LAW.coLAW.co

HAMBRICK et al. v. B. G. SWING GAMES MANAGEMENT, INC. et al.

Supreme Court of Georgia1997-03-10No. S96A1776
267 Ga. 597481 S.E.2d 816

Summary

Holding. The court affirmed the grant of summary judgment for the defendants, holding that they met their burden by presenting evidence of an absence of support for the vendors' allegations, and the vendors failed to present specific evidence creating a triable issue of fact.

Two street vendors holding permits from the Atlanta Police Department sued to challenge whether a private corporation (B.G. Swing) and its officer had authority to regulate street vending during the 1996 Olympic Games. The vendors claimed they were told to vacate their licensed sites, select alternative locations, and pay additional fees—constituting an unlawful exercise of governmental power. The defendants presented evidence showing that the City Council had authorized a contract with B.G. Swing only to manage vendor placement at festival locations under licenses issued by the city itself, that the Police Department retained authority over existing vendors, and that vendors were merely offered alternative sites without mandatory fees.

The trial court granted summary judgment for the defendants. On appeal, the court affirmed, finding that the defendants sufficiently demonstrated the absence of evidence supporting the vendors' core allegations. The vendors' response consisted largely of restatements of their claims and hearsay rather than specific factual evidence contradicting the defendants' showing that they exercised no control over existing vending licensees.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a private contractor exercised unlawful governmental authority over street vendors
  • Standards for summary judgment when the moving party does not bear the burden of proof at trial
  • Whether alleged statements about fees and site displacement constituted actual exercise of regulatory power

Procedural posture

The trial court granted summary judgment to the defendants on the vendors' quo warranto information challenging their authority, and the vendors appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Benham, Chief Justice.

The appellants in this case are two persons holding permits for street vending from the City of Atlanta Police Department. The appellees are a corporation (B. G. Swing) and its chief operating officer, Steed. B. G. Swing contracted with the Atlanta Economic Development Corporation (AEDC) to implement a marketing, vending, and economic development program for the City of Atlanta’s benefit during the 1996 Summer Olympic Games. Appellants filed in Fulton Superior Court an unverified information in the nature of quo warranto challenging appellees’ authority to exercise governmental control over all street vending in Atlanta. Alleging specifically that appellees had informed them that they must give up the vending sites for which they hold licenses and must pay B. G. Swing a fee for an alternate site, appellants contended that B. G. Swing and Steed were usurping the legislative power of the City of Atlanta. Appellees filed an answer to the information and both sides moved for summary judgment, supporting their motions with affidavits. The trial court granted summary judgment to appellees.

The general allegation of the information was that appellees were unlawfully exercising public authority to regulate all street vending in Atlanta. Specifically, appellants alleged that they were told by appellees that, because of security considerations, appellants could not use, during the period of the Olympic games, the vending sites for which they held licenses; that they would have to pick one of B. G. Swing’s sites and pay money to B. G. Swing in addition to their normal license fee; and that their usual sites were being sold for higher prices to other vendors.

In support of their motion for summary judgment, appellees filed certified copies of state and city legislation, a copy of the contract between AEDC and B. G. Swing, and affidavits from Steed and from an official of the Atlanta Police Department (APD). Those documents established that the Atlanta City Council authorized AEDC to enter into a contract with a management company to develop and manage a marketing plan for the period of the Olympic games; that the contract was awarded to B. G. Swing; that the contract gave B. G. Swing no direct authority over street vendors, but did permit B. G. Swing to manage the placement of vendors in certain places, other than currently approved street vending sites, pursuant to festival licenses issued by the City of Atlanta; that all of B. G. Swing’s plans had to be approved by AEDC; that B. G. Swing was required to operate within the framework of state laws and municipal ordinances; that the APD licenses vendors and controls their locations pursuant to a vending plan developed and enacted by the City of Atlanta; that the APD, not B. G. Swing, notified some vendors that security considerations might require them to occupy different vending sites during the Olympic games; that such vendors were informed that they could choose another site, which would otherwise be assigned to B. G. Swing under a festival license granted by the City; that they would not have to pay for those alternate sites any fee other than their usual vending license fees; and that the original vending sites of those vendors were not being assigned to other vendors.

[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.

Lau’s Corp. v. Haskins, 261 Ga. 491 (4) (405 SE2d 474) (1991). Appellees supported their motion for summary judgment with evidence which showed they did not commit the specific acts appellants alleged they committed, and did not have the authority appellants alleged they had exercised. In doing so, appellees met their burden as movants for summary judgment to demonstrate an absence of evidence to support at least one essential element of appellants’ case. Id.

“If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Id. Appellants filed in support of their motion, and in opposition to appellees’ motion, their own affidavits, an affidavit from their attorney, an affidavit from an Atlanta City Council member, and what appears to be part of a report by a commission appointed by the Atlanta City Council relating to the Five Points area of the City. The attorney’s affidavit, though it purported to be made on personal knowledge, was merely a restatement of allegations, replete with hearsay and conjecture, and an argument in support of appellants’ claims. The affidavits of the appellants consisted of a repetition of some of the allegations of the information. That evidentiary offering was insufficient because nowhere in the material submitted by appellants were there statements, based on personal knowledge, of fact as opposed to allegation and conjecture, contradicting appellees’ showing that they did not exercise any authority reserved to the City of Atlanta and did not attempt to exercise any authority at all over appellants. The closest appellants came to creating a question of fact was with Hambrick’s affidavit, which contained a statement that he attended meetings in the previous year in which Steed “discussed” the possibility that existing vendors would have to pay a fee to keep their present locations. That assertion, however, does not contradict appellees’ evidence showing a lack of any effort to control or regulate existing street vending licensees.

It appears, therefore, that appellees have carried their burden under Lau’s Corp., supra, to point out an absence of evidence to support appellants’ case, but appellants have not borne their responsibility to point to specific evidence giving rise to a triable issue. Accordingly, appellees were entitled to the grant of their motion for summary judgment. Evans v. Heard, 264 Ga. 239 (4) (442 SE2d 753) (1994).

Decided March 10, 1997.

Sybol P. Williams, for appellants.

Powell, Goldstein, Frazer & Murphy, Linda G. Birchall, for appellees.

Judgment affirmed.

All the Justices concur.