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Sweet City Landfill, LLC v. Lyon

Court of Appeals of Georgia, Fourth Division

October 30, 2019

LYON et al.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Coomer, Judge.

         Sweet City Landfill, LLC ("Sweet City") appeals from a trial court order granting the motions to dismiss filed by Appellees Elbert County, The Board of Commissioners for Elbert County, Bill Daughtry, and Russel T. Lyon, Horace Harper, Harold Reynolds, Frank Eaves, Kenneth Ashworth, Freddie Jones, Lee Vaughn, and Chris Alexander, individually and in their official capacities as Members of the Board of Commissioners of Elbert County (collectively, the "County Commission"). Sweet City contends the trial court erred by finding the named local government officials were entitled to immunity because Sweet City's complaint adequately alleged bad faith and willful misconduct. Sweet City further argues the trial court erred by finding the tolling provision of OCGA § 9-3-96 did not apply to violations of the Open Meetings Act, by taking judicial notice of matters outside the pleadings, and by dismissing Sweet City's claims on res judicata grounds. For the reasons that follow, we affirm.

         "On appeal, we review de novo the trial court's grant of a motion to dismiss a complaint. We construe the complaint in the light most favorable to the plaintiff, with all doubts resolved in [its] favor." Marshall v. McIntosh County, 327 Ga.App. 416, 416 (759 S.E.2d 269) (2014) (citations omitted). As alleged in the complaint, Sweet City has a joint venture agreement, lease, and purchase option with an Elbert County landowner for the purpose of developing a landfill facility in Elbert County, Georgia. After expending considerable monies in pursuit of the project, several decisions and actions taken by the County Commission delayed or destroyed the viability of the landfill project. For years, several of the same parties in the present case have engaged in multiple lawsuits regarding Sweet City's pursuit of this landfill project. The law suits describe in detail the County Commission's violation of Sweet City's constitutional rights and the County Commissions' own policies and procedures. See Elbert County v. Sweet City Landfill, LLC, 297 Ga. 429, 429 (774 S.E.2d 658) (2015); Sweet City Landfill, LLC v. Elbert County, 347 Ga.App. 311, 311 (818 S.E.2d 93) (2018).

         The complaint alleged that in April 2018, during a debate between two current members of the Elbert County Commission, named-defendants Frank Eaves and Lee Vaughan, who were both running for election to serve as chairman of the Elbert County Commission, Eaves provided background information on the County Commission's decision in 2012 to vote against hearing Sweet City's plan for a landfill project at a public meeting. Eaves stated that prior to the public meeting at which Sweet City's landfill project was on the agenda for discussion, a private meeting between members of the County Commission occurred where one of its members stated "we're going to knock this landfill in the head before it ever gets started." As explained by Eaves, during the public meeting later that evening, the plan to vote against hearing Sweet City's plan for a landfill project without discussion was implemented.

         Sweet City's complaint further alleged that the admission by Eaves makes clear that with respect to its actions and decisions regarding Sweet City's landfill project, the County Commission violated Georgia law and the County Commission's own internal policies and procedures. More specifically, Sweet City alleged the County Commission conspired to violate the Open Meetings Act and intentionally interfere with Sweet City's business and contract relationships in order to frustrate its efforts to construct the landfill project.

         In response to Sweet City's allegations, the County Commission filed a motion to dismiss, alleging that (1) Sweet City's claims were resolved in a prior lawsuit, (2) the statute of limitations on Sweet City's Open Meetings Act claims had expired, and (3) and the named individuals in Sweet City's lawsuit were entitled to immunity from suit. During the hearing on the motion to dismiss, the County Commission argued that in light of prior appellate decisions arising out the same set of facts outlined in the present case, and despite Sweet City's attempt to characterize them differently in its complaint, the fact that the County Commission has not acted on Sweet City's special-use permit application makes the challenges raised by Sweet City premature and not ripe for judicial interference. See Sweet City Landfill, LLC, 297 Ga. at 433 ("Sweet City cannot meet that step; as the trial court found, the Board did not render a decision on Sweet City's SUP application.").

         In response, Sweet City argued that the trial court could not take into consideration the prior holdings of appellate courts as it relates to this present case without converting the County Commission's motion to dismiss into a motion for summary judgment, and thus, all the trial court could consider are the allegations within the complaint. The trial court overruled Sweet City's objection regarding its consideration of prior appellate decisions, noting that its review of the prior appellate decisions were not to serve as a proof of factual allegations but rather to serve as "proof of actions that occurred between the parties in other cases."

