Zach, Inc. v. Fulton County, A97A0149

• Decision Date: 10 April 1997
• Docket Number: No. A97A0149,A97A0149
• Citation: 487 S.E.2d 602,226 Ga.App. 842
• Parties: , 119 Ed. Law Rep. 1218, 97 FCDR 1845, 97 FCDR 3080 ZACH, INC. v. FULTON COUNTY, Georgia et al.
• Court: Georgia Court of Appeals

Page 602

487 S.E.2d 602

226 Ga.App. 842, 119 Ed. Law Rep. 1218,

97 FCDR 1845,

97 FCDR 3080

ZACH, INC. v. FULTON COUNTY, Georgia et al.

No. A97A0149.

Court of Appeals of Georgia.

April 10, 1997.

Reconsideration Denied June 17, 1997.

Bodker, Ramsey & Andrews, Stephen C. Andrews, David J. Maslia, Atlanta, for appellant.

Holland & Knight, Harold T. Daniel, Jr., James R. McCain, Jr., Atlanta, Clifford E. Hardwick IV, Bernard R. Thomas, Sr., Joiava Thomas, Atlanta, for appellees.

McMURRAY, Presiding Judge.

Following the recent decision of Zach, Inc. v. Fulton County, 217 Ga.App. 315, 457 S.E.2d 574, where this Court affirmed the trial court's denial of Zach, Inc.'s motion from summary judgment, this case was returned to the superior court and defendants Fulton County and the City of Atlanta moved for summary judgment. Plaintiff Zach, Inc. filed an opposing motion for summary judgment supported by additional evidence in the form of the affidavit of Dr. Gerald Wayne Clough, President of Georgia Institute of Technology. Plaintiff appeals the grant of summary judgment in favor of defendants and the denial of its motion for summary judgment. Held:

Plaintiff argues that following our earlier decision it was left to prove only one fact, "that it [Zach, Inc.] is an 'arm or extension' of Georgia Tech." Dr. Clough's affidavit provides much detailed information concerning the structure and control of the Greek letter organizations at Georgia Tech. It is clearly established that the organization operating on plaintiff's property is an integral member of the university community and functions in a manner indistinguishable from those similar organizations which occupy university owned property which is not taxed. Nonetheless, it is apparent upon the face of our earlier decision that not only has plaintiff not shown that it is an "arm or extension" of the university, but that the record shows affirmatively and without conflict that plaintiff is not an "arm or extension" of Georgia Tech. This is true because "the phrase describes an organization which, like the property owner in Johnson [v. Southern Greek Housing Corp., 251 Ga. 544, 307 S.E.2d 491 ], was created by the college and is run by members of the college community. Zach, [Inc.,] on the other hand, was created by the national fraternity and is run by a board comprised of individuals from outside the college community." Zach, Inc. v. Fulton County, 217 Ga.App. 315, 316, 457 S.E.2d 574, supra. The factual basis for this conclusion is not contradicted by Dr. Clough's affidavit and the limited scope of the issues on the earlier appeal from the denial of plaintiff'...