CITY OF HAPEVILLE v. SYLVAN AIRPORT PARKING, LLC D/B/A PEACHY AIRPORT PARKING ( 2021 )

FIFTH DIVISION
MCFADDEN, C. J.,
RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
May 17, 2021
In the Court of Appeals of Georgia
A21A0519. CITY OF HAPEVILLE et al. v. SYLVAN AIRPORT McF-020
PARKING, LLC.
MCFADDEN, Chief Judge.
Sylvan Airport Parking, LLC, d/b/a Peachy Airport Parking (hereinafter,
“Peachy Airport Parking”) brought an action for declaratory and injunctive relief
against the City of Hapeville and its mayor and members of its city council in their
official and individual capacities. The relief sought by Peachy Airport Parking
concerned the city’s threatened use of a city tax ordinance to prohibit Peachy Airport
Parking from using a particular parcel of land as a parking facility. Among other
things, Peachy Airport Parking asked the trial court to declare that ordinance
unconstitutionally vague. Citing sovereign immunity, the defendants moved to
dismiss the action. The trial court denied the defendants’ motion and we granted
interlocutory review.
As detailed below, we affirm in part and reverse in part the trial court’s
judgment. We affirm the denial of the motion to dismiss the claims for declaratory
relief against the city and the individual defendants in their official capacities,
because those claims are subject to a statutory waiver of sovereign immunity. But no
such waiver exists permitting the claims for injunctive relief against the city and the
individual defendants in their official capacities, so we reverse the denial of the
motion to dismiss as to those claims. Finally, we affirm the denial of the motion to
dismiss the claims for both declaratory and injunctive relief against the individual
defendants in their individual capacities, because these claims are not subject to
sovereign immunity and the complaint stated claims for such prospective relief.
1. Procedural background.
As stated above, Peachy Airport Parking filed a petition for declaratory and
injunctive relief against the city and the individual defendants in both their official
and individual capacities. In the petition, Peachy Airport Parking alleged that it
owned “combined tracts of land commonly identified as [a single address]” within the
city on which, since 2011, it has conducted a parking-services business pursuant to
2
a commercial occupational tax permit that it renews annually. In 2018, the city cited
Peachy Airport Parking for violating the city’s occupational tax ordinance by
operating its parking facility on one of the eleven parcels making up the combined
tracts. Peachy Airport Parking interpreted the citation to refer to Section 17-5-23 of
the city’s code of ordinances, which provides:
Where a business or profession is operated at more than one place or
where the business includes more than one line, the business or
profession shall be required to obtain the necessary tax certificate for
each location and line and pay an occupation tax in accordance with the
prevailing taxing method and tax rate for each location and line.
The city’s municipal court dismissed the citation against Peachy Airport Parking, but
the city informed Peachy Airport Parking that if it parked vehicles on the parcel it
would violate the city’s occupational tax codes and be subject to another citation. An
employee of the city also informed Peachy Airport Parking that it was not entitled to
a commercial occupational tax permit for the parcel.
Peachy Airport Parking filed this action in superior court seeking a declaration
that it is not in violation of the city’s code of ordinances, that it is only operating one
line of business under Section 17-5-23, that Section 17-5-23 is unconstitutionally
vague, that its commercial occupational tax permit covers the parcel at issue, that it
3
is authorized to park cars on the parcel in question, and that further prosecution of it
for doing so would be unlawful. In this action, Peachy Airport Parking also sought
an injunction barring the defendants from further prosecuting it for parking cars on
the parcel.
The defendants moved to dismiss for lack of subject matter jurisdiction under
OCGA § 9-11-12 (b) (1) and for failure to state a claim upon which relief can be
granted under OCGA § 9-11-12 (b) (6). They asserted that sovereign immunity barred
the claims against the city and the individual defendants in their official capacities
because Peachy Airport Parking had shown no waiver of sovereign immunity. And
they asserted that the individual defendants were also entitled to sovereign immunity
against the claims brought against them in their individual capacities because the
relief sought by Peachy Airport Parking could only be granted by the city. The trial
court denied the motion.
