Comfort Living, Inc. sued the mayor, mayor pro tem, and council members collectively, the “mayor and council” of the Town of Alto “Town”, asserting claims against them in their corporate capacity for breach of contract, in their individual capacities for breach of ministerial duties, and in their corporate and individual capacities for violating the Fourteenth Amendment. The mayor and council moved for summary judgment and the trial court denied the motion. We granted the mayor and council’s application for interlocutory appeal and, for reasons that follow, reverse. We conduct a de novo review of both the law and the evidence on appeal from a trial court’s ruling on a motion for summary judgment.1 We view the evidence in a light most favorable to the nonmovant in order “to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.”2 A defendant is entitled to summary judgment if it can demonstrate that there is no evidence to support at least one essential element of the plaintiff’s case.3 A defendant need not affirmatively disprove the plaintiff’s case, “but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.”4 Comfort Living developed a residential subdivision in Habersham County, outside the city limits of the Town. The Town council voted on August 31, 2001 to provide water service to the subdivision, which would require the Town to extend existing water lines. The cost of the project was to be divided between the Town and Comfort Living. There was no set date for completion of the project.
Comfort Living received preliminary plat approval for its subdivision plans from Habersham County on June 12, 2001. Although this approval expired on June 12, 2002, it could be extended for one year for cause without penalty. The mayor and town council were informed about the date of the preliminary plat approval. The Town began receiving bids for the water line installation in November 2001, and the job was awarded to Nelson Grading Company on January 14, 2002. The water line to the subdivision was not completed until May 22, 2003; construction was delayed by Nelson Grading’s failure to obtain a land disturbance permit from Habersham County and by conflicts with a sewer line extension by the City of Baldwin to the state prison adjacent to the subdivision.
