author: Boggs, Judge.

text:
    A14A0710.
    SLIVKA v. NELSON et al.
    (762 SE2d 162)
   Boggs, Judge.

Gene Slivka appeals from the superior court’s order granting summary judgment in favor of the McIntosh County Board of Commissioners and Wanda Nelson, the tax commissioner for McIntosh County (collectively “the County”). He contends that the trial court erred by concluding that the conservation use covenant was breached and by failing to conclude that the County’s breach of covenant determination was void based upon a lack of notice. For the reasons explained below, we affirm.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. We review a trial court’s grant of summary judgment de novo, construing the record and all reasonable inferences in favor of the nonmoving party.

(Citation and punctuation omitted.) Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521 (629 SE2d 501) (2006). So viewed, the record shows that in 2004, Slivka applied for and was granted a conservation use covenant for a tract of land. On June 6, 2007, the McIntosh County Board of Commissioners approved Slivka’s request to rezone the property from Residential Agricultural District (“AR”) to a Single Family Residential District (“R-l”).

On July 12, 2007, Slivka conveyed the property to Greenfields Investments, LLC (“Greenfields”), and the warranty deed was recorded on July 13, 2007. On the same day the warranty was recorded, the County sent a notice to Slivka and Greenfields of a “breach of covenant penalty.” On August 8, 2007, the County sent a document titled “Calculation of Breach of Conservation Use Penalty’ to Slivka and Greenfields which listed the date of the breach as July 12, 2007. On August 16, 2007, Slivka wrote the County the following in response to the notice of penalty:

Please be advised under article #6 of the conservation use agreement that transfer of property does not create a breach of the covenant as long as the entity to which it is transferred maintains its conservation use. Greenfields, LLC, the new owner, is assuming our conservation usage. They will continue to maintain the property in its present state. They are aware that should they develop the property they will breach the covenant and be subject to a breach of covenant penalty. ... I request that the “penalty notice” be withdrawn.

Greenfields, however, paid the penalty in full before Slivka’s letter was sent to the County.

On June 2, 2009, Slivka foreclosed on the security deed used by Greenfields to purchase the property. On November 8, 2010, the County approved Slivka’s application for a conservation use covenant for the land at issue. In February 2011, the County issued a “Delinquent Tax Notice” for the years 2008, 2009, and 2010 to Slivka. The notice stated that an execution would be issued if the delinquent taxes were not paid. Slivka paid the overdue amount under protest.

After Slivka received no response to his subsequent request for refund, he filed a complaint seeking a refund under OCGA § 48-5-380 (c), prejudgment interest, and attorney fees and expenses under OCGA § 13-6-11. Both parties subsequently moved for summary judgment in their favor, and the trial court granted summary judgment in the County’s favor based upon the following reasoning:

Slivka contends that no breach of covenant occurred because the land itself was never disturbed and the actual use of the property never changed. However, Slivka sold the property to a limited liability company in 2007, which is not an eligible owner of conservation use property. OCGA § 48-5-7.4 (a) (1) (C) and 48-5-7.4 (i). This court does not believe that the county is estopped from relying upon these provisions because it did not cite these provisions in its notice of breach of covenant penalty, or otherwise inform Greenfields that these provisions were applicable.
Slivka also contends that he is entitled to summary judgment for the separate and independent reason that the county in 2007 failed to provide him notice of his right to appeal, as required by OCGA § 48-5-306 (b) (2). However, Greenfields voluntarily paid the penalty in 2007, and Green-fields owned the property between July 12, 2007 and June 2, 2009. When Slivka obtained the property by foreclosure, he took it subject to all unpaid taxes.
Finally for the reasons explained by [the] County in its brief, it is entitled to summary judgment because the taxes and penalties involved were not “erroneously or illegally assessed and collected.” OCGA § 48-5-380.

Slivka contends that the trial court erred by concluding that his complaint for a refund does notfall within the ambit of OCGA § 48-5-380. The County asserts that Slivka should have asserted an appeal through OCGA § 48-5-311.

Taxpayers generally have two avenues for challenging an improper tax assessment: (1) the appeal process in OCGA § 48-5-311, and (2) the refund procedure in OCGA § 48-5-380. These distinct remedies, however, serve different purposes. An appeal under OCGA § 48-5-311 provides “the most expeditious resolution _of a taxpayer’s dissatisfaction with an assessment, preferably before taxes are paid.” In contrast, an OCGA § 48-5-380 refund action has been described as a “procedure to protect taxpayers from later-discovered defects in the assessment process which have resulted in taxes being erroneously or illegally assessed and collected.” Moreover, the refund procedure is available only to correct errors of fact or law that caused erroneous or illegal taxation. It cannot be used to address “a claim based on mere dissatisfaction with an assessment, or on an assertion that the assessors, although using correct procedures, did not take into account matters which the taxpayer believes should have been considered.”

(Citations, punctuation and footnotes omitted.) Fulton County Bd. of Tax Assessors v. Marani, 299 Ga. App. 580, 585 (4) (a) (683 SE2d 136) (2009).

The Supreme Court of Georgia has held:
[W]hile the appeal process of [OCGA] § 48-5-311 is available to address any asserted error in an ad valorem real property tax assessment, the refund process established by [OCGA] § 48-5-380 is intended only to correct errors of fact or law which have resulted in erroneous or illegal taxation.

(Emphasis supplied.) Gwinnett County v. Gwinnett I Ltd. Partnership, 265 Ga. 645, 646-647 (458 SE2d 632) (1995). The rationale for this holding is that making “the two very different procedures . . . available in every case without regard to the underlying basis of the taxpayer’s challenge would render the appeal process under [OCGA] § 48-5-311, with its short time periods, meaningless.” Id. at 646. Therefore,

the determinative factor in deciding whether an action seeking a refund of ad valorem real property taxes may be maintained is not the general nature of the ground asserted, but the underlying facts supporting the asserted ground. If the taxpayer alleges that the assessment is based on matters of fact in the record which are inaccurate, or that the assessment was reached by the use of illegal procedures, then the taxpayer has asserted a claim that the taxes were “erroneously or illegally assessed and collected,” which is what [OCGA] § 48-5-380 addresses.

Id. at 647. The Supreme Court has further explained:

An illegal tax assessment is one imposed without authority or in violation of federal or state law. An erroneous tax assessment is harder to define; it includes clerical errors, assessments of tax-exempt property, and assessments based on the wrong millage rate, but not assessments based on the county’s failure to consider every relevant fact in establishing an assessed value.

(Citation and punctuation omitted.) Nat. Health Network v. Fulton County, 270 Ga. 724, 727 (2) (514 SE2d 422) (1999). Other examples of appropriate cases for a tax refund claim under OCGA § 48-5-380 include, but are not limited to: taxes assessed in violation of federal or state law; duplicate payments; payment to wrong taxing authority; collection of taxes for property located in another county; and collection of taxes for property owned by a different person. Id. at 727-728 (2).

Decided July 16, 2014 —

Oliver Maner, Benjamin M. Perkins, Patrick T. O’Connor, for appellant.

Jones Osteen & Jones, Richard E. Braun, Jr., for appellees.

After carefully considering the nature of Slivka’s claim, we conclude that he has not brought a cognizable claim for an “erroneous or illegal” tax assessment under OCGA § 48-5-380. He does not claim that the assessment was based upon inaccurate facts in the record. Instead, he asserts that the County “did not take into account matters which [he] believes should have been considered,” Gwinnett County, supra, 265 Ga. at 647, in determining whether a breach of the conservation use covenant occurred; specifically, whether the actual use of the property changed, as well as the County’s failure to investigate Greenfields’ ownership structure. And his arguments regarding notice fail to establish an “erroneous or illegal” tax assessment. See OCGA § 48-5-380. We therefore affirm the trial court’s grant of summary judgment in favor of the County. See id. (affirming trial court’s grant of summary judgment to the County on ground that plaintiff’s claim was “not one cognizable as a refund action under OCGA § 48-5-380”); Nat. Health Network, supra (affirming trial court’s grant of summary judgment to County because plaintiff did not present a claim for erroneous or illegal assessment under OCGA § 48-5-380).

