FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
June 13, 2012
In the Court of Appeals of Georgia A12A0265. MATTOX v. FRANKLIN COUNTY et al. BO-013
BOGGS, Judge.
Jerry Mattox appeals from a superior court order requiring him to post an
appeal bond in the amount of $2.1 million following the court’s dismissal of his
declaratory judgment action challenging the validity and implementation of a special
purpose local option sales tax (“SPLOST”) resolution passed by the Franklin County
Board of Commissioners. For the reasons explained below, we affirm.
The record shows that on November 5, 2010, Mattox filed a pro se complaint
for declaratory judgment and injunctive relief against Franklin County and Samuel
Elrod, in his capacity as chair of the Franklin County Board of Commissioners
(collectively “the County”). In his complaint, Mattox sought a judgment declaring
that a November 2, 2010 SPLOST referendum is “void ab initio as an ultra vires act,” and that impermissible uses of SPLOST funds are also “void and illegal.” On
February 2, 2011, the superior court granted the County’s motion to dismiss the
complaint based upon its conclusion that “the descriptions contained in the [SPLOST]
Resolution are sufficiently specific as a matter of law” and that Mattox’s remaining
contentions were not ripe for judicial review. On February 2, 2011, Mattox filed a
notice of appeal from this order.
On April 28, 2011, the County moved for an appeal bond in the amount of
$2,627,065 under OCGA §§ 5-6-46 and 50-15-2. The amount of the bond sought by
the County represented potential increases on interest and construction costs during
the pendency of the appeal, as well as additional legal fees and expenses that would
be incurred by the County. On May 13, 2011, the trial court issued an order requiring
Mattox to post a bond in the amount of $2.1 million within 10 days “as a condition
precedent to any further pursuit” of Mattox’s appeal. The order provided that his
appeal would be deemed withdrawn if he failed to pay within the time required. On
May 26, 2011, Mattox appealed the superior court’s order requiring him to post a
2 $2.1 million bond to the Supreme Court of Georgia.1 The Supreme Court
subsequently transferred the case to this court.
In his sole enumeration of error in this appeal, Mattox contends the superior
court erred by granting an appeal bond under OCGA § 50-15-2. He first argues that
his complaint is not a “public lawsuit” governed by that Code section. He asserts in
the alternative that, even if OCGA § 50-15-2 applies to his complaint, a bond should
not have been required because his complaint was meritorious.
OCGA § 50-15-2 provides in relevant part:
At any time prior to the final determination of a public lawsuit in the trial court or on appeal, any political subdivision which is a party to the action may petition for an order of the court that the opposing party or parties or intervenors be dismissed unless such opposing party or parties or intervenors post a bond with surety to be approved by the court payable to the moving party for the payment of all damages and costs which may accrue by reason of such opposition or intervention in the event the moving party prevails.
1 On June 2, 2011, seven days after Mattox filed his notice of appeal from the bond order, the superior court issued an amended order correcting a scrivener’s error in the amount of the bond; it also clarified that the bond was ordered “pursuant to OCGA § 5-6-46 and § 50-15-2.” On June 6, 2011, the superior court granted the County’s motion to dismiss the appeal based upon Mattox’s failure to post a bond under OCGA § 50-15-2.
3 OCGA § 50-15-1 (2) defines a “public lawsuit” as
any action whereby the validity, reasonability, soundness, location, wisdom, feasibility, extent, or character of construction, improvement, financing, or leasing of any public improvement, project, or facility by any political subdivision, as owner or as lessee, is questioned directly or indirectly, including, but not limited to, actions for declaratory judgments or injunctions or interventions to declare invalid or to enjoin or to prevent such construction, improvement, financing, or leasing as lessor or as lessee and means any action to prevent or declare invalid or enjoin the creation, organization, or formation of any such political subdivision.
There are few reported cases in Georgia addressing the scope of the Public Lawsuits
Act. In Haney v. Development Auth. of Bremen, 271 Ga. 403 (519 SE2d 665) (1999),
the Supreme Court of Georgia determined that “[t]he purpose of the act is to protect
the public from increased financial costs caused by the filing of non-meritorious or
frivolous litigation against [a public improvement] project.” (Citation and footnote
omitted.) Id. at 404 (1). Based upon what it characterized as “the broad statutory
definitions of the terms ‘political subdivision’ and ‘public lawsuit,’” the Supreme
Court held “that the provisions of the Public Lawsuits Act apply to proceedings under
the Revenue Bond Law. See OCGA § 36-82-60 to 36-82-85.” Id. at 405 (1). Although
the Supreme Court found that the Public Lawsuits Act applied to the case before it,
4 it concluded that the trial court abused its discretion by requiring the appellants to
post a bond because the appellants had “raised meritorious claims” below. Id. at 406
(2).
