Greenberg v. Griffith Et Al., 226 Ga. App. 818, 487 S.E.2d 411 (1997)

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Glass, McCullough, Sherrill & Harrold, Robert E. Wilson, Bryan A. Downs, for appellees.Judith A. Lomas, for appellant.

Don L. Griffith, the Superintendent of the City Schools of Decatur, Georgia, determined that Alan Greenberg's children did not reside within the City of Decatur ("the City") and that he should be charged tuition for his children to continue in the City's school system. Greenberg appealed to the Decatur Board of Education ("the Board"), which orally upheld the determination. Before a written decision was issued, however, Greenberg commenced a declaratory judgment action in the superior court, seeking to enjoin application of the residency requirement to his children's situation. The superior court dismissed the action for failure to exhaust the available administrative remedies. Greenberg then filed this direct appeal. Held:

Under OCGA 5-6-35 (a) (1), the discretionary appeal procedures are required to appeal the decision of a superior court reviewing the decision of an administrative agency. Where a declaratory judgment action essentially is an attempted appeal of an administrative decision, then the discretionary appeal procedures are required. Miller v. Dept. of Public Safety, 265 Ga. 62, 64-65 (453 SE2d 725). "[T]he underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal." Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192).

The declaratory judgment action Greenberg filed in the superior court, the case sub judice, challenges the Board's decision to apply its residency requirements to his two children. This action was therefore an attempt at reviewing the Board's administrative decision. It thus follows that the discretionary appeal procedures prescribed in OCGA 5-6-35 (b) were required to appeal the superior court's decision. See Rebich v. Miles, 264 Ga. 467, supra. Since Greenberg did not employ these procedures in the case sub judice, this direct appeal must be dismissed for lack of jurisdiction.

1997

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