Mommies Props., LLC v. Semanson
| Decision Date | 31 October 2022 |
| Docket Number | A22A1071 |
| Citation | 366 Ga.App. 153,880 S.E.2d 376 |
| Parties | MOMMIES PROPERTIES, LLC et al. v. SEMANSON et al. |
| Court | Georgia Court of Appeals |
James Stuart Teague Jr., Larry C. Oldham, Cumming, Vinay Bose, for Appellant.
Timothy Joseph Buckley III, Atlanta, Paul Brian Frickey, Ken Jarrard, Cumming, Eric James O'Brien, Atlanta, for Appellee.
Mommies Properties, LLC and its manager, Vinay Bose — co-owners of property in Forsyth County that has been used as a commercial equestrian center — brought this action for damages and injunctive relief against a county commissioner, Laura Semanson, and a county inspector, Christopher Shane Pruitt, in their individual capacities. The plaintiffs asserted various claims under state and federal law, essentially alleging that the defendants misused their positions to impose stop work orders and take other actions that harmed the plaintiffs and their property.
After the trial court granted summary judgment to the defendants on all of the plaintiffs’ claims, the plaintiffs brought this appeal. They argue that the trial court erred in denying their request to present oral evidence at the summary judgment hearing, but the trial court did not abuse his discretion in this regard.
The plaintiffs also argue that the trial court erred in granting summary judgment to the defendants. As detailed below, we affirm the grant of summary judgment as to some of the claims but reverse as to others: (1) We affirm as to the damages claims brought under state law because the defendants had official immunity from liability. (2) We also affirm as to the claim for prospective injunctive relief for equal protection violations under state and federal law; while the plaintiffs correctly argue that immunity does not bar this claim, the trial court decided it on the merits and the plaintiffs make no argument on appeal that this merits ruling was incorrect. (3) We reverse as to the remaining claims for prospective injunctive relief under state and federal law; the trial court erred in holding that immunity shielded the defendants from these claims, and we decline to affirm as right for any reason because the defendants did not argue other, meritorious grounds for summary judgment to the trial court. (4) Finally, we affirm as to the claims for punitive damages and attorney fees and expenses, because the plaintiffs do not argue on appeal that those rulings were erroneous.
As an initial matter, we note that neither side's briefs follow our court rules for record citations. Those rules specify, and have specified throughout the life of this case,1 how electronic records are to be cited. Citations should identify "the PDF page number within [the applicable] volume [number of the electronic record.]" Court of Appeals Rule 25 (d) (2). And some of the citations in the briefs do not correspond to the facts asserted. And moreover, the briefs purports to support factual representations with citations to materials in the appellate record that are not proper summary judgment evidence, such as arguments in the briefs that Bose filed below in opposition to summary judgment or factual recitations in the trial court's summary judgment order. These citations are not helpful to our appellate review. See In the Interest of T. L. , 285 Ga. App. 526 n. 4, 646 S.E.2d 728 (2007) (physical precedent) ( appellate brief's citation to trial court's order to be "unhelpful" to our effort to identify evidence relevant to the issue on appeal); Luong v. Tran , 280 Ga. App. 15, 18 (2) n. 17, 633 S.E.2d 797 (2006) (); Sullivan v. Fabe , 198 Ga. App. 824, 827 (3), 403 S.E.2d 208 (1991) () (citation and punctuation omitted).
These deficiencies have hindered our appellate review. By failing to provide proper record citations, the parties to this appeal run the risk that we will miss evidence relevant to their arguments. In/Ex Systems v. Masud , 352 Ga. App. 722, 723 (1), 835 S.E.2d 799 (2019) (citations and punctuation omitted).
"On appeal from the grant of summary judgment, legal questions are reviewed de novo, and this [c]ourt also conducts a de novo review of the evidence, viewed in the light most favorable to the nonmoving party, to determine if there is a genuine issue of material fact."
