Lombard Corp. v. Collins, A97A0150
| Decision Date | 19 November 1997 |
| Docket Number | No. A97A0150,A97A0150 |
| Parties | , 97 FCDR 4420 LOMBARD CORPORATION v. COLLINS et al. |
| Court | Georgia Court of Appeals |
Marvin P. Nodvin, Atlanta, for appellant.
Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Harold D. Melton, Stefan E. Ritter, Assistant Attorneys General, Jonathan A. Weintraub, Decatur, for appellees.
This is an appeal from the superior court's order granting appellees/defendants' motion to dismiss and dismissing appellant/plaintiff's motion for summary judgment on the pleadings. We first reviewed this case in Lombard Corp. v. Collins, 224 Ga.App. 282, 480 S.E.2d 47 where the relevant facts pertinent to this appeal are reported. Appellant brought suit for declaratory judgment and injunctive relief asserting the unconstitutionality of the Georgia intangible tax (OCGA § 48-6-20 et seq.); appellant corporation had been assessed an intangible tax in the amount of $56.29. The record reflects that while suit was pending, the intangible tax assessment at issue was paid (without the prior consent of the appellant or of the trial court) by a person who was not a party to the litigation. (The tax was paid by a partner of an established law firm who apparently perceived that both himself and certain shareholders of corporations incorporated or headquartered in Georgia conceivably could be adversely affected by a ruling in the Lombard case, and that the issues there raised would be better avoided or resolved in another factual context.) Thus, the payment of the taxes was made, as we held in Lombard, supra, by a third-party interloper. After payment of the taxes by the interloper, the trial court held that the appellant's suit was moot and the motion to dismiss was granted. We found that, under current Georgia law, the action "would appear to become moot, unless there exists some exception to the rule which would preclude a third-party interloper from depriving a corporate entity of this state of a judicial adjudication of its cause of action in our courts by said third party indirectly injecting himself into the outcome of the litigation ... by paying the tax in controversy." Id. at 284, 480 S.E.2d 47. Because this posed a question of first impression and more importantly, because of the serious public and legal policy questions which could arise if persons not parties to litigation are able to interfere at will and, in effect, buy out a pending lawsuit, we certified certain questions to the Supreme Court of this State, pursuant to Art. VI, Sec. V, Par. IV and Art. VI, Sec. VI, Par. III(7), Ga. Const. of 1983, seeking their guidance as to this sensitive legal issue. (We elected to seek guidance because we were concerned that if public policy allowed this type of conduct, powerful persons or legal entities could buy out lawsuits at will to which they were not party litigants but in which they had a substantial interest as to judicial outcome; and that such a policy conceivably could result in the birth of the undesirable practice of targeting suits of major social and legal import for mooting by buy-out, thereby preventing legal opinions from being entered which could be detrimental to the special interests of such third-party interlopers.) The Supreme Court, however, transmitted the case back to this Court with the certified questions unanswered. We must now address this issue of first impression being ever mindful of the legal significance of our holding. Held:
1. We first sought guidance as to the application of the provisions of Art. I, Sec. I, Par. XII, Ga. Const. of 1983. The Supreme Court, citing Pitts v. General Motors, etc., Corp., 231 Ga. 54, 199 S.E.2d 902, declined to rule on the certified constitutional question because the trial court expressly declined to rule thereon. We did not certify this issue because we believed appellant had adequately preserved a constitutional issue on appeal; rather, we certified this issue because we perceived that the answer would shed judicial light on whether the mooting of appellant's suit, due to the actions of a third-party interloper, would violate the public policy of this state. As this Court is without authority to interpret a state constitutional provision, particularly as to issues of first impression (but can only apply established constitutional law principles to existing case facts), Kolker v. State, 193 Ga.App. 306(1), 387 S.E.2d 597, aff'd 260 Ga. 240, 391 S.E.2d 391; accord Phillips v. MacDougald, 219 Ga.App. 152, 155(2)(e), 464 S.E.2d 390, we now must consider the public policy issue without benefit of a ruling as to what effect, if any, the constitutional right to the courts has regarding this matter.
2. We now consider as a matter of first impression whether it violates the public policy of this state for a third party, who is not a party to a lawsuit, to pay the taxes of a party plaintiff without the prior consent of either the trial court of the party plaintiff, thereby causing the plaintiff's case to become moot? Considering the legitimate danger posed to the ordinary citizen's ability to obtain meaningful access to the courts of this state should such a practice and its potential variations be condoned, the balancing of the interests of the judiciary in the preservation of the integrity of the Georgia judicial system in the eyes of the citizens of this state, and the fact that appellant has been denied his day in court (as to the adjudication of an issue which we cannot say is frivolous) by the uninvited actions of a third-party interloper, we conclude 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, under the circumstances attendant in this particular case. Accordingly, we hold 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 assessment by the third party.
Judgment reversed...
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Collins v. Lombard Corp.
...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 o......
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S.K.R., In Interest of, A97A2541
... ... See OCGA § 19-7-2; see [229 Ga.App. 654] also Collins v. Collins, 172 Ga.App. 748, 324 S.E.2d 475 (1984) (duty of parents to ... ...
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LOMBARD CORPORATION v. Collins, A97A0150.
...In Collins v. Lombard Corp., 270 Ga. 120, 508 S.E.2d 653 (1998), the Supreme Court reversed our decision in Lombard Corp. v. Collins, 229 Ga.App. 654, 494 S.E.2d 538 (1997), in which we reversed the judgment of the trial court dismissing the case. Accordingly, our opinion is vacated, the ju......