MCALISTER v. CLIFTON
S22A0144
Supreme
May 17, 2022
313 Ga. 737
ELLINGTON, Justice
ELLINGTON, Justice.
Erin McAlister appeals from trial court orders awarding Wendi Clifton, McAlister‘s former domestic partner, visitation rights to McAlister‘s adopted daughter, Catherine, pursuant to the equitable caregiver statute,
The record shows that, on January 25, 2021, the trial court entered an order denying McAlister‘s motion to dismiss Clifton‘s petition for visitation with Catherine, rejecting McAlister‘s challenge to the constitutionality of
Thereafter, we directed the parties to file supplemental briefs regarding whether this appeal
1. Clifton contends that McAlister‘s challenge to the constitutionality of
When the resolution of a case would be tantamount to the determination of an abstract question not arising upon existing facts or rights, then that case is moot. When the remedy sought in litigation no longer benefits the party seeking it, the case is moot and must be dismissed.
(Citations and punctuation omitted.) In the Interest of M. F., 305 Ga. at 820. In a case factually similar to this case, the Court of Appeals explained why it was required to dismiss as moot an appeal from a custody order:
The child was 17 years old when the [trial] court granted custody to Harvey and turned 18 years of age shortly after the appeal was docketed. Because at 18 years the child has reached the age of legal majority and is no longer subject to the custody order, this issue is moot.
OCGA § 39-1-1 (a) (age of legal majority is 18 years);OCGA § 19-7-1 (a) (at age 18 child no longer in the custody or control of either parent). To the extent Francis-Rolle claims the custody award was error, the appeal is dismissed.
Francis-Rolle v. Harvey, 309 Ga. App. 491, 492 (1) (710 SE2d 659) (2011).5
McAlister argues that her challenge is not moot because Clifton‘s “status” as an equitable caregiver continues beyond Catherine‘s eighteenth birthday, which presents a question concerning Clifton‘s existing parental rights. McAlister has cited no law in support of this argument, and the trial court made no finding in either order that Clifton had continuing parental rights as an equitable caregiver. Rather, in its final order, the court found that Clifton had “standing” to seek “parenting time” as an equitable caregiver because she had satisfied the statutory criteria for such an award of visitation. The court did not award Clifton any rights beyond visitation, and the visitation award has since terminated by operation of law. See Francis-Rolle, 309 Ga. App. at 492 (1). Hence, the portion of the trial court‘s final order awarding visitation is a nullity. McAlister also argues that Clifton is using the fact that she was previously awarded visitation as an equitable caregiver to gain an advantage in a guardianship matter involving her daughter in the Probate Court of DeKalb County.6 However, McAlister has not shown that the trial court‘s final order granting Clifton parenting time with Catherine would have any collateral consequence in the pending guardianship matter.7 See In the Interest of I. S., 278 Ga. 859, 862 (607 SE2d 546) (2005) (a matter does not become moot if adverse collateral consequences continue to plague the affected party).
McAlister also argues that this Court has recognized certain public policy “exceptions” to the doctrine of mootness and that we should aрply those exceptions to hold that her challenge to the constitutionality of the statute is not moot. To be clear, although we have sometimes used the word, there are
McAlister also argues that this case presents an issue of such significance that the public interest demands that we address the constitutionality of the statute immediately. She relies on Hopkins v. Hamby Corp., 273 Ga. 19 (538 SE2d 37) (2000), in which we noted that
[o]ther states have adopted a rule that permits them to decide an appeal in a moot case where the case contains an issue of significant public concern or an issue that might avert future litigation. The courts find justification for deciding issues raised in moot cases when (1) the public interest will be hurt if the quеstion is not immediately decided; (2) the matter involved is likely to recur frequently; (3) it involves a duty of government or government‘s relationship with its citizens; and (4) the same difficulty that prevented the appeal from being heard in time is likely to again prevent a decision.