Barnett v. Caldwell , 302 Ga. 845 -846 (I), 809 S.E.2d 813 (2018) (citations omitted).
So viewed, and recognizing the limitations discussed above in Division 1, the evidence shows that the plaintiffs own property adjacent to the Chattahoochee River. There are stables on the property and for many years the property has been used for commercial equestrian activities. The plaintiffs have an ongoing dispute with the homeowners association of an adjacent subdivision about the subdivision's rights in the property and the association's characterization of the stables as a subdivision amenity. See Richards v. Bose , 354 Ga. App. 801, 841 S.E.2d 78 (2020). Semanson is a Forsyth County commissioner whose district includes the subdivision.
In September 2017, the plaintiffs petitioned the board of commissioners for a conditional use permit to build a 2,500 square foot caretaker residence within the barn on the property, to be used for an on-site resident manager for the stables. Although caretakers had lived on the property in the past, at the time of the CUP application no one was living there and there was no habitable space on the property. In anticipation of the caretaker residence construction, Bose arranged for utility work to be done on the property.
In the fall and early winter of 2017, Semanson received several complaints from persons in the subdivision about land disturbances and other activities on the property. Some of those complaints appear to be about trenches that were dug on the property in connection with the utility work. The complaints also expressed concern that the plaintiffs were using the property in ways inconsistent with its zoning.
Semanson asked staff in various county departments to investigate the complaints. She also drove to the property and, from a public road, observed what she believed to be land disturbance.
In mid-December, Pruitt, then a soil erosion inspector in the county's engineering department, visited the property several times and took photographs but took no enforcement action. Another person in that department also visited the property and reported that the utility work did not need a permit but that other code enforcement issues might exist.
Semanson, who continued to receive complaints about the property, was dissatisfied with this response. She did not know whether the work on the property violated any ordinances; nevertheless, she sent numerous emails to other officials and employees at the county asking code enforcement to keep the property under observation, seeking additional responses to the concerns she had raised, opining that a stop work order should issue, and sometimes expressing her frustration at what she perceived to be inaction.
On December 28, 2017, Pruitt returned to the property. He did so at the request of someone in the code enforcement department, who had received a report from Semanson about a complaint that dirt was being trucked onto the property. The property was gated and a "no trespassing" sign was posted, and previously Bose had told enforcement officers not to enter the property unless he was present. The code enforcement department had a policy not to enter a property under such circumstances. Nevertheless, without a warrant or Bose's permission, Pruitt entered the property by climbing under the gate. He believed he was authorized to enter the property under a county ordinance as part of his investigation into a reported land disturbance. While there, Pruitt saw "four tandem dump truck loads of dirt that had been dumped on the [p]roperty" and he issued a stop work order for land disturbance without a permit.
Pruitt then spoke to Bose on the telephone and informed him of the stop work order. Bose replied that the dirt was topsoil to be used for re-grassing pastures, a regular activity that he understood not to require a land disturbance permit. Pruitt informed Bose that he could not resolve the stop work order and that Bose would have to address it with other county employees. After issuing the stop work order, Pruitt began regularly monitoring the property.
On January 29, 2018, staff in the county's planning department issued a second stop work order, citing "grading without a permit in the MRPA corridor." One purpose of that stop work order was to ensure that the property was in compliance with state law regulating "development adjacent to major streams in certain metropolitan areas...." OCGA § 12-5-442 (a) ; see generally OCGA § 12-5-440 et seq. (the Metropolitan River Protection Act).
The stop work orders had the effect of shutting down the plaintiffs’ equestrian operations and contributed to significant deterioration of the property. Bose attempted to resolve the issue with the county and get the stop work orders lifted, but he was unable to do so. Ultimately he challenged the stop work orders and other rulings relating to the property with the county's zoning board of appeals.
In the spring of 2018, Semanson met with persons from the homeowners association about their concerns regarding the plaintiffs’ pending permit application. And in the summer of 2018, the county...
To continue reading
Request your trial