1. Mattox contends that the Public Lawsuits Act does not apply to his
complaint because it does not fall within the definition of a public lawsuit under
OCGA § 50-15-1 (2). Mattox correctly asserts that the few cases addressing the scope
of the appeal bond requirements in the Public Lawsuits Act have involved bond
validation proceedings. See Haney, supra; Hay v. Newton County, 246 Ga. App. 44
(538 SE2d 181) (2000); Berry v. City of East Point, 277 Ga. App. 649 (627 SE2d
391) (2006). Because this is not a bond validation proceeding, we must determine
whether Mattox’s particular complaint falls within the statutory definition of public
lawsuit, keeping in mind the Supreme Court’s conclusion in Haney, supra, that the
scope of this definition is “broad.”
Mattox’s complaint alleges that it “challenges the validity of a . . . SPLOST
resolution, intergovernmental agreement, referendum and potential implementation
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FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
June 13, 2012
In the Court of Appeals of Georgia A12A0265. MATTOX v. FRANKLIN COUNTY et al. BO-013
BOGGS, Judge.
Jerry Mattox appeals from a superior court order requiring him to post an
appeal bond in the amount of $2.1 million following the court’s dismissal of his
declaratory judgment action challenging the validity and implementation of a special
purpose local option sales tax (“SPLOST”) resolution passed by the Franklin County
Board of Commissioners. For the reasons explained below, we affirm.
The record shows that on November 5, 2010, Mattox filed a pro se complaint
for declaratory judgment and injunctive relief against Franklin County and Samuel
Elrod, in his capacity as chair of the Franklin County Board of Commissioners
(collectively “the County”). In his complaint, Mattox sought a judgment declaring
that a November 2, 2010 SPLOST referendum is “void ab initio as an ultra vires act,” and that impermissible uses of SPLOST funds are also “void and illegal.” On
February 2, 2011, the superior court granted the County’s motion to dismiss the
complaint based upon its conclusion that “the descriptions contained in the [SPLOST]
Resolution are sufficiently specific as a matter of law” and that Mattox’s remaining
contentions were not ripe for judicial review. On February 2, 2011, Mattox filed a
notice of appeal from this order.
On April 28, 2011, the County moved for an appeal bond in the amount of
$2,627,065 under OCGA §§ 5-6-46 and 50-15-2. The amount of the bond sought by
the County represented potential increases on interest and construction costs during
the pendency of the appeal, as well as additional legal fees and expenses that would
be incurred by the County. On May 13, 2011, the trial court issued an order requiring
Mattox to post a bond in the amount of $2.1 million within 10 days “as a condition
precedent to any further pursuit” of Mattox’s appeal. The order provided that his
appeal would be deemed withdrawn if he failed to pay within the time required. On
May 26, 2011, Mattox appealed the superior court’s order requiring him to post a
2 $2.1 million bond to the Supreme Court of Georgia.1 The Supreme Court
subsequently transferred the case to this court.
In his sole enumeration of error in this appeal, Mattox contends the superior
court erred by granting an appeal bond under OCGA § 50-15-2. He first argues that
his complaint is not a “public lawsuit” governed by that Code section. He asserts in
the alternative that, even if OCGA § 50-15-2 applies to his complaint, a bond should
not have been required because his complaint was meritorious.
OCGA § 50-15-2 provides in relevant part:
At any time prior to the final determination of a public lawsuit in the trial court or on appeal, any political subdivision which is a party to the action may petition for an order of the court that the opposing party or parties or intervenors be dismissed unless such opposing party or parties or intervenors post a bond with surety to be approved by the court payable to the moving party for the payment of all damages and costs which may accrue by reason of such opposition or intervention in the event the moving party prevails.
1 On June 2, 2011, seven days after Mattox filed his notice of appeal from the bond order, the superior court issued an amended order correcting a scrivener’s error in the amount of the bond; it also clarified that the bond was ordered “pursuant to OCGA § 5-6-46 and § 50-15-2.” On June 6, 2011, the superior court granted the County’s motion to dismiss the appeal based upon Mattox’s failure to post a bond under OCGA § 50-15-2.
3 OCGA § 50-15-1 (2) defines a “public lawsuit” as
any action whereby the validity, reasonability, soundness, location, wisdom, feasibility, extent, or character of construction, improvement, financing, or leasing of any public improvement, project, or facility by any political subdivision, as owner or as lessee, is questioned directly or indirectly, including, but not limited to, actions for declaratory judgments or injunctions or interventions to declare invalid or to enjoin or to prevent such construction, improvement, financing, or leasing as lessor or as lessee and means any action to prevent or declare invalid or enjoin the creation, organization, or formation of any such political subdivision.
There are few reported cases in Georgia addressing the scope of the Public Lawsuits
Act. In Haney v. Development Auth. of Bremen, 271 Ga. 403 (519 SE2d 665) (1999),
the Supreme Court of Georgia determined that “[t]he purpose of the act is to protect
the public from increased financial costs caused by the filing of non-meritorious or
frivolous litigation against [a public improvement] project.” (Citation and footnote
omitted.) Id. at 404 (1). Based upon what it characterized as “the broad statutory
definitions of the terms ‘political subdivision’ and ‘public lawsuit,’” the Supreme
Court held “that the provisions of the Public Lawsuits Act apply to proceedings under
the Revenue Bond Law. See OCGA § 36-82-60 to 36-82-85.” Id. at 405 (1). Although
the Supreme Court found that the Public Lawsuits Act applied to the case before it,
4 it concluded that the trial court abused its discretion by requiring the appellants to
post a bond because the appellants had “raised meritorious claims” below. Id. at 406
(2).