2. Claims against the city and the individual defendants in their official
capacities.
“We review de novo a trial court’s ruling on a motion to dismiss based on
sovereign immunity grounds, which is a matter of law.” Ga. Dept. of Transp. v.
Thompson, 354 Ga. App. 200 (840 SE2d 679) (2020) (citation and punctuation
4
omitted). Although the trial court’s “[f]actual findings are sustained if there is any
evidence supporting them, and the burden of proof is on the party seeking [a] waiver
of immunity,” id. (citation and punctuation omitted), in this case the trial court made
no factual findings, nor were any necessary for the trial court to determine whether
sovereign immunity had been waived under the circumstances of this case.
“The constitutional doctrine of sovereign immunity bars any suit against the
[s]tate to which it has not given its consent, including suits against state departments,
agencies, and officers in their official capacities, and including suits for injunctive
and declaratory relief from the enforcement of allegedly unconstitutional laws.”
Lathrop v. Deal, 301 Ga. 408, 444 (IV) (801 SE2d 867) (2017). This includes suits
against municipalities. Godfrey v. Ga. Interlocal Risk Mgmt. Agency, 290 Ga. 211,
214 (719 SE2d 412) (2011). To avoid dismissal of its claims against the city and the
individual defendants in their official capacities, Peachy Airport Parking must point
to a waiver in either our state Constitution or statutory law. See Lathrop, supra at 444(IV).
(a) Claim for declaratory relief.
As stated above, Peachy Airport Parking’s complaint included a claim for a
declaration that Section 17-5-23 of the city’s code of ordinances could not be
5
enforced against it because the ordinance was unconstitutionally vague. In City of
Rincon v. Ernest Communities, 356 Ga. App. 84, 86 (1) (846 SE2d 250) (2020), we
held that, under OCGA § 9-4-7 (b), “a municipality is subject to a declaratory
judgment action where, as here, the validity of its ordinance is challenged.” OCGA
§ 9-4-7 (b) provides that “[i]n any proceeding involving the validity of a municipal
ordinance or franchise, the municipality shall be made a party and shall be entitled to
be heard fully as a party.” As explained in the City of Rincon decision, OCGA § 9-4-7
(b) constitutes a waiver of sovereign immunity in the declaratory judgment action,
and the trial court did not err in denying the motion to dismiss the declaratory
judgment claim against the city and the individual defendants in their official
capacities. See City of Rincon, supra at 86 (1).
(b) Claim for injunctive relief.
Unlike the claim for declaratory relief, however, no waiver of sovereign
immunity permits the claim for injunctive relief against the city and the individual
defendants in their official capacities. See City of Rincon, supra at 86-87 (1). We
disagree with Peachy Airport Parking that OCGA § 36-33-1 (b) is the source of a
statutory waiver. That Code section provides: “Municipal corporations shall not be
liable for failure to perform or for errors in performing their legislative or judicial
6
powers. For neglect to perform or improper or unskillful performance of their
ministerial duties, they shall be liable.” OCGA § 36-33-1 (b) (emphasis supplied).
The waiver of sovereign immunity contained in this Code section does not apply to
Peachy Airport Parking’s claim for injunctive relief, because a claim for injunctive
relief does not seek to impose liability on the defendants. As our Supreme Court
explained in Lathrop v. Deal, supra, the term “‘liability’ often refers to a financial or
pecuniary obligation, that is, monetary damages[.]” 301 Ga. at 442 (III) (C) (citation
and punctuation omitted). And, as in Lathrop, that usage of the term “liability” is
consistent with surrounding language, in this case the language of OCGA § 36-33-1
(a), which addresses the immunity of municipal corporations “from liability for
damages.” OCGA § 36-33-1 (a) (emphasis supplied). See Lathrop, 301 Ga. at 442(III) (C) (noting that the usage of “liability” in the second sentence of Ga. Const. of
1983, Art. I, Sec. II, Par. IX (d) (as amended in 1991) to refer to financial or
pecuniary obligations was consistent with the first sentence of that provision, “which
speaks of public officers being ‘liable for injuries and damages’”).
