Scarborough v. Hunter, S13A0060.

• Decision Date: 11 July 2013
• Docket Number: No. S13A0060.,S13A0060.
• Parties: SCARBOROUGH et al. v. HUNTER et al.
• Court: Georgia Supreme Court

293 Ga. 431

746 S.E.2d 119

SCARBOROUGH et al.

v.HUNTER et al.

No. S13A0060.

Supreme Court of Georgia.

July 11, 2013.

Brian C. Ranck, Sanders & Ranck, P.C., Toccoa, for appellant.

James E. Cornwell, Jr., Cornwell Law Offices, Toccoa, for appellees.

NAHMIAS, Justice.

This case involves a decision by the Stephens County Board of Commissioners (the “Board”) to abandon a 3,000–foot–long, dead-end county road, known as “Winding Bluff Road” (the “Road”), which runs along the side of a mountain and serves no existing homes or businesses. Owners of some undeveloped lots on the Road and others sued the Board, and the trial court set aside the abandonment decision. Based on that ruling, the court issued a writ of mandamus requiring the Board to repair and maintain the Road. The court also ordered the Board to pay attorney fees and later granted summary judgment against the Board on its counterclaims.

As explained below, the trial court failed to accord proper deference to the Board's decision to abandon Winding Bluff Road. Accordingly, we reverse the order setting aside the Board's abandonment decision, along with the mandamus and attorney fees award that were predicated on the court's abandonment ruling. In addition, we vacate the trial court's summary judgment order and remand the case for further proceedings on the Board's counterclaims.

1. In late 2006 and early 2007, K–M Development Corporation (“K–M”) built the Road to provide access to a dozen or so undeveloped lots in a planned expansion of K–M's “The Summit” subdivision. In June 2007, the Board granted a variance from certain county requirements for subdivision roads and accepted the Road into the county road system, although county regulations required K–M to maintain the Road for the next year. After heavy rains in August 2008, the Road began to crack and fail. After 17 inches of rain in just three days during September 2009, the Road's condition became even worse. In December 2009, the county closed the Road because it was failing to the point that it was deemed unstable and unsafe. In July 2010, while the Board was in discussions with K–M about who should repair the Road, the county purchased a lot on the Road from Chris and Christy Vena, the only lot owners not associated in some way with K–M or its president and CEO John Merck.

On July 19, 2010, after the Board announced a public hearing to consider formally abandoning the Road, lot owners Jason Hunter and James Sellers, county resident Judy Medlin (who is Sellers' ex-wife), Merck, and K–M Development (collectively, “Plaintiffs”) filed a complaint against Board chairman C. Dean Scarborough and the four other county commissioners, in their capacity as the Stephens County Board of Commissioners, seeking a writ of mandamus compelling the county to repair and maintain the Road, a temporary restraining order (“TRO”) preventing the public hearing, and an award of attorney fees under OCGA § 13–6–11.¹ After a hearing, the trial court entered a TRO directing the Board “not to conduct a public hearing or otherwise in any way abandon Winding Bluff Road,” but the court also issued a certificate of immediate review to allow the Board to apply for an interlocutory appeal. On August 20, 2010, the Board filed an answer to the complaint and counterclaims for fraud, equitable rescission of the Road's acceptance into the county road system, punitive damages, and attorney fees under OCGA § 13–6–11.

We granted the Board's application for interlocutory appeal of the TRO and on February 28, 2011, we reversed that order. See Scarborough v. Hunter, 288 Ga. 687, 688, 706 S.E.2d 650 (2011) (“Scarborough I ”).We held that the trial court's duty was to review the Board's decision after the Board exercised its statutorily granted discretion to determine whether to abandon the Road, not to prevent the Board from exercising its discretion at all. See id. at 689–690, 706 S.E.2d 650.

With the TRO rescinded, the Board was able to hold a public hearing, after giving proper notice, on June 28, 2011. After receiving evidence and hearing arguments from proponents and opponents of abandoning Winding Bluff Road, the Board voted unanimously to accept the county staff's recommendation to abandon the Road “on the basis that it has ceased to be used by the public to the extent that ... no substantial public purpose is served by it and that its removal from the county road system is otherwise in the ... best public interest,” the standard for abandonment set forth in OCGA § 32–7–2(b)(1). On July 11, 2011, Plaintiffs amended their complaint to add a count challenging the Board's abandonment decision.²

On September 26, 2011, the trial court held a bench trial on Plaintiffs' mandamus and attorney fees claims. On October 31, 2011, the court entered an order concluding that the Board's decision to abandon the Road was arbitrary and capricious and an abuse of discretion and was not in the best public interest; the court therefore set aside the abandonment decision. The court also ruled that the county had purchased the Venas' lot with no particular public purpose and in bad faith to influence the outcome of the mandamus action; on this ground, the court awarded Plaintiffs $26,323.07 in attorney fees under OCGA § 13–6–11. On the same day, the court entered an order of mandamus requiring the Board to repair and maintain the Road “in as good a condition as same was initially accepted.”

