FIFTH DIVISION MCFADDEN, P. J., GOBEIL and LAND, JJ.
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
October 31, 2022
In the Court of Appeals of Georgia A22A1071. MOMMIES PROPERTIES, LLC et al. v. SEMANSON et al.
MCFADDEN, Presiding Judge.
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.
1. Record citation deficiencies.
2 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 SE2d 728) (2007) (physical precedent)
(finding 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 SE2d 797) (2006) (noting that citations to the trial court’s order and
1 The current version of Court of Appeals Rule 25, which governs the structure and content of briefs, became effective August 30, 2022. Although Rule 25 was modified and renumbered during the course of the briefing in this appeal, the requirement that citations be by PDF page number also existed in the former versions that applied to the parties when their filed their briefs in this case. See Former Court of Appeals Rule 25 (d) (2) (effective June 10, 2022); former Court of Appeals Rule 25 (c) (3) (effective Jan. 11, 2022).
3 to counsel’s argument on summary judgment are not citations to evidence contained
in the record); Sullivan v. Fabe, 198 Ga. App. 824, 827 (3) (403 SE2d 208) (1991)
(holding that a trial court brief “is not proper evidence” on summary judgment)
(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. “While it is possible that [such evidence] exists
somewhere in the appellate record[ ], we have repeatedly held that it is not the
function of this court to cull the record on behalf of a party. This rule is particularly
true in cases, such as this one, with a voluminous record.” In/Ex Systems v. Masud,
352 Ga. App. 722, 723 (1) (835 SE2d 799) (2019) (citations and punctuation
omitted).
2. Facts and procedural history.
“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 SE2d 813)
(2018) (citations omitted).
4 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 SE2d 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
5 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.
6 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.
7 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 board of commissioners held a public hearing
on the application, at which subdivision residents expressed opposition. Bose asked
Semanson to recuse from voting on the application, but she refused. The board of
commissioners ultimately approved a permit for construction of a caretaker residence
of no more than 850 square feet, with the following condition: “A Certificate of
8 Occupancy will not be issued until all codes and regulations of Forsyth County have
been satisfied on the property inside and outside the building.” This included
resolving the two stop work orders. Bose, who wanted to construct residences for two
caretakers and their families, considered the approved permit to be “useless.”
After the hearing on the permit application at which Bose had asked Semanson
to recuse, the property came under the scrutiny of the Army Corps of Engineers,
which contacted Bose about potential violations of federal law based on information
it had received that the plaintiffs had rerouted a stream on the property. Bose believes
Semanson instigated this investigation. Ultimately, no problem was identified.
Later in 2018, in response to questions from subdivision residents, Semanson
looked into whether a blocked road on the property impeded emergency or other
necessary government access. It was determined that there was no problem with the
road.
The plaintiffs filed this action on August 14, 2019 against Semanson and Pruitt
in their individual capacities. Against both defendants they asserted state law claims
for invasion of privacy, trespass, and intentional interference with business relations,
seeking damages and injunctive relief for the first two of those claims and only
damages for the third. Against Semanson they also asserted an equal protection claim
9 under both state and federal law and a claim for First Amendment retaliation under
federal law (alleging Semanson retaliated after Bose asked her to recuse from ruling
on the permit application); they sought only injunctive relief as to those claims. And
they sought punitive damages and attorney fees and expenses.
In March 2021, we issued a decision in Forsyth County v. Mommies
Properties, 359 Ga. App. 175 (855 SE2d 126) (2021), an appeal arising from the
plaintiffs’ proceeding before the zoning board of appeals challenging the stop work
orders and other decisions regarding the property. After an evidentiary hearing, the
board had found against the plaintiffs, and in Forsyth County we held that the
evidence presented at that hearing supported the board’s decision. Id. at 192-195 (6),
(7), (8). Our Supreme Court denied the plaintiffs’ petition for certiorari in that case.
