Dunwoody DeKalb BrookRun Suit Superior

8/8/2019 Dunwoody DeKalb BrookRun Suit Superior

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IN THE SUPERIOR COURT OF DEKALB COUNTYSTATE OF GEORGIA

THE CITY OF DUNWOO DY, INC., CARLFRANKLIN, DON CONVERSE, and E N A T A 1 Civil Action No .I-IAROD,Plaintiffs,

vs .DEKALB COUNTY; BURRELL ELLIS, In HisCapacity As Chief Executive Officer of DeK albCounty; JOEL G OTTL IEB, In His Capacity AsInterim DeKalb County Finance Director; ELAINEBOYER, JEFF RADER, LARRY JOHNSON.SHARON BARNES SUTTON. LEE MAY,KATHIE GANNON, and CONN IE STOKES, InTheir Capacities As M emb ers of the DeKalb CountyBoard of Commissioners; and ROY E. WILSON InHis Capacity As DeK alb County Pa rks andRecreation Director;

Defendants.

COMPLAINT FOR DECLARATORY JUDGMENT, PETITION FOR A WIUT OFMANDAMUS AND CO MPLAINT FOR EXPEN SES OF LITIGATION BY THE CITY

OF DUNWOO DY, ET AL., AGAINST DEKALB COUNT, ET AL.This is, in sum, an action to compel D eKalb County to remit to The City of Dun woody over $7million of the $1 1 million promised the citizens in the C ounty's 2005 bond referendum for thedevelopment of Brook Run P ark.This suit is not being brought without a careful, thoughtful, and discerning examination of allsides of the issues involved. For any governm ent to be a legitimate one, it must heed the will ofthe people. And in a dem ocracy it is through the all-important ballot box that the people expresstheir will. Any govern men t that ignores the people, be it local, state or federal, dishono rs thedemocratic form of government, which is the cornerstone of all government in the United States.


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It is with these principles in mind that the undersigned Plaintiffs, THE C ITY O F DUN WO OD Y,INC., CAR L FRANKLIN, DON CON VER SE, and RENATA HARO D, file this Complaint forDeclaratory Judgm ent, Petition for Mandamu s and Comp laint for Expenses of Litigation againstDefendants DE KA LB C OUN TY, its agents, servants, representatives, and employees;BUR RELL ELLIS, individually and in his official as Chief Executive Officer of DeK alb County;JOE L G OTTL IEB, individually and in his official capacity as Interim DeKalb C ounty FinanceDirector; ELAINE BOYER, JEFF RADER, LARR Y JOHNSON, SHARON BARNESSUTTO N, LEE MAY, KA THIE GA NNO N, and CONN IE STOK ES, individually and in theirofficial capacities as members of the DeKalb C ounty Board of Com missioners; and RO Y E.WILS ON individually and in his official capacity as DeKalb County Parks and RecreationDirector.In an effort to restore the voice and will of the people, the Plaintiffs seek (1) a declaration thatthe City of Dunw oody ha s a vested property right and is entitled to receive the remaining bondproceeds specifically designated for the improvement and beautification of Brook Run Park in anamount that is consistent with the amount that was represented to the public in order to garnervoter support; (2 ) a Writ of M andam us requiring Defendants to perform their necessary duties toeffect the timely transfer to the City of Dunw oody the rem aining portion of the bond proceed sthat DeKalb C ounty appropriated for Brook Run Park at the time of the Bond R eferendum; and(3) an award o f reasonable expenses of litigation, including but not limited to attorney's fees,pursuant to O.C.G.A. 5 13-6-1 1.Plaintiffs show this Court as follows:

Parties, Jurisdiction and Venue

THE CITY OF DUNWOODY, INC. ("Dunw oody" or "City") is a municipal co rporatio n of theState of Georgia, located in DeKalb Cou nty.


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CAR L FRANK LIN is a citizen of Dunwoody, Georgia, residing at 2 179 North Forest Trail,Dunwoody, DeKalb County, Georgia, and has resided in the city of Dunwoody forapproximately 14 years.

