Sherman v. City of Atlanta

• Decision Date: 17 June 2013
• Docket Number: No. S13A0067.,S13A0067.
• Citation: 293 Ga. 169,744 S.E.2d 689
• Parties: SHERMAN et al. v. CITY OF ATLANTA et al.
• Court: Georgia Supreme Court

293 Ga. 169

744 S.E.2d 689

SHERMAN et al.

v.CITY OF ATLANTA et al.

No. S13A0067.

Supreme Court of Georgia.

June 17, 2013.

Hurt. Stolz & Cromwell, Irwin W. Stolz, Jr., Robert D. Feagin, John F. Woodham, for appellants.

Paul L. Howard, Jr., Dist. Atty., Jerolyn W. Ferrari, Robert D. Ware, Asst. Dist. Attys., Kutak Rock, Elizabeth L. Fite, Brian F. Hansen, Holland & Knight, Paul E. Vranicar, Charles S. Johnson III, Brinson, Askew, Berry, Seigler, Richardson & Davis, Norman S. Fletcher, Lemuel H. Ward, for appellees.

NAHMIAS, Justice.

Appellants John S. Sherman and Christopher D. Eichler filed a notice of appeal from the trial court's judgment confirming and validating a bond issuance by the City of Atlanta. See generally OCGA §§ 36–82–60 to 36–82–85 (the “Revenue Bond Law”). However, at the bond validation hearing, the City disputed Appellants' standing to become parties and raise objections in this case, and no competent evidence was admitted to show that either Appellant was a Georgia citizen and Atlanta resident, which were the prerequisites to becoming a party under the Revenue Bond Law. See OCGA § 36–82–77(a) (“Any citizen of this state who is a resident of the governmental body which desires to issue such bonds may become a party to the proceedings at or before the time set for the hearing....”). Thus, Appellants failed to prove that they had standing to become parties, and the trial court should have dismissed their objections instead of rejecting those claims on the merits. And because Appellants lacked standing to become parties in the trial court, they also lack standing to appeal the trial court's judgment. See id. (“Only a party to the proceedings at the time the judgment appealed from is rendered may appeal from such judgment.”) Accordingly, we must dismiss this appeal.

1. On April 20, 2012, pursuant to OCGA § 36–82–75, the State of Georgia, through the District Attorney for Fulton County, petitioned the Fulton County Superior Court for a judgment confirming and validating the issuance by the City of Atlanta of up to $35 million in bonds secured by the tax allocation increments for the Perry–Bolton Tax Allocation District (“Perry–Bolton TAD”). See generally Sherman v. Atlanta Indep. Sch. Sys. (“ Sherman I ”), 293 Ga. 268, 269–273, 744 S.E.2d 26, 28–36, 2013 WL 2372192 (2013)(discussing the history of TAD financing in Georgia and the Perry–Bolton TAD in particular). The petition named as defendants the government entities whose tax revenues would be included in the tax allocation increments: the City, Fulton County, and the Atlanta Independent School System (collectively, “Appellees”).

The trial court scheduled a bond validation hearing for May 8, 2012, and notice of the hearing was given to the public. See OCGA § 36–82–76. A bond validation hearing is an evidentiary hearing at which “the judge of the superior court shall proceed to hear and determine all questions of law and of fact in the case and shall render judgment thereof.” OCGA § 36–82–77(a).

Just before the hearing started, counsel for Appellants John S. Sherman and Christopher D. Eichler filed and served on the parties a document entitled “Objections to Bond Validation and Denial of Bond Validation Petition Allegations” (“Objection”). The Objection, which was verified by Eichler, alleged that Appellants were Georgia citizens and City residents and as such had the right under OCGA § 36–82–77(a) to become parties to the proceeding and file objections to the bond issuance. Appellants did not attend the hearing. Instead, their attorneys, John F. Woodham and Irwin W. Stolz, Jr., appeared on their behalf.