The parties discuss Forsyth County in some detail. But we conclude that we do
not need to decide its legal effect. In that case we concluded that evidence presented
to the zoning board of appeals authorized its decision to uphold the stop work orders
and the county’s other actions. In this case we need only recognize that the plaintiffs
have exhausted their avenues for directly challenging the propriety of the stop work
orders and other county actions. So they cannot use this case to collaterally attack the
board’s rulings.
10 A few months later, the defendants moved for summary judgment against all
of the plaintiffs’ claims. They argued that our decision in Forsyth County, supra,
precluded the claims; alternatively, they argued that they were entitled to official
immunity and, in the case of Semanson, immunity under OCGA § 51-1-20 (a).
Among other things, the plaintiffs argued in response that the Forsyth County
decision had no preclusive effect, that the defendants were not entitled to immunity
because they acted both outside the scope of their authority and with actual malice,
and that, in any event, immunity was not a bar to their claims for prospective
injunctive relief.
The trial court granted summary judgment to the defendants on all of the
claims. Although the trial court agreed with the plaintiffs that the earlier Forsyth
County decision did not preclude the claims, the trial court resolved all of the claims
except the equal protection claim on immunity grounds, holding that both defendants
were entitled to official immunity and that Semanson was also entitled to immunity
under OCGA § 51-1-20 (a). The trial court resolved the equal protection claim on the
merits, holding that no genuine issue of material fact existed to preclude summary
judgment.
3. Denial of motion for oral evidence at summary judgment hearing.
11 The plaintiffs enumerate as error the trial court’s “fail[ure] to consider evidence
offered that Semanson had engaged in similar acts showing intent and state of mind.”
This claim appears to concern an order in which the trial court denied the plaintiffs’
motions to present oral testimony at the summary judgment hearing. “The law creates
no obligation on the court to permit the use of oral evidence at this kind of hearing[,]”
Gunter v. Nat. City Bank, 239 Ga. 496, 497 (238 SE2d 48) (1977), and “[d]enial of
a request to [do so] is not ground for reversal.” Price v. Star Svc. & Petroleum Corp.,
119 Ga. App. 171, 179 (3) (166 SE2d 593) (1969). Whether to do so was a matter
within the trial court’s discretion. Springer v. Gaffaglio, 190 Ga. App. 272, 273 (2)
(378 SE2d 691) (1989). The plaintiffs have not shown that the trial court abused his
discretion in that regard.
4. Summary judgment on state law claims for damages.
The trial court correctly granted summary judgment, on official immunity
grounds, on the plaintiffs’ state law claims against Semanson and Pruitt for damages
(invasion of privacy, trespass, and intentional interference with business relations).
The doctrine of official immunity applies to claims brought against public
officers and employees in their individual capacities. Howell v. Willis, 317 Ga. App.
199, 200 (729 SE2d 643) (2012). Previously established in Georgia case law, official
12 immunity was made a part of Georgia’s constitution in 1991. See Gilbert v.
Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994). Our constitution now
provides:
Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.
Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d).
Under this provision, public officers and employees “may be held personally
liable for negligence relating to their official duties only when performing
‘ministerial’ acts; ‘discretionary’ acts are only subject to suit when performed with
actual malice or intent to cause injury.” Williams v. DeKalb County, 308 Ga. 265, 278
(4) (c) (840 SE2d 423) (2020) (citation and punctuation omitted). This doctrine
13 recognizes “the need of preserving independence of action without deterrence or
intimidation by the fear of personal liability and vexatious suits.” Gilbert, 264 Ga. at
750 (4) (quoting Restatement (Second) of Torts, § 895D, comment b).
(a) The acts at issue were discretionary.
The plaintiffs do not appear to challenge the discretionary nature of the acts
that they cite as the basis for the defendants’ liability. “(A) discretionary act calls for
the exercise of personal deliberation and judgment, which in turn entails examining
the facts, reaching reasoned conclusions, and acting on them in a way not specifically
directed.” Roper v. Greenway, 294 Ga. 112, 116 (751 SE2d 351) (2013) (citation,
punctuation, and emphasis omitted). The acts at issue in this case — Semanson’s
response to questions and concerns about suspected code violations on the plaintiffs’
property and vote on the permit, and Pruitt’s inspection of the property and response
to what he perceived to be land disturbance violations — required an exercise of
personal deliberation and judgment. See King v. Comfort Living, 287 Ga. App. 337,
340 (2) (651 SE2d 484) (2007) (holding that, to the extent a city’s mayor and council
were involved in decision-making regarding the construction of a water line to the
plaintiff’s property, such decisions were discretionary); Happoldt v. Kutscher, 256
Ga. App. 96, 100 (1) (567 SE2d 380) (2002) (where a subdivision review officer was
14 “required to exercise personal deliberation and judgment in determining whether
[drainage] standards ha[d] been met, his determination was discretionary in nature”).
