IN THE

SUPREME COURT OF GEORGIA

Case No. S16A0112

CITY OF COLUMBUS, GEORGIA, et al.,

APPELLANTS,
vs.
GREGORY D. COUNTRYMAN, SR., et al.,
APPELLEES.

MOTION TO DISMISS APPEAL,

OR IN THE ALTERNATIVE TO TRANSFER TO COURT OF APPEALS

Christopher D. Balch
Georgia Bar No. 034015
THE BALCH LAW GROUP
1270 Caroline Street, NE
Suite D120-315
Atlanta, GA 30307
Charles W. Miller
Georgia Bar No. 506425
CHARLES W. MILLER, P.C.
Windsor Village Office Park
5734 Windsor Drive, Bldg. 6
Columbus, GA 30909

MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION

OR TO TRANSFER CASE TO THE COURT OF APPEALS
COME NOW, Gregory D. Countryman, Sr., individually and in his official
capacity as the elected Marshal for Muscogee County, and Vivian C. Bishop,
individually and in her official capacity as the elected clerk of the Municipal Court
for the City of Columbus, Plaintiffs in the Court below and Appellees here, and move
this Court to dismiss this appeal for lack of jurisdiction, or in the alternative to
transfer the case to the Court of Appeals. In support of their motion, Marshal
Countryman and Clerk Bishop respectfully show the Court as follows:
Appellants brief to this Court cites the relief sought by Plaintiffs below as the
basis of this Courts jurisdiction. (Brief of Appellees at 7). Their assertion of this
Courts authority over this appeal flies in the face of more than two decades of this
Courts jurisprudence holding the Courts equity jurisdiction is limited to those cases
in which a specific substantive issue raised on appeal involves equitable relief
rather than questions of law. Durham v. Durham, 291 Ga. 231, 232 (2012).
Additionally, the Order from which the City appeals is not a final order. The
cases upon which Appellants rely for interlocutory review are not based on precedent
of this Court, but the inapplicable analysis of qualified immunity in Federal Court
under 42 U.S.C. 1983. The Court of Appeals created a new rule that state sovereign
or official immunity was subject to interlocutory direct appeal. See, Liberty County

School District v. Halliburton, 328 Ga. App. 422, 425 (2014). Under Georgias rules
of pleading, and at this stage of the litigation, an interlocutory direct appeal is
unreasonable and interposed solely for purposes of delay and obfuscation. This is
highlighted in this case where Appellants have steadfastly refused to engage in any
discovery while their motion to dismiss was pending (even after agreeing to begin
discovery with the Trial Court).
This Court should dismiss the appeal and remand to the Trial Court for
discovery and trial of these issues.
STATEMENT OF THE CASE
This case was filed by Marshal Countryman and Municipal Court Clerk
Bishop because Appellants arbitrarily, capriciously, routinely and without any
justification whatsoever reduced and restricted the budgets of these elected officials
and adversely effected the ability of these elected officials to perform their statutory
and constitutional functions and duties. As an example of this, during the most recent
budget cycle, the Consolidated Government reduced the budget of Marshal
Countryman by $100,000 for no reason whatsoever. This resulted in the requirement
that he eliminate the part-time bailiffs in the Municipal Court, that he curtail the
training of his POST certified officers, and that he eliminate 3 sworn positions from
within his department.

This case is necessary because of the interference and hubris of Defendants.

Municipal Court Clerk Vivian Bishop has served her community and constituents
for 22 years. Marshal Greg Countryman is in his 3d term. For years, these public
servants ran their offices efficiently, professionally and without disturbance from the
Consolidated Government of the City of Columbus (CGCC) or its elected or
appointed officers. They did so with the express legal authority (as opined by the
City Attorneys Office) that as elected officials, they alone were responsible for how
their allocated budgets were spent. They regularly submitted their budgets to the
City Council.
That all changed around 2010. At that time, the CGCC and its officials began
various attempts to usurp the lawful authority of these elected officials. This
culminated in the last budget cycle with the Mayor and City Manager refusing to
submit their proposed budget to the City Council and instead substituting a wholly
different spending plan to the Council for a vote. This budget (as unlawfully
submitted by the Mayor) was and is wholly inadequate to fund the operations of
either office, cuts necessary and important services offered by these offices, and fails
to account for the expertise and experience of these officials on what is necessary to
run the Municipal Court and the Marshals Office.

Defendants filed their motion to dismiss just after Thanksgiving, 2014. Based
on agreement of counsel, Municipal Court Clerk Bishop and Marshal Countryman
filed their response to the motion on December 14.
The Trial Court denied Defendants motion to dismiss, with the exception of
one claim. Appellants filed their notice of appeal the same day the Courts judgment
was filed with the Superior Court clerk. No certificate of immediate review was
sought or obtained by Appellants.
ARGUMENT AND CITATION OF AUTHORITY
This appeal should be dismissed. It seeks review of an interlocutory order
without a Certificate of Immediate Review. Appellants reliance on the collateral
order doctrine is not authorized by the precedent of this Court. Just as importantly,
their invocation of this Courts exclusive jurisdiction is misplaced as no issue in this
appeal seeks to address anything other than routine issues of law.
I.!

There is no authority for Georgia Courts to review a non-final order of the

Trial Court and the Court of Appeals creation of a new type of appeal is
inappropriate.
Appellants admit the Order from which they appeal is not dispositive of the

entire case in the Trial Court, or even all of Plaintiffs claims. The Appellate Practice
Act provides that appeals can be had from final orders. O.C.G.A. 5-6-34(a). Since
the order at issue in this appeal is not a final order, it is not appealable.