1. Mattox contends that the Public Lawsuits Act does not apply to his
complaint because it does not fall within the definition of a public lawsuit under
OCGA § 50-15-1 (2). Mattox correctly asserts that the few cases addressing the scope
of the appeal bond requirements in the Public Lawsuits Act have involved bond
validation proceedings. See Haney, supra; Hay v. Newton County, 246 Ga. App. 44
(538 SE2d 181) (2000); Berry v. City of East Point, 277 Ga. App. 649 (627 SE2d
391) (2006). Because this is not a bond validation proceeding, we must determine
whether Mattox’s particular complaint falls within the statutory definition of public
lawsuit, keeping in mind the Supreme Court’s conclusion in Haney, supra, that the
scope of this definition is “broad.”
Mattox’s complaint alleges that it “challenges the validity of a . . . SPLOST
resolution, intergovernmental agreement, referendum and potential implementation
in Franklin County, Georgia.” It states:
Said SPLOST purports to collect a one percent sales and use tax and creation of general obligation debt to be paid with the tax. The County
5 and five cities are to share in the proceeds under an intergovernmental agreement . . . for capital outlay projects for the county . . . and the five cities. Said tax to be collected for a period of six years after implementation. The division of funds and capital outlay projects are listed in the intergovernmental agreement. . . .” (Emphasis supplied.)
We find these allegations sufficient to fall within the broad definition of “public
lawsuit.” OCGA § 50-15-1 (2). At a minimum, Mattox’s complaint challenges the
“validity” of “financing . . . of [a] public improvement [or] project” by a “political
subdivision.” 2 Id.
2. Having found that Mattox’s complaint is a “public lawsuit,” we must now
determine whether it raises “frivolous or non-meritorious” challenges justifying an
appeal bond under OCGA § 50-15-2. See Haney, supra, 271 Ga. at 406 (2); Hay,
supra, 246 Ga. App. at 46-47 (2). Mattox’s claims fall into three general categories:
that the resolution fails to set out with sufficient particularity the specific projects for
the use of the SPLOST funds; that there are discrepancies between the project
descriptions and amounts in the referendum when compared to the intergovernmental
2 OCGA § 50-15-5 (1) defines “political subdivision” to include municipalities and counties.
6 agreement; and that funds will be provided to projects that are not owned or operated
by the county or cities.
After carefully reviewing Mattox’s complaint, we conclude that none of the
grounds raised are meritorious. First, the resolution3 is sufficiently specific as a matter
of law. OCGA § 48-8-111 (a) requires only that the resolution “specify eligible
expenditures identified by the county and any qualified municipality for use of the
proceeds” as well as “[t]he purpose or purposes for which the proceeds of the tax are
to be used and may be expended.” OCGA § 48-8-111 (a) (1). “The proceeds received
from the tax authorized by this part shall be used by the county and qualified
municipalities . . . exclusively for the purpose or purposes specified in the resolution
or ordinance calling for imposition of the tax.” OCGA § 48-8-121 (a) (1). The degree
of specificity sought by Mattox simply is not mandated by the SPLOST statute. See
1990 Op. Atty. Gen. U90-18.
Second, any inconsistencies between the funding amounts in the
intergovernment agreement and the resolution do not render the resolution and
3 The resolution at issue identifies the following categories of projects: “water and sewer;” “industrial development;” “public safety;” “roads, streets and bridges;” “airport;” “courthouse/public facilities;” “recreation;” “community center/public facilities;” “parking facilities;” “library;” and “administrative buildings/government buildings/facilities.”
7 referendum void. Irregularities in the exercise of granted powers do not render the
action taken void. See City of Holly Springs v. Cherokee County, 299 Ga. App. 451,
457-458 (3) (682 SE2d 644) (2009); Faulk v. Twiggs County, 269 Ga. 809, 811 (504
SE2d 668) (1998). Additionally, any inconsistencies between the funding amounts
can be corrected through amendment of the intergovernment agreement. See Hicks
v. Khoury, 283 Ga. 407, 408-409 (1) (658 SE2d 616) (2008) (affirming denial of
mandamus in connection with amended intergovernmental agreement). And finally,
the trial court properly concluded that Mattox’s allegations that funds will be used for
projects not owned by the county or cities are hypothetical, abstract, and not yet ripe
for adjudication based upon the pleadings and attached exhibits in the record before
us. Bailey v. City of Atlanta, 296 Ga. App. 679, 682 (1) (675 SE2d 564) (2009)
(declaratory judgment cannot be provided based upon “possible or probable future
contingency”). Nothing in the resolution, intergovernmental agreement, referendum,
or the proposed SPLOST projects list shows that specific capital outlay projects will
be owned by entities other than the county or one of the cities.
Because Mattox’s complaint lacked merit, the trial court did not err by
requiring him to post an appeal bond under OCGA § 50-15-2.
Judgment affirmed. Doyle, P. J. and Andrews, J., concur.
8 9