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Avery v. Paulding County Airport Authority

Court of Appeals of Georgia, Fifth Division

October 24, 2017

AVERY et al.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         This opinion concerns four appeals from three related declaratory judgment actions arising out of the efforts of Paulding County and the Paulding County Airport Authority ("PCAA") to apply for a commercial "Airport Operating Certificate" from the Federal Aviation Administration ("FAA"). In April 2014, six Paulding County taxpayers filed a declaratory judgment action asserting that while planning and preparing to submit the FAA application, the PCAA repeatedly violated the Georgia Open Meetings Act; in case No. A17A0877, the taxpayers appeal the trial court's decision to dismiss that suit as untimely and also appeal the denial of their own motion for summary judgment. In January 2016, the same taxpayers filed a second declaratory judgment action asserting that the person who submitted the application to the FAA was not authorized to do so by Paulding County and that, therefore, the application was ultra vires and void; in case No. A17A0849, the taxpayers appeal the trial court's dismissal of that action for failure to state a claim. Meanwhile in November 2015, Paulding County itself filed a declaratory judgment action against the PCAA seeking a declaration that the PCAA could not move forward with the application without the county's consent; in case No. A17A1273, the county appeals the trial court's dismissal of that action. And, in case No. A17A1274, a third party that had intervened in the county's action appeals the dismissal of its counterclaims against the county.

         All four appeals arise from a dismissal by the trial court for failure to state a claim.[1] A complaint should be dismissed for failure to state a claim only if:

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Stendahl v. Cobb County, 284 Ga. 525 (1) (668 S.E.2d 723) (2008) (citation omitted). In answering this question, "an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant's favor." Thomas v. Lee, 286 Ga. 860, 861 (691 S.E.2d 845) (2010). Appellate review of the trial court's decision is de novo. Northway v. Allen, 291 Ga. 227, 229 (728 S.E.2d 624) (2012).

         The facts recited herein are taken from the pleadings[2] in all three declaratory judgment actions. When analyzing the propriety of the dismissal in each action, however, we will only consider the facts as alleged in the relevant action.

         At some point prior to 2012, a general aviation airport[3] was built on two tracts of land, one owned by Paulding County and the other owned by the PCAA. At that time, the county operated the airport through its "Airport Department." With regard to that airport, the county, but not the PCAA, participated in a federal program known as the Airport Improvement Program ("AIP") that provides grants to public agencies for the planning and development of airports. As a part of that program, Paulding County was required to comply with certain conditions and obligations known as "grant assurances"[4] with respect to the airport. Thus, Paulding County was the airport's sole "sponsor" for the purpose of the grant assurances.[5]

         Between November 21, 2012, and September 13, 2013, the PCAA[6] held a series of meetings regarding the airport that did not comply with the Georgia Open Meetings Act. In November 2012, at one of these meetings, the PCAA approved and, along with the Paulding County Industrial Building Authority (the "IBA"), later entered into a "Commercial Lease and Airport Use Agreement" with Silver Comet Terminal Partners, LLC, a private entity. Among other things, the lease provided that Silver Comet, in anticipation of commercial passenger service, could "require the PCAA to apply for [an] Airport Operating Certification . . . with the [FAA] . . . at [the PCAA's] sole cost and expense."

         On or about September 24, 2013, Blake Swafford signed and submitted to the FAA a joint "Application for Certificate, " also known as a Part 139 application, purportedly on behalf of both the county and the PCAA, seeking a Class I airport operating certificate that would allow the airport to handle, among other things, "scheduled operations of large air carrier aircraft." See 14 CFR § 139.5. As alleged by the taxpayers, if granted, the operating certificate would "obligate the County in numerous respects to the funding and operation of a commercial airport; . . . require certain types of work to be done to County property; and . . . require the determination of the priority of capital improvements, which would be funded in whole or in part by the County."

         Although Swafford later became the "Airport Director" of the PCAA, he was not an officer or employee of the PCAA at the time that he signed the application; rather, he was employed by the county as the Director of the Airport Department. In the one-page Part 139 application, Swafford averred that the airport was owned by both the county and the PCAA, and he signed the application, listing his title as "Director, " without indicating the entity for which he worked or for which he was signing. But Paulding County never formally authorized the PCAA or Swafford to act on the county's behalf to pursue or file the Part 139 application. As the PCAA admits, only the Paulding County Board of Commissioners ("BOC") could authorize submission of the Part 139 application on behalf of Paulding County, yet the BOC never discussed or approved submission of a Part 139 application at a public meeting or voted to authorize the PCAA or any representative thereof to submit the Part 139 application on the BOC's behalf.