(b) The acts were taken in the performance of official functions.
The plaintiffs assert that the defendants were not entitled to official immunity
because their acts fell outside the scope of their official authority. See Gilbert, 264
Ga. at 753 (6) (the term “official functions,” as used in Ga. Const. of 1983, Art. I, Sec.
II, Par. IX (d), means “any act performed within the officer’s or employee’s scope of
authority”). We disagree.
(i) Semanson.
The evidence to which the plaintiffs point in support of their claims shows that
Semanson forwarded issues, complaints, and concerns raised by citizens to county
employees whom she believed to be in a position to address those issues, and she
encouraged those persons to resolve them. County employees described this type of
behavior as common for county commissioners, and the plaintiffs offer no persuasive
argument for why such acts would fall outside the scope of a county commissioner’s
official authority. Indeed, in their response to the statement of undisputed facts that
the defendants filed with the trial court, the plaintiffs agreed that “[c]ommissioners
may respond to public citizen complaints and forward same to the appropriate
15 department”; and that “[c]ommissioners may ask that an issue be investigated or ask
that a stop work order may issue[.]”
We find no merit in the plaintiffs’ argument that, to fall within the work of a
county commissioner, such constituent advocacy activities must be specifically
enumerated as part of the powers afforded by law to county governing authorities.
See Smith v. Lott, 317 Ga. App. 37, 43 (1) (730 SE2d 663) (2012) (absent authority
to the contrary, rejecting “argument that a public official who acts when there is no
specific duty to act, acts outside his authority”).
We also are not persuaded by the plaintiffs’ broad argument, based on this
court’s opinion in Hodges v. Youmans, 122 Ga. App. 487 (177 SE2d 577) (1970)
(physical precedent as to Div. 2), that a “county commissioner has no official
immunity for torts caused by her personal engagement in code enforcement.” In
Hodges, we reversed a grant of summary judgment to a county commissioner whom
the plaintiff alleged had “used his office as commissioner oppressively, maliciously,
corruptly, and outside the authority of the law” to “further [a] conspiracy” to prevent
the plaintiff’s construction and operation of a trailer park, by, among other things,
“issuing a stop work order, . . . voting to revoke [the plaintiff’s] permit to construct
[a] trailer park, and, when he failed in this endeavor, . . . vot[ing] to deny [the]
16 plaintiff a business license[.]” Id. at 488 (punctuation omitted). But as physical
precedent, the division in Hodges upon which the plaintiffs rely is not binding
authority. See Court of Appeals Rule 33.2 (a) (2). And we do not find it persuasive
for two reasons.
First, the Hodges decision differs from this case on a key factual point. Unlike
Semanson, the commissioner in Hodges himself issued the stop work order. Hodges,
122 Ga. App. at 490 (2). Although the plaintiffs characterized Semanson as
essentially “dictating” the issuance of the stop work orders in this case, they have not
pointed to evidence supporting that characterization. Instead, the evidence viewed in
the light most favorable to the plaintiffs shows that, while Semanson strongly
advocated for the issuance of a stop work order, that decision ultimately was made
by other persons within the county. Again, the plaintiffs conceded as much in
response to the defendants’ statement of undisputed material facts, agreeing that
“[c]ommissioners requests are not binding on the respective departments and
[c]ommissioners do not have the ability or authority to order any specific action to be
taken.”
