On October 11, 2007, Harbor Grove, LLC “Harbor Grove”, filed the underlying verified petition for declaratory judgment and mandamus against the City of Atlanta and Robert J. Hunter, in his capacity as Commissioner of the Department of Watershed Management of the City of Atlanta Bureau of Drinking Water collectively the “City”. Harbor Grove alleged that Commissioner Hunter and the City improperly and illegally conditioned the sale of a water meter on a requirement that Harbor Grove extend the water main across the frontage of its property. a property beyond the City’s limits, although the water main had previously been extended to bring water there. Harbor Grove subsequently amended its petition to assert a claim for monetary damages. On cross-motions for summary judgment, Harbor Grove sought partial summary judgment against Commissioner Hunter and against the City alleging liability for damages arising out of the foregoing official act undertaken by Commissioner Hunter. Harbor Grove further alleged that Hunter was personally liable under OCGA § 36-33-4 and that the City was vicariously liable on the theory that Hunter acted as the City’s agent. For its part, the City sought summary judgment against Harbor Grove, arguing that Commissioner Hunter could not be held liable individually since he was sued in his official capacity and that the City was not vicariously liable for his acts. The trial court granted Harbor Grove’s motion, finding that Commissioner Hunter acted without legal authority which rendered him personally liable for its damages under OCGA § 36-33-4. Contemporaneously, the trial court denied the City’s motion for summary judgment. The City appeals with respect to the grant of partial summary judgment for Harbor Grove only, contending that the trial court erred in finding Commissioner Hunter personally liable because he was not sued in his personal capacity. Alternatively, the City claims that the trial court erred in ruling that Harbor Grove established personal liability in Commissioner Hunter under OCGA § 36-33-4 as a matter of law and that it is not vicariously liable for Commissioner Hunter’s alleged violation of OCGA § 36-33-4. For the reasons which follow, we affirm in part and reverse in part.
“On appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.” Citations and punctuation omitted. Rubin v. Cello Corp. , 235 Ga. App. 250, 250-251 510 SE2d 541 1998.