         In October 2013, the PCAA issued revenue bonds to expand taxiways at the airport, and the county contracted with the PCAA to make payments to the PCAA sufficient to allow the PCAA to make payments on the bonds. Silver Comet also agreed to make a $500, 000 payment to an escrow account to be used in support of the payments on the bonds.

         In October 2014, Paulding County and the PCAA entered into a ten-year "Intergovernmental Contract" (the "IGA") related to the operation of the airport. Under the IGA, the PCAA agreed to operate and maintain the airport for a period of ten years and to report annually to the county as to expenditures. In exchange, the county agreed, among other things, to eliminate the staffing of its own Airport Department; to make certain payments to the PCAA over the ten-year term of the IGA (from the county's general fund or from the proceeds of a property tax levied for this purpose); and to transfer approximately 168 acres of property to the PCAA.[7] The IGA, however, does not indicate that it is dependent on the grant of an airport operating certificate by the FAA; in fact the agreement states that "[n]o approval or other action by any governmental authority or agency or other person is required in connection with the execution, delivery and performance of this Contract by the [PCAA or the county], except as shall have been obtained as of the date hereof." The agreement references "a Part 139 Certification" on only one occasion: the IGA provides that the county was required to fund police and fire protection at the airport, "including, but not limited to services required or in conjunction with a Part 139 Certification." Finally, the IGA provides that the county would remain as the sponsor under the AIP grant program for the term of the IGA:

[T]he County shall remain as the Sponsor for current and future Airport Improvement Program (AIP) grants administered by the [FAA] and further agrees to take no action that is inconsistant with receiving or negatively affects such grants or any other federal or state grants to which the County or the Authority are eligible to receive in conjunction with the Airport.

         And, in an amendment to the IGA, the parties made clear that "this Contract is subordinate to those requirements under federal law or regulations pertaining to [AIP] grants, including specifically but without limitation, federal obligations of airport sponsors commmonly referred to as [AIP] Grant Assurances." After entering into the IGA, the county eliminated the staffing of its Airport Department, and Blake Swafford changed employment from the county to the PCAA.

         On January 13, 2015, however, while the Part 139 application was still pending with the FAA, and apparently as a result of a change in the composition of the Paulding County BOC, the BOC approved Resolution 15-01, which provides as follows:

NOW, THEREFORE, be it resolved by the [BOC] as an Airport sponsor that the application to the FAA for a Part 139 Certificate is hereby withdrawn and any associated environmental review is hereby terminated. . . . Accordingly, the [BOC] hereby directs the Clerk to transmit immediately this Resolution to the FAA.

         The BOC then submitted a copy of the resolution to the FAA. The PCAA also submitted a letter to the FAA requesting that notwithstanding the withdrawal of the county's support, the FAA should continue to consider the Part 139 application, because the application "was submitted by the Airport Director, not by the Paulding County Commission[, ] . . . follow[ing] a vote of the [PCAA]." (Emphasis supplied). In a letter dated June 30, 2015, the FAA wrote to the BOC and stated the following:

Because Part 139 requires that, "no person may operate an airport specified under § 139.1 of this part without an Airport Operating Certificate, " 14 C.F.R. § 139.101(a) (emphasis added), Part 139 applies to airport operators. The October 2014 [IGA] executed between the County and the [PCAA] appears to make the [PCAA] responsible for operating [the airport]. As you are aware, the [PCAA] has expressed interest in introducing commercial service to [the airport] notwithstanding the County's [Resolution 15-01]. In light of the IGA and Part 139's strictures on airport operators, the FAA is inclined to deem the Part 139 application to remain active and pending."

         (Emphasis in original). The letter also asked the BOC to answer questions regarding on whose behalf the Part 139 application was submitted, the legal effect of Resolution 15-01, whether the county sought to withdraw the application in its entirety or only to withdraw the county as a party to the application, and what legal authority the county had to withdraw the application given that the IGA allowed the PCAA to operate the airport. There is no allegation that the BOC has responded to the FAA's questions. The parties agree that the FAA has indicated that it is waiting for a resolution of all related cases before issuing a decision on the Part 139 application.[8]

