Host International, Inc. “Host” brought this action in the Superior Court of Clayton County against the county, its Board of Commissioners, and the commissioners in their official capacities collectively, “the county”, seeking a refund of ad valorem taxes Host paid the county for the years 1999-2005.1 Host alleged that it has a usufruct that is, a mere possessory interest that is not an estate in land, in the subject property, which it leases at the Hartsfield-Jackson Atlanta International Airport for the purpose of operating food and beverage concessions; that usufruct interests in property generally are not subject to ad valorem taxation; and that the Code section upon which the county relies for assessing and collecting such taxes, OCGA § 6-3-21,2 is unconstitutional. The county moved to dismiss, contending, inter alia, that Host’s claims are barred under the doctrine of collateral estoppel. The trial court found that it had resolved in previous litigation concerning a different tax year the issue of the county’s right to tax Host’s usufruct interest. Based on this, the court determined that Host’s claims are barred under the doctrine of collateral estoppel and granted the county’s motion. On appeal, Host contends that, in the previous litigation, the trial court did not decide on the merits whether OCGA § 6-3-21 is constitutional and, therefore, that litigation of that issue is not precluded in the case at bar. For the reasons explained below, we vacate the trial court’s ruling and remand.
1. As an initial matter, we consider the procedural posture of this case and the applicable standard of review. OCGA § 9-11-12 b provides in pertinent part that “if, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in OCGA § 9-11-56.” Because the trial court considered matters outside the pleadings in this case, including the pleadings and judgment in Host Intl. v. Clayton County Board of Tax Assessors Civil Action No. 1998-cv-3404-8 “Host I “, we will treat the appealed order as one granting summary judgment to the county. Fernandez v. WebSingularity , 299 Ga. App. 11, 13 1 681 SE2d 717 2009.3 “We review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.” Footnote omitted. Id.
