Zach, Inc. v. Fulton County

McMURRAY, Presiding Judge.

Following the recent decision of Zach, Inc. v. Fulton County, 217 Ga. App. 315 (457 SE2d 574), where this Court affirmed the trial court’s denial of Zach, Inc.’s motion for summary judgment, this case was returned to the superior court and defendants Fulton County and the City of Atlanta moved for summary judgment. Plaintiff Zach, Inc. filed an opposing motion for summary judgment supported by additional evidence in the form of the affidavit of Dr. Gerald Wayne Clough, President of Georgia Institute of Technology. Plaintiff appeals the grant of summary judgment in favor of defendants and the denial of its motion for summary judgment. Held:

Plaintiff argues that following our earlier decision it was left to prove only one fact, “that it [Zach, Inc.] is an ‘arm or extension’ of Georgia Tech.” Dr. Clough’s affidavit provides much detailed information concerning the structure and control of the Greek letter organizations at Georgia Tech. It is clearly established that the organization operating on plaintiff’s property is an integral member of the university community and functions in a manner indistinguishable from those similar organizations which occupy university owned property which is not taxed. Nonetheless, it is apparent upon the face of our earlier decision that not only has plaintiff not shown that it is an “arm or extension” of the university, but that the record shows affirmatively and without conflict that plaintiff is not an “arm or extension” of Georgia Tech. This is true because “the phrase describes an organization which, like the property owner in Johnson [u Southern Greek Housing Corp., 251 Ga. 544 (307 SE2d 491)], was created by the college and is run by members of the college community. Zach, [Inc.,] on the other hand, was created by the national fraternity and is run by a board comprised of individuals from outside the college community.” Zach, Inc. v. Fulton County, 217 Ga. App. 315, 316, supra. The factual basis for this conclusion is not contradicted by Dr. Clough’s affidavit and the limited scope of the issues on the earlier appeal from the denial of plaintiff’s motion for summary judgment is all that precluded the conclusion reached here.

Decided April 10, 1997 Reconsideration denied June 17, 1997. Before Judge Wyatt Cummings Moore. Bodker, Ramsey & Andrews, Stephen C. Andrews, David J. Maslia, for appellant. Holland & Knight, Harold T. Daniel, Jr., James R. McCain, Jr., Clifford E. Hardwick TV, Bernard R. Thomas, Sr., Joiava Thomas, for appellees.

Judgment affirmed.

Beasley and Smith, JJ, concur.

On Motion for Reconsideration.

Appellant complains that we failed to address issues presented in this appeal in that the original opinion does not address a constitutional challenge, that taxation of Zach, Inc. violates the equal protection clauses of the Georgia and United States Constitutions. However, this appeal was initially filed in the Supreme Court which, in transferring the appeal to this Court, determined that the superior court did not rule on a constitutional question. The transfer apparently reflects the fact that although the equal protection argument was raised below, the superior court did not distinctly pass or rule on it. Accordingly, the equal protection enumeration presents nothing for review by any appellate court. Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485). See also Braden v. Bell, 222 Ga. App. 144, 146 (1) (473 SE2d 523); Ashton v. State, 217 Ga. App. 337, 338 (457 SE2d 226); and Turner v. State of Ga., 213 Ga. App. 309 (1) (444 SE2d 372).

Motion for reconsideration denied.