Whitfield v. City of Atlanta ( 2015 )

296 Ga. 641FINAL COPY
S14A1882. WHITFIELD v. CITY OF ATLANTA et al.
HUNSTEIN, Justice.
James Whitfield filed suit against the City of Atlanta and Secure Parking
Enforcement, LLC (“SPE”) after his car was booted in Northeast Atlanta while
illegally parked in a lot reserved for customers of a dry cleaning business. In his
complaint, Whitfield sought a declaration that the City ordinance authorizing
and regulating vehicle immobilization is unconstitutional and that the practice
of booting is thus unlawful. In the alternative, Whitfield contended that the
signage in the parking lot where SPE had booted his car failed to comply with
certain specifications prescribed in the vehicle immobilization ordinance, thus
entitling him to recover as damages the cost of removing the immobilization
device.
Both defendants answered the complaint, and the City moved to dismiss
for failure to state a claim. Thereafter, the trial court granted the City’s motion
to dismiss and ordered SPE, whose answer had been filed by its owner, a non-
lawyer, to obtain counsel to enter an appearance by a date certain. When SPE
failed to do so, the trial court struck SPE’s answer and, following a hearing,
entered a default judgment against SPE for the $75 cost of removing the boot,
plus court costs. In its final order, the trial court expressly rejected Whitfield’s
contention that the ordinance is unconstitutional.
Despite having prevailed on his damages claim, Whitfield now appeals,
contending that the trial court erred in dismissing the City from the suit and in
determining that the vehicle immobilization ordinance is constitutional. We
now hold that the trial court erred in considering the merits of Whitfield’s
constitutional challenge, because Whitfield did not properly present the
ordinance, nor was the ordinance otherwise made part of the record in this case.
We thus vacate that portion of the judgment below; in all other respects, we
affirm.
City and county ordinances must be alleged and proven in order to be
considered by the superior and appellate courts of this State. Davis &
Shulman’s Georgia Practice & Procedure, § 7:9 (2014-2015 ed.). The proper
method of proving a city ordinance is production of the original ordinance or a
certified copy thereof. Thorsen v. Saber, 288 Ga. 18 (1) (701 SE2d 133) (2010);
see also OCGA § 24-2-221 (judicial notice may be taken of certified copy of
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ordinance); Leger v. Ken Edwards Enterprises, Inc., 223 Ga. 536 (2) (156 SE2d
651) (1967) (uncertified copy of ordinance attached to unverified pleadings held
insufficient to prove existence of ordinance). Neither the superior courts nor the
appellate courts can adjudicate a claim or defense based on a city ordinance
unless the ordinance has been properly presented. See, e.g., Thorsen, 288 Ga.
at 18-19 (declining to consider enumeration of error based on ordinance not
appearing in the record); Strykr v. Long County Bd. of Commrs., 277 Ga. 624(6) (593 SE2d 348) (2004) (declining to address appellant’s constitutional
challenge to portions of county ordinance that were not pled and proven); Leger,
223 Ga. at 539 (trial court properly declined to issue injunction based on alleged
violation of ordinance that was not introduced in evidence).
Here, the City of Atlanta’s vehicle immobilization ordinance appears
nowhere in the record. Not only is there no certified copy of the ordinance,
there is no copy at all. All that appears in the pleadings regarding the existence
and substance of the ordinance are general references thereto and what purports
to be a quote, in Whitfield’s unverified complaint, from a single section of the
ordinance regarding signage requirements, which does not itself authorize
vehicle immobilization. Without proper presentation of the ordinance, it is
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impossible to adjudicate the constitutionality thereof, and the superior court thus
erred in purporting to do so. See Strykr, 277 Ga. at 626; see also Thorsen, 288
Ga. at 18-19; Leger, 223 Ga. at 539.
Though we are compelled to vacate the judgment below as it relates to the
constitutionality of the vehicle immobilization ordinance, we need not disturb
the court’s decision dismissing the City from the suit. As acknowledged in
Whitfield’s complaint, the City had an interest in this proceeding only to the
extent that the constitutionality of its vehicle immobilization ordinance was at
issue. See OCGA § 9-4-7 (b) (municipality “shall be made a party” in any
proceeding seeking a declaration as to the validity of its ordinances). Because
Whitfield’s constitutional challenge is not viable due to his failure to properly
allege the ordinance, the City has no stake in the litigation. Thus, pretermitting
whether the trial court properly dismissed the complaint against the City for
failure to state a claim, we affirm the City’s dismissal from the suit under the
right for any reason rule. See Police Benevolent Assn. v. Brown, 268 Ga. 26 (2)
(486 SE2d 28) (1997) (judgment that is right for any reason will be affirmed).
Judgment affirmed in part and vacated in part. All the Justices concur.
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Decided February 2, 2015 – Reconsideration denied March 2, 2015.
Ordinance. Fulton Superior Court. Before Judge Dempsey.
James Whitfield, pro se.
Cathy Hampton, Laura S. Burton, Veronica L. Hoffler, for appellees.
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