
    A09A0205.
    CAMDEN COUNTY v. LEWIS.
    (680 SE2d 621)
   Miller, Chief Judge.

During the construction of a retail seafood business on marshland property owned by Ron Lewis (“Lewis”), Camden County (“the County”) issued a stop work order on the construction due to multiple ordinance violations. Thereafter, Lewis filed a complaint seeking a writ of mandamus against the County requiring it to revoke its stop work order to permit completion of his building. Lewis alleged that the County violated his constitutional rights to due process and equal protection under the United States and Georgia Constitutions in violation of 42 USC § 1983 (“§ 1983”), and he claimed detrimental reliance upon the County’s issuance of a building permit and occupational tax certificates for his seafood business. We granted the County’s application for interlocutory appeal from the trial court’s order partially denying its motion for summary judgment, and the County appeals. Specifically, the County argues its entitlement to summary judgment because the trial court erred in finding genuine issues of material fact remaining on (i) Lewis’ claims for violation of his civil rights and detrimental reliance; and (ii) damages incurred by Lewis before April 12, 2007 and attorney fees and expenses of litigation under OCGA § 9-15-14. For the reasons set forth below, we agree and reverse.

We review the grant or denial of a motion for summary judgment de novo, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the non-movant. Norton v. Cobb, 284 Ga. App. 303-304 (643 SE2d 803) (2007).

So viewed, the record shows that Lewis was the owner of 42 acres of land in Waverly, and planned to construct a building there for the purpose of selling wholesale and retail seafood to the public, including cooked seafood lunchbox meals for takeout orders. On March 8, 2005, Lewis applied for and received Building Permit No. 05-70 for the construction of an “open shed” on his property. On the same date, however, he decided that he needed a larger building. Consequently, he applied for and received BP2005-70, for the construction of an 800 square foot commercial outbuilding. At that time, Lewis also applied for and received a permit to install a septic system to support the construction he proposed, but in his application, he indicated that he was building a live bait shop.

After issuance of BP2005-70 to Lewis, County Building and Planning employees concluded that the permit had been issued erroneously due to the structure’s noncompliance with certain electrical, plumbing and zoning provisions of the County’s Building and Construction Codes (“the Codes”). On February 27, 2006, the County notified Lewis that his building was the subject of numerous violations of the Codes, and simultaneously issued a stop work order. Thereafter, Lewis filed his action for a writ of mandamus and sought damages for civil rights violations, detrimental reliance, expense for delay, lost profits, and attorney fees and costs.

On April 12, 2007, the parties entered into a Consent Order, which purported to resolve the dispute except as to Lewis’ claims for “civil rights violation(s), damages, attorney[’s] fees and court costs[,]” which were to remain “in the breast of the court for final determination[.]” Thereafter, the County moved for summary judgment on the ground that Lewis, as a matter of law, was not entitled to judgment on the same. After a hearing, the trial court granted summary judgment to the County on Lewis’ punitive damages claim, as not authorized in “civil rights actions against local governments[,]” and on Lewis’ claims for “actual damages allegedly incurred after April 12, 2007.” Further, the trial court expressly denied “[Lewis’] claims for actual damages allegedly incurred prior to [April 12], and for recovery of such portion of [Lewis’] attorney[ ] fees and litigation expenses as are shown to have been incurred in contesting positions taken by [the County] which were frivolous.” The trial court sub silentio, denied summary judgment to the County on Lewis’ § 1983 and detrimental reliance claims, finding that it could not “conclude as a matter of law that at trial [Lewis] will be unable to point out one or more arguably meritless positions taken by [the County].”

1. The County contends that the trial court erred in denying it summary judgment as to Lewis’ claim for violation of his civil rights under § 1983 and for detrimental reliance. We agree.

In order to prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence.

(Citations and punctuation omitted.) Reed v. Ed Taylor Constr. Co., 198 Ga. App. 595, 596 (402 SE2d 346) (1991). “A defendant is entitled to summary judgment if he produces evidence conclusively establishing facts which negate one or more essential elements of the plaintiffs action. [Cit.]” Id.

(a) 42 USC § 1983 claim.

42 USC § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In order to state a claim under § 1983, the plaintiff “must show a deprivation of a ‘federal right by a person acting under color of state law.’ ” (Punctuation and footnote omitted.) Brown v. Dorsey, 276 Ga. App. 851, 853 (625 SE2d 16) (2005). Although municipalities and other local government entities are included among those persons to whom § 1983 applies, the County cannot be held liable under a respondeat superior theory for the actions of its employees. Id. Rather, “it is only when the execution of its policy or custom inflicts the subject injury that liability can attach to the [County] under § 1983.” (Footnote omitted.) Id.