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

       Under OCGA § 48-5-7.4, qualified property owners can enter into a covenant with the taxing authority to maintain the property for conservation use for a period of ten years. OCGA § 48-5-7.4 (d). This Code section “does not confer complete immunity from ad valorem taxes hut instead only allows the taxpayer the benefit of a preferential assessment.” Morrison v. Claborn, 294 Ga. App. 508, 512 (2) (669 SE2d 492) (2008). It “creates an exception to the general rule in Georgia that tangible property value is assessed at 40 percent of fair market value.” Id. at 513 (2). Instead, the property is assessed at 40 percent of its current use value. OCGA § 48-5-7 (c.2).

       In a later-filed discovery response, the County asserted that it “did not take any position that a breach had occurred due to a mere transfer of ownership. The county took the position that a breach occurred because Greenfields took affirmative steps to develop the property into residential subdivisions.”

       A lien for delinquent ad valorem taxes arises at the time the taxes become due and are unpaid, OCGA § 48-2-56 (a), and subsequent owners are not protected from a writ of fieri facias (or tax execution) on the property for the delinquent ad valorem taxes of a previous owner. See OCGA §§ 48-3-3; 48-5-127 (6); Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 42 (1) (586 SE2d 235) (2003).

       As the issue is not before us, we express no opinion as to whether Slivka has a right to appeal under OCGA § 48-5-311. See Oconee County Bd. of Tax Assessors v. Thomas, 282 Ga. 422, 423 (1) (651 SE2d 45) (2007).

       Slivka makes no allegation that Greenfields relied upon any defect in the County’s notice of penalty to its detriment. See Oxford v. City of Waycross, 241 Ga. 159, 160-161 (2) (243 SE2d 881) (1978) (“failure of the board to comply strictly with the requirements for the contents of the notice does not invalidate the notice, unless the defect in the notice in fact misled the taxpayer to his detriment”). And the revenue regulation cited by Slivka did not apply to the particular notice at issue in this case. See Ga. Comp. R. & Regs. r. 560-11-6-.04 (applies to failure to apply for a continuation of use assessment in the year following the transfer of ownership). Finally, the cases Slivka relies upon do not establish an erroneous or illegal assessment based upon the facts of this particular case. Our decision in Morgan County Bd. of Tax Assessors v. Ward, 318 Ga. App. 186, 191 (733 SE2d 470) (2012), addressed a notice requirement enacted in 2008, and the notice at issue in this case was provided in 2007. Compare OCGA§ 48-5-7.4 (k.l) and OCGA § 48-5-7.4 (2007). And in Oconee County, supra, the Supreme Court of Georgia held merely that a board of tax assessors cannot refuse to consider a taxpayer’s untimely appeal when it failed to provide information about appeal procedures in its notice. 282 Ga. at 424-425 (2).


source: Caselaw Access Project

license: Public Domain

text:
    A12A0705.
    GREENWAY v. NORTHSIDE HOSPITAL, INC. et al.
    (763 SE2d 488)
   Boggs, Judge.

In Roper v. Greenway, 294 Ga. 112 (751 SE2d 351) (2013), the Supreme Court reversed Division 1 (a) of our opinion in Greenway v. Northside Hosp., 317 Ga. App. 371, 377-379 (730 SE2d 742) (2012). We therefore vacate Division 1 (a) of our earlier opinion and adopt the opinion of the Supreme Court as our own. Our analysis does not end here, however, as the Supreme Court remanded with direction for this court to consider “whether [Deputy] Roper engaged in an act ‘performed with malice or an intent to injure.’ ” 294 Ga. at 116.

The Georgia Constitution provides that government officials “may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (d). See also Phillips v. Hanse, 281 Ga. 133, 134-136 (2) (637 SE2d 11) (2006). The Supreme Court has held that “the term ‘actual malice’ denote [s] ‘express malice or malice in fact.’ ” (Citation, punctuation and footnote omitted.) Id. at 135 (2). “[A]ctual malice [is] something more than implied malice, which . . . [has] been defined to mean conduct exhibiting a reckless disregard for human life.” (Citation, punctuation and footnote omitted.) Id. And the Supreme Court recently reiterated that actual malice requires a deliberate intent to do wrong. Id. at 135-136 (2). “ ‘A deliberate intention to do wrong’ such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiffs.” Murphy v. Bajjani, 282 Ga. 197, 203 (4) (647 SE2d 54) (2007). See also Barnard v. Turner County, 306 Ga. App. 235, 238 (1), n. 3 (701 SE2d 859) (2010). Finally, “evidence demonstrating frustration, irritation, and possibly even anger is not sufficient to penetrate official immunity.” (Citation, punctuation and footnote omitted.) Tittle v. Corso, 256 Ga. App. 850, 862 (1) (569 SE2d 873) (2002).

Here, we must determine whether a genuine issue of material fact exists with regard to actual malice. The record contains testimony that Deputy Roper falsely stated to Greenway that he worked for the Humane Society, that he failed to correct statements by medical personnel in his presence that the dogs would go to the Humane Society and could be reclaimed by Greenway within seven to ten days, that he refused to read the release form to Greenway after learning Greenway could not read it without his glasses, and that he used his position to coerce Greenway to “sign the damn form” at a time when Greenway was “out of it” and “under medication.”

Decided May 27, 2014 —

Reconsideration denied July 22, 2014.

McFarland & McFarland, Robert P. McFarland, Sr., for appellant.

Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus, Matthew P. Lazarus, Rodney W. Hood, Trisha L. Lewis, Temple, Strickland, Dinges & Schwartz, William D. Temple, Jarrard & Davis, Kenneth E. Jarrard, for appellees.

Viewing this evidence in the light most favorable to Greenway, as we must, we conclude that a genuine issue of fact exists on the issue of malice and intent to injure. In his complaint, Greenway alleged that the actions of Deputy Roper “deprived the Plaintiff of his dogs” and the caption of the complaint states, in part, that it is a complaint for “deprivation of personalty” and “interference with chattel.” The harm suffered by Greenway in this case was his surrender of all legal rights to his dogs, including the ability to prevent their euthanization. A jury could infer from the evidence presented that Deputy Roper intended this harm when he coerced or defrauded Greenway into signing the release of his legal rights.

We therefore reverse the trial court’s grant of summary judgment in favor of Deputy Roper.

Judgment reversed.

Andrews, P. J., and Doyle, P. J., concur.

       The Supreme Court did not address the remaining divisions of our opinion, and our rulings in those divisions are not inconsistent with the Supreme Court’s decision.

       The Supreme Court also recognized that “the phrase ‘deliberate intent to do wrong’ is somewhat vague.” 281 Ga. at 136 (2).


author: DOYLE, Presiding Judge.

text:
    A14A0346.
    CENTRAL MORTGAGE COMPANY v. HUMPHREY et al.
    (759 SE2d 896)
   DOYLE, Presiding Judge.