(Citations omitted.) Id. Assuming Hopkins is authority for a “significant public concern” rationale that could support the continuing viability of McAlister‘s constitutional challenge to the equitable caregiver statute,8 MсAlister has failed to show that the challenge presented satisfies the criteria set forth in Hopkins - especially when trial courts are able to address the constitutionality of the statute when a petition is filed pursuant to it. See id.
Finally,
[w]hen a civil case becomes moot pending appellate review due to happenstance - circumstances not attributable to the parties, like the mere passage of time - rather than by settlement of the dispute or voluntary cessation of the challenged conduct by the prevailing party below, the better practice is to vacate the judgment under review and remand with direction that the case be dismissed by the trial court.
(Citations omitted.) Babies Right Start v. Ga. Dept. of Pub. Health, 293 Ga. 553, 557 (2) (d) (748 SE2d 404) (2013) (vacating a
2. In three related claims of error, McAlister also contends that the trial court erred in denying her counterclaim for sums Clifton allegedly owed her pursuant to the settlement agreement for Catherine‘s education. For the following reasons, these claims оf error are without merit.
Specifically, McAlister contends that the trial court erred in denying her counterclaim for $74,133.96 - the amount she claims Clifton owed her for three years of Catherine‘s tuition, less scholarships. McAlister argues that the trial court‘s judgment was premised on an erroneous finding that the settlement agreement was unenforceable because it lacked consideration. She also argues that the court erred in requiring her to prove that she had, in fact, paid for Catherine‘s tuition.
Although the trial court stated in its final order that the parties’ settlement agreement contained no valid consideration, the lack of consideration was not the sole basis for the court‘s judgment. Rather, the court ruled that “[McAlister] had failed to establish the necessary elements of her counterclaim” and then proceeded to recount how McAlister had failеd to carry her burden of proving any damages resulting from the alleged breach.
“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Citations and punctuation omitted.) Norton v. Budget Rent A Car System, 307 Ga. App. 501, 502 (705 SE2d 305) (2010). Proof of damages is an essential element to a claim for breach of contract, and a failure to prоve damages is fatal to a plaintiff‘s claim. See Niloy & Rohan, LLC v. Sechler, 335 Ga. App. 507, 510 (1) (a) (782 SE2d 293) (2016). See also
The settlement agreement provides, in pertinent part:
[McAlister] shall use her best efforts to apply for all scholarships for which the child may be eligible for the cost of private special schooling and shall furnish a copy of such application to [Clifton] no later than ten (10) days of its submission. [Clifton] shall pay the cоst of private special schooling for Catherine to the extent such costs are not covered by scholarships up to a maximum amount of $32,000.00 until the child reaches the age of 18 years. She shall make timely payments in accordance with school‘s payment schedule.
The record shows that Clifton did, in fact, stop sending McAlister money for Catherine‘s tuition after McAlister denied Clifton visitation with Catherine in June 2015. At about the same time, MсAlister stopped sending Clifton any proof that she had incurred expenses for Catherine‘s tuition that were not covered by scholarships. Shortly thereafter, McAlister sued Clifton in a separate action for expenses owed pursuant to the settlement agreement, and she recovered a judgment on December 1, 2017, in the amount of $87,152.18 for “certain expenses of the child” incurred from 2015 through November 6, 2017. In the instant action, McAlister sought “additional sums” that were payable pursuant to the settlement agreement after November 6, 2017.
Clifton testified that, after the 2017 judgment became final, she asked McAlister for proof that she had paid the expenses for which she had counterclaimed in the instant action, including any invoices, scholarship awards, cancelled checks, or credit card receipts, but McAlister did not provide the requested proof of payment. At trial, McAlister
Although the principal of Catherine‘s high school testified that Catherine‘s tuition had been paid in full, she could not testify as to who рaid the tuition because she did not process the checks. Finally, when McAlister‘s attorney argued that her client‘s testimony that she paid Catherine‘s school tuition was sufficient proof of the amounts Clifton allegedly owed, the trial court informed counsel:
It depends if I find her credible. I don‘t think you‘ve complied with discovery and the audit requirement that [Clifton‘s attorney asked for], because . . . there‘s some concern about whether these providers are working in tandem with Ms. McAlister to the extent that she can‘t produce canceled checks or credit card receipts to show what she actually paid.