Near the beginning of the hearing, counsel for the City protested that Appellants could not intervene and file objections until they proved, through witnesses or other admissible evidence, that they were City residents. In response, Woodham suggested that Appellees concede that at least Sherman was a City resident, but Appellees did not do so. Woodham also said he could “state in my place” as an officer of the court that Appellants were Atlanta residents, but the court responded, “this is the hearing, so it would require evidence to be presented,” and specifically advised Woodham that his statements-in-place regarding his clients' residency were “not going to be good enough.” Woodham pointed to the Objection's residency allegations and asserted that Eichler's verification of the Objection was based on personal knowledge. But Appellees and the court noted that Eichler was not present at the hearing to be cross-examined, and the court added, “because a complaint is verified doesn't mean that when you actually have a trial or a hearing, witnesses [don't] still have to come and testify.” The court reserved ruling on the standing issue to allow the record to be developed during the hearing. The court also mentioned the possibility of a continuance, but Appellants did not seek one at that time.¹

The court then directed Appellees to begin their presentation on the merits of the bond validation. After making their arguments, Appellees called Sherman and Eichler “for cross-examination,” but neither man was present in the courtroom. At the close of Appellees' case-in-chief, the court emphasized that Appellants were the masters of their own case, saying to their counsel:

It is your case ... Mr. Woodham, we are at an evidentiary hearing.... You got the floor. You call whoever you want to or present whatever you want to present.... It's your case. So, if you want to call somebody, go ahead and do that. If they are not here they are not here. And we will keep moving.... I am going to let the parties present whatever they want to present to the court. And I will consider whatever is legally appropriate to consider in making a determination.

Counsel for Appellants then presented argument about the standing and bond validation issues, but offered no documents into evidence and presented no witnesses to testify about Appellants' current citizenship and residency. At the end of the hearing, the court requested post-hearing briefs on the substantive arguments raised in the Objection, but made it clear that the evidence was closed and would not be re-opened. The parties filed their post-hearing briefs, and the City also filed a formal motion to dismiss the Objection for lack of standing based on the absence in the record of any evidence that Appellants were City residents.

On May 23, 2012, the trial court entered a judgment confirming and validating the proposedbond issuance. Toward the end of its detailed order, the court noted that Appellants had filed the Objection, that neither Sherman nor Eichler was present at the bond validation hearing, and that Appellees had “raised the issue of whether the Objection could be heard if [Appellants] were not present to show that they were citizens of this State as required by OCGA § 36–82–77(a).” However, the court ruled that it was “not necessary to reach this question” because of the court's decision to “overrule[ ], den[y] and dismiss[ ] each of the objections to the [bond] validation” on the merits. Appellants filed a timely notice of appeal.

On December 20, 2012, this Court directed the parties to be prepared to address at oral argument

whether the appellants proved in the trial court that they were citizens of this state and residents of the governmental body which desires to issue the bonds, as required to become a party under OCGA § 36–82–77(a), and, if not, whether the appellants are authorized to bring this appeal.

We authorized additional briefing on these issues, and the parties filed supplemental briefs. The appeal was orally argued on January 7, 2013.

2. Although the trial court recognized that Appellees had raised the issue of Appellants' standing under the Revenue Bond Law to become parties to the bond validation proceeding, the court deemed it unnecessary to decide that issue due to its conclusion that Appellants' objections to the bond validation were unpersuasive on the merits. However, standing is “[i]n essence the question of ... whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues,” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (emphasis added), and litigants must establish their standing to raise issues before they are entitled to have a court adjudicate those issues, see Dept. of Human Res. v. Allison, 276 Ga. 175, 178, 575 S.E.2d 876 (2003). Thus, the trial court should not have addressed the merits of the Objection without first determining whether Appellants had established standing to raise those objections. And because the Revenue Bond Law makes Appellants' Georgia citizenship and Atlanta residency the requirements both for becoming parties in the trial court and for appealing the trial court's judgment, it is to that question that we now turn.

3. The Revenue Bond Law includes a broad, but not unlimited, citizen-standing provision. OCGA § 36–82–77(a) states, in pertinent part:

Any citizen of this state who is a resident of the governmental body which desires to issue such bonds may become a party to the proceedings at or before the time set for the hearing and any party thereto who is dissatisfied with the judgment of the court confirming and validating the issuance of the bonds or refusing to confirm and validate the issuance of the bonds and the security therefor may appeal from the judgment under the procedure provided by law in cases of injunction. Only a party to the proceedings at the time the judgment appealed from is rendered may appeal from such judgment.

(Emphasis added.)

Thus, Appellants' standing to participate in the bond validation proceeding under OCGA § 36–82–77(a) was contingent on their proving that they were Georgia citizens and City of Atlanta residents. See Allison, 276 Ga. at 178, 575 S.E.2d 876 (holding that where standing is disputed, the litigant claiming standing has the...