City of Sandy Springs Board of Appeals v. Traton Homes, LLC
341 Ga. App. 551
| Ga. Ct. App. | 2017Background
- Traton Homes filed a petition for writ of certiorari in superior court to challenge the City of Sandy Springs Board of Appeals’ affirmation of a zoning interpretation.
- The superior court sanctioned the petition and issued an order directing service; the clerk also issued summonses to the Board and its members.
- Traton served the Board with a copy of the petition and served the City’s counsel within five days of filing, but no writ of certiorari was ever issued by the clerk or served.
- The Board filed a special appearance and moved to dismiss, arguing the petition failed mandatory service requirements of OCGA § 5-4-6(b) and failed to name/serve the City as the opposite party.
- The trial court denied the Board’s motion; the Board obtained interlocutory review and appealed.
- The Court of Appeals reversed, holding Traton failed to comply with the statutory requirements (no writ issued/served and opposite party not named/served), requiring dismissal with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition satisfied OCGA § 5-4-3 and § 5-4-6(b) when no writ of certiorari was issued or served | The court’s sanction order (and clerks’ summonses) functioned as the writ; clerk had duty to issue and serve writ so petitioner not responsible | The order and summonses did not satisfy statutory writ requirements; petitioner must ensure writ is issued and served | The sanction order and summonses did not substitute for the statutory writ; failure to issue/serve writ required dismissal |
| Whether serving city counsel and later amending to add the City cured failure to name/serve the opposite party under OCGA § 5-4-6(b) | Service on City’s counsel sufficed; OCGA § 5-4-10 allows amendment to cure defects | The Board (respondent) and City (opposite party) are distinct; naming/serving opposite party is mandatory and not curable by amendment | Failure to name and timely serve the City as opposite party was fatal; amendment could not cure and dismissal with prejudice was required |
Key Cases Cited
- Deal v. Coleman, 294 Ga. 170 (Ga. 2013) (statutory text must be given plain and ordinary meaning)
- Fisher v. City of Atlanta, 212 Ga. App. 635 (Ga. Ct. App. 1994) (respondent and opposite party are distinct; failure to serve opposite party fatal)
- Smith v. City of Washington, 4 Ga. App. 514 (Ga. Ct. App. 1908) (clerk issues writ; petitioner/counsel must ensure service on officer)
- Asher v. Cope, 95 Ga. 31 (Ga. 1894) (petition sanction, clerk-issued writ, and attachment to petition are separate steps)
- Cobb County v. Herren, 230 Ga. App. 482 (Ga. Ct. App. 1998) (sanction is integral; without sanction clerk lacks authority to file or issue writ)