This case arises from an action filed by Central Mortgage Company (“Central”) against, inter alia, Susan Humphrey a/k/a Susan D. Humphrey and David Elder, asking the trial court for reformation of a deed, a declaratory judgment, or equitable reformation, relating to the conveyance of 1961 Luke Edwards Road, Dacula, Georgia (“the property’), from Humphrey to Elder. Of the $1.4 million purchase price, Central loaned $980,000 to Elder in exchange for a deed to secure debt. The trial court entered judgment in favor of Humphrey, finding that there was no meeting of the minds between Humphrey and Elder as to the portion of land being conveyed, and as a result, the court declined to reform the property description. The trial court also refused to rescind the contract or direct Humphrey to repay the purchase price to Central or Elder or to grant them an equitable lien against the property.

Central appeals, arguing that the trial court erred by failing to (1) reform the property description in the deed; (2) order complete rescission of the sales contract after finding that no agreement existed; (3) award Central and Elder equitable liens equal to the consideration received by Humphrey from those parties as part of the 2003 sales transaction; or (4) pursuant to OCGA § 9-4-2, declare a new legal description of the property conveyed to Central and Elder. For the reasons that follow, we affirm.

On an appeal from an entry of judgment following a bench trial, we apply a de novo standard of review to any questions of law decided by the trial court, but will defer to any factual findings made by that court if there is any evidence to sustain them. [Nevertheless], if the trial court makes a finding of fact which is unsupported by the record, that finding cannot be upheld and any judgment based upon such a finding must be reversed.

The record shows that beginning in 1992, Humphrey obtained title to various parcels of adjoining property. One parcel, which was quitclaimed to Humphrey in 1992, included 9.118 acres described as Lot 8, Block B. Another parcel was deeded to Humphrey in 1996 by Star Custom Homes (the building company of her husband Ray) and included 3.644 acres described as Lot 7, Block B, which bounded Lot 8 to the north. In addition to those lots, Ray obtained title to Lot 6, which bounded Lot 7 to the north, and Ray later conveyed title to a home and one acre from the front of that lot to another individual, but Ray kept an easement along the north side of the subdivided lot for access to Luke Edwards Road, which ran north and south along the east side of all three parcels. In May 1998, Humphrey conveyed the road frontage of Lot 7, consisting of two acres and a home, to her son, Thomas. The legal description of that two-acre parcel would later become the subject of another lawsuit after Thomas failed to pay the note on the property, and the lien holder was forced to file suit to reform the legal description.3

In 2003, Elder, Humphrey, and Ray entered into negotiations for Elder, who is married to Humphrey’s sister, to purchase Humphrey’s property, which at that time consisted of Lot 8 and the westerly portion of Lot 7 that had not been conveyed to Thomas. At the time of the conveyance, the Humphreys had constructed improvements on the property, including a large main residence, a pool with an adjoining pool house and surrounding decks, a two-story garage or barn with upstairs living space, an uncompleted greenhouse, a gazebo overlooking a pond, a driveway with a roundabout in front of the residence containing a large fountain, a substantial wrought iron fence with brick columns along the road and driveway, and a sidewalk connecting the residence to the gazebo and other features. The parties agree that the transaction arose because Ray planned to develop a large condominium complex, and Elder, who worked installing various internal mechanical systems, planned to move to the Humphreys’ former home and assist with the development; additionally, proceeds from the property sale would be used in the development opportunity and for the Humphreys’ retirement.

In preparation for the sale, an appraisal was prepared, which assigned value to the property based on all the existing structures on the property and “10 acres +/— per seller.” One copy of the purported sales contract, which was signed by Elder and the Humphreys, stated that Elder was purchasing the existing home and +/- 10 acres for $1.4 million. Another copy of the sales contract submitted to the court by Humphrey, however, stated that Elder was purchasing the existing home and +/- 17 acres for $1.4 million. Neither of these contracts incorporated the referenced legal description of the specific property being conveyed. The parties agreed that no one surveyed the property at the time of the sale. Elder secured a loan for $980,000 from Central’s predecessor in interest, and he provided the balance of the $1.4 million purchase price; it is undisputed that Humphrey took $847,133.43 at the closing. The Humphreys did not attempt to divide the property or obtain an additional street address from the county subsequent to the closing.

Approximately a month after the closing, however, the business opportunity driving the transaction evaporated, and Elder did not move to the property. Instead of returning the purchase money, the parties agreed that the Humphreys would remain on the property and pay a monthly rent sufficient to cover Elder’s payments on the $980,000 mortgage. This arrangement continued for approximately four years and eight months until the Humphreys stopped paying rent, and as a result, Elder defaulted on the promissory note.

Thereafter, Central attempted to foreclose on the property, but was prevented from doing so when the Humphreys challenged the legal description in the security deed. Among other things, the legal description in the deed to secure debt from Elder to Central and the warranty deed from Humphrey to Elder failed to describe a closed boundary and included some property from lots to which Humphrey had never held title. The description stated that the property included “[a]ll that tract or parcel of land laying [sic]... in Land Lot 781... and being the easterly portion of lot 8, block b and a portion of lot 7.” After discovering the defective legal description, the attorney who prepared the description issued a scrivener’s affidavit purporting to correct the mistakes. The amended description, however, still failed to describe a closed loop of property. In the corrected description, the property was described as “[a] 11 the tract or parcel of land laying [sic] and being Land Lot 281... and being a portion of Lot 7 and all of Lot 8, Block B.”

Thereafter, Central filed the instant “Complaint for Reformation, Declaratory Judgment and Equitable Relief” against Humphrey and Elder. In individual counts, Central asked that (1) the trial court reform the legal description of the property; (2) the trial court enter a declaratory judgment replacing the property description as stated in the warranty deed issued by Humphrey to Elder and the security deed given by Elder to Central with the legal description provided by Central’s surveyor; or (3) the trial court use its other equitable powers to replace the prior description with Central’s description or “grant such other and further relief as this Court deems just, equitable [,] and proper.”

At the bench trial, Central presented the testimony of Daniel F. Conroy, a land surveyor, who testified that he performed a survey of the land to determine the correct legal description of the property included in both lots, the total area of which was 10.97 acres. Conroy testified that the Humphreys had violated zoning requirements by building the main residence and portions of the pool house and decking for Lot 8 onto the required setbacks on Lot 8 and encroached onto Lot 7. Although Ray testified he had made an agreement with the original owner of Lot 7 to do so by providing them with a “jog” of land in another area of the lots, this agreement and variance were not recorded with the county. Conroy testified that although there were different landscaping areas between the improvements, the various improvements were not obviously separate and appeared to be intended to remain together. Conroy prepared multiple legal descriptions regarding the lots that the court could use to declare a new legal description of the property that would resolve many of the zoning issues with the encroachments by the Lot 8 buildings onto the setbacks and Lot 7.

Additionally, the Humphreys and Elder testified about the transaction. Elder had assumed at the time of the transaction that he was buying the main house, all the improvements, and approximately ten acres of land, and he did not realize that the improvements were built on multiple lots. The Humphreys, however, believed that they were only selling the main residence and five acres and were retaining all of Lot 7 and the westerly portion of Lot 8, including the garage/barn, greenhouse, gazebo, and pool house. Humphrey explained that her understanding was that she and Ray would move into the pool house when Elder and his family moved in, and she and Ray eventually would build another house on the remainder of Lots 7 and 8. All the parties conceded that they never discussed the specifics of what was being sold but that the conversations occurred over several months.

The trial court issued an order denying the petition. In its order, the trial court found credible the Humphreys’ and Elder’s testimony that the parties never discussed the exact amount or location of the property they intended the transaction to include, even though the court did not find credible the Humphreys’ belief that they would retain the pool house. The court found that there was no meeting of the minds as to the exact property to be conveyed. The trial court found that although some extrinsic evidence supported Elder’s contention that he was supposed to receive all the improvements and approximately ten acres, the statement in the first legal description that the conveyance included only the easterly portion of Lot 8 and a portion of Lot 7 supported the Humphreys’ contention that they were conveying only about five acres. The court concluded that it was unable to reform the legal description because there was never an agreement about the specific land based on the testimony and extrinsic evidence.