On April 25, 2012, Plaintiffs filed a motion for summary judgment on the Board's counterclaims, which the Board amended on June 1, 2012, to add a count for breach of contract based on alleged violations of the variance issued in connection with the Road's acceptance by the county. After holding a hearing, on June 25, 2012, the trial court granted summary judgment to Plaintiffs on the Board's counterclaims.

On July 25, 2012, the Board filed a timely appeal to the Court of Appeals, which properly transferred the case to this Court. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. III(5) (giving this Court appellate jurisdiction in “[a]ll cases involving extraordinary remedies”); Spence v. Miller, 176 Ga. 96, 99, 167 S.E. 188 (1932) (explaining that “all cases involving extraordinary remedies” includes cases involving the extraordinary legal remedy of mandamus).

2. The Board contends that the trial court erred in setting aside the Board's decision to abandon the Road and in issuing a writ of mandamus based on the court's abandonment ruling. We agree.

(a) There is “no question ... that the county is obligated to maintain public roads” in the county road system. Chatham County v. Allen, 261 Ga. 177, 177, 402 S.E.2d 718 (1991). By statute, counties must “plan, designate, improve, manage, control, construct, and maintain an adequate county road system,” and counties have “control of and responsibility for all construction, maintenance, or other work related to the county road system.” OCGA § 32–4–41(1). Counties must maintain the roads in the county system in such condition that “ordinary traffic could be taken over them.” Burke County v. Askin, 291 Ga. 697, 701, 732 S.E.2d 416 (2012). See also Commrs. of Sumter County v. McMath, 138 Ga. 351, 352, 75 S.E. 317 (1912) ( “Certainly a public road over which reasonable or ordinary loads can not, with reasonable or ordinary ease and facility, be hauled is not up to the standard required by law in this State.”). This county duty is enforceable by mandamus under both the general mandamus statute, OCGA § 9–6–20,³ and a special mandamus statute applicable to the repair and maintenance of county roads, which may be invoked by citizens of the relevant county, see OCGA § 9–6–21(b).⁴See Burke County, 291 Ga. at 698–699, 732 S.E.2d 416.

Counties also have statutory authority, however, to abandon public roads under their jurisdiction “[w]henever deemed in the public interest.” OCGA § 32–7–1. The abandonment process is governed by OCGA § 32–7–2(b)(1), which says:

When it is determined that a section of the county road system has for any reason ceased to be used by the public to the extent that no substantial public purpose is served by it or that its removal from the county road system is otherwise in the best public interest, the county, by certification recorded in its minutes, accompanied by a plat or sketch, and, after notice to property owners located thereon, after notice of such determination is published in the newspaper in which the sheriff's advertisements for the county are published once a week for a period of two weeks, and after a public hearing on such issue, may declare that section of the county road system abandoned. Thereafter, that section of road shall no longer be part of the county road system and the rights of the public in and to the section of road as a public road shall cease.

(b) A complaint for mandamus is generally the proper way to obtain judicial review of a county's exercise of discretion to abandon a county road under OCGA § 32–7–2(b)(1). See OCGA §§ 9–6–20, 9–6–21(b); Burke County, 291 Ga. at 698–699, 732 S.E.2d 416.⁵ Historically, mandamus was a remedy for government inaction—the failure of a public official to perform a clear legal duty. See Richmond County v. Steed, 150 Ga. 229, 231–232, 103 S.E. 253 (1920). However, in Georgia, mandamus will also lie “ ‘to control the conduct of an officer vested with a discretion ... where the exercise of that discretion has been so capricious or arbitrary as to amount to a gross abuse.’ ” Bd. of Commrs. of Roads & Revenues of Walton County v. Robinson, 160 Ga. 816, 818, 129 S.E. 73 (1925) (citation omitted). See also OCGA § 9–6–21(a) (“Mandamus shall not lie ... to a public officer who has an absolute discretion to act or not to act unless there is a gross abuse of such discretion.”).

In the prior appeal in this case, we delineated the respective authority of the Board and the trial court with regards to the abandonment issue:

“The function of the Board was...