Moreover, we are not convinced that the analysis in Hodges remains sound. We
decided Hodges before the doctrine of official immunity was made part of our state
17 constitution, and the analysis in Hodges arguably relies on a more narrow
interpretation of official immunity than what our constitution now demands. Compare
Hodges, 122 Ga. App. at 491 (2) (holding that official immunity is not extended to
a public officer who “do[es] things not authorized by law, or act[s] in a wanton or
malicious way and with intent to injure the property of another”) (emphasis supplied;
other emphasis omitted) with Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d) (providing
that public officers and employees are not subject to suit or liability for discretionary
acts in the performance of their official functions unless “they act with actual malice
or with actual intent to cause injury”).
(ii) Pruitt.
To the extent the plaintiffs also argue that Pruitt was acting outside of his
official authority, we disagree. By definition, Pruitt’s role as a county soil and erosion
inspector involved the inspection of properties for suspected violations, and his act
of entering the plaintiffs’ property in the course of such an inspection fell within the
scope of his official authority even if, as the plaintiffs allege, he should not have
entered without a warrant or the plaintiffs’ permission. See Taylor v. Waldo, 309 Ga.
App. 108, 110 (1) (709 SE2d 278) (2011) (a police officer was entitled to official
immunity for his exercise of discretion in determining that an act fell within his
18 official authority, even if that determination was wrong). See also Cameron v. Lang,
274 Ga. 122, 125 (2) (549 SE2d 341) (2001) (affirming grant of summary judgment
based on official immunity to law enforcement officer who, while engaged in a high
speed pursuit against a suspect, ran a stop sign without turning on his blue lights or
siren); Qenkor Constr. v. Everett, 333 Ga. App. 510, 522 (3) (d) (773 SE2d 821)
(2015) (finding that a sheriff’s allegedly unauthorized seizure and retention of cash
during a search was a discretionary act that occurred while the sheriff was “acting
within the scope of his official duties,” such that official immunity would “shield [the
sheriff] from liability on [the plaintiff’s] conversion claim unless [the plaintiff could]
show that [the sheriff] acted with actual malice or with actual intent to cause injury”)
(c) The plaintiffs have not pointed to evidence showing actual malice or an
actual intent to cause injury.
We also conclude that the plaintiffs have not shown the necessary actual malice
or actual intent to cause injury. “In the context of Georgia’s official immunity
doctrine, ‘actual malice’ requires a deliberate intention to do wrong. A ‘deliberate
intention to do wrong’ such as to constitute the actual malice necessary to overcome
official immunity must be the intent to cause the harm suffered by the plaintiffs.”
19 Williams, 308 Ga. at 278-279 (4) (c) (citations and punctuation omitted). “Moreover,
the phrase ‘actual intent to cause injury’ has been defined in a tort context to mean
an actual intent to cause harm to the plaintiff, not merely an intent to do the act
purportedly resulting in the claimed injury.” Wyno v. Lowndes County, 305 Ga. 523,
531 (3) (824 SE2d 297) (2019) (citation and punctuation omitted). This standard
“applies equally to all public employees, regardless of the power they wield and
regardless of the type of harm done.” Wilson v. Cromer, 356 Ga. App. 763, 766 (1)
(847 SE2d 213) (2020).
In their motion for summary judgment, the defendants pointed to evidence
negating the plaintiffs’ claim that they acted with actual malice or intent to injure. For
example, in her deposition Semanson denied directing staff to take any particular
action in response to her requests that they investigate citizen complaints, and she
denied ever using her role as a commissioner to retaliate against someone for doing
something she did not like. And Pruitt testified in his affidavit that he believed that
a county ordinance authorized him to enter the plaintiffs’ property as part of his
investigation into suspected land disturbance. So to avoid summary judgment, the
plaintiffs were required to point to specific evidence giving rise to a triable issue on
20 that point. See Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010).
As detailed below, they have not done so.
Viewed in the plaintiffs’ favor, the exchange of emails between Semanson and
other county officials and employees in late 2017 suggests that she aggressively
pursued the enforcement of code and zoning regulations against them on behalf of
residents of the adjacent subdivision without knowing whether or not enforcement
actions were appropriate. The plaintiffs rely heavily on this evidence to argue that
Semanson acted with actual malice. They also point to deposition testimony in which
Semanson called some of Bose’s actions “creepy,” to Semanson’s later inquiries into
the blocked access road, and to her suspected involvement in the investigation by the
Army Corps of Engineers to suggest that Semanson did not like them.