1. Central argues that the trial court erred by denying its request to reform the property description in the deed based on the mutual mistake of Humphrey and Elder at the time of the conveyance. We disagree.

Perfection in legal descriptions of tracts of land is not required. If the premises are so referred to as to indicate the grantor’s intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of land therein referred to, so that its identification is practicable.
In all cases where the form of the conveyance or instrument is, by mutual mistake, contrary to the intention of the parties in their contract, equity will interfere to make it conform thereto. In such cases the negligence of the party complaining will not defeat his right to reformation, if the other party has not been prejudiced thereby.

In this case, the trial court determined that the Humphreys and Elder failed to reach a meeting of the minds with regard to the actual land and improvements being conveyed by Humphrey to Elder through the sale.* The trial court specifically determined that Humphrey, Ray, and Elder were credible, and it determined that the extrinsic evidence in the form of the appraisal, sales contracts, and faulty legal descriptions supported each of the parties’ contentions (or in some instances, neither parties’ contentions). That another trier of fact would have come to a different conclusion in the first instance based on the testimony and perception of credibility of the witnesses does not require reversal of the trial court.

Although Central contends the trial court’s determination is erroneous because the deeds and legal description contained a sufficient key to determine the property being conveyed, we disagree. If the parties had intended to make a full conveyance of Lot 8 or a full conveyance of Humphrey’s adjoining property, the failure of the legal description would not have been problematic because the mere reference to the mailing address and lot would have been sufficient to determine the land and reform the deed thereto. But the legal description states only the easterly portion of Lot 8 was to be conveyed as well as a portion of Lot 7, and there was no error in the trial court’s determination that Central failed to establish a sufficient number of keys in the description and parol evidence “to fix with certainty the indefinite courses and distances” of an intended conveyance.

For the same reasons, there is no merit to Central’s argument that the trial court should have reformed the deeds based on the five-acre conveyance about which the parties are in agreement. Although both the Humphreys testified that they believed the transaction related to five acres and the main home and pool, Ray and Humphrey both described different portions of the tract that they believed were being conveyed. As for Elder, although he stated he thought he was purchasing at least five acres, he understood the conveyance to include all of the improvements, which are over a much larger area than five acres. Accordingly, evidence supported the trial court’s denial of the petition to reform the deed.

2. Alternatively, Central argues that the trial court erred by failing to rescind the sales contract after determining that there was no meeting of the minds between Elder and Humphrey. We disagree.

“Equity seeks always to do complete justice; and hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject-matter of the suit, provided the court has jurisdiction for that purpose.” Nevertheless, Central specifically argued to the trial court that

Humphrey and Elder have made no showing that they are capable of complying with a rescission and the consequences of a complete undoing of the transaction with the funds being returned, [Central] does not agree that [Humphrey’s and Elder’s] recommended rescission presents a viable relief to any of the [parties]. Furthermore, neither [defendant] sought relief via a rescission in their responses to [Central’s] [c]omplaint. Moreover, if a rescission was sought by the [defendants], the prior lien holder would be a necessary party to this civil action in order to account for the reinstatement of the prior lien and return of the payoff received from the 2003 transaction.

Because Central argued against rescission before the trial court, it cannot now complain of the trial court’s denial of the relief. Accordingly, this enumeration is without merit.

3. Central also argues that the trial court erred by failing to award Central and Elder an equitable lien on the property in an amount equal to the consideration Humphrey accepted as part of the sale.

Citing Chapple v. Hight, Central contends that the trial court erred by failing to grant it a special lien against Humphrey’s property because the circumstances and equity require it. Nevertheless, Chappie was a case in which the plaintiff sought to enjoin the defendant from cutting timber prior to the conclusion of the plaintiff’s suit on the contract against the defendant. Here, Central had a remedy against Elder for his breach of the promissory note. Additionally, Central could have asked for a rescission of the contract before the trial court. Central has failed to show that the trial court erred by declining to grant such a lien.

4. Finally, Central argues that the trial court erred by declining to set the boundary lines of the property conveyed by Humphrey to Elder and Central via its declaratory judgment powers. Nevertheless, we discern no error in the trial court’s decision. Elder and Central have contractual remedies available, and Central failed to establish error on the part of the trial court for declining to reform the deed. That Central may have elected this route because it calculated that recovery of a money judgment would be unsuccessful does not mean that the trial court’s decision requires reversal.

Decided July 9, 2014 —

Reconsideration denied July 22, 2014 —

Beloin, Brown & Blum, James P. Blum, Jr., Valerie A. Smith, McCalla Raymer, Kent E. Altom, Kimberly A. Wright, Jimmy T. Howell, Jr., for appellant.

James B. McGinnis, Steven R. Webster, for appellees.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       Although Central initially named Wachovia Bank, N.A., Dollar Concrete Construction Company, and UMLIC VP, LLC, as parties to the lawsuit, those entities were later released from the action.

       (Citation and punctuation omitted.) Champion Windows of Chattanooga, LLC v. Edwards, 326 Ga. App. 232, 233 (756 SE2d 314) (2014).

       Testimony in the record showed that this conveyance resulted in a violation of the zoning ordinances as to Lot 7 because the back portion of the lot remaining in Humphreys name had no frontage on the road and no other access to the road.

       The legal description of that piece of property was also faulty, and as a result of a suit to reform the deed, the trial court entered an order granting an equitable reformation of the deed.

       Elsewhere, this document listed the property as an 18-acre tract of land with a custom built home.

       Although Ray signed it, he did not have any ownership interest in the land.

       At least some portion of the $552,866 paid off existing liens on the property.

        See Humphrey v. Central Mtg. Co., No. 08-A-08921-9 (Gwinnett Sup. Ct., decided Dec. 23, 2009).

       (Punctuation omitted.) Ceasar v. Wells Fargo Bank, N.A., 322 Ga. App. 529, 531 (1) (744 SE2d 369) (2013), quoting Lawyers Title Ins. Corp. v. Nash, 196 Ga. App. 543, 544 (1) (396 SE2d 284) (1990).

       (Punctuation omitted.) Aames Funding Corp. v. Henderson, 275 Ga. App. 323, 324 (620 SE2d 503) (2005).

       See Vance v. Jackson, 233 Ga. App. 480, 481-482 (1) (504 SE2d 529) (1998) (upholding trial court’s decision not to reform the deed in which faulty legal description was the result of a survey error).

        Wisener v. Gulledge, 251 Ga. 419, 422 (306 SE2d 642) (1983).

       (Citation and punctuation omitted.) Martin v. Oakhurst Dev. Corp., 197 Ga. 288, 294 (3) (29 SE2d 179) (1944).

        See Martin v. Hamilton State Bank, 323 Ga. App. 185, 189-190 (1), n. 18 (746 SE2d 750) (2013) (“[A] litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.”) (punctuation omitted).

       To the extent that Elder contends that this Court should rescind the contract and grant him a lien against the property in the amount of $ 1.4 million from which he may then reimburse Central, we considered this argument only to the extent it was material to Central’s enumeration of error because Elder failed to file a proper cross-appeal alleging error on the part of the trial court. See OCGA § 5-6-38; Truelove v. Buckley, 318 Ga. App. 207, 212-213 (2) (733 SE2d 499) (2012).