DON CONV ERSE is a citizen of Dunwoody, G eorgia, residing at 4905 Trailridge Pass,Dunwoody, DeKalb County, Georgia, and has resided in the city of Dunwoody forapproximately 32 years.

RENAT A HEROD is a citizen of Dunwoody, Georgia, residing at 2588 Riverglenn Circle,Dunwoody, DeKalb County, Georgia, and has resided in the city of Dunwoody forapproximately 14 years.

Defendant DE KAL B COLTNTY ("County") is a political subdivisio n of the State of Georgia,subject to the jurisdiction and venue of this Cou rt, and may be served with legal process onCounty Chief Legal Officer LISA C HAN G at 1300 Commerce D rive, 5th Floor, Decatur,DeKalb County, Georgia 30030.

Defendant BU RRE LL E LLIS, as DeK alb County C hief Executive Officer, is subject to thejurisdiction and venue of this Court, and can be served with legal process on County Chief LegalOfficer LISA CHA NG at 1300 Com merce Drive, 5th Floor, Decatur, DeKalb County, Georgia30030.

Defendant JOEL GO TTLIEB , as Interim DeKalb County Finance Director, is subject to thejurisdiction and venue of this Court, and can be served with legal process on County Chief Legal


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Officer LISA CH ANG at 1300 Com merce Drive, 5th Floor, Decatur, DeKalb County, Georgia30030.

Defendants ELAINE BOYER , JEFF RADER, LARR Y JOHNSON, SHARON BARN ESSUTTON, LEE MA Y, KAT HIE CAN NON , and CONNIE ST OKES, as mem bers of the DeKalbCounty Board of Com missioners (collectively "Commissioners"), are subject to the jurisdictionand venue of this Court, and can be served with legal process on County Chief Legal OfficerLISA C HAN G at 1300 Commerce Drive, 5th Floor, Decatur. DeKalb County, Georgia 30030.

Defendant ROY E. WIL SON, as DeKalb C ounty Parks and Recreation Director is subject to thejurisdiction and venue of this Court, and can be served with legal process on County Chief LegalOfficer LISA CHA NG at 1300 Com merce Drive, 5th Floor, Decatur, DeKa lb County, Georgia30030.

Jurisdiction and venue are proper in this C ourt.Facts Applicable to All Counts

In 2004, the DeKalb Future Funding Com mission (DFFC ) was established by then ChiefExecutive Officer of the County, Vernon Jones, to review and propose various parks andgreenspace projects, amo ng other things. Notably, the DFFC 's report listed "Major ParksDevelopment Projects" as the numbe r one priority for parks and greenspace funds, of whichBrook Run Park in Dunwoody was included.

Brook Run Park ("Park) is located at 4770 North Pea chtree Road, Dunwoody, DeKalb C ounty,Georgia.


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Brook R un Park is a major comm unity park that is enjoyed by all residents o f DeKalb Cou nty,including those who reside in the City of Dunw oody, f or recreational pu rposes, comm unityactivities, and civic affairs. It has been a source of great pride for the residents of Dunwoody.

In 2005 , the DeK alb County A dministration determined that it was in the best interest of thecitizens of DeKalb County to acqu ire, construct, renovate and equip certain parks and recreationprojects, and that there existed an imm ediate and urgent need for such projects.

O n or about July 25, 2005, Chief Executive Officer Vernon Jones delivered a letter to theComm issioners identifying and supporting the conclusions and recommendations of the DFFC .A total of $1 1,500,000 was recommended for the cost o f improvement and development ofBrook R un Park.

O n or about August 23 ,20 05 , at the request of then-Commissioner BU RREL L ELLIS, theCom miss ioners considered and unanimously passed a resolution to call an election to determinethe issuance or non-issuance of an aggregate principal am ount of $235,000,000 De Kalb CountyGeneral Obligations Bonds. The Resolution was approved by CEO Vernon Jo nes on or aboutSeptember 1.2005.

