga. 524
• Parties: , 42 Ed. Law Rep. 443 HAGGARD, et al. v. BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA, et al. (Two Cases).
• Court: Georgia Supreme Court

Page 566

360 S.E.2d 566

257 Ga. 524, 42 Ed. Law Rep. 443

HAGGARD, et al. v. BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA, et al. (Two Cases).

Nos. 44635, 44636.

Supreme Court of Georgia.

Sept. 9, 1987.

Reconsideration Denied Oct. 22, 1987.

Walden G. Housman, Jr., Athens, for Carlton Dean Haggard, et al.

Anthony L. Cochran, Atlanta, Michael J. Bowers, Atty. Gen., Alfred L. Evans, Jr., Sr. Asst. Atty. Gen., for Bd. of Regents of the University System of Georgia, et al.

WELTNER, Justice.

Four students at the University of Georgia filed a lengthy complaint against "the Board of Regents of the University System of Georgia, Dr. Henry King Stanford, Dr. Allen W. Barber, and the University of Georgia Athletic Association, Inc." The individual defendants were sued in their representative capacities, both as employees of the Board and as officers of the athletic association.

After a hearing on motions to dismiss filed by the Board and the association, the trial court dismissed the Board, along with the individual employees of the Board, on the basis of sovereign immunity. The trial court treated the association's motion to dismiss for failure to state a claim upon which relief may be granted as a motion for summary judgment, and granted it, as well. The students assign error to the dismissal of the Board as a party, to the grant of summary judgment to the association, and to the court's rulings on several discovery motions.

1. The complaint contained four counts, the essential allegation of each being: (a) an athletic fee, required of each student, is collected by the Board and thus becomes state funds; (b) the Board transfers the fees in a lump sum to the association; (c) there is no contract for the delivery of goods or services by the association, which might serve as a consideration for the transfer of fees; and (d) the action of the Board in transferring the fees to the association violates Art. III, Sec. VI, Para. VI of the Constitution of Georgia of 1983. The constitutional provision relied upon prohibits the grant by the General Assembly of any "donation or gratuity" of state funds. ¹

2. The complaint, as re-defined at the hearing, is based upon two premises: that student athletic fees are state funds; and that transmission of them constitutes a "donation or gratuity."

(a) The students assert that the charging and collecting of the athletic fees by the Board equates them to "state funds." Neither the Board nor the association sought review on this issue.

(b) The Board and the association insist that the transfer of athletic fees is not a gratuity. A lease agreement between the Board and the association, renewed successively over several decades, provides: "So long as Lessor [the Board] continues its present athletic fee arrangement, Lessee [the association] shall continue to furnish to each student and to each faculty member admission to athletic events the same as is now being furnished either free or at reduced prices, and shall contribute to the support of the University Band."

3. It may not be entirely clear that monies collected from the students as athletic fees are the legal equivalent to appropriated funds as contemplated by the constitutional prohibition. That question may be pretermitted, however, as the lease agreement establishes beyond dispute that the Board receives substantial benefits from the arrangement with the association. Hence, there is ample consideration for the fees transfer, and it cannot be characterized as a gratuity. See Smith v. Board of Commissioners, 244 Ga. 133, 140, 259 S.E.2d 74 (1979). ²

The lease agreement was before the court at the hearing, and by means of it, the sole remaining contention of the students (the "gratuity" claim) was overcome as a matter of law. The trial court did not err in granting summary judgment.

4. The students appeal directly from the judgment awarding attorney fees and expenses of litigation entered pursuant to OCGA § 9-15-14. The award was reduced to judgment several months after the judgment in the main case.

(a) The association asserts that the appeal must be dismissed for failure to file an application, as required by OCGA § 5-6-35(a)(10). OCGA § 5-6-34(c) provides that "[w]here an appeal is taken under any provision of subsection (a) or (b) of this Code section, all judgments ... rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to ... whether the judgment ... was appealable by some other express provision of law...." See Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 295(1), 271 S.E.2d 199 (1980).

A review of an award of attorney fees and expenses of litigation ordinarily will not "affect the proceedings below" (i.e., the disposition on appeal of the main case). However, the opposite may be true. It would be anomalous if, through the discretionary appeal procedure, an award of attorney fees were either not reviewed, or were affirmed (bearing in mind the statutory time restraints) and the underlying claim were reversed on appeal some months later, when the entire record would be available to the court. We therefore conclude that a judgment awarding attorney fees and costs of litigation pursuant to OCGA § 9-15-14 may be reviewed on direct appeal, when it is appealed as part of a judgment that is directly appealable. Compare Martin v. Outz, 257 Ga. 211, 357 S.E.2d 91 (1987) (judgment of award of attorney fees for frivolous appeal must be appealed by application).

The court will accept jurisdiction of this appeal of an award of attorney fees because...