The opinion
BARNES, Judge,
dissenting.
Because I believe that the trial court erred in dismissing the claim for lack of subject matter jurisdiction and for failure to state a claim before considering whether the complaint met the requirements for a class action pursuant to OCGA § 9-11-23 (a), I must respectfully dissent.
The majority argues that the trial court did not have subject matter jurisdiction because Patterson should have pursued this issue and exhausted her legal remedies in the juvenile court, and that her failure to do so divests the trial court of subject matter jurisdiction. Failure to exhaust all available legal remedies does not nullify subject matter jurisdiction when the general power over that class of cases has been granted to the court.
“Subject matter jurisdiction has been defined as the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power. [Cit.]” (Punctuation omitted.) Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 209 (1) ( 367 SE2d 42 ) (1988). It provides for jurisdiction over the class of cases to which a particular case belongs, and “does not mean simply jurisdiction of the particular case then occupying the attention of the court.” Nicholson v. State, 261 Ga. 197, 199 (4) ( 403 SE2d 43 ) (1991) (citing Zeagler v. Zeagler, 192 Ga. 453 ( 15 SE2d 478 ) (1941)). In Georgia, superior courts have exclusive jurisdiction over equity cases. Ga. Const. Art. VI, Sec. IV, Par. I; Moody v. Mendenhall, 238 Ga. 689 ( 234 SE2d 905 ) (1977).
While a party aggrieved by a state agency’s decision must exhaust available administrative remedies before seeking equitable or declaratory relief through judicial review, Perkins v. Dept. of Medical Assistance, 252 Ga. App. 35, 37 (1) ( 555 SE2d 500 ) (2001), this case does not involve an administrative decision governed by the *830 Administrative Procedure Act. Moreover, dismissals for failure to exhaust administrative remedies may only be “based upon statutes which by express terms or necessary implication give to the administrative board exclusive jurisdiction or which make the exhaustion of administrative remedies a condition precedent to judicial action.” (Citations, punctuation and emphasis omitted.) Hunnicutt v. Ga. Power Co., 168 Ga. App. 525, 526 (1) ( 309 SE2d 862 ) (1983) (citing Evans v. Louisville &c. R. Co., 191 Ga. 395, 401-402 (1) ( 12 SE2d 611 ) (1940)). In Hunnicutt , the trial court had the power to deal with the general abstract question presented in this case, and therefore had subject matter jurisdiction to consider it. Compare Norman v. United Cities Gas Co., 231 Ga. 788 ( 204 SE2d 127 ) (1974) (class action dismissed for lack of subject matter jurisdiction because consumer did not pursue administrative remedies); Riley v. Savannah Electric & Power Co., 236 Ga. 802 ( 225 SE2d 301 ) (1976) (class action dismissed for lack of subject matter jurisdiction because jurisdiction resided in Public Service Commission).
Subject matter jurisdiction being proper, the trial court was then required to determine whether the case could be maintained as a class action under OCGA§ 9-11-23. “[I]n determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of [OCGA § 9-11-23 (a)] have been met. [Cit.]” Sta-Power Indus. v. Avant, 134 Ga. App. 952, 954 (1) ( 216 SE2d 897 ) (1975). Indeed, our law requires that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” OCGA§ 9-11-23 (c) (1).
The court here, in dismissing Patterson’s complaint, failed to address whether the case could be maintained as a class action under OCGA § 9-11-23. Instead, it only determined that Patterson’s claim could not go forward. Even assuming, without deciding, that Patterson’s complaint is without merit, given the priority of issue resolution in these circumstances, the trial court was required to first determine whether the requirements of the class action statute could be met. See IBM v. Kemp, 244 Ga. App. 638, 642 (2) ( 536 SE2d 303 ) (2000), citing Sta-Power Indus. v. Avant, supra, 134 Ga. App. at 954 . After the trial court determines whether to grant class action status to a suit, it then considers whether the representative plaintiff has stated a claim for relief individually. See Perkins v. Dept, of Medical Assistance, supra, 252 Ga. App. at 38 (3). Accordingly, the trial court also erred in dismissing the complaint for failure to state a claim. See Ford Motor Credit Co. v. London, 175 Ga. App. 33, 37 ( 332 SE2d 345 ) (1985).
*831 Decided July 15, 2004
Reconsideration denied July 30, 2004
James N. Finkelstein, for appellant.
Elliott & Blackburn, Walter G. Elliott II, for appellee.
Because I disagree with the majority’s finding that the trial court lacked subject matter jurisdiction over Patterson’s claim because she was required to exhaust her legal remedies before the juvenile court, I must respectfully dissent. Sta-Power Indus. v. Avant, supra, 134 Ga. App. at 954 .
I am authorized to state that Presiding Judge Ruffin joins in this dissent.