But actual malice “requires more than harboring bad feelings about another.”
Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999). “Evidence
demonstrating frustration, irritation, and possibly even anger is not sufficient to
penetrate official immunity, nor is proof of ill will, unless the ill will is combined
with the intent to do something wrongful or illegal.” Wilson, 356 Ga. App. at 765-766
(1) (citation and punctuation omitted). See also Adams, supra; Selvy v. Morrison, 292
21 Ga. App. 702, 705 (665 SE2d 401) (2008); Anderson v. Cobb, 258 Ga. App. 159, 160
(2) (573 SE2d 417) (2002).
There is also no evidence that Semanson pushed for enforcement actions that
she believed were unwarranted. Compare Schultz v. Lowe, 364 Ga. App. 345, 358-359
(2) (874 SE2d 842) (2022) (trial court did not err in granting summary judgment to
a law enforcement officer based on official immunity where there was no evidence
from which a jury could infer that the officer knew his arrest of the plaintiff was
groundless) with Bateast v. DeKalb County, 258 Ga. App. 131, 132 (572 SE2d 756)
(2002) (where there was evidence that law enforcement officers arrested the plaintiff
for a crime that they knew she did not commit, the officers were not entitled to
summary judgment on official immunity grounds because a jury could reasonably
infer that they deliberately intended to do a wrongful act and acted with actual
malice). Although the plaintiffs suggest that Semanson should have taken steps to
verify the citizen complaints before referring them to other county officials for action,
any inadequate investigation on her part is not enough to “show a deliberate intent to
commit a wrongful act or to harm [the plaintiffs].” Anderson, 258 Ga. App. at 161 (2).
And for purposes of official immunity in this case, it does not matter whether
or not any further enforcement action was appropriate. The fact that a government
22 officer or employee exercised poor judgment or that his or her decisions were
“misguided” or “flawed” is not evidence of actual malice that would deprive the
officer or employee of official immunity. See Selvy, 292 Ga. App. at 705; Marshall,
310 Ga. App. 64, 69 (712 SE2d 71) (2011). Even if Semanson “was motivated by [an
incorrect] perception that [the defendants were in violation of local codes or other
laws], this does not show an intent to do wrong.” Id. at 70.
There also is no evidence that Semanson dictated any enforcement decision
reached by the persons who investigated the complaints. As stated above, the
plaintiffs agreed with the defendants’ statement of undisputed fact that Semanson did
not have the ability or authority to order any specific action to be taken. Pruitt, who
issued the first stop work order, testified that he was asked to investigate by someone
other than Semanson. The head of the planning department, which issued the second
stop work order, testified that he did not rely on statements by Semanson in
connection with it. Semanson was one of five commissioners voting on the plaintiffs’
permit application. The plaintiffs have pointed to no evidence to the contrary.
Simply put, the plaintiffs have “not pointed to any legal authority to support
[their] claim that the jury could infer actual malice [from Semanson’s efforts to have
their activities on the property investigated and any code violations addressed].”
23 Wilson, 356 Ga. App. at 766 (1). Their theory for avoiding the shield of official
immunity is illustrated by Bose’s deposition testimony, in which he opines that
Semanson used other county officials and employees to do the bidding of the
homeowners association, in order to garner votes for her own personal gain. Their
argument that Semanson’s actions demonstrated actual malice “requires that we
speculate and make assumptions that simply are not justified by the record, even
viewed most favorably to [the plaintiffs].” Conley v. Dawson, 257 Ga. App. 665, 668
(2) (572 SE2d 34) (2002).
