City of Dublin School District v. Mmt Holdings, LLC , 351 Ga. App. 112 ( 2019 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, JJ.
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
June 26, 2019
In the Court of Appeals of Georgia
A19A0619. CITY OF DUBLIN SCHOOL DISTRICT v. MMT
HOLDINGS, LLC et al.
MILLER, Presiding Judge.
In this tax dispute’s second appearance before this Court, the City of Dublin
School District (“the School District”) seeks review of the trial court’s order denying
the School District’s request to order the City of Dublin (“the City”) to release to it
the tax funds the City is currently holding pursuant to a previous court order. The
School District argues that the 2016 ad valorem tax at issue was properly and legally
assessed and that the trial court improperly refused to release the tax proceeds to the
School District, which it argues is a violation of our previous holding that the School
District was entitled to sovereign immunity from plaintiff MMT Holdings, LLC’s
(“MMT”) claim for a tax refund. After a careful review of the record, however, we
conclude that we lack appellate jurisdiction over the trial court’s order because (1) the
School District lacks standing to appeal a grant of summary judgment in favor of
itself under OCGA § 9-11-56 (h); (2) the order is not final, nor would it be appealable
as an order refusing an interlocutory injunction; and (3) the School District did not
obtain a certificate of immediate review under OCGA § 5-6-34 (b). We therefore
grant MMT’s motion to dismiss this appeal.
In 2016, at the request of the City of Dublin Board of Education, the City of
Dublin, Georgia levied an ad valorem tax at a rate of 2.25 mills for the purpose of
paying the principal and interest on General Obligation Bonds that the School District
had issued in 2008, 2010 and 2011. MMT, a payer of the ad valorem tax, filed the
instant putative class action against the City and the School District, arguing that it
was entitled to a refund because the tax was not authorized under the terms of the
resolutions approving the various bonds. In addition to its claim for a tax refund
pursuant to OCGA § 48-5-380, MMT requested an interlocutory injunction (and a
later permanent injunction) against the City prohibiting it from paying any proceeds
from the tax over to the School District.
On March 29, 2017, the trial court granted MMT’s motion for partial summary
judgment. The trial court concluded that the 2016 ad valorem tax was “illegally and
2
erroneously assessed and collected” and that MMT was entitled to a refund as a
matter of law against both defendants. The trial court further concluded that sovereign
immunity did not bar MMT’s request for injunctive relief. The trial court also granted
injuntive relief, ordering that “the City of Dublin is prohibited from paying the 2.25
mil property tax . . . proceeds levied at the request of the Dublin City Board of
Education . . . to the City School District.” Pursuant to a consent order, the trial court
later directed that the City could not disburse any of the tax proceeds it collected
“until further Order of this Court.”
The School District1 appealed the partial summary judgment order to this
Court. The School District argued on appeal that the ad valorem tax was properly and
legally assessed and that sovereign immunity barred MMT’s claims against the
School District. We agreed with the School District that sovereign immunity barred
MMT’s claim against the School District for a tax refund under OCGA § 48-5-380.
City of Dublin School Dist. v. MMT Holdings, LLC, 346 Ga. App. 546, 546-548 (1)
(816 SE2d 494) (2018). In light of this holding, we declined to address the School
District’s other claims of error. Id. at 548 (2). We also noted, “nothing in this opinion
1
The City did not appeal from the summary judgment order nor did it join the
School District’s appeal.
3
is intended to address MMT’s claims against the City as the City did not move for
summary judgment and is not party to this appeal.” Id.Following remand, the School District filed a motion “to implement the
decision of the Court of Appeals and disburse the proceeds of the property tax
collected by the City of Dublin.” The School District argued that, due to this Court’s
conclusion that it was entitled to sovereign immunity on MMT’s claims against it, the
School District was now clearly entitled to the funds being held by the City. The
School District thus requested the trial court to “implement the decision of the Court
of Appeals by granting summary judgment authorizing the release of the tax proceeds
by the City to the School District.”
On July 27, 2018, the trial court entered an order adopting this Court’s
judgment as its own and granting summary judgment to the School District on the
basis of sovereign immunity. The trial court, however, concluded that “the School
District’s interpretation of relief to be granted is too expansive.” Instead, the trial
court concluded that, because this Court’s opinion did not affect MMT’s claims
against the City, its injunction order prohibiting the City from disbursing the funds
would remain in effect. The School District timely filed a direct appeal from the
July 27, 2018 order.
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1. MMT moves to dismiss this appeal for lack of appellate jurisdiction because
the trial court’s order denying the School District’s request to release the tax proceeds
is not final or otherwise directly appealable. We agree.
“This [C]ourt has a duty to inquire into its jurisdiction to entertain each
appeal.” (Citation omitted.) Murphy v. Murphy, 322 Ga. App. 829 (747 SE2d 21)
(2013).
First, we note that the July 27, 2018 order is not appealable as a final order. A
direct appeal may be taken, with certain irrelevant exceptions,2 from “[a]ll final
judgments, that is to say, where the case is no longer pending in the court below.”
OCGA § 5-6-34 (a) (1). “Even if a trial court’s order does not state that it is a grant
of final judgment, it nevertheless constitutes a final judgment within the meaning of
OCGA § 5-6-34 (a) (1) where it leaves no issues remaining to be resolved, constitutes
the court’s final ruling on the merits of the action, and leaves the parties with no
further recourse in the trial court.” Paine v. Nations, 301 Ga. App. 97, 99 (1) (686
SE2d 876) (2009).
2
See OCGA § 5-6-35 (a).
