Voyles v. McKinney, et al.

Joe Voyles was cited for certain city code violations in connection with
the construction of a retaining wall on a lake located in the City of Berkeley
Lake ("City"). Berkeley Lake Municipal Court Judge Jan McKinney, the only
municipal court judge in the City, was assigned to hear Voyles' case. Shortly
before an initial hearing on March 14, 2007, Voyles filed at least twelve
motions, and, at the hearing, Judge McKinney set a trial date but reserved ruling
on the motions to provide the City time to respond. On May 2, 2007, the day of
the scheduled trial, Voyles filed a Petition for Writ of Mandamus and
Impeachment in the Superior Court of Gwinnett County, arguing that Judge
McKinney should be removed from the case for failing to rule on his motions
and that the City should transfer his case to another judge. The trial was
postponed, and on May 11, 2007, Judge McKinney informed Voyles that he
could request a hearing on his motions if he desired one. On May 18, 2007,
Judge McKinney moved to dismiss the mandamus petition for failure to state a
claim and also filed a Request for Emergency Hearing. On May 29, 2007, the
City filed a general denial to Voyles' mandamus petition. The superior court
heard Judge McKinney's emergency motion on June 13, 2007. On June 21,
2007, the superior court dismissed Voyles' mandamus petition as premature
because the 90-day ruling period applicable to his motions pursuant to OCGA
§ 15-6-21 (b) had not yet expired at the time that Voyles had filed the petition.
Voyles appeals from the superior court's dismissal of his mandamus petition.

1. The dispositive issue on appeal is whether the superior court properly
dismissed Voyles' petition for writ of mandamus. Voyles argues that his petition
for writ of mandamus was proper because Judge McKinney failed to rule on his
motions and then set the trial date before the 90-day period to rule on the
motions had expired. See OCGA § 15-6-21(b).1 However, mandamus is an
extreme remedy that is only appropriate "(1) where there is a clear legal right to
the relief sought, and (2) where there has been a gross abuse of discretion."
(Citations and punctuation omitted.) Jackson County v. Earth Resources, Inc.,
280 Ga. 389, 390 (627 SE2d 569) (2006). Moreover, mandamus cannot be
issued where an adequate remedy at law exists. See, e.g., Paul Maynard Constr.
v. City of Watkinsville, 274 Ga. 496 (555 SE2d 720) (2001). Here, at any time
prior to trial, and indeed even on the day of the trial, Voyles could have
requested a hearing on his motions. Further, Judge McKinney could have ruled
on the motions on the day of trial. As Voyles concedes, the day of the trial still
fell within the 90-day ruling period of OCGA § 15-6-21(b). Instead of
requesting a hearing or giving Judge McKinney an opportunity to rule on his
motions, however, Voyles immediately filed a mandamus petition in superior
court. The superior court properly dismissed this petition as premature. See, e.g.,
Jones v. Johnson & Ledbetter Const. Co., 185 Ga. 323 (5) (194 SE 902) (1938);
Bourn v. Herring, 225 Ga. 67, 70 (3) (166 SE2d 89) (1969) ("A motion to
dismiss for failure to state a claim should . . . be granted [where] it appears to a
certainty that the plaintiff would be entitled to no relief under any state of facts
which could be proved in support of his claim") (punctuation omitted).2

2. In light of our disposition in Division 1, we need not address Voyles'
remaining contentions.