There is also no evidence that Pruitt acted with actual malice or an intent to
injure the plaintiffs. As stated above, Pruitt testified that he believed a county
ordinance permitted him to enter the property without a warrant or the plaintiffs’
permission, and even if he was wrong on that point, “the immunity from civil liability
given to public officers for a mistake in judgment extends to errors in the
determination both of law and of fact.” Wallace v. Greene County, 274 Ga. App. 776,
780 (1) (618 SE2d 642) (2005) (citation and punctuation omitted). This principle also
applies to any errors in Pruitt’s conclusion that the activities he observed on the
property merited a stop work order. See Reed v. DeKalb County, 264 Ga. App. 83, 86-
24 87 (589 SE2d 584) (2003) (“Even assuming [law enforcement officers’] actions in
arresting [the plaintiff] may have been misguided, there is no evidence that they were
taken with actual malice.”) (citation and punctuation omitted); City of Atlanta v.
Heard, 252 Ga. App. 179, 182-183 (2) (555 SE2d 849) (2001) (even if detectives’
investigation was flawed, they were entitled to immunity for their decision to arrest
the plaintiff). And there is no evidence that Pruitt’s subsequent inspections of the
property, while numerous, were anything other than routine measures to assess
compliance with the stop work orders, which remained in effect.
5. Summary judgment on equal protection claims.
As for the equal protection claims, the plaintiffs have not shown that the trial
court erred in granting summary judgment. The plaintiffs asserted those claims only
against Semanson. So the trial court’s mention of Pruitt in that part of the opinion is
surplusage, and we do not address it.
The grant of summary judgment to Semanson on the equal protection claim was
on the merits. The trial court found no evidence that the plaintiffs were similarly
situated to others who had received different treatment.
The defendants argue that the plaintiffs did not enumerate this ruling as error
on appeal. We disagree. “An error of law has as its basis a specific ruling made by the
25 trial court. In order for a Georgia appellate court to review a trial court ruling for legal
error, a party must set forth in the enumeration of errors the allegedly erroneous
ruling. OCGA § 5-6-40.” Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).
Parties often summarize their arguments in their enumerations of error. That is often
helpful. But it is surplusage. See OCGA § 5-6-51 (4) (setting out an example of an
enumeration of errors “declared to be sufficient”).
Here it is apparent that the legal error the plaintiffs’ various enumerations of
error challenge is the grant of summary judgment. “The individual facets of [the
plaintiffs’] attack on the legal ruling with which they took issue are arguments in
support of a legal position and are not, in and of themselves, errors of law.” Felix, 271
Ga. at 539. They are sufficient. Our Appellate Practice Act provides that
[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that . . . the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.
26 OCGA § 5-6-48 (f). This Code section “impose[s] on the appellate courts a statutory
duty to discern what errors an appellant is attempting to articulate.” Felix, 271 Ga. at
538.
Nevertheless, the plaintiffs have not shown that they are entitled to reversal on
their equal protection claims. Immunity was not the basis upon which the trial court
granted summary judgment on the equal protection claims; instead, the trial court
ruled on the merits. While in the midst of their immunity argument, the plaintiffs
cursorily assert that there was evidence to show that they were “similarly situated
members of a class that were treated differently[,]” they provide no meaningful
analysis or argument on the merits of those claims. We will not speculate or make that
argument on their behalf. See Harmon v. Innomed Technologies, 309 Ga. App. 265,
270 (1) (b) (709 SE2d 888) (2011).
6. Summary judgment on other claims for injunctive relief.
The trial court granted summary judgment to the defendants on immunity
grounds on the other claims for prospective injunctive relief: invasion of privacy,
trespass, and as to Semanson, First Amendment retaliation. But there is an
“understanding in American law generally that the personal immunities of public
officers typically do not extend to prospective relief.” Lathrop v. Deal, 301 Ga. 408,
27 437 (III) (C) (801 SE2d 867) (2017). Our Supreme Court has expressly held this to
be so for official immunity, see id. at 444 (III) (C) (holding that official immunity
“concerns suits and liabilities of public officers for monetary damages and other
retrospective relief [and d]oes not limit the availability of prospective relief”), and has
acknowledged federal authority applying the same principle to qualified immunity
against federal claims. See id. at 437 (III) (C) (citing Wood v. Strickland, 420 U. S.