The record shows that McAlister had worked at Catherine‘s elementary school until three weeks before trial and had served on the board of directors of Catherine‘s high school.9 That the court questioned McAlister‘s credibility is clear from the final order. Thе court stated: “[McAlister‘s] failure to present any evidence to support her counterclaim is especially perplexing given the amount of time which has passed between the filing of her counterclaim [and the final hearing], as well as the litigiousness of the parties since 2015.”
Given that the record supports the trial court‘s finding that McAlister failed to prove any damages as a result of Clifton‘s breach of the settlement agrеement, we discern no reversible error. See Niloy & Rohan, LLC, 335 Ga. App. at 510 (1) (a).
Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur, except Boggs, P. J., and McMillian, J., disqualified, and Bethel, J., not participating.
PETERSON, Justice, concurring.
The Court‘s opinion is a faithful application of our precedent, and so I join it in full. I write separately to express some doubt whether some of the precedent we apply today was rightly decidеd.
The Court‘s opinion states in dicta that “although we have sometimes used the word, there are no true ‘exceptions’ to the mootness doctrine, which is a jurisdictional doctrine rooted in the common law and the separation of powers.” Maj. op. at 740. This is a correct statement of our holding in Collins v. Lombard Corp. that “the notion of an exception to the mootness doctrine which would permit a court to consider a case nоtwithstanding that the case is moot is inconsistent with the concept of mootness as a jurisdictional matter.” 270 Ga. 120, 122 (3) (508 SE2d 653) (1998). But the only authorities we cited for that proposition were the 1986 decision of our Court in Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241) (1986), and the 1995 decision of the Court of Appeals in In the Interest of I. B., 219 Ga. App. 268 (464 SE2d 865) (1995). I am doubtful that either case supported the proposition for which Collins cited it.
In Chastain, we held that dismissal is mandatory when a case is moot. See 270 Ga. at 433. But we stated nothing about mootness being jurisdictional or a function of the separation of powers; instead, we simply cited
Indeed, I. B. рointed out at length the extent to which our mootness doctrine began to be imported from federal constitutional decisions in the 1970s. See 219 Ga. App. at 271-274. As I explained in Black Voters Matter Fund, before we import federal constitutional principles to Georgia‘s Constitution, we should first be confident that the federal law is consistent with the original public meaning of the relevant provision of the Georgia Constitution. Given that our Court was dismissing cases as moot long before the 1970s, see, е.g., Cook v. Lowry, 148 Ga. 516, 516 (97 SE 440) (1918) (dismissing appeal as moot after appellant‘s requested remedy was afforded during pendency of appeal), we ought to consider in an appropriate case the proper scope and nature of Georgia‘s mootness doctrine.
Decided May 17, 2022.
OCGA § 19-7-3.1; constitutional question. DeKalb Superior Court. Before Judge Scott.
The Day Firm, Linda T. F. Day; Rumsey & Ramsey, Penelope W. Rumsey, for appellant.
VanLanduyt Greer, Denise D. VanLanduyt; Piraino Law, Tahira P. Piraino, for appellee.
Notes
(1) Fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child‘s life;
(2) Engaged in consistent caretaking of the child;
(3) Established a bonded and dependent relationship with the child, which relatiоnship was fostered or supported by a parent of the child, and such individual and the parent have understood, acknowledged, or accepted that or behaved as though such individual is a parent of the child;
(4) Accepted full and permanent responsibilities as a parent of the child without expectation of financial compensation; and
(5) Demonstrated that the child will suffer physical harm or long-term emotional harm and that continuing the relationship between such individual and the child is in the best interest of the child.