Common Cause/Georgia v. City of Atlanta, No. S04G1991.

• Court: Supreme Court of Georgia
• Writing for the Court: Hines
• Citation: 614 S.E.2d 761
• Parties: COMMON CAUSE/GEORGIA et al. v. CITY OF ATLANTA et al.
• Docket Number: No. S04G1991.
• Decision Date: 16 June 2005

614 S.E.2d 761 COMMON CAUSE/GEORGIA et al.
v.
CITY OF ATLANTA et al. No. S04G1991. Supreme Court of Georgia. June 16, 2005. Reconsideration Denied June 30, 2005.

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Emmet J. Bondurant, Sarah Marie Shalf, Gordon L. Hamrick, IV, Bondurant, Mixson & Elmore, L.L.P., Atlanta, for Appellant.

Linda Katherine DiSantis, City Attorney, Lemuel Herbert Ward; Michael Victor Coleman, Corliss Scroggins Lawson, Paul Thomas Kim, Lord, Bissell & Brook, L.L.P., Atlanta, for Appellee.

Susan Moore Pruett, Georgia Municipal Association; James F. Grubiak, Atlanta, Amici Appellee.

HINES, Justice.

This Court granted certiorari to the Court of Appeals in Common Cause/Georgia v. Campbell, 268 Ga.App. 599, 602 S.E.2d 333 (2004), to determine if the Court of Appeals erred in affirming the trial court's dismissal of the complaint for failure to state a claim upon which relief could be granted. Finding that the dismissal was proper, we affirm.

In 1999, the City of Atlanta ("City") opened bidding for a five-year contract to manage parking lots at then Hartsfield Atlanta International Airport. Parking Company of America ("PCOA"), which was already managing airport parking under an existing contract, submitted the low bid of $465,000

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per year; its existing contract was for $697,000 per year. On November 20, 2000, the City passed a resolution that "an appropriate agreement" be entered into with PCOA (described as "the recommended operator"), and directed that the Director of the Bureau of Purchasing and Real Estate prepare such an agreement, which was to be approved as to form by the City Attorney and executed by the Mayor. The resolution specifically stated that the agreement would not be binding on the City until executed by the Mayor and delivered to PCOA. Mayor Campbell, however, did not sign a new contract until January 8, 2002. In the interim, PCOA was paid at the higher rate under the existing contract, and received approximately $300,000 more than it would have under the new rate.

Common Cause and Elizabeth Hale Barnett (collectively "Common Cause") brought suit on behalf of the City and its taxpayers seeking a judgment against Campbell individually for the approximately $300,000. Campbell moved to dismiss the suit pursuant to OCGA § 9-11-12(b)(6).¹ The trial court granted the motion and the Court of Appeals affirmed. Further facts can be found in the opinion of the Court of Appeals. See Common Cause/Georgia, supra.

A motion to dismiss brought under OCGA § 9-11-12(b)(6) for failure to state a claim upon which relief can be granted should be granted only when:

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 [cit.]; and ... 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. [Cit.]

Anderson v. Flake, 267 Ga. 498, 501(2), 480 S.E.2d 10 (1997).

Common Cause contends that there are two separate cognizable claims advanced in its complaint. However, relief cannot be granted on either of the advanced claims.

1. Common Cause asserts that a taxpayer citizen of a Georgia municipality has the power to sue, in the name of that municipality, an officer of the municipality, in the same manner that a corporate shareholder may sue a corporate officer in a derivative action. See OCGA § 14-2-831. As the Court of Appeals correctly noted, there is no basis in Georgia law for such an action. Common Cause/Georgia, supra at 600(1), 602 S.E.2d 333. Municipal corporations are creatures of the State, see Department of Transp. v. City of Atlanta, 255 Ga. 124, 130(3), 337 S.E.2d 327 (1985), and it is for the General Assembly to specify any such power to sue on the part of taxpayers.

2. This Court recognized in Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972), that, in certain circumstances, a taxpayer may pursue a claim for damages against government officials in their individual capacities, in a class action and on behalf of the municipality. However, the scope of that 1972 decision has been necessarily circumscribed by a 1991 amendment to the State Constitution. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d); Cameron v. Lang, 274 Ga. 122, 123-126(1-2), 549 S.E.2d 341 (2001); Gilbert v. Richardson, 264 Ga. 744, 746-751(2-4), 452 S.E.2d 476 (1994). The amendment applies to questions concerning the personal liability of municipal officers. See Cameron, supra; Kidd v. Coates, 271 Ga. 33, 518 S.E.2d 124 (1999). Under the amendment, Campbell could be liable only if he negligently performed, or failed to perform, a ministerial duty, or acted "with actual malice or with actual intent to cause injury...." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d); Cameron, supra. He had immunity for the negligent performance of a discretionary duty. Cameron, supra at 124(2), 549 S.E.2d 341.

Common Cause does not assert that Campbell acted with actual malice or actual intent to cause injury, and thus, its complaint only states a cognizable claim if the duty allegedly breached was a ministerial one, see Ga. Const. of 1983, Art. I, Sec. II,

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Par. IX (d); Cameron, supra at 123(1), 549 S.E.2d 341, which is what Common Cause asserts. "Generally, a discretionary act is one that requires the examination of facts and the exercise of considered judgment before deciding on a course of action, whereas a ministerial act is one that is a mandatory fixed obligation for which mandamus will lie to compel performance." Henderman v. Walton County, etc. Auth., 271 Ga. 192, 193(2), 515 S.E.2d 617 (1999) (Citations omitted).

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn...