Bcg Operations, LLC v. Town of Homer, Georgia

• Court: Court of Appeals of Georgia
• Decided: April 6, 2022
• Docket: A22D0289
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 06, 2022

The Court of Appeals hereby passes the following order:

A22D0289. BCG OPERATIONS, LLC v. TOWN OF HOMER, GEORGIA et al.

BCG Operations, LLC (“BCG”) filed a “petition for writ of mandamus and declaratory judgment and complaint for inverse condemnation and damages” against the Town of Homer, Georgia and others, alleging that the Town of Homer refused to accept or process BCG’s application for a distilled spirits consumption license. The trial court granted BCG a writ of mandamus and ordered the defendants to accept and process BCG’s application and issue the license. The trial court later granted summary judgment to the defendants on BCG’s claim for damages, reserving the issue of attorney fees. BCG filed this application for discretionary appeal in addition to a notice of direct appeal. See Case No. A22A1183.

It appears that the order BCG seeks to appeal is directly appealable. Pursuant to OCGA § 5-6-35 (a) (1), “[a]ppeals from decisions of the superior courts reviewing decisions of . . . state and local administrative agencies” must be brought by application for discretionary appeal. However, we have not required an application in cases where the administrative agencies made no decisions. See Schumacher v. City of Roswell, 301 Ga. 635, 640 (2) (803 SE2d 66) (2017); Carson v. Brown, 348 Ga. App. 689, 696 (1) (c) (i) (824 SE2d 605) (2019) (the discretionary appeal procedure was not implicated where the local administrative agency made no clear “decision” on the merits). Because the local administrative agency never issued a decision on the merits of BCG’s application, it appears that the order BCG seeks to appeal is directly appealable. OCGA § 9-11-56 (h) (“An order granting summary judgment on any issue or as to any party shall be subject to review by appeal.”). Ordinarily, this Court would grant an otherwise timely application for discretionary appeal if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). However, BCG’s direct appeal renders this application superfluous, and the application is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/06/2022 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.