       161 Ga. 629, 632 (1) (131 SE 505) (1926) (“[A]s a general rule[,] courts can not create liens; and yet a special lien on specific property may be decreed whenever under the rules of equity the circumstances require this remedy.”).


author: ELLINGTON, Presiding Judge.

text:
    A14A1497.
    MILLEDGEVILLE MANOR PARTNERS, LLC v. LEWIS.
    (763 SE2d 723)
   ELLINGTON, Presiding Judge.

We granted the application for interlocutory review filed by Milledgeville Manor Partners, LLC (“MMP”) to consider whether the Superior Court of Baldwin County erred in denying MMP’s motion for summary judgment in this premises liability suit brought by Patricia Lewis. Because the undisputed evidence establishes as a matter of law that Lewis’s knowledge of the hazard on MMP’s property was equal or superior to that of MMP, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

(Citations, punctuation and footnotes omitted.) Jones v. Barrow, 304 Ga. App. 337 (696 SE2d 363) (2010).

So viewed, the record reveals the following relevant facts. Lewis was a tenant of MMP and used a clothesline behind her apartment. While using the clothesline one day, she noticed a small hole in the ground. In the weeks thereafter, the hole appeared to get larger. Eventually, Lewis informed a fellow tenant, whom MMP paid to keep the grounds free of trash (hereinafter, the “groundskeeper”), about the hole and pointed out its location. Lewis also told another unidentified MMP employee about the hole. However, Lewis did not check the hole thereafter to determine whether the groundskeeper, the unidentified employee, or MMP had taken any action to repair the hole.

On May 24,2011, roughly two and one-half weeks after notifying the groundskeeper about the hole, Lewis walked out the back door of her apartment to visit a local store. She crossed the area near the clothesline, stepped into the hole, and fell, fracturing her ankle. Lewis claimed that, at the time, the hole was approximately six inches deep and large enough to fit a man’s size 11 shoe. According to Lewis, she did not see the hole that day because grass had grown over the hole, hiding it.

1. MMP contends that the trial court erred in denying its motion for summary judgment because Lewis knew that the hole was present and such knowledge was equal to or greater than its own. We agree.

[T]he true ground of liability [in a premises liability suit] is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.

(Citations and punctuation omitted.) Landings Assn. v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012). Accordingly, if the undisputed evidence shows that Lewis had equal knowledge of the hazard as MMP, she cannot recover on her premises liability claim, and summary judgment is proper.

The admissions made by Lewis confirm that she had actual knowledge of the hazard. She noticed the hole well in advance of her injury, watched the hole widen over time, and personally reported it to the groundskeeper and another MMP employee.

In Landings Assn. v. Williams, Williams died after being attacked by an alligator while she was walking near a lagoon after dark in a planned residential development. 291 Ga. at 397-398. Her estate sued the owner of the development for negligence in failing to remove the alligators, but the Supreme Court ruled that Williams’s knowledge of the presence of alligators barred her recovery. Id. at 399-400. The undisputed evidence showed that Williams had been told that there were alligators in the lagoon, that she had previously seen an alligator along the roadway, and that she had expressed a desire to avoid alligators. Id. at 398. Under these circumstances, the Supreme Court ruled that Williams’s decision to take an evening walk beside the lagoon “indisputably shows that Williams either knowingly assumed the risks of walking in areas inhabited by wild alligators or failed to exercise ordinary care by doing so.” Id. at 399. The fact that Williams did not have specific knowledge that the alligators in the lagoon were large and aggressive did not matter; her actual knowledge of the presence of wild alligators in the area where she walked after dark was sufficient to preclude her recovery. Id. at 400. Likewise, Lewis’s actual knowledge of the existence of the hole in the grassy area precludes her recovery in this case. See id. at 399 (noting summary judgment on the issue of negligence is authorized when the evidence is “plain, palpable and undisputable”); see also Hester v. Kroger Co., 202 Ga. App. 836 (415 SE2d 540) (1992) (“[I]f [an] invitee knows of the condition or hazard[,] there is no . . . liability for resulting injury because the invitee has as much knowledge as the proprietor does[.]”) (citation and punctuation omitted); see generally Dunn v. Gourmet of Macon, 207 Ga. App. 826 (429 SE2d 282) (1993).

Even so, Lewis contends that the overgrown grass hiding the hole created a jury question as to whether she exercised reasonable care despite her actual knowledge of the hazard.

“[A]n invitee must exercise ordinary care to avoid the consequences of any... negligence on the part of an owner/occupier, and the failure to do so bars an invitee’s recovery against the owner/occupier. OCGA § 51-ll-7[.]” (Citation omitted.) Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 812 (440 SE2d 545) (1994). In Gaydos, the plaintiff exited her apartment and walked across the lawn to get to her car. Id. at 811-812. As she approached the lot, she tripped and fell when she stepped down into a crack in the curb. Id. at 812. The plaintiff’s expert examined the parking lot and testified that the hazard would not have been visible upon ordinary inspection by a person walking in an ordinary manner. Id. In affirming the grant of summary judgment to the defendant landlord, this Court held:

Even if the ... defect in this case was not completely visible upon ordinary inspection . . . , [Gaydos] was aware of that lack of visibility and should have exercised greater caution for her own safety. Gaydos’ failure to react to the diminished visibility of the parking lot beyond the curb, and conduct herself accordingly, itself constituted a failure to exercise ordinary care for her own safety [as a matter of law].

Decided July 22, 2014.

Goodman McDuffey Lindsey & Johnson, James F. Cook, Jr., Zachary J. Nelson, for appellant.

James E. Lee II, Michael W. Barber, for appellee.

(Emphasis in original.) Id. at 813.

Accordingly, even though the hole in the instant case was hidden by overgrown grass, the lack of visibility does not alter the undisputed fact that Lewis was aware of its existence, thereby triggering a heightened burden for her to exercise greater caution. Yet the plain, palpable and uncontradicted evidence shows that, notwithstanding the fact that grass concealed the hole, Lewis still chose to walk across the area where she knew the hole was located. Thus, Lewis cannot prevail on her claim as a matter of law, and MMP was entitled to summary judgment. See id.; see also Landings Assn. v. Williams, 291 Ga. at 399.

2. Given our holding in Division 1, MMP’s remaining claims of error are moot.

Judgment reversed.

Phipps, C. J., and McMillian, J., concur.

        See Pinder v. H & H Food Svcs., 326 Ga. App. 493, 501 (3) (756 SE2d 721) (2014) (physical precedent only) (finding a jury question existed as to whether the plaintiff exercised reasonable care because the plaintiff had not previously negotiated the hazard, there was no evidence that she had actual knowledge of its existence, and there was some evidence that the hazard was not apparent from the direction the plaintiff was walking).

       Cf. Shackelford v. DeKalb Farmer’s Mkt., 180 Ga. App. 348, 350-352 (2) (349 SE2d 241) (1986) (reversing the grant of summary judgment to the premises owner when there was evidence that, despite the fact that the plaintiff had previously visited the store and may have been aware of the hazardous condition, jury issues existed as to whether an optical illusion concealed the hazard and whether the plaintiff was distracted by the need to avoid passing vehicular traffic).


author: Branch, Judge.

text:
    A14A0138, A14A0139.
    DRUID HILLS CIVIC ASSOCIATION, INC. et al. v. BUCKLER et al.; and vice versa.
    (760 SE2d 194)
   Branch, Judge.

