Summary
holding that it would have been error for trial court to have considered municipal ordinance where no certified copy appeared in the record under OCGA § 24–2–221
Summary of this case from Morrow v. Angkawijana, LLCOpinion
No. A13A2291.
2014-03-3
SWEENEY v. LOWE.
Wood & Craig, John Blair Craig II, Harlan H.F. Wood, for Appellant. Groth & Makarenko, Laura Danielle Johnson, Paul L. Groth, for Appellee.
Wood & Craig, John Blair Craig II, Harlan H.F. Wood, for Appellant. Groth & Makarenko, Laura Danielle Johnson, Paul L. Groth, for Appellee.
McFADDEN, Judge.
David Sweeney filed a complaint against Michelle Lowe, claiming that he incurred damages after being bitten by Lowe's dog. The trial court granted summary judgment to Lowe. Sweeney appeals, arguing that the trial court erred because genuine issues of material fact exist as to whether Lowe was in violation of a county ordinance or “leash law.” However, Sweeney failed to properly plead and prove the ordinance, and therefore we must affirm the trial court's ruling.
We note that two different spellings of the appellant's last name—“Sweeny” and “Sweeney”—appear in the record. Appellant uses the latter spelling in his appellate brief, so that is the spelling used in this opinion.
It is well established that in order for a superior court or this court to consider city or county ordinances they must be alleged and proved, and “[t]he proper method of proving a city [or county] ordinance is by production of the original or of a properly certified copy.” Thorsen v. Saber, 288 Ga. 18, 19(1), 701 S.E.2d 133 (2010) (citations and punctuation omitted). See also OCGA § 24–2–221 (judicial notice may be taken of a certified copy of county ordinance). In this case, Sweeney claims a violation of Fulton County Ordinance 34–205. However, the record does not contain the original or a properly certified copy of the ordinance upon which Sweeney relies. Thus, “[t]he trial court would have been in error if it had [considered] the terms of an ordinance not properly before the court.” Thorsen, supra (citations omitted).
Sweeney attempts to circumvent this deficiency in the record by asserting in a footnote that he and Lowe “impliedly agreed” to permit citation to the county ordinance by referencing local ordinances in their summary judgment briefs. However, Lowe's summary judgment brief did not refer to any Fulton County ordinance, let alone the same county ordinance relied upon by Sweeney, and instead made reference only to a purported City of Atlanta ordinance. Thus, this is not a case in which the ordinance upon which the plaintiff relies was “set forth verbatim in the pleadings or an uncertified copy [was] attached to the complaint and the defendant admit[ted] the ordinance ... in the answer.” Prime Home Props. v. Rockdale County Bd. of Health, 290 Ga.App. 698, 700(1), 660 S.E.2d 44 (2008) (citation and punctuation omitted). Rather, this is a case in which the parties do not even agree upon which alleged local ordinance is relevant. “Because the record does not contain proper proof of the local ordinance [upon which Sweeney relies], we cannot consider it, and any argument based on its purported language provides no basis for reversing the trial court's order.” Cormier v. Willis, 313 Ga.App. 699, 701(1), 722 S.E.2d 416 (2012) (citation omitted). See also Younger v. Dunagan, 318 Ga.App. 554, 556, 733 S.E.2d 81 (2012) (ordinances could not be considered in evaluation of summary judgment where properly certified copies were not produced).
Judgment affirmed.
DOYLE, P.J., and BOGGS, J., concur.