Russell v. Smokerise Bath & Racquet Club, Inc., 34761

• Citation: 243 Ga. 724,256 S.E.2d 457
• Decision Date: 31 May 1979
• Docket Number: No. 34761,34761
• Court: Supreme Court of Georgia
• Parties: RUSSELL et al. v. SMOKERISE BATH & RACQUET CLUB, INC.

Page 457

256 S.E.2d 457

243 Ga. 724

RUSSELL et al. v. SMOKERISE BATH & RACQUET CLUB, INC.

No. 34761.

Supreme Court of Georgia.

Submitted April 10, 1979.

Decided May 31, 1979.

George P. Dillard, Gail C. Flake, Decatur, for appellants.

Harvey, Willard, Elliott & Olsen, Wendell K. Willard, Decatur, for appellee.

NICHOLS, Chief Justice.

Smokerise sought mandamus absolute requiring the DeKalb County Board of Commissioners and the county's development director to issue a permit for installation of lighting on two of its four tennis courts. Smokerise, a nonprofit community recreation club, operated, among other facilities, two tennis courts. In 1973 it applied for a setback variance to construct two additional tennis courts. The variance was granted "with the condition that there are no lights and adequate drainage is provided." When Smokerise applied for a permit to light its two previously existing tennis courts, the county read the lighting portion of this condition as being applicable to all four of the tennis courts. The trial court found that the "no lights" condition as well as the "adequate drainage" condition applied only to the two new tennis courts and that the two original tennis courts met all the zoning requirements for installation of lights. He ordered the lighting permit to be issued.

1. The county's first two enumerations contend that although the complaint is denominated as being one for mandamus absolute, it really is an appeal or certiorari that has not been filed within 30 days as required by Code Ann. § 69-1211.1 or by Ga.L.1943, p. 930 and Ga.L.1956, p. 3332. Smokerise correctly points out that there is no showing by the county that it, in fact, operates under laws that include the appeal or the certiorari provisions cited in the county's brief. There is no merit in the first two enumerations of error.

2. The next two enumerations of error contend that the trial court erred in holding that the "no lights" condition applies only to the two new courts rather than to all four courts.

The application for the variance from the setback requirements as submitted and as granted in 1973 clearly did not involve the two then-existing tennis courts. The question presented to the trial court was one of whether or not the lighting condition attached to all four tennis courts, although the new courts alone were the subject matter of the 1973 application. The trial court correctly held that the lighting condition should not be applied beyond its plain terms. City of Douglasville v. Willows, Inc., 236 Ga. 488, 224 S.E.2d 363 (1976). It was not contended that the drainage condition would apply to the old courts. Neither should the county be allowed to extend the plain, objective intent of the lighting condition by testimony that county officers subjectively meant for it to attach to all four courts. Taylor v. Shetzen, 212 Ga. 101(4), 90 S.E.2d 572 (1955). There is no merit in the third and fourth enumerations of error.

3. The remaining enumeration of error contends that the trial court erred in refusing the county's demand for jury trial. The trial court correctly held that the lighting condition was not ambiguous and that neither judicial construction nor resolution by a jury of any factual issue was required.

Judgment affirmed.

All the Justices concur.

HILL, Justice, concurring.

One of the first things a judge misses when he goes on the bench is the informal discussion of cases with lawyers. One of the next things a judge becomes aware of is the informal discussion of cases by lawyers in his hearing (the judge wants to make sure that the case is long since finally concluded or that it is in an entirely different judicial forum or system). As a result of these factors, a judge becomes particularly aware of lawyers' discussion of cases.

One of the things I became aware of about a lawyer retelling one of his triumphs (we never mention our losses, if any) is that he is proudest of those he won on a technicality. It is as if a victory on the merits was because the client was in the right and thus the lawyer could add little to the outcome because the client was entitled to win. But a victory on a technicality is a lawyer's proudest moment, because he was astute enough to recognize where his opponent had taken a fatal misstep, had persuaded the court to rule in his favor without deciding the merits, and thereby had won a case which the client perhaps could not have won except for the ability of his counsel. While such a victory may speak well of the lawyer involved, it does not speak well of his adversary or of the judicial system's treatment of the losing client.

Accepting for the moment that victories on technicalities are favored by lawyers over victories on the merits, the case before us could have been a monumental triumph for appellants' counsel.

Smokerise brought a complaint seeking mandamus against the members of the DeKalb County Board of Commissioners and the County Development Director. The County Commissioners defended on the grounds, among others, that the plaintiff was seeking review of a decision of the DeKalb County Board of Appeals, and that review of such decisions could only be had by an appeal to the Superior Court pursuant to Code Ann. § 69-1211.1, or by writ of certiorari pursuant to local law, Ga.L.1943, pp. 930, 938, both brought within 30 days.

Counsel for the plaintiff, formerly attorney for DeKalb County, responds that those two laws are inapplicable because DeKalb County does not operate under Code Ch. 69-12, which becomes applicable only upon election by the county (see Code Ann § 69-1229), and that the county has ceased operating under the 1943 local law, as well as a subsequent 1956 local law (Ga.L.1956, pp. 3332, 3340). The former county attorney argues that the current county zoning ordinance was adopted by the Board of Commissioners pursuant to the county's home rule powers contained in the Constitution, Art. IX, Sec. IV, Par. 2(15) (Code Ann. § 2-6102(15...