These companion appeals arise from a superior court’s grant of the developers Robert Buckler and Anthony McCullar’s motion to dismiss the petition for certiorari of the Druid Hills Civic Association and two of its members (collectively, “the Association”) as to the DeKalb County Planning Commission’s approval of the developers’ plans for Clifton Ridge, a subdivision in the Druid Hills area of Atlanta. Case No. A14A0138 is the Association and certain of its members’ interlocutory appeal from the trial court’s grant of the developers’ motion to dismiss the petition for lack of standing. Case No. A14A0139 is the developers’ cross-appeal from the superior court’s ruling in the same order that the Association’s 2012 petition was a valid renewal of its original 2011 petition. We conclude that the Association’s 2012 petition is a valid renewal action, but that because the developers failed to raise the matter of the Association’s standing before the Planning Commission, they were not entitled to raise that issue for the first time in the superior court. We therefore affirm in Case No. A14A0139 and reverse and remand for further proceedings in Case No. A14A0138.

This is the fourth time this litigation has required this Court’s attention. In 2004, the developers bought the three contiguous lots at issue on Clifton Road, Atlanta. The first major stage in this ligitation, including its first three appeals, involved proceedings before DeKalb County’s Historic Preservation Commission (HPC). The second and current stage in the dispute began in December 2010, when the director of the DeKalb County Planning Department told one of the developers that the HPC did not have jurisdiction over the subdivision of the property because the subdivision of vacant land in a historic district did not require a certificate of appropriateness. In February 2011, the developers applied directly to the Planning Department for approval of their plans for the subdivision, which would transform three preexisting residential lots into seven new ones. On March 2, 2011, the Planning Department informed the developers that although the Department’s own staff had approved their application, the DeKalb County Law Department had advised the Planning Department that the developers “most likely” needed a certificate of appropriateness from the HPC.

On March 9, 2011, the DeKalb County Planning Commission held its first hearing on the developers’ application. After the conclusion of that hearing, the developers were asked to explain why a certificate of appropriateness was not required. The developers argued in writing that under the Georgia Historic Preservation Act, OCGA § 44-10-20 et seq., a subdivision of unimproved residential lots did not amount to a “material change in the appearance” of a historic property, structure, or site requiring a certificate of appropriateness. OCGA § 44-10-27 (a).

The public agenda for the second hearing, held on April 13, 2011, included the Planning Commission’s staff recommendation that although the proposed plat complied with zoning requirements, the sketch plat should be rejected as incompatible with “historic patterns within the district” under DeKalb County Ordinance § 14-183 (b) and as missing a certificate of appropriateness required under DeKalb County Ordinance § 14-96 (a) (8). At the hearing, the Association’s counsel and one Druid Hills property owner, Elise Riley, spoke against the proposed subdivision. At the conclusion of the April 13 hearing, and against its own staff’s recommendation, the Commission voted 4-3 to approve the sketch plat.

On May 11, 2011, the Association petitioned DeKalb County Superior Court for a writ of certiorari from the Planning Commission’s decision. After the developers moved to dismiss the petition for its lack of evidence that the Association or its members had standing to object to the developers’ plans before the Planning Commission, the Association voluntarily dismissed its first petition without prejudice on November 15, 2011, and filed a second petition six months later, on May 15,2012. After the Planning Commission answered, the Association filed an exception and traverse noting that the record certified by the Planning Commission had improperly omitted materials including a letter and appendices filed by the Association at the March 9, 2011 hearing.

On June 28, 2012, the developers again moved to dismiss the Association’s petition on the ground that the Association and its members had lacked standing to oppose the developers’ plans. After a March 2013 hearing on a variety of pending motions, including the status of the Association’s 2012 petition and thus its exception and traverse, the trial court authorized the Association’s 2012 petition but granted the motion to dismiss on the ground that neither the Association nor any of the members who appeared before the Planning Commission had standing in the matter. These appeals followed.

1. As a preliminary matter, we asked the parties to consider whether the trial court’s certificate of immediate review was adequate to confer jurisdiction on this Court because it was signed not by the judge who granted the motion to dismiss, but by a second judge from the same court “for” the first judge.

The record shows that the trial court granted the developers’ motion to dismiss on May 9,2013. OnMonday, May 20, a second judge signed the certificate of immediate review “for” the judge who granted the motion to dismiss. The certificate was filed on the same day.

OCGA § 5-6-34 (b) provides that when a trial judge rendering a decision not otherwise subject to direct appeal “certifies within ten days of entry thereof” that the decision “is of such importance to the case that immediate review should be had,” the appellate courts may permit an appeal to be taken “if application is made thereto within ten days after such certificate is granted.” Although the statute sets out the normal course in which “the same trial judge who entered the order in question must issue the certificate,” this Court has also recognized “[a] limited exception... when the evidence shows that the trial judge was unavailable to execute the certificate.” Mauer v. Parker Fibernet, LLC, 306 Ga. App. 160, 162 (701 SE2d 599) (2010).

Citing cases including Mauer, the developers assert that because the certificate was signed by a judge different from that hearing the case, the Association’s appeal should be dismissed. In Mauer, however, the appellant did not obtain a certificate from a judge of the same court as the original judge, and presented no evidence that the original judge was not available. Id. at 162. Here, by contrast, and as in Bagwell v. Parker, 182 Ga. App. 313 (355 SE2d 463) (1987), the certificate was signed “for,” meaning “on behalf of,” the first judge by a second judge “of the same court.” Id. at 314 (1). This was some evidence, appearing on the face of the certificate, that the first judge was temporarily unavailable at the time the certificate was presented to the trial court, and the developers have provided no evidence to refute the reasonable inference that the execution of the certificate was proper. The developers’ citation to Thorpe v. Russell, 274 Ga. 781 (559 SE2d 432) (2002), is also unavailing. There, our Supreme Court held only that a party could not require a second judge to execute a certificate of immediate review by means of a mandamus action because that judge “did not have a statutory duty to consider” any motion, including one to certify a particular case for immediate review. 274 Ga. at 782. Here, by contrast, a second judge chose to sign the certificate, which is precisely what the second judge in Thorpe declined to do. Id. Because the certificate itself provides some evidence that the first judge was unavailable to sign the certificate, and because the certificate was signed and timely filed by another judge on the same court, this interlocutory appeal is proper under OCGA § 5-6-34 (b).

Case No. A14A0139

2. We next consider the developers’ argument on cross-appeal that the trial court erred in authorizing the Association’s second petition, filed on May 15, 2012, as a renewal of their original May 2011 petition. Specifically, the developers argue that because the Association and its members lacked standing, the Association’s first petition was void and nonrenewable under OCGA § 9-2-61. We disagree.

Our renewal statute, OCGA § 9-2-61, provides in relevant part as follows: (Emphasis supplied.) With the addition of subsection (c) of OCGA § 9-2-61 in 1990, the legislature made clear that even when a plaintiff’s original action suffered from a defect of subject matter jurisdiction, such as a lack of standing,* ** ***it was renewable as long as the plaintiff voluntarily dismissed the action without prejudice. As our Supreme Court has noted,

(a) When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later[.\
(c) The provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.
the renewal statute is remedial in nature; it is construed liberally to allow renewal where a suit is disposed of on any ground not affecting its merits. The privilege of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action was merely voidable. The original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit. A suit is also void and incapable of renewal under OCGA § 9-2-61 (a) if there has been a judicial determination that dismissal is authorized. However, unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.

Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994) (citations and punctuation omitted; emphasis supplied).

Although the developers cite Mikell v. Certain Underwriters at Lloyds, London, 288 Ga. App. 430 (654 SE2d 227) (2007), for the proposition that the Association’s 2012 petition was void, that decision is distinguishable: the Mikell plaintiffs’ original action was dismissed for lack of standing by the trial court, rather than by plaintiffs themselves, with the result that plaintiffs’ original suit was void rather than voidable. Id. at 431. Here, although the developers moved to dismiss the Association’s original petition for lack of standing, that petition never became the subject of “a judicial dismissal based on a nonamendable defect.” Id. It follows that the Association was free to renew its action within six months of its own voluntary dismissal of its original petition. The trial court did not err when it concluded that the Association’s 2012 petition was a valid renewal of its 2011 petition.

