Ewing v. City of Atlanta, S06A1988.

• Decision Date: 26 February 2007
• Docket Number: No. S06A1988.,S06A1988.
• Citation: 281 Ga. 652,642 S.E.2d 100
• Parties: EWING v. CITY OF ATLANTA et al.
• Court: Georgia Supreme Court

281 Ga. 652

642 S.E.2d 100

EWING v. CITY OF ATLANTA et al.

No. S06A1988.

Supreme Court of Georgia.

February 26, 2007.

George O. Lawson, Jr., Lawson & Thornton, P.C., Atlanta, for Appellant.

Linda Katherine Disantis, City Attorney, Amber Ali Robinson, City of Atlanta Law Department, for Appellee.

SEARS, Chief Justice.

The appellant, Lieutenant Herbert Ewing, filed a petition for a writ of mandamus against the appellees, the City of Atlanta and Richard J. Pennington, Chief of Police. Ewing alleged that the Atlanta Police Department abused its discretion when it denied him authorization for outside employment, and Ewing sought damages for past denials of outside jobs and mandamus relief requiring the appellees to permit him to work future jobs. The trial court granted the appellees' motion to dismiss, and Ewing has filed this appeal, contending that the trial court erred in dismissing his complaint. For the reasons that follow, we agree.

1. Although the parties agree that Ewing's mandamus petition is now moot, as he has been permitted to work outside jobs, we disagree with the city's assertion that Ewing's appeal is moot.

Ewing filed a complaint entitled a "Petition for Mandamus," alleging that the city was liable for his damages and mandamus claims based on the ground that the city had improperly denied his request to work outside jobs. The city moved to dismiss the "Petition," asserting that it was not liable as it had properly denied Ewing's requests to work outside jobs, and requesting that the trial court deny "Plaintiff all requested relief." Of course, part of Ewing's "requested relief" was damages. The trial court adopted the city's reasoning in granting the city's motion to dismiss.

Because Ewing's "Petition for Mandamus" raised claims for mandamus relief and damages; because Ewing's alleged basis for the city's liability for both of those claims is that the city acted improperly and abused its discretion in denying his request for outside jobs; and because the city's motion to dismiss applied to all relief requested by Ewing, a fair reading of the record is that the trial court dismissed both claims in dismissing Ewing's "Petition for Mandamus."¹

For these reasons, we conclude that Ewing's appeal is not moot.

2. "In reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant's favor. A motion to dismiss should only be granted if the allegations of the complaint, construed most favorably to the plaintiff, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts."² Stated somewhat differently, a motion to dismiss should not be granted unless "`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.'"³

Section 114-436 of the Code of Ordinances of the City of Atlanta sets forth seven reasons that a supervisor may deny an employee's request to work an outside job. Most relevant to the present case are subsections (1) and (2), which permit a supervisor to deny the employee the right to work outside jobs if the outside employment will "interfere with . . . the employee's duties"⁴ and "involve a conflict of interest or a conflict with the employee's duties."⁵

In the present case, Ewing's pleadings stated that his request for outside employment was denied on the ground that it was in the police department's best interest. Moreover, Ewing's complaint alleged that his request to work an extra job did not present a conflict of interest, did not violate any rules, regulations, or procedures, and did not impair his job performance. The complaint also alleged that he has not been charged with or convicted of any work rule violation of departmental policy that would permit the denial of his request.

In ruling on the appellees' motion to dismiss Ewing's complaint, the trial court stated that ground for the denial of Ewing's request to work an outside job — that it was in the police department's best interest — was consistent with the requirements of Section 114-436(1) and (2) that the outside employment not interfere or conflict with an employee's duties. The trial court thus concluded that the supervisor had acted properly in denying Ewing's request for outside employment, and dismissed his complaint.

We conclude that the trial court's rationale was faulty. The stated reason for denying Ewing's request (i.e., that it was in the police department's best interest) was merely an unexplained conclusion that offered no clue on its face as to which of the seven grounds set forth in Section 114-436 for denying a request for outside employment was the city's actual ground for denial. The trial court essentially construed the pleading most favorably to the appellees in concluding that Ewing's request for outside relief was properly denied based on Section 114-436(1) and (2). As the trial court was ruling on a motion to dismiss, it erred in doing so. Moreover, construing the pleading most favorably to Ewing, the complaint does not disclose with certainty that Ewing would not be entitled to relief under any state of provable facts. In this regard, Ewing's complaint alleged that he had not violated any departmental policy that would permit the denial of his request, and that his request to work an extra job complied with all requirements for doing so and would not impair his job performance. Because these allegations tend to show that the city did not properly deny his request for outside employment, and because the city, as the movant on the motion to dismiss, did not establish that Ewing "`could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought,'"⁶ we conclude that the trial court erred in granting the appellees' motion to dismiss.

For the foregoing reasons, we reverse the trial court's dismissal of Ewing's damages claim and remand for proceedings consistent with this opinion.

Judgment reversed and case remanded.

All the Justices concur, except CARLEY, HINES, and MELTON, JJ., who dissent.

1. The dissent asserts that Ewing, by stating in his appellate brief that the trial court has not decided the issue of damages, acknowledges that the appeal is an interlocutory appeal only from the mandamus ruling. This is not a fair reading of Ewing's brief. Ewing states in his brief that the appeal is from a "final judgment." Appellant's brief, p. 1. Similarly, the city states in its brief that the appeal is from "a Final Judgment of the Superior Court of Fulton County." Appellee's brief, p. 1. Ewing's brief simply acknowledges the fact that the trial court has not decided the amount of damages, if any, that is due to him because the trial court ruled against his ground for holding the city liable on his damages claim.

2. McGowan v. Progressive Preferred Ins. Co., 281 Ga. 169, 170, 637 S.E.2d 27 (2006) (citations omitted).

3. Allen v. Yost, 281 Ga. 102, 103, 636 S.E.2d 517 (2006), quoting Anderson v. Flake, 267 Ga. 498, 501, 480 S.E.2d 10 (1997).

4. Section 114-436(1).

5. Section 114-436(2).

6. Allen v. Yost, 281 Ga. at 103, 636 S.E.2d 517, quoting Anderson, 267 Ga. at 501, 480 S.E.2d 10.

CARLEY, Justice, dissenting.

The majority unnecessarily reverses...