The MASHBURN FAMILY TRUSTS v. CITY OF CUMMING Et Al. ( 2017 )

THIRD DIVISION
MILLER, P. J.,
MCFADDEN, P. J., and MCMILLIAN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 9, 2017
In the Court of Appeals of Georgia
A16A1977. THE MASHBURN FAMILY TRUSTS v. CITY OF
CUMMING, GEORGIA et al.
MCFADDEN, Presiding Judge.
This case involves a superior court order dismissing an appeal from a zoning
board decision on multiple grounds, including mootness. Because the superior court
correctly ruled that the underlying matter is moot, we affirm.
This action arose out of a stop work order issued by the city of Cumming,
Georgia against the Marcus Mashburn, Jr. and Alice S. Mashburn Family Trusts. The
trusts had obtained a land disturbing activity permit from the city to remediate an area
where a dam had breached. The trusts began demolition work on the site pursuant to
the permit on June 16, 2014. On June 23, 2014, there was a heavy rain at the site. The
next day, June 24, 2014, the city issued a stop work order due to the release of
sediment into the water. The city lifted the stop work order six days later on June 30,
2014, and the trusts continued and completed the demolition work.
More than three weeks after the stop work order had been lifted, on July 23,
2014, the trusts appealed the decision to issue the stop work order to the city’s zoning
board. The board denied the appeal and the trusts appealed that denial to the superior
court. The city moved to dismiss the appeal. After a hearing on August 7, 2015, the
superior court granted the motion to dismiss on multiple grounds, including a finding
that since the stop work order had been lifted and the demolition work completed, the
matter is moot. This court granted the trusts’ application for discretionary review and
this appeal followed. Having now reviewed the full record, we find that the trial court
correctly dismissed the appeal as moot.
An appeal is subject to dismissal when the questions presented are moot. See
OCGA § 5-6-48 (b) (3). Mootness results “if the rights insisted upon could not be
enforced by a judicial determination.” Randolph County v. Johnson, 282 Ga. 160 (1)
(646 SE2d 261) (2007). A matter is also moot if a ruling would have no practical
effect on the alleged controversy. Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (3)
(a) (489 SE2d 99) (1997). Here, the stop work order was lifted on June 30, 2014, and
the demolition work is complete. Moreover, the trusts did not seek damages and
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instead sought to have the stop work order rescinded, which has already occurred
through the lifting of the order. See Cotton v. First Nat. Bank of Gwinnett County,
235 Ga. 511, 512 (220 SE2d 132) (1975) (issue moot where relief sought by plaintiffs
has already taken place). Although a matter will not be deemed moot if a party will
face adverse collateral consequences that will plague the affected party, the trusts
have not made a sufficient showing that they will suffer such consequences from the
issuance of the stop work order. See In the Interest of I. S., 278 Ga. 859, 862 (607
SE2d 546) (2005) (appellants failed to show adverse collateral consequences on the
record); In the Interest of J. R. P., 287 Ga. App. 621, 623 (1) (652 SE2d 206) (2007)
(accord). Because the superior court correctly found that the matter is moot, we must
affirm its order of dismissal. McAuley v. Wills, 164 Ga. App. 812 (1) (298 SE2d 594)
(1982) (“[I]f the court is right for any reason in its order of dismissal, we will
affirm.”).
Judgment affirmed. Miller, P. J., and McMillian, J., concur.
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