Inserection, a Fantasy Store v. City of Marietta , 278 Ga. 170 ( 2004 )

BENHAM, Justice.

Appellant Inserection, A Fantasy Store, received a license from appellee the City of Marietta to operate a general merchandise retail establishment, effective March 13, 2003. After investigating several complaints about the merchandise offered for sale by Inserection and believing Inserection to be distributing material obscene under state law and prohibited by the license issued by the City, the City issued a letter on June 6 requesting Inserection to cease and desist such sales. The same day, the City filed a complaint for temporary and permanent injunction in which it asserted Inserection’s sale of allegedly obscene materials constituted the operation of a public nuisance and sought to enjoin the operation of the nuisance. After conducting a hearing and viewing the evidence purchased by agents of the City’s police department, the trial court issued a temporary injunction against the continued operation of the store, ordered the police to padlock the premises, and set a date for the final hearing. Appellants filed an application for interlocutory review which this Court granted since the trial court’s grant of an interlocutory injunction was subject to direct appeal under OCGA § 5-6-34 (a) (4).

1. The City suggests this appeal has been rendered moot by the expiration of the business license issued to appellants. The license contains on its face an expiration date of December 31, 2003; appellants assert the license does not expire until March 31, 2004, the last day a 2003 license can be renewed pursuant to the City’s regular business practice. Regardless of the applicable expiration date, it is clear that appellants cannot now obtain the remedy they seek, re-opening of Inserection, since the license to operate the business has expired. “This court will upon its own motion dismiss an appeal where it affirmatively appears . . . that a decision would be of no benefit to the complaining party.” Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241) (1986). Inasmuch as the appeal became moot at the expiration of the period of time during which the license was effective, the appeal must be dismissed. See Bd. of Commrs. of Whitfield County v. Golden Gallon, 244 Ga. 209 (259 SE2d 463) (1979); Cook v. Harris, 209 Ga. 425 (73 SE2d 89) (1952); Cravey v. Bankers Life & Cas. Co., 209 Ga. 273 (71 SE2d 659) (1952); Exley v. Blackmon, 129 Ga. App. 598 (200 SE2d 334) (1973).

2. Appellants point out an appeal is not moot where the alleged error is capable of repetition yet evades judicial review. See Collins v. Lombard Corp., 270 Ga. 120 (1) (508 SE2d 653) (1998). Citing Penthouse Intl. v. McAuliffe, 454 FSupp. 289, 301-302 (N.D. Ga. 1978), appellants maintain the one-year duration of the City’s license is too short a time in which to fully litigate the issue and contend the issue of the propriety of the judicially-ordered closure of stores selling allegedly obscene materials is likely to arise again in pending litigation involving other stores in Marietta as well as when Inserection opens another store in Marietta. We agree with appellants that the issue may well arise in other litigation, but we disagree that the issue evades review. In Penthouse Inti., a publisher charged with distributing obscenity each time the monthly magazine published a new issue filed an action under 42 USC § 1983 claiming the Fulton County Solicitor-General was engaged in a carefully-orchestrated prior restraint. The trial court determined the one-month life of the monthly magazine was too short a period of time in which the challenged action could be fully litigated, thereby finding the case involved a claim capable of repetition yet evading review. The case at bar involves a license with a life 12 times as long as the monthly magazine in Penthouse Inti. Furthermore, judicial review was delayed in the case at bar when appellants removed the case from the Superior Court of Cobb County to federal court only to have that court return it to the superior court and, while appellants unsuccessfully sought supersedeas in the trial court and this court (compare Brown v. Spann, 271 Ga. 495 (520 SE2d 909) (1999), and Jackson v. Bibb County School Dist., 271 Ga. 18 (515 SE2d 151) (1999)), appellants did not seek expedited review of the case in this Court. Compare Howell v. Fears, 275 Ga. 627 (571 SE2d 392) (2002); Napper v. Ga. Television Co., 257 Ga. 156 (356 SE2d 640) (1987). In the absence of evidence that the appeal presents an issue capable of repetition yet evading review, the appeal must be dismissed as moot.

Appeal dismissed.

All the Justices concur, except Carley, J., who dissents.