308, 314 (II) n. 6 (95 SCt 992, 43 LE2d 214) (1975) and Morse v. Frederick, 551 U.
S. 393, 432 (127 SCt 218, 168 LE2d 290) (2007) (Breyer, J., concurring in part and
dissenting in part)). We discern no reason why the same would not also be true for the
immunity provided to members of a local government board under OCGA § 51-1-20
(a) (the alternative ground identified by the trial court for Semanson’s immunity); that
Code section, like the constitutional provision establishing official immunity,
provides for immunity from “liability.” See generally Lathrop, 301 Ga. at 440-443
(III) (C) (reasoning that the term “liability” within Ga. Const. of 1983, Art. I, Sec. I,
Par. IX (d), which establishes official immunity, refers to retrospective rather than
prospective relief). For this reason, we agree with the plaintiffs that the trial court
erred in holding that immunity shielded the defendants from the claims for
prospective injunctive relief.
28 And we decline to affirm under the right-for-any reason doctrine, which
provides that a “grant of summary judgment must be affirmed if it is right for any
reason, whether stated or unstated in the trial court’s order, so long as the movant
raised the issue in the trial court and the nonmovant had a fair opportunity to
respond.” Ga.-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013)
(citations, punctuation, and emphasis omitted). See City of Gainesville v. Dodd, 275
Ga. 834, 837-838 (573 SE2d 369) (2002). The defendants did not argue the merits of
the claims for injunctive relief in the court below. Although they now argue that the
evidence does not demonstrate the substantial threat of irreparable injury needed for
injunctive relief, in the trial court they argued only that they were entitled to
immunity.
In considering whether to apply the right-for-any-reason doctrine, we
acknowledge that the trial court, in his summary judgment order, concluded that
Pruitt’s entry upon the property was constitutional under the “open fields doctrine.”
That doctrine declines to extend Fourth Amendment protections to
“open fields” that are not an immediate part of a dwelling, regardless of the property owner’s subjective expectation of privacy. . . . In developing this doctrine, the [United States Supreme] Court has adopted
29 a broad definition of the term “open fields,” expanding it to include any unoccupied or undeveloped area outside of the curtilage.
Morse v. State, 288 Ga. App. 725, 727 (1) (655 SE2d 217) (2007) (citing United
States v. Dunn, 480 U. S. 294, 303-304 (107 SCt 1134, 94 LE2d 326) (1987) and
Oliver v. United States, 466 U. S. 170, 178-179 (104 SCt 1735, 80 LE2d 214) (1984))
(other citations and punctuation omitted).
We assume without deciding that the property in this case is an “open field” for
the purpose of that doctrine, but this does not permit us to affirm the plaintiffs’ claims
for injunctive relief against Pruitt for trespass and invasion of privacy as right for any
reason.
The “open fields” doctrine concerns the extent of Fourth Amendment
protection. But “[p]roperty rights are not commensurate with Fourth Amendment
privacy rights.” State v. Clark, 263 Ga. App. 480, 485-486 (c) (588 SE2d 254) (2003)
(suggesting that the government’s intrusion upon an “open field” could be a trespass
at common law even if it is not a search implicating Fourth Amendment rights). The
parties made no arguments below about whether the “open fields” doctrine provides
a defense to the injunctive relief claims against Pruitt, notwithstanding the search’s
30 constitutionality under the Fourth Amendment. So we will not apply the right-for-
any-reason doctrine to affirm those claims. See Ga.-Pacific, 293 Ga. at 504 (2).
7. Summary judgment on claims for punitive damages and attorney fees and
expenses.
The plaintiffs make no argument that the trial court erred in granting summary
judgment to the defendants on their claims for punitive damages and attorney fees and
expenses. To the extent those claims are part of the plaintiffs’ enumerated errors, they
are deemed abandoned. Court of Appeals Rule 25 (d) (1). See Nalley v. Langdale,
319 Ga. App. 354, 363 (2) n. 16 (734 SE2d 908) (2012) (physical precedent).
Judgment affirmed in part and reversed in part. Gobeil and Land, JJ., concur.