To make this showing, a plaintiff must prove that, through a deliberate and official policy, the local government entity was the moving force behind the constitutional tort. A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality. A custom is a practice that is so settled and permanent that it takes on the force of law.

(Punctuation and footnotes omitted.) Id.; see Doss v. City of Savannah, 290 Ga. App. 670, 674 (1) (660 SE2d 457) (2008) (City was entitled to summary judgment on Doss’ § 1983 claim since “local governments cannot be held liable under § 1983 on a respondeat superior theory and there was no evidence of any deliberate and official policy or custom” which violated Doss’ due process rights).

By his complaint, Lewis failed to assert that any employee was a policymaker for the County in matters concerning the illegal issuance of a stop work order or improper enforcement of its ordinances against the property of its citizens and introduced no evidence in opposition to the County’s motion for summary judgment. As such, Lewis cannot state a claim under § 1983 because he failed to point to any evidence of an officially adopted and promulgated County policy or custom. Doss, supra, 290 Ga. App. at 674 (1).

The County’s Building Code (“Building Code”) requires the permit holder to “notify the building official when work is ready for inspection.” Building Code, § 109.5. “Work shall not be done beyond the point indicated in each successive inspection without first obtaining the approval of the building official.” Id. at § 109.6. Further, the parties’ Consent Order provided that “[a] full Certificate of Occupancy will be issued for [Lewis’] building upon successful passage of final electrical and plumbing inspections.” Since Lewis admitted that he failed to secure successful passage of final electrical and plumbing inspections by the County’s building official, the County was authorized to issue the stop work order. Further, Lewis has not shown that he was treated differently than other county citizens. Accordingly, the trial court erred by failing to grant summary judgment to the County on Lewis’ § 1983 claim.

(b) Detrimental reliance.

The County also contends the trial court erred in denying it summary judgment on Lewis’ claim for detrimental reliance upon the County’s issuance of BP2005-70, occupational tax certificates, and representations by County officials. Again, we agree.

Lewis cannot state a claim for detrimental reliance where, as here, the County erroneously issued the permit for a “commercial” outbuilding. The issuance of a permit was permissible only for an outbuilding, i.e., an accessory structure for secondary uses, like a garage or storage. Loretta Riggins-Hylton, planning director of the County’s planning and building department, deposed that a commercial building would not qualify as an outbuilding. Since the permit was mistakenly issued, Lewis did not have a vested right to complete the construction of his building. Enviro Pro v. Emanuel County, 265 Ga. App. 309, 312 (593 SE2d 673) (2004) (holding ultra vires acts by chairperson did not vest right). Likewise, “[w]here a permit is issued by a governing body in violation of an ordinance, even under a mistake of fact, it is void, and its holder does not acquire any rights.” Union County v. CGP, Inc., 277 Ga. 349, 351 (2) (589 SE2d 240) (2003).

Further, the issuance of a certificate of occupancy “shall not be construed as an approval of a violation of the provisions of [the Building Code] or of other ordinances of the jurisdiction.” Building Code, supra, at § 110.1. Under § 110.4 of the Building Code, the County’s building official was

authorized to . . . suspend or revoke a certificate of occupancy or completion issued under the provisions of this code wherever the certificate is issued in error, or on the basis of incorrect information supplied, or where it is determined that the building or structure or portion thereof is in violation of any ordinance or regulation or any of the provisions of this code.

Here, Lewis’ project had not obtained septic approval by the Environmental Health Department (“EHD”), contrary to § 18-37 of the County’s Construction Code: “[certificates of occupancy will not be issued until the completed water supply and sewage disposal facilities have been approved by the board of health.” See also Building Code, supra, at § 1302 (5) (“[w]hen the certificate of approval for the water and sewage disposal systems have been received along with the approval of the electrical and plumbing systems, the building and zoning department of Camden County shall issue a certificate of occupancy, provided that all other applicable requirements have been met. . .”).