Case No. A14A0138

3. The Association argues that the trial court erred when it dismissed the petition for lack of standing because the developers failed to raise the matter of standing before the Planning Commission and therefore waived it. We agree.

In 1977, the Supreme Court of Georgia adopted what it called a “substantial interest — aggrieved citizen” test for standing in cases involving zoning decisions by either a “city or county governing authority” or “a zoning board of adjustment.” Brock v. Hall County, 239 Ga. 160, 161 (236 SE2d 90) (1977). Under this Court’s decision in Victoria Corp. v. Atlanta Merchandise Mart, 101 Ga. App. 163 (2) (112 SE2d 793) (1960), which our Supreme Court cited in Brock, a person has a “substantial interest” in a zoning board’s decision when he has suffered “some special damages as a result” of a zoning board’s decision “which is not common to other property owners similarly situated,” thus having an interest “more than merely that of a taxpayer of the municipality seeking to have a strict enforcement of zoning regulations for the benefit of the general welfare of the community or general enhancement of property values.” Id. at 163-164 (2). Consistent with the Brock “substantial interest — aggrieved citizen” test, DeKalb County Ordinance § 14-1, which concerns land development (including subdivisions), defines an “aggrieved person” as either “a person whose property is the subject of the action appealed from” or a person “who has a substantial interest in the action appealed from that is in danger of suffering special damage or injury not common to all property owners similarly situated.” Ordinance § 14-95 (e) authorizes a person thus “aggrieved by a denial or approval of a sketch plat” to appeal by certiorari petition to DeKalb County Superior Court.

Although the developers urge us to move directly into consideration of the Association and certain of its members’ standing under the “substantial interest — aggrieved citizen” test just described, we must first consider whether the developers have waived the issue of the Association’s standing by not raising it before the Planning Commission. “As a general rule, standing must be determined at the time at which the plaintiff’s complaint is filed in order to place an actual case or controversy within the purview of the court.” Perdue v. Lake, 282 Ga. 348 (1) (647 SE2d 6) (2007). As we explained in RCG Properties v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga. App. 355 (579 SE2d 782) (2003), however, when a party seeks an appeal by certiorari from the decision of an administrative body to the superior court, the matter of standing can be waived if not raised before the administrative body. Id. at 362 (1). As in RCG, then, we are required to decide the “threshold issue” of whether the Association’s certiorari action “constitute [s] an appeal of a ‘zoning decision’ ” as defined in the Zoning Procedures Law, OCGA § 36-66-1 et seq. RCG, 260 Ga. App. at 360-361 (1). If the Association’s certiorari action does not amount to an appeal of such a “zoning decision,” then the matter of standing may be waived if not raised before the administrative body. Id. at 362 (1).

As we explained in RCG, “zoning power, vested in the county governing authority, is legislative,” and thus “presumptively valid and reviewed with great deference.” 260 Ga. App. at 361 (1). “Notwithstanding this deference, appeals from rezoning decisions are conducted de novo, and new evidence, including expert testimony, may be introduced.” Id., citing Dougherty County v. Webb, 256 Ga. 474, 477-478, n. 3 (350 SE2d 457) (1986). Further, “[b]ecause new evidence can be presented, the question of standing [in such zoning cases] can be raised and determined by the trial court.” RCG, 260 Ga. App. at 361 (1), citing Moore v. Maloney, 253 Ga. 504, 506 (1) (321 SE2d 335) (1984). “On the other hand, the grant or denial of a variance or a permit is generally considered an administrative or a quasi-judicial action.” Id., citing Jackson v. Spalding County, 265 Ga. 792, 794 (2) (462 SE2d 361) (1995). “This is so because the board’s discretion is tightly controlled by the ordinance.” RCG, 260 Ga. App. at 361 (1) (citation and punctuation omitted).

As we emphasized in RCG, the distinction between an appeal from an administrative body’s legislative action and one from a quasi-judicial action of the same body is critical to any waiver analysis because “[t]he standard of appellate review is very different in each type of case.” 260 Ga. App. at 361 (1). Whereas a petitioner seeking review of a local government’s legislative decision may introduce new evidence in the superior court, a petitioner seeking review of the same government’s quasi-judicial decision is “bound by the facts presented to the local governing bod/’ such that “neither the aggrieved person nor the board can offer additional or new evidence to the superior court reviewing the board’s decision.” RCG, 260 Ga. App. at 362 (1) (citations and punctuation omitted). If approval of the sketch plat was a “zoning decision” as defined by the Zoning Procedures Law, the Planning Commission was acting in a legislative capacity when it approved the developers’ application, with the result that the developers may challenge the Association’s standing for the first time in the superior court. RCG, 260 Ga. App. at 361-362 (1). If the Planning Commission’s action was an exercise of its “quasi-judicial” capacities, the developers may not challenge the Association’s standing in the superior court if they did not do so before the Commission. Id.

With this rubric in mind, we turn to OCGA § 36-66-3, which defines a “zoning decision” as “final legislative action by a local government” resulting in:

(A) The adoption of a zoning ordinance;
(B) The adoption of an amendment to a zoning ordinance which changes the text of the zoning ordinance;
(C) The adoption of an amendment to a zoning ordinance which rezones property from one zoning classification to another;
(D) The adoption of an amendment to a zoning ordinance by a municipal local government which zones property to be annexed into the municipality; or
(E) The grant of a permit relating to a special use of property.

OCGA § 36-66-3 (4). This case does not involve any adoption of or amendment to a zoning ordinance, with the result that subsections (A) through (D) cannot apply. The only subsection arguably applicable to the approval of the sketch plat at issue here, which would transform three residential lots into seven of the same, is that the approval amounts to “[t]he grant of a permit relating to a special use of property’ under subsection (E), which was added to the statute in 1998.

As the Supreme Court of Georgia held before the adoption of subsection (E), however, a “special use” permit “authorize[s] a type of land use potentially incompatible with uses allowed in the particular zoning district, with issuance of the permit predicated upon compliance with conditions set out in the ordinance, or in the discretion of the local zoning authority.” Fulton County v. Bartenfeld, 257 Ga. 766, 770 (2) (c) (363 SE2d 555) (1988), citing Webb, 256 Ga. at 475-477. The application before this superior court involved only the redrawing of three residential lots into seven residential lots. As such, it was not a “special use” application as definedby OCGA § 36-66-3 (4) (E) because it did not involve a change from one “type of land use” to a different use “potentially incompatible with uses allowed in the particular zoning district.” Bartenfeld, 257 Ga. at 770 (2) (c). Rather, the Planning Commission’s approval of the developer’s sketch plat was a simple “grant or denial of a variance or a permit,” and was thus an exercise not of the Planning Commission’s zoning or legislative powers, but “an administrative or a quasi-judicial action.” RCG, 260 Ga. App. at 361 (1); see also Bartenfeld, 257 Ga. at 770 (2) (c); Jackson, 265 Ga. at 793-794 (2) (a board of zoning appeals deciding whether to grant a variance was considering “whether the facts applying to a specific piece of property warrant relief from zoning under the standards set in the county ordinance,” and was thus making a “quasi-judicial decision when it acted on the variance application”) (footnotes omitted).

