Town of Thunderbolt v. River Crossing Apartments, Ltd., s. 77482

• Decision Date: 22 November 1988
• Docket Number: 77483,Nos. 77482,s. 77482
• Citation: 377 S.E.2d 12,189 Ga.App. 607
• Parties: TOWN OF THUNDERBOLT v. RIVER CROSSING APARTMENTS, LTD. TOWN OF THUNDERBOLT v. HENDRIX et al.
• Court: Georgia Court of Appeals

Page 12

377 S.E.2d 12

189 Ga.App. 607

TOWN OF THUNDERBOLT v. RIVER CROSSING APARTMENTS, LTD.

TOWN OF THUNDERBOLT v. HENDRIX et al.

Nos. 77482, 77483.

Court of Appeals of Georgia.

Nov. 22, 1988.

Rehearing Denied Dec. 12, 1988.

Certiorari Denied Jan. 11, 1989.

Taggart & Lakin, Thomas R. Taggart, Laura A. Marcantonio, Savannah, for appellant.

Lawrence D. Kupferman, Atlanta, for appellee in no. 77482.

Harold B. Yellin, Savannah, for appellees in no. 77483.

DEEN, Presiding Judge.

The Town of Thunderbolt notified appellees that they had been underbilled for water and services in the amount of $35,000 and $31,700 respectively because of a miscalculation by the town's computer, beginning in October of 1983. The town met with appellees on at least two occasions in an effort to work out a repayment schedule. When appellees refused to pay the arrearage, the town threatened to discontinue future water service to appellees' tenants. On July 2, 1987, appellees filed complaints seeking a declaratory judgment and injunctive relief asking the Court to declare that the town is estopped as a matter of equity and law from asserting any claim for arrearage due to underbilling as a result of its own negligence, mistake, and fraud, and that it be restrained and enjoined temporarily and permanently from discontinuing water and sewer service to appellees' tenants.

Although the appellate record is silent, the trial court apparently granted a temporary restraining order prohibiting the town from shutting off the water supply to appellees' tenants and scheduled a hearing on the petitions for declaratory judgment.

On October 20, 1987, the town filed a response to the petitions for declaratory judgment, and a hearing was conducted on November 13, 1987. Appellant filed a motion to dismiss the petitions on December 14, 1987. On January 27, 1988, the trial court entered an order which is not a part of the record on appeal. This order was vacated on February 24, 1988, so the Court could consider Oxford Fin. Cos. v. Dennis, 185 Ga.App. 177, 363 S.E.2d 614 (1987). On May 16, 1988, it entered an order finding that Oxford was not dispositive of the case, denied appellant's motion to dismiss the declaratory judgment, denied the motion to open default, and granted plaintiffs' motion for a default judgment.

1. Appellant first contends that the trial court should have granted its motion to dismiss appellees' petitions because they showed on their faces that all possible rights had already accrued and all possible obligations had long since attached.

OCGA § 9-4-2(a) provides: "In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree...." Under subsection (c): "Relief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies."

In their petitions appellees alleged that the town was estopped by its own negligence or fraud from claiming that they owed it large sums of money because of a computer error since 1983 which underdetermined the amount of their water bills. Attached to the petitions were letters from the town demanding full payment by July 8, 1987, or water service to appellees' tenants would be terminated. The appellees sought both equitable and legal relief to protect themselves from a claim that they believed to be either fraudulently or negligently calculated.

A declaratory judgment may not be granted in the absence of a justiciable controversy, Kaylor v. Kaylor, 236 Ga. 777, 225 S.E.2d 320 (1976). "The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. 7 Ga.Bar Journal, p. 132. [Cit.]" Rowan v. Herring, 214 Ga. 370, 374, 105 S.E.2d 29 (1958). Unlike the situation in Oxford Fin. Cos. v. Dennis, 185 Ga.App. 177, 363 S.E.2d 614, supra (a two-judge case, one judge concurring in the judgment only), all possible legal rights had not accrued and all personal obligations had not attached. The complaints do not show on their faces the absence of an actual or justiciable controversy which would render the trial court without jurisdiction to enter a judgment. Kaylor v. Kaylor, supra. Accordingly, this enumeration is without merit.

2. Appellant next claims that the court below erred in granting a default judgment when no motion for such a judgment was pending before the court and contends that the grant of a default judgment is...