Albert E. Love v. Fulton County Board of Tax Assessors ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 07, 2020
The Court of Appeals hereby passes the following order:
A21A0253. ALBERT E. LOVE et al. v. FULTON COUNTY BOARD OF TAX
ASSESSORS et al.
In this dispute regarding ad valorem property taxes, Albert E. Love, Gregory
L. Fann, Sr., Anthony Kristian Vatalaro, Catherine Rachel Flood, Pete Zyskowski,
and Lynn Zyskowski (the “plaintiffs”) filed a lawsuit against the Fulton County
Board of Tax Assessors and others. The plaintiffs also filed a motion seeking to have
OCGA § 10-9-10, which provides an exemption for property taxes for the Georgia
World Congress Center Authority, declared unconstitutional. The Georgia World
Congress Center Authority was permitted to intervene in the case. The defendants
moved to dismiss the lawsuit for failure to state a claim upon which relief could be
granted under OCGA § 9-11-12 (b) (6), and the trial court granted the motion and
also dismissed several other pending motions as moot, including the plaintiffs’
motion to have OCGA § 10-9-10 declared unconstitutional. On appeal, we affirmed
in part and reversed in part, and specifically we reversed the dismissal of the motion
to have OCGA § 10-9-10 declared unconstitutional as moot. Love v. Fulton County
Bd. of Tax Assessors, 348 Ga. App. 309, 321 (5) (821 SE2d 575) (2018). Upon
remand, the trial court entered an order which, among other things, declined to
declare OCGA § 10-9-10 unconstitutional and dismissed the case. The plaintiffs
appeal, arguing, among other things, that the trial court erred by declining to declare
the statute unconstitutional.
The Supreme Court has exclusive appellate jurisdiction in “all cases in which
the constitutionality of a law, ordinance, or constitutional provision has been drawn
in question.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1); see also Zarate-
Martinez v. Echemendia, 299 Ga. 301, 304 (2) (788 SE2d 405) (2016). Consequently,
given the plaintiffs’ argument that the trial court erred by declining to declare OCGA
§ 10-9-10 unconstitutional, it appears that jurisdiction over this appeal lies in the
Supreme Court, even if the appeal may ultimately be resolved on other grounds. See
Harrison v. Wigington, 269 Ga. 388, 388 (497 SE2d 568) (1998) (“If a constitutional
question is raised and ruled on below, [the Supreme] [C]ourt has exclusive appellate
jurisdiction, and this is true, although upon a consideration of the entire case, [the
Supreme] [C]ourt determines that a decision upon such constitutional questions is not
necessary to a proper solution of the case, and makes no decision thereon.”)
(punctuation omitted). As the Supreme Court has the ultimate responsibility for
determining appellate jurisdiction, see Saxton v. Coastal Dialysis & Med. Clinic, 267
Ga. 177, 178 (476 SE2d 587) (1996), this case is hereby TRANSFERRED to the
Supreme Court.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/07/2020
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.