Boatwright v. Mayor of Flemington

Sognier, Judge. Larry Boatwright brought suit against the mayor and council of the city of Flemington, Georgia, alleging the city had improperly denied him a business license for the continued operation of a garage on leased premises within the city. The trial court granted the defendants’ motion to dismiss the complaint for failure to state a claim, and Boatwright appeals. The record reveals that appellant previously had been denied a business license temporarily for being in violation of city ordinances, and that the reason given for the instant denial of a business license to operate the garage was appellant’s failure to remedy violations of city ordinances despite repeated requests to do so. The ordinances in question prohibit the storage of inoperative vehicles on the property in excess of 30 days and the parking of vehicles within 20 feet of the public intersection. Although mention is made of appellant’s failure [677] to provide sanitary facilities on the property, that failing was properly directed to the owner of the property leased by appellant, and is not listed by appellees as a reason for the denial of the business license in their answer to appellant’s interrogatories. 1. We note that although, as appellees correctly point out, the complaint initially sought to compel the city to issue to appellant a 1987 business license, stating a claim in the nature of mandamus, the record shows that under the pretrial order, which supersedes the complaint, OCGA § 9-11-16 (b), the plaintiff sought only damages for the failure to issue the license, thereby bringing this appeal within the jurisdiction of this court. Accordingly, we do not address any of the parties’ contentions regarding the superseded claim. 2. Appellant contends the trial court erred by dismissing his complaint for failure to state a claim because the city’s actions amounted to an inverse condemnation and a taking of property without just compensation. This contention is meritless. The ordinances in question are within the municipality’s police power. See OCGA § 36-60-9. “ ‘The police power is that inherent and plenary power in the state over persons and property, when expressed in the legislative will, which enables the people to prohibit all things inimical to the comfort, safety, health, and welfare of society, and is sometimes spoken of as the law of overruling necessity.’ [Cit.] ... It is not to be confused with the power of eminent domain, under which property is acquired for the making of public improvements upon condition that the owner be compensated for the taking or damaging of his property. ‘This police power or the law of overruling necessity is not controlled by the constitutional limitation that private property shall not be taken for public use without compensation, which was not designed for, and should not be extended to such cases.’ [Cits.] . . . ‘Uncompensated obedience to a regulation enacted for the public safety under the police power of the State is not a taking or damaging without just compensation of private property . . .’ [Cit.]” McCoy v. Sanders, 113 Ga. App. 565, 566-567 (148 SE2d 902) (1966). 3. Appellant also maintains that his alleged violations of the ordinances had been previously known and permitted, and thus the allegations of ordinance violations were pretextual, in an effort to drive him out of business. Although the issuance of a permit or license is a governmental function, see City of Thomson v. Davis, 92 Ga. App. 216 (1) (88 SE2d 300) (1955), which would render appellees immune from liability from its performance when acting in good faith within the scope of their duty, “[t]his immunity is not extended to them when they do things not authorized by law, or act in a wanton or malicious way and with intent to injure the property of another. In the latter case, they are responsible for a violation of their duty. [Cit.]” Hodges v. Youmans, 122 Ga. App. 487, 491 (177 SE2d 577) [678] (1970). “Good faith, like conspiracy is always a question for the jury. Even though the party may swear he acted in good faith, the jury may decide he acted in bad faith from consideration of facts and circumstances in the case.” (Emphasis omitted.) Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973). While it may eventually appear, in the course of this case, that the only true object of appellant’s allegations is the city itself, as urged by the dissent, such a finding by this court at this time would be premature. Appellant has styled his complaint against the mayor and the council. Under Georgia law, we have notice pleading and we cannot now say whether appellant can show facts which support his claim against these parties. We are here reviewing the trial court’s grant of appellees’ motion to dismiss the complaint for failure to state a claim, and it is well established that a “ ‘pleading should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of his claim which would entitle him to relief.’ [Cit.]” Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 114 (2) (351 SE2d 513) (1986). In the case at bar, it is not outside the realm of possibility that appellant could prove a set of facts supporting his allegation that appellees acted in bad faith. Such facts, if proven, would support a cause of action for damages. Consequently, the trial court erred by dismissing the complaint for failure to state a claim. Judgment reversed. Birdsong, C. J., and McMurray, P. J., concur. Banke, P. J., and Benham, J., concur specially. Deen, P. J., Carley, Pope and Beasley, JJ., dissent.