A small class of cases provide exceptions to this general rule under the
collateral order doctrine, adopted by this Court in 1982. Scroggins v. Edmonson, 250
Ga. 430, 431-32 (1982). To fall within this class of cases, the order appealed from
must completely and conclusively decide[ ] the issue on appeal such that nothing
in the underlying action can affect it; ... resolve[ ] an issue that is substantially
separate from the basic issues in the complaint; and [be] effectively unreviewable
on appeal [from a final judgment]. Murphy v. Murphy, 322 Ga. App. 829, 831
(2013) (whole court); Settendown Public Utility, LLC v. Waterscape Utility, LLC,
324 Ga. App. 652 (2013). This case does not meet these criteria.
The Court of Appeals began its journey to allowing direct interlocutory
appeals of motions denying immunity to public officials in Board of Regents v.
Canas, 295 Ga. App. 505 (2009). In that case, the Court accepted jurisdiction over
an interlocutory appeal from the denial of a motion to dismiss that was premised on
sovereign immunity. The Court ultimately held the denial of the motion to dismiss
was appropriate, but could only reach the substantive question if it had jurisdiction
over the appeal in the first instance.
The Court of Appeals next step in their conclusion that any immunity claim
is subject to the collateral order doctrine came in Taylor v. Campbell, 320 Ga. App.
362 (2013). The Court concluded the interlocutory appeal of official immunity was
appropriate because, although (and not acknowledged by the Courts opinion)

official immunity is often a highly fact specific inquiry, it (like sovereign immunity)
is a right not to stand trial, thus rendering the immunity illusory if not decided early
in the litigation process. Id. at 363 n.3.
This conclusion by the Court of Appeals places undue emphasis on the second
element of the collateral order doctrine and ignores the fact that discovery and trial
can, and often does, substantially affect the application of official immunity. Official
Immunity does not apply in this case and the Trial Court correctly denied
Appellants motion to dismiss.
II.!

This Court lacks jurisdiction over this appeal and it should be dismissed.
The constitutional exclusive jurisdiction of the Supreme Court of Georgia is

not invoked merely because an underlying complaint may seek equitable relief.
Here, Appellants sole basis for seeking review in this Court is the relief sought by
Plaintiffs from the Trial Court. The Courts denial of the Motion to Dismiss
appropriately addressed legal issues and not the grant or denial of equitable relief.
Thus, this Court does not have jurisdiction over this appeal.
Equity cases, over which our Constitution affords this Court exclusive
authority, are those in which the legality or propriety of the equitable remedy is
directly at issue. Beauchamp v. Knight, 261 Ga. 608, 609 (1991). The jurisdictional
question answered by Appellants is what issues and relief were sought in the Trial
Court. The appropriate question should have been what issues are present on appeal,

to determine whether this Court has the constitutional authority to review the case.
Durham v. Durham, 291 Ga. 231, 232 (2012). To adjudge otherwise, would be to
allow litigants to forum shop their appeal based merely on the relief sought in the
Court below. Cox v. State, 19 Ga. App. 283, 289 (1916); Krystal Co. v. Carter, 256
Ga. 43 (1986).
The issues presented here do not involve what relief, if any, Marshal
Countryman and Municipal Court Clerk Bishop might be entitled to receive on the
merits of this dispute. While there are factual issues which preclude this case from
being decided as pure questions of law (as correctly found by the Trial Court), there
are no issues presented by this case which invoke or substantiate the invocation of
this Courts exclusive Constitutional authority. The questions raised by Appellants,
to the extent they are even properly before this Court, are questions of law, or the
application of facts to law, which are not within the exclusive jurisdiction of this
Court. Beauchamp, 261 Ga. at 609.
This Court should dismiss the Appeal filed by Appellants. In the alternative,
this Court should transfer this case to the Court of Appeals.
CONCLUSION
This Court should dismiss this appeal. As an interlocutory order, the appeal is
inappropriate without a certificate from the Trial Court. Additionally, the appeal
does not satisfy the the requirements to invoke this Courts exclusive jurisdiction.

This 3d day of November, 2015.

THE BALCH LAW GROUP
By:
Christopher D. Balch
Georgia Bar No. 034015
1270 Caroline Street
Suite D120-315
Atlanta, GA 30307
404/202-5934
CHARLES W. MILLER, P.C.

By:
Charles W. Miller
Georgia Bar No. 506425
Windsor Village Office Park
5734 Windsor Drive, Bldg 6
Columbus, GA 31909
706/565-7795

CERTIFICATE OF SERVICE
I hereby certify that I have this date served a copy of the within and foregoing
PLAINTIFFS/APPELLEES MOTION TO DISMISS APPEAL upon counsel
for Defendants
Carter Schondelmayer
The Schondelmayer Firm, LLC
P.O. Box 5742
Columbus, GA 31906
Melanie V. Slaton
Hatcher, Stubbs, Land, Hollis & Rothschild, LLP
P.O. Box 2707
Columbus, GA 31902-2707
by electronic service pursuant to the Rules of the Supreme Court.
This 3d day of November 2015.
THE BALCH LAW GROUP
By:
Christopher D. Balch
Georgia Bar No. 034015
1270 Caroline Street
Suite D120-315
Atlanta, GA 30307
404/202-5934

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