O n or about August 3 0,2 00 5, in furtherance of the bond deal, the Commissioners also adopted aresolution to incur bond debt and to create a special tax district consisting of the geographicalboundaries o f the unincorporated portion of DeK alb Cou nty, and excluding all incorporatedareas within the C ounty.


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As a result, a bond referendum wa s scheduled to be presented to D eKa lb County voters withthree questions constituting three separate uses of the bond proceed s. Am ong the three presentedques tions included the question of whether '"t]o finance certain parks and greenspace projects,including but not limited to, acq uiring land for additional parks an d natural areas, preservinggreenspace, protecting clean water, imp roving existing parks, dam s, arts and cultural centers andathletic complexes, in the amou nt of $96,460,000."

No less that thirty day s prior to the Bond R eferendum election, m aterials related to the bonds,including but not limited to, brochures, listings, articles and other adve rtisements were publishedto DeK alb County voters: these materials were statements of intention by the Comm issionersconcerning the use of the bond funds.

On or about November 8,2 00 5, the Bond Referendum was held by DeKalb County andapproved by the voters. Conseq uently, the bonds were authorized and a bond resolution settingforth the specific terms of the bonds w as adopted by the Com missioners on or about January 24,2006 (the "Bond Resolution"). The bonds were issued and sold publicly to various investors,and the proceeds were deposited into three separate and segregated acc ounts for the threepurposes.

According to the DeKalb County Parks Bond Funding - Development Budget, theCom missioners allocated and budgeted $1 1,500,000 of the Bond Proceeds for the developmentand improvement of Brook Run Park.


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To date, only $4,484,927.77 has been spent for development of Brook R un Park, and$7,015,072.23 remains outstanding. No further bond proceeds have been used for thedevelopment or improvem ent of the Park. At the present time, improvem ents to and furtherdevelopment of Brook Run Park remain unfinished.

Furthermore, improvement and development to Brook Run Park is necessary, practicable andfeasible.

Despite DeK alb Coun ty public officials' public disapproval of, and intense lobbying effortsagainst, Dunwoody's efforts to incorporate, the Georgia G eneral Assembly passed Senate Bill82. The City of Dunw oody becam e a municipal corporation on December 1, 2008.

On or about M ay 7, 20 10, OC GA 5 36-82-1.1 w as enacted to amend Title 36 of the GeorgiaCode, providing tliat a municipality incorporated after January 1 , 2008, may take control of andhold title to parks as a trustee or age nt for the public. The new law had particular application tothe City of Dunwo ody and to D eKalb County. The law also provided that in the event residentsof a municipality are required to continue to pay taxes for debt created by the issuance of bondsby the Cou nty on behalf of the special district for the purpose of improving parks, themunicipality elects to purchase an y such park pursuant to the Code section, the County musttimely transfer to the municipality the portion of the bond proceeds that the County planned toexpend on such park(s) at the time of the referendum on the bonds, based upon any statements ofintention or representations concerning use of the bond proceeds by the governing authority ofthe County.


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On or about May 18 ,2 010, the City of Dunwo ody sent DeKalb C ounty written confirmation ofits intent to purchase B rook Run Park pursuant to O.C.G .A. 5 36-31-1 1.1, and on or about June21 ,20 10 , the City delivered to the County full payment in the amount of $1 0,288.00 andpurchased the Park. Said check was tendered and accepted by DeKalb County on or aboutAugust 3 ,2 0 10.

On or about Septemb er 9 ,2 0 1 0, the City of Dunw oody delivered a letter to Defendant ELLIS,demanding the timely transfer of the remaining bond proceed funds to the City, to no avail. Todate, Defen dant ELL IS has igno red Plaintiffs' continuous. reasona ble, and legally justifiedrequest.