5
Here, MMT’s claim against the City is still pending. Specifically, after the trial
court granted partial summary judgment to MMT and entered the July 27, 2018 order
at issue, it granted MMT’s request for class certification, and so the trial court must
now adjudicate any claims by the class once the requisite notice period has passed.
The trial court also has not yet entered a permanent injunction or final order directing
the City to disburse the funds to MMT or any other members of the class. Thus,
although the July 27, 2018 order did resolve MMT’s claim against the School District
on the sole basis of sovereign immunity, the claims against the City still remain
pending. See OCGA § 9-11-54 (b) (an order that resolves fewer than all claims, or
determines the rights and liabilities of fewer than all parties, is not final absent
certification from the trial court); Financial Investment Group, Inc. v. Cornelison,
238 Ga. App. 223, 224 (516 SE2d 844) (1999) (same). Because this case is still
pending in the trial court and there are issues remaining to be resolved, the July 27,
2018 order is not appealable as a final judgment. See OCGA § 5-6-34 (a) (1); Paine,
301 Ga. App. at 99 (1).3
3
The order is also not appealable as a final order under the collateral order
doctrine, which allows for review if an order “(1) completely and conclusively
decides the issue on appeal such that nothing in the underlying action can affect it;
(2) resolves an issue that is substantially separate from the basic issues in the
complaint; and (3) might result in the loss of an important right if review had to await
6
We also conclude that the order is not appealable under OCGA § 9-11-56 (h),
which allows for a direct appeal from “[a]n order granting summary judgment on any
issue or as to any party.”
The grant of a motion for summary judgment will not, standing alone,
necessarily authorize the initiation of a direct appeal therefrom by any
party to the case. An appeal must be filed by one who has standing to
pursue it. OCGA § 9-11-56 (h) gives a losing party [i.e., the party
against whom summary judgment has been entered] the right to a direct
appeal from an order granting summary judgment on any issue or as to
any party even though the judgment is not final.
(Citation and punctuation omitted.) Nat. Equip. Sales, Svc. & Supplies, Inc. v.
Hamrick Mfg. & Svcs., Inc., 186 Ga. App. 400 (367 SE2d 287) (1988). Here, while
the trial court’s July 27, 2018 order did grant summary judgment, it granted judgment
in favor of the School District, pursuant to our mandate in the initial appeal, and
final judgment, making the order effectively unreviewable on appeal.” (Citation
omitted.) Murphy, supra, 322 Ga. App. at 831. The order on appeal implicates the
direct heart of the “basic issues” of this lawsuit (namely, the question of whether the
2016 ad valorem tax was properly and legally assessed), and so it fails to satisfy the
second prong of this doctrine. We further note that, under current precedent, the fact
that the trial court’s order resolved the School Board’s claim regarding the scope of
its sovereign immunity does not render the trial court’s order automatically
appealable under the collateral order doctrine. Rivera v. Washington, 298 Ga. 770,
777-778 & n.7 (784 SE2d 775) (2016).
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“[c]learly, [the School District] has no standing to appeal that portion of its summary
judgment motion resolved in its favor . . . Nor did [the School District] raise such
issues in this appeal.” (Citation omitted.) Id. Instead, the errors that the School
District is raising are solely related to the denial of its request to release the tax
proceeds. Because the trial court’s July 27, 2018 order was not a grant of summary
judgment against the School District, a direct appeal under OCGA § 9-11-56 (h) is
not authorized here.
Finally, we conclude that the July 27, 2018 order is not appealable under
OCGA § 5-6-34 (a) (4), which allows for appeals from “[a]ll judgments or orders
granting or refusing applications for . . . interlocutory or final injunctions.” The
School Board argues that the trial court’s denial of its request to release the tax
proceeds was in all practical effect the refusal of an application for an injunction.
However, because the School District essentially sought an order undoing what the
trial court had previously ordered, we instead conclude that the School District’s
motion to release the tax funds is best construed as a motion to vacate or dissolve the
already existing injunction prohibiting the City from releasing the funds to the School
District, rather than as a motion seeking a completely new and original injunction.
Because an order modifying or dissolving an interlocutory injunction, or denying a
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request to modify or dissolve an interlocutory injunction, does not fall within the
ambit of OCGA § 5-6-34 (a) (4), this direct appeal is also not authorized under that
statute. Jones v. Peach Trader, Inc., 302 Ga. 504, 511-516 & nn. 10-11 (III) (807
SE2d 840) (2017).4
In sum, we conclude that we lack jurisdiction over the School District’s direct
appeal from the trial court’s July 27, 2018 order because (1) it was not a final order;
(2) the School District does not have standing to appeal from a grant of summary
judgment to itself; (3) the order is not appealable as an order refusing an application
for an injunction; and (4) the School District did not obtain a certificate of immediate
review from the trial court under OCGA § 5-6-34 (b). We therefore grant MMT’s
motion to dismiss this appeal because there are no remaining issues ripe before this
Court.
Appeal dismissed. Rickman and Reese, JJ., concur.
4
We are keenly aware that the School District did indeed timely appeal from
the trial court’s injunction order as part of its first appeal before this Court and that
it properly raised the propriety of the injunction order as an enumeration of error in
that appeal. These facts, however, do not cure the jurisdictional defects in this appeal,
and we have “no authority to create equitable exceptions to jurisdictional
requirements imposed by statute” to cover situations such as this. (Citation omitted.)
Gable v. State, 290 Ga. 81, 85 (2) (b) (720 SE2d 170) (2011).
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