Meanwhile, in April 2014, six Paulding County taxpayers filed a declaratory judgment action against the PCAA and ten members of the PCAA, including Swafford, each individually and in their official capacity (collectively, "the defendants" or "the PCAA"), asserting that while planning changes for the airport, the PCAA repeatedly violated the Georgia Open Meetings Act ("OMA"), (the "OMA action"). In that action, the taxpayers demanded three forms of relief: a declaration that the PCAA had violated OMA; an injunction prohibiting the PCAA from violating OMA in the future; and civil penalties of $1, 000 on each defendant for their violations of OMA. The taxpayers specifically pled that they "[did] not seek to invalidate any resolution, rule, regulation, ordinance or other official action taken at the meeting on June 18-19, 2013." The taxpayers later moved for summary judgment on the ground that it was undisputed that the PCAA violated OMA. At the hearing on the motion for summary judgment, the PCAA moved to dismiss the OMA action as untimely.

         In January 2016, the same six taxpayers filed a second action against the same defendants asserting that neither Swafford nor the PCAA was authorized to submit the Part 139 application to the FAA on behalf of Paulding County and that, therefore, the application was ultra vires and void and should be declared so (the "Voidness action"). The defendants moved to dismiss for failure to state a claim on the grounds that the taxpayers lacked standing to bring the declaratory judgment action, that the case was not ripe for review because there was no controversy and the taxpayers were not in a position of uncertainty, and that the defendants received insufficient service of process.

          Finally, in July 2016, Paulding County filed a declaratory judgment action against the PCAA (but not the individuals) alleging that the county does not support commercialization of the airport or the FAA's continued review of the Part 139 application and that it has withdrawn any prior support for the application (the "County action"). The county contends that

(i) it is the owner of the Airport; (ii) it retains the final decision-making authority on whether to seek a change in the scope of aviation services offered at the Airport; (iii) the PCAA is merely providing services to Paulding County under the IGA relating to the operation and maintenance of the Airport in its current condition; (iv) Paulding County withdrew its support for the Part 139 Application through the passage of Resolution 15-01; and (v) the PCAA lacks the authority to seek an Airport Operating Certificate . . . without the approval and support of Paulding County.

         In addition to injunctive relief and expenses of litigation, the county requested that the court declare that the PCAA lacks the authority to submit the Part 139 application to the FAA seeking to change the nature and scope of services offered at the airport without the county's consent and approval, which has been withdrawn. In response to the county's complaint, the PCAA moved to dismiss for failure to state a claim on the grounds that there was no case or controversy and that the trial court lacked jurisdiction to provide declaratory relief.

         Silver Comet successfully intervened in the County action and filed a counterclaim against Paulding County seeking a declaratory judgment and asserting a claim under 42 USC § 1983, alleging that the county's actions violate the Contracts Clause of both the United States Constitution and the Constitution of the State of Georgia. Paulding County moved to dismiss the counterclaims.[9]

         The trial court held hearings in May and August 2016 on the motions in the two taxpayer cases, respectively, and a hearing on the motions in the County action in October 2016. On October 31, 2016, the court issued rulings in all three cases. The court denied the taxpayers' motion for summary judgment in the OMA action and granted the defendants' motion to dismiss on the ground that the taxpayers' claims were time barred by OCGA § 50-14-1. The trial court also granted the defendants' motion to dismiss the taxpayers' Voidness action without explanation. The taxpayers appeal both rulings. Finally, the court granted the PCAA's motion to dismiss the County action without explanation, and, shortly thereafter, granted the county's motion to dismiss Silver Comet's counterclaims. The county appeals the dismissal of its action, and Silver Comet appeals the dismissal of its counterclaims.


         1. In the OMA action, the taxpayers contend the trial court erred by holding that OCGA § 50-14-1 bars their claims for declaratory and injunctive relief and civil penalties. They also contend the trial court erred by denying their motion for summary judgment. For the reasons below, we hold that the taxpayers' claims are not time barred but that the taxpayers are not entitled to summary judgment on their OMA claims.

         Our review requires construction of certain provisions of OMA. When construing a statute, "we must presume that the General Assembly meant what it said and said what it meant." Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 S.E.2d 337) (2013) (citation and punctuation omitted). Thus if the language of the statute "is plain and unambiguous, judicial construction is not only unnecessary but forbidden." Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 S.E.2d 880) (2003) (citation omitted). Where terms of art are not involved, we look to the common and customary usages of the words and their context. Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774 S.E.2d 688) (2015).

         (a) OMA provides, among other things, that public agency[10] "[m]eetings" shall be "open to the public, " OCGA ยง 50-14-1 (a) (1), (b) (1), and it provides several remedies for failure to comply with the act. The primary remedy is that official ...

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