Defendants have , witho ut reason or justification, v iolated the Bond R esolution and Geo rgia lawby failing to perform their ne cessary duties to effect the timely tran sfer to the City of Dunwoodythe remaining portion of the bond proceeds that DeKalb County ap propriated for Brook RunPark at the time of the B ond R eferendum, consistent with the amount that wa s represented to thepublic in order to garner voter support. Therefo re, Defen dants have failed to perform their dutiesto the citizens of DeKalb County.

DeKalb C ounty assessed and collected, and continues to do so , the special district tax from theDeKalb C ounty taxpayers residing in the City of Dun woody , but have failed to provide thebenefit of those taxes to said residents.

DeK alb County has also retained and continues to retain th e unlawful benefits of the specialdistrict taxes and bond proceeds, to which they are not entitled.


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Georg ia Law G overning Bond Proceed s for Special Tax D istricts

On or about April 21.20 10, O.C.G.A. $ 36-31 -1 1.1 wa s enacted to amend O.C.G.A. $ 36-31-1 1by providing that a municipality incorporated after January 1, 2008 may take control of and holdtitle to parks as a trustee or agent for the public. The new law also provides that in the eventresidents of a municipality are required to continue to pay taxes for debt created by the issuanceof bonds by the County on behalf of the special district for the purpose of improving parks, andthe municipality elects to purchase any such park pursuant to the Code section, the County musttimely transfer to the municipality the portion of the bond proceeds that the County planned toexpend on such park(s) at the time of the referendum o n the bonds, based upon any statements ofintention or representations concerning use of the bond proceeds by the governing authority ofthe County.

O.C.G.A. $ 36-8 1-1, whic h g overns the elections for the issuance o f bonds, requires the Countyto use bond proceeds for the purpose specified in its statement of intention, which includes anylegal advertisement, brochure. publications, and listings. Bond p roceeds must be expended inthe manner in w hich the bond was advertised in the election notice, as well as additionalpublished materials, and for the purpose stated in the referendum. They canno t be diverted toany other purpose whatsoever.

O.C.G.A. $ 36-82-4.2 states that subsequent to the issuance of any bo nds, the County may adoptby two-thirds' majo rity vote a resolution declaring that any portion of the bond project is nolonger necessary, practicable or feasible, and they can by resolution expend the remainingportion of the bonds for a purpose substantially similar to the purposes stated in the notice forbonded indebtedness. How ever, in this case, no such resolution or circumstances exist.


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DeKalb County O rdinances

Pursuant to DeKalb County O rganizational Acts 5 13, the C hief Executive Officer shall carryout, execute and enforce all ordinances, policies, rules an d regulations of the C omm issionerswhen such ordinances, policies, rules and regulations become effective. Furthermore, the ChiefExecutive Officer shall seek to promote and im prove the governmen t of the County andencourage the growth of the County an d promote and develop the prosperity and well-being ofthe citizens of the County.

Pursuant to DeKalb County O rganizational Acts 5 17, the C hief Executive Officer shall submitto the board a proposed budget governing the exp enditures of all county funds, including capitaloutlay and public works projects for each following calendar year. Upon considering the budgetand making any necessary am endments thereto, the Com missioners will adopt the final budgetand said budget becomes the Com missioners' appropriations of all funds for such year.

Pursuant to DeK alb County Organizational Acts 5 9, the Com missioners have the power andauthority to exercise any power that is necessarily and properly incident to its function as apolicy-making body or which is necessary to compel enforcem ent of its adopted resolutions orordinances.

Pursuant to DeKalb County O rganizational Acts 5 19, the D epartment o f Finance, under thecontrol and supervision of the Director of Finance, is to maintain current control accounts overthe collection and deposit of money due the C ounty from taxes and other sources; examine allclaims against the County and make recomm endation as to payment; maintain budgetary controlaccounts showing encum brances for obligations entered in; and plan and prepare for meeting thefinancial needs of the Coun ty, project financial requirements, recomm end means of financing


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those requirements and ad vise the Chief Executive O fficer and the Com missioners on financialmatters.

