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holding that, although case was improperly dismissed for failure to name the County as the opposite party (when County was not the opposite party and, thus was neither required to be named nor entitled to service), petitioner was properly permitted amendment to name Board of Commissioners as the opposite party when, under specific facts of the case and separately applicable statutory provisions, Board was both the respondent and the opposite party, and Board had already previously been named as the respondent and had been timely served as same
Summary of this case from City of Sandy Springs Bd. of Appeals v. Traton Homes, Llc.Opinion
A00A2441.
DECIDED: FEBRUARY 22, 2001.
DECIDED FEBRUARY 22, 2001 — CERT. APPLIED FOR.
Petition for certiorari. Fulton Superior Court. Before Judge Russell.
Harman, Owen, Saunders Sweeney, Timothy J. Sweeney, James P. Robertson, Jr,, for appellants.
Elarbee, Thompson Trapnell, Richard R. Gignilliat, J. Lewis Sapp, Reddy Silvis, K. Prabaker Reddy, Franklin N. Biggins, for appellee.
Webster R. Pope and Rita A. Lewis Devereaux ("the petitioners") are former members of the Board of Tax Assessors of Fulton County who were relieved of their positions by the Fulton County Board of Commissioners under O.C.G.A. § 48-5-295 (b). This code section permits a member of the county board of tax assessors to be removed by the county governing authority for cause. After the Board of Commissioners voted to remove them, they petitioned the Fulton County Superior Court for a writ of certiorari to review the Board of Commissioner's decision. The petition named the Fulton County Board of Commissioners as the respondent, but did not name a defendant-in-certiorari. Within the time prescribed in O.C.G.A. § 5-4-6 (b), a copy of the petition was served on the Board of Commissioners by a deputy sheriff and the Board's attorney was served by mail.
Subsequently, Fulton County, as a separate entity from the Board of Commissioners, moved to dismiss the petition because the petitioners failed to designate a defendant-in-certiorari in their initial petition and also failed to designate Fulton County, rather than the Board of Commissioners, as the defendant-in-certiorari. Thereafter, the petitioners amended the petition to name the Board of Commissioners as both the respondent and the defendant-in-certiorari. Nevertheless, the superior court granted the County's motion based on the petitioner's failure to name Fulton County as the defendant-in-certiorari in the original petition. From that decision the petitioners obtained authority under O.C.G.A. § 5-6-35 (a) (1) to file a discretionary appeal.
1. The petitioners argue that in removal proceedings under O.C.G.A. § 48-5-295 (b) the Board of Commissioners is both the respondent (the inferior judicatory) and the opposite party or defendant-in-certiorari (the county governing body). Therefore, they assert they were not required to name the Board of Commissioners as the defendant-in-certiorari See Swafford v. Dade County Bd. of Commissioners, 266 Ga. 646, 647 (2) ( 469 S.E.2d 666) (1996). They argue further that nothing in Fisher v. City of Atlanta, 212 Ga. App. 635 ( 442 S.E.2d 762) (1994), relied upon by Fulton County, can be fairly read as authority to the contrary.
Pretermitting whether the petitioners were required to name the Board of Commissioners as the defendant-in-certiorari as well as the respondent in the first instance, the petitioners amended their petition to name the Board of Commissioners as the defendant-in-certiorari before the case was dismissed. Because a petition for certiorari "shall be amendable at any stage, as to matters of form or substance," (O.C.G.A. § 5-4-10) a defendant-in-certiorari was named in this case.
2. Fulton County is not an essential party in this case. The dismissal of the petition for certiorari in Fisher was affirmed because the petitioner failed to serve the Civil Service Board as respondent as required by O.C.G.A. § 5-4-6 (b). Thus, this court affirmed the trial court's dismissal of the petition for certiorari in Fisher because service on the City did not constitute service on the respondent Civil Service Board. Fisher held that this result was warranted because the City and the Board have conflicting interests: The Board is merely the respondent, but the City was a party to the dispute.
Fisher was correctly decided, as the Civil Service Board did not initiate or prosecute the proceedings before it, but sat solely as a judicial decision-maker in a dispute between the City and a civil servant. In this case, however, the Board of Commissioners performs a more expansive role. Under O.C.G.A. § 48-5-295, the tax assessors are appointed by the county governing authority for terms of office selected by that authority and may be removed by the county governing authority. In such circumstances, it is the Board of Commissioners, as the governing authority, who is the proper defendant-in-certiorari.
Here, however, unlike Fisher, the superior court was petitioned to review a quasi-judicial decision of the Board of Commissioners of Fulton County under O.C.G.A. § 48-5-295 (b). Because it appears that Pope and Devereaux's petition for certiorari was procedurally sound, the superior court erred in dismissing the petition for lack of service on Fulton County. Therefore, the superior court's dismissal of the certiorari is vacated and the case is remanded to the superior court for further proceedings.
Judgment vacated and case remanded. BLACKBURN, C. J., and ELDRIDGE, J., concur