The developers seek to escape this conclusion by arguing that whereas the petitioners in RCG were appealing the decision of a board of zoning adjustment affirming a city planning bureau’s grant of a permit and variance, see 260 Ga. App. at 355-359, the plat approval before us would, in the absence of an appeal to the superior court, move from the Planning Commission to the DeKalb County chief executive. As the developers themselves conceded below, however, the proceedings before the Planning Commission concerned a “permitting decision” as to whether the developers’ plans “either meet or don’t meet the objective criteria” set out in the county ordinance concerning subdivision sketch plats. As such, the decision to approve the sketch plat at issue here was a “quasi-judicial” decision whether or not to approve a plat subdividing three lots of vacant land already zoned as residential into seven lots zoned in the same way. See Jackson, 265 Ga. at 794 (2) (an administrative body deciding a request for a variance was “making a quasi-judicial decision” as to whether a specific piece of property warranted relief from the standards set out in a county’s zoning ordinance).

When a superior court reviews a quasi-judicial decision by an administrative body, “the superior court is not the proper forum in which to present evidence and conduct discovery, since the facts of the action are determined at the hearing[,]” with the result that “no new evidence will be permitted at this stage.” RCG, 260 Ga. App. at 361-362 (1) (citations and punctuation omitted). Because the Planning Commission was making a quasi-judicial decision when it approved the sketch plat at issue here, the superior court was bound by the record as developed before the commission, and could not consider the issue of the Association’s standing when that issue had not been raised before the Planning Commission. Id. at 362-363 (1). The trial court erred when it reached the contrary conclusion and granted the developers’ motion to dismiss for lack of standing. Id. (board of zoning adjustment was barred from raising issue of RCG’s standing to contest its decision in the superior court when that issue had not been raised in proceedings before the board). We therefore reverse the dismissal of the Association’s petition and remand for further proceedings consistent with this opinion, excluding the issue of the Association’s or its members’ standing. Id. at 363 (1) (on remand, a superior court could not consider petitioner’s standing, but should consider whether the BZA’s decision to grant petitioner a variance was “correct as a matter of law” and whether the record contained evidence supporting that decision such that the BZA did not “abuse [ ] its discretion” or act “in an arbitrary or capricious manner”); see also Martin Marietta Corp. v. Macon-Bibb County Planning & Zoning Comm., 235 Ga. 689, 692-693 (221 SE2d 401) (1975) (petition for certiorari to superior court from decision of county planning commission was limited to the question whether a rezoning decision was “justified” by the evidence presented to it and was “not arbitrary, unreasonable, [or] confiscatory”).

4. The Association also asserts that the trial court should not have granted the developers’ motion to dismiss without first addressing the Association’s exception and traverse to the developers’ answer. Our reversal of the grant of the motion to dismiss moots this assertion, which awaits disposition on remand.

Decided July 10, 2014 —

Reconsiderations denied July 23 and July 24, 2014 —

Robert H. Benfield, Jr., Jenkins & Bowen, Frank E. Jenkins III, for appellants.

Duane D. Pritchett, John E. Jones, Jr., Roberts & Daughdrill, Brian E. Daughdrill, Matthew Momtahan, Alston & Bird, Peter M. Degnan, for appellees.

Judgment affirmed in Case No. A14A0139. Judgment reversed and case remanded with direction in Case No. A14A0138.

Barnes, P. J., and Boggs, J., concur.

       Because the DeKalb County Planning Commission was the administrative body rendering the decision sought to be appealed, DeKalb County was the respondent below, and is an appellee in Case No. A14A0138 as well as a cross-appellant in Case No. A14A0139.

       In DeKalb County v. Buckler, 288 Ga. App. 346 (654 SE2d 193) (2007), we reversed the trial court’s grant of partial summary judgment to the developers as to whether a quorum was present at a hearing before DeKalb County’s Historic Preservation Commission (HPC) on the developers’ application for a certificate of appropriateness. Id. at 349. In Buckler v. DeKalb County, 290 Ga. App. 190 (659 SE2d 398) (2008), we reversed the trial court’s dismissal of the developers’ petition for writ of certiorari and remanded for further proceedings as to the Association and some of its members’ rights to intervene. Id. at 191. Most recently, in Buckler v. DeKalb County Bd. of Commissioners, 299 Ga. App. 465 (683 SE2d 22) (2009), we affirmed a grant of the County’s motion for partial summary judgment concerning the proper standard of review as to the County’s designation of the Druid Hills Historic District and other issues. Id. at 465.

       DeKalb County Ordinance § 14-183 (b) provides that “[w]ithin historic districts, the platting of lots and streets shall be compatible with the historic patterns that exist within the historic district. . . .” Ordinance § 14-96 (a) provides in relevant part that “[t]he planning commission shall not approve a sketch plat unless it is found that [there is] ... (8) [a] properly issued certificate of appropriateness when the subdivision or portions thereof lie within a designated historic area that required such a certificate as may be required by state law or this Code[.]”

       “There is a presumption of regularity that attaches to all official acts, which includes judicial proceedings.” Holmes v. Roberson-Holmes, 287 Ga. 358, 361 (1) (695 SE2d 586) (2010) (citations omitted).

       We consider the cross-appeal first because if the developers’ contentions are correct, the trial court properly dismissed the Association’s 2012 petition, which would moot all issues in Case No. A14A0138.

       Subsection (c) was added in 1990. See Ga. L. 1990, p. 876, § 1 (effective April 4,1990). The developers’ citations to cases decided before 1990 are thus inapposite. See Warehouseboy

        Trading v. Gew Fitness, LLC, 316 Ga. App. 242, 243, n. 3 (729 SE2d 449) (2012) (noting inapplicability of cases decided before 1990 concerning effect of dismissals for lack of subject matter jurisdiction on renewal actions).

       See, e.g., Blackmon v. Tenet Healthsystem Spalding, 284 Ga. 369, 371 (667 SE2d 348) (2008) (“The constitutional and procedural concept of ‘standing1 falls under the broad rubric of ‘jurisdiction1 in the general sense, and in any event, a plaintiff with standing is a prerequisite for the existence of subject matter jurisdiction.11) (footnote omitted).

      Ordinance § 14-95 (e) provides in full:
      Any person or entity (i.e., an owner, applicant, adjoining neighbor or a neighbor whose property line is within one thousand five hundred (1,500) feet of the nearest property line of the proposed subdivision) aggrieved by a denial or approval of a sketch plat, may appeal by filing a petition for writ of certiorari to the superior court of DeKalb County.

       Although the developers assert that the absence of any standing requirement from the code under consideration in RCG distinguishes that case from the one before us, this was an alternative rather than primary ground of our holding. See 260 Ga. App. at 362 (1). The issue before us is not the content of the standing law, but whether that issue may he waived by failure to raise it before an administrative body.

       See Ga. L. 1998, p. 1391, § 1; compare Ga. L. 1996, p. 1009, § 1 (adopting subsections (A) through (D) only).

       See DeKalb County Ordinance § 14-124 (concerning approval of a final plat by the county’s chief executive officer).

       Our Supreme Court’s decision in Massey v. Butts County, 281 Ga. 244 (637 SE2d 385) (2006), does not require a different result. Massey involved a petition for a permanent injunction requiring the removal of a barn constructed pursuant to a county’s issuance of a building permit, which the petitioner argued was null and void. Id. The Supreme Court characterized the county’s decision to issue the permit as a “zoning determination,” applied the “substantial interest — aggrieved citizen” test to the appeal to the superior court, and affirmed that court’s dismissal of the petition for lack of standing. Id. at 247. As Massey explicitly concerns a “zoning” or “legislative” decision rather than a “quasi-judicial” decision and contains no discussion of either the Zoning Procedures Law or waiver, RCG therefore remains good authority for the proposition that, after the passage of the Zoning Procedures Law, a party may waive the issue of standing by not raising it before a local authority acting in a quasi-judicial capacity. “[Qjuestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007).