Furthermore, DeKalb County Code of Ordinances, App. A, Art. I, 5 5 , provides that theDepartment o f Finance is responsible for auditing the expenditure of County funds, to ensure thatthey are properly accou nted for according to sound practices and have been disbursed inconformity with the budget, established policy of the board and the law.

DeKalb County Co de o f Ordinances, Ch. 2, Art. 111, Div. 2, provides that, by March 1 of eachyear, the Chief Executive Officer shall specifically delineate in a separate section of the proposedexecutive annual bud get fo r use in capital outlay projects and in fundin g services within thedefined special district equal to the revenue lost to the homestead exemption, w hich thereaftermay be approved o r amend ed by the Comm issioners in accordance with state law and the Code.

Pursuant to DeKalb County Code of O rdinances, App. A, Art. I , 5 13, Th e Department of Parksand Recreation ma nag es and maintains the parks system, and also plans, develops, andcoordinates park acquis itions and capital improvem ent projects.

COUNT IDeclaratory Jud gmen t Is Proper Here and Sho uld be Entered in Favo r of the Plaintiffs

Plaintiffs incorporate th e allegatio ns set forth in Paragraphs 1 throug h 30 abo ve into thisParagraph 41 as if the s am e were fully set forth within.


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Th is action represen ts an actual controversy in which the en ds of justice require a declaration asto the rights of the Parties under the circumstances outlined herein.

Defendants' unlawful refusal to perform their duties to effect the timely transfer to the City ofDunwoody the remaining portion of the bond proceeds that DeKalb County appropriated forBrook R un Park at the time of the Bond Refe rendum , in an amount that is consistent with theamount that was represented to the public in order to garner voter support has:

Substantially interfered w ith the land purchase expectations of the Plaintiffs and the taxpayers ofDeKalb C ounty who reside within the City of Dunwoody;

Substan tially interfered with the property intere sts and value of the Plaintiffs and the taxpayers ofDeKalb C ounty who reside within the City of Dunwoody;

Substan tially denied the benefit of taxes to the Plaintiffs and the taxpayers of DeKalb C ountywho reside within the City of Dunwoody.

Accordingly, the City of Dunwoody is entitled to a declaration that it has a vested property rightand is entitled to receive the remaining bond proceeds specifically designated for theimprovement and beautification of Brook Run Park, pursuant to the Bond Referendum held byDeKalb County and approved by County voters, in an amount that is consistent with the amountthat was represented to the public in order to garner voter support.


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COUNT I1The C ity of Dunwoody Is Entitled to Mandam us Relief Against Defendants

Plaintiffs incorporate the allegations set forth in Paragraphs 1 through 30 above into thisParagraph 45 as if the same were fully set forth within.

Plaintiffs bring this action pursuant to O .C.G.A. 5 9-6-20, et seq., by which the Plaintiffs seek aWrit of M andamu s from this C ourt to compel the D efendants to perform their official duties.

IJnder the Organizational A ct of DeKalb County, Defendant E LLIS, as DeK alb County ChiefExecutive Officer, has a clear legal duty to supervise, direct and control the administration of thecounty governm ent. The C hief Executive Officer is required to carry out, execute and enforce allordinances, policies, rules and regulations of the Co mm issioners when such ordinances, policies,rules and regulations become effective. Defendant E LLIS further has the clear legal duty toencourage the growth o f DeK alb County and prom ote and d evelop the prosperity and well-beingof the citizens of the County.

Defendant EL LIS breached that duty by failing to 1) comply w ith O.C.G.A. 5 36-3 1-1 1.1; and 2)direct the timely transfer to the City of Dun woody the remaining bond proceeds specificallydesignated for the improvem ent and beautification of Brook Run Park, pursuant to the BondReferendum h eld by DeK alb County and approved by C ounty voters, in an amount that isconsistent with the am ount that w as represented to the public in order to garner voter support.These failures constitute a dereliction of Defendant Ellis' duties to the citizens of DeKalbCounty, specifically including the residents of Dunw oody.