In his application for a septic system on his property, Lewis indicated that the building would merely be used as a live bait shop. Despite receiving written notification from EHD officials in November 2005 and March 2006 requesting a new septic application and site plan for his facility given its actual use as a seafood processing business, Lewis failed to provide the requested information to secure a commercial permit. Claiming that the County had already issued him a permit by its duly licensed representative, Lewis deposed that he had not conducted any illegal activities on his property. Given that the building permit was issued mistakenly based on Lewis’ failure to obtain septic approval from EHD and the requisite electrical and plumbing inspections as required by the Building Code, he cannot claim that he had a vested right to proceed with the construction of his seafood business. Union County, supra, 277 Ga. at 351 (2) (holding unofficial “approval” of construction plans without regard to the restrictions of flood ordinances would “frustrate Union County’s duty to its residents to enforce the law. . Corey Outdoor Advertising v. Bd. of Zoning Adjustments &c., 254 Ga. 221, 224 (3) (327 SE2d 178) (1985) (“equitable estoppel will not apply so as to frustrate or contravene a governmental function of a governmental unit”).

Lewis also fails to point to any representations made by County officials that he could “complete construction of his building and conduct a retail and wholesale seafood business on his property including processing and cooking the seafood and selling same to the public.” Even if County officials made such representations, Lewis cannot legally bypass the Building Code’s requirements for inspections and septic approval. To the extent that Lewis claims that his friend, Dr. Stuart Stevens, a former EHD Manager, represented that his residential and commercial septic tanks passed final approval, such approval occurred in December 2004 and predated Lewis’ application for a commercial permit for his seafood business. As such, Lewis’ commercial septic tank only had approval for its connection to an RV trailer, but not final approval for its connection to a retail and wholesale seafood business, of which EHD had no updated information. Moreover, it was EHD’s standard practice to perform final inspections of septic installations to determine if any problems existed, particularly if no final inspection had been completed for over a year.

Since Lewis has failed to produce any evidence to create a jury issue on his detrimental reliance claim, the trial court erred in failing to grant summary judgment to the County on such claim.

2. The County argues that the trial court erred in denying it summary judgment on Lewis’ claim for damages incurred before April 12, 2007 because the evidence fails to show that the County proximately caused Lewis’ damages or that he suffered any damages. The County also contends that the trial court erred in failing to grant it summary judgment on Lewis’ claim for attorney fees and expenses of litigation under OCGA § 9-15-14.

Decided June 29, 2009.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Corinne W. Caughman, for appellant.

(a) Damages incurred before April 12, 2007.

Inasmuch as Lewis deposed that he was not seeking damages of any type as a consequence of his action and has not come forward with any evidence to the contrary in opposition to the County’s motion for summary judgment, the trial court erred in denying summary judgment to the County on Lewis’ claim for damages incurred prior to April 12, 2007. Further, as discussed in Division 1, any damages allegedly suffered by Lewis were the result of his own noncompliance with the Codes and the Consent Order, not any actions by the County.

(b) OCGA § 9-15-14 attorney fees and expenses of litigation.

The County argues that the trial court erred in failing to grant it summary judgment on Lewis’ request for attorney fees and expenses of litigation under OCGA § 9-15-14. Given that Lewis did not move for attorney fees and expenses of litigation pursuant to this Code section, we agree.

In Lewis’ complaint, he sought attorney fees and costs based on the County’s “stubborn litigiousness,” yet failed to cite OCGA § 9-15-14 as the legal basis for his recovery. Further, Lewis never requested attorney fees and expenses pursuant to this Code section in writing or orally within 45 days of the trial court’s order on summary judgment. OCGA § 9-15-14 (f) (attorney fees and expenses may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action); Nesbit v. Nesbit, 295 Ga. App. 763, 764 (673 SE2d 272) (2009) (request for attorney fees under OCGA § 9-15-14 may be made orally if made during a hearing or trial). As such, the trial court erred in reserving Lewis’ claim for attorney fees and litigation expenses pursuant to OCGA § 9-15-14 for a jury.

In light of the foregoing, we reverse the trial court’s order partially denying the County’s motion for summary judgment on Lewis’ § 1983 claim, detrimental reliance claim, actual damages incurred before April 12, 2007, and attorney fees and expenses of litigation under OCGA § 9-15-14.

Judgment reversed.

Andrews, P. J., and Barnes, J., concur.

Ronald A. Lewis, pro se.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee. 
      
       In his appellate brief, Lewis attempts to introduce four exhibits purporting to show his alleged compliance with the County’s Codes. Given that Lewis has failed to file a motion to supplement the record pursuant to Court of Appeals Rule 41 (c), we will not consider these exhibits for any purpose. Court of Appeals Rule 41 (c) (supplemental materials shall not be attached to motion to supplement the record unless directed by the Court).
     
      
       When Lewis was asked in his deposition about what damages he was seeking, he responded, “I don’t think we are at that point. I think that train’s left.” He also stated that he is “not even interested in trying to resolve [the case] because [he] see[s] that it can’t be resolved.”
     