Because the claim for injunctive relief against the city and the individual
defendants in their official capacities was not subject to a waiver, sovereign immunity
7
barred it and the trial court erred in denying the motion to dismiss this claim for lack
of subject matter jurisdiction under OCGA § 9-11-12 (b) (1).
3. Claims against the individual defendants in their individual capacities.
Sovereign immunity does not apply to claims brought against persons in their
individual capacities. See Bd. of Commrs. of Lowndes County v. Mayor & Council of
the City of Valdosta, 309 Ga. 899, 903 (2) (b) (848 SE2d 857) (2020). Nevertheless,
the individual defendants assert that it applies to the claims brought against them in
their individual capacities in this case because, as individuals, they were not the real
parties in interest. This contention has no merit. “The limited circumstances in which
[our Supreme Court has] held that sovereign immunity is applicable under a real-
party-in-interest theory[,] primarily have included attempts to control the real
property rights and contractual obligations of the [s]tate.” Id. at 905 (2) (c). Because
“the relief [Peachy Airport Parking] seeks would not alter the title, possession, or
usage of any real property of the [city] or interfere with any [city] contracts,”
sovereign immunity does not apply to the individual-capacity claims in this case. Id.
at 908 (3).
Because sovereign immunity does not bar an action for prospective declaratory
or injunctive relief against the individual defendants in their individual capacities, the
8
merits of their motion to dismiss turn on whether the petition states a claim under
OCGA § 9-11-12 (b) (6). Such a motion
should not be sustained unless (1) 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; and (2) 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.
Williams v. DeKalb County, 308 Ga. 265, 270 (2) (840 SE2d 423) (2020) (citation
omitted). Under this standard, Peachy Airport Parking’s complaint stated a claim for
declaratory and injunctive relief against the city’s mayor and members of its council
in their individual capacities. The complaint asserted that the city council “is the
governing authority of the [c]ity . . . and is empowered to enact and implement land
use regulations.” Within the framework of this complaint, Peachy Airport Parking
could introduce evidence showing that the mayor and council members had
enforcement authority related to the issues upon which Peachy Airport Parking seeks
declaratory and injunctive relief. So, “at this time, it cannot be said that the
allegations of the complaint[ ] disclose with certainty that (Peachy Airport Parking)
would not be entitled to relief under any state of provable facts asserted in support,”
9
Dawson County Bd. of Commrs. v. Dawson Forest Holdings, 357 Ga. App. 451, 460
(4) (850 SE2d 870) (2020) (citation and punctuation omitted; emphasis in original),
and the trial court did not err in denying the motion to dismiss the individual-capacity
claims.
4. Challenge to the trial court’s construction of the complaint under a OCGA
§ 9-11-12 (b) (6) standard rather than making factual findings.
Finally, the defendants argue that the trial court erred when, in resolving their
motion to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12 (b)
(1), the trial court construed the facts asserted in the complaint under the standard
appropriate for a motion to dismiss for failure to state a claim under OCGA § 9-11-12
(b) (6), rather than making factual findings. See generally Thompson, 354 Ga. App.
at 205-206 (1) (noting that trial court serves as finder of fact in ruling on a motion to
dismiss under OCGA § 9-11-12 (b) (1)).
This challenge only applies to the motion to dismiss the claims made against
the city and the individual defendants in their official capacities, because those are
the only claims that implicate sovereign immunity and are potentially subject to
dismissal under OCGA § 9-11-12 (b) (1). But we need not address the merits of the
defendants’ argument, because the resolution of the sovereign immunity claims in this
10
particular case, as discussed in above in Division 2, do not involve any factual
disputes.
The individual-capacity claims are not subject to sovereign immunity, so the
trial court properly decided those claims under OCGA § 9-11-12 (b) (6).
Judgment affirmed in part and reversed in part. Rickman, P. J., and Senior
Appellate Judge Herbert E. Phipps concur.
11