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Under the Organizational Act of DeKalb County, Defendants BOYER, RADER, JOHNSON,BARN ES SUTTON, MA Y, GA NNO N, and STOKES, as members of the DeKalb County Boardof Commissioners, have the clear legal duty to do that which is necessary within their authorityand power to com pel enforcement of the adopted resolutions and ordinances.

Defendants BOYER, RADER , JOHNSO N, BARNES SUTTO N, MAY , GANNO N, andSTOK ES breached their duty by failing to compel enforcement of the Bond Referendum andResolution. in direct contradiction of O.C.G.A. fj36-31- 1 1.1. Such failure is a dereliction oftheir duties to the citizens of DeKalb County, specifically including the residents of Dunwoody.

Under the Organizational Act of DeK alb County, Defendant GO TTLIEB , as Interim DeK albCounty Finance Director, has the clear legal duty to 1) administer the fiscal affairs of the Countyand County controlled funds; 2) oversee the central accounting, investment and disbursement forall funds under the control of the Comm issioners; 3) ensure that the expenditure of County fundsis properly accounted for according to sound practices; and 4) ensure that County funds aredisbursed in conformity with the budget, established policy of the board and the law.

Defendant GOTTLIEB breached those duties by failing to effect the timely transfer to the City ofDunw oody the remaining portion of the bond proceeds that DeK alb Coun ty appropriated forBrook Run Park at the time of the Bond Referendum, w hich is consistent with the amount thatwas represented to the public in orde r to garner voter suppo rt. Such failure is a dereliction of hisduties to the citizens of DeKalb Cou nty, specifically including the residents of D unwoody.


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Defendant GO TTL IEB further breached his duties by failing to recommend to the ChiefExecutive Officer and the Commissioners that they timely transfer to the City of Dunwoody theremaining portion of the bond proceeds that DeKalb County appropriated for Brook Run Park atthe time of the Bond Referendum, which is consistent with the amount that was represented tothe public in order to garner voter sup port. Such failure is a dereliction of his duties to thecitizens of DeKalb County, specifically including the residents of Dunwoody.

Under the Organization Act of DeKalb County, Defendant WILSON, as DeK alb County Parksand Recreation Director, has the clear legal duty to manage and maintain the parks system, andto plan, develop and coordinate park acquisitions and capital improvement projects.

Defendant WILSON breached that duty by failing to coordinate the capital improvement projectsof Brook Run P ark, and the reby fa iling to effect the timely transfer to the City of Dunwoody theremaining portion of the bond proceeds that DeKalb County appropriated for Brook Run Park atthe time of the Bond Referendum, which is consistent with the amount that was represented tothe public in order to garner voter support. Such failure is a dereliction of his duty to the citizensof D eKalb County, specifically including the residents of Dunwoody.

Under Georgia law, persons holding public office are required to perform the continuing dutieswhich their predecessors in office either refused or failed to do. There fore, Defendants arerequired to perform the ir clear legal duties which their predecessors in office refused and failedto perform.


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Under Georgia and D eKalb County law, each D efendant has a clear legal duty to effect thetimely transfer to the City o f Dunwoody the remaining portion of the bond proceeds that DeK albCounty appropriated for Brook Run Park at the time of the Bond Referendum, w hich isconsistent with the amount that was represented to the public in order to garner voter support.Such a duty is one where none of the Defendants have any discretion and, therefore, isministerial in nature.

Alternatively, if the Defe ndan ts have any discretion-which they do not-to withhold or delaythe transfer of the remaining bond proceeds under any circumstances o r for any reason, theiractions have constituted a gross abuse of discretion.

Furthermore, Defendants have a clear legal duty to take all ministerial steps necessary to performtheir legal duties as required by law.

The CIT Y OF DLW WO ODY possesses a clear legal right to the timely transfer of the remainingbond proceeds specifically designated for the improv ement an d beautification of Brook RunPark, pursuant to the Bond R eferendum