         In its order on the County Commission's motion to dismiss, the trial court granted the County Commission's motion in part, dismissing all claims except Sweet City's mandamus claims.[1] The trial court noted that in the 2013 lawsuit filed by Sweet City against substantially the same defendants as in the present case, Sweet City alleged that the County Commission took actions which violated its rights in connection with Sweet City's efforts to pursue its landfill project. The trial court found, without citation to authority, that it could take judicial notice of the prior lawsuit between the parties without converting that motion to dismiss into a motion for summary judgment because the County Commission asserted in its defense that the "issues raised in this action were considered and resolved in the prior lawsuit" and that doing so would not change the nature of the County Commission's motion. The trial court further found that the ultimate holding of the 2013 case as determined by our Supreme Court was that "because no decision was made [during the 2012 county commission meeting], Sweet City had not exhausted its administrative remedies and could not bring an as applied claim because [the County Commission] had not yet applied its ordinances to Sweet City or denied a permit for a landfill." The trial court held that the allegations within Sweet City's present complaint are "as applied" claims and, based on the Supreme Court's decision in the prior case and because Sweet City's complaint does not identify any action by the County Commission subsequent to the events of the earlier case which deprived it of any rights relative to the landfill project, Sweet City's claims for civil conspiracy, intentional interference with business relations, intentional interference with contract relations, and abuse of power are subject to dismissal. This appeal followed.

         1. Sweet City first contends the trial court erred in granting immunity to the named County Commission defendants because Sweet City properly pleaded bad faith and intentional misconduct which thereby removed the shield of immunity provided by OCGA § 51-1-20 (a). In support of its contentions, Sweet City relies on the unsworn statements made during a debate by named-defendant Eaves, that members of the County Commission met and decided to vote against hearing Sweet City's plan for the landfill project prior to the public meeting. We disagree with Sweet City's argument.

         OCGA § 51-1-20 (a) provides in part that

A person serving with or without compensation as a member . . . of any local governmental agency, board, authority, or entity shall be immune from civil liability for any act or any omission to act arising out of such service if such person was acting in good faith within the scope of his or her official actions and duties and unless the damage or injury was caused by the willful or wanton misconduct of such person.

         Additionally, the immunity provided under OCGA § 51-1-20 applies regardless of whether the nature of the person's actions at issue were ministerial or discretionary. See Dyches v. McCorkle, 212 Ga.App. 209, 215 (441 S.E.2d 518) (1994). Here, Sweet City contends that the actions taken by the County Commission in its private meeting before the public meeting were in bad fath and in violation of the Open Meetings Act and thus immunity under OCGA § 51-1-20 did not apply. Sweet City's complaint alleges the County Commission has "not acted in good faith" but "in furtherance of the conspiracy to violate the Open Meetings Act laws to the detriment of [Sweet City]." However, even under the liberal pleading requirements that apply at the motion to dismiss stage, Sweet City's complaint fails to set out a plain statement that any resolution, rule, regulation, ordinance, or other official action was adopted, taken, or made by the County Commission at a meeting which was not open to the public in violation of the Open Meetings Act. See Murphy v. Am. Civil Liberties Union of Georgia, Inc., 258 Ga. 637, 638 (3) (373 S.E.2d 364) (1988). In fact, the complaint alleges the official action was taken by the County Commission during the meeting that was open to the public. "Bad faith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will." Culpepper v. Thompson, 254 Ga.App. 569, 570 (a) (562 S.E.2d 837) (2002) (citation omitted). "Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is so reckless or so charged with indifference to the consequences as to justify the jury in finding a wantonness equivalent in spirit to actual intent." Id. (citation omitted). Here, the County Commission's actions as alleged in the complaint were within the scope of its official duties and Sweet City has not pled sufficient facts to show bad faith. Thus, the County Commission is entitled to statutory immunity.

         2. Sweet City next argues the trial court erred in finding OCGA § 9-3-96's tolling provisions did not apply to a violation of the Open Meetings Act and in finding that Sweet City failed to prove fraud or concealment. We disagree.

         OCGA § 9-3-96 provides that "If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud." OCGA § 50-14-1 (b) (2) provides

Any resolution, rule, regulation, ordinance, or other official action of an agency adopted, taken, or made at a meeting which is not open to the public as required by this chapter shall not be binding. Any action contesting a resolution, rule, regulation, ordinance, or other formal action of an agency based on an alleged violation of this provision shall be commenced within 90 days of the date such contested action was taken or, if the meeting was held in a manner not permitted by law, within 90 days from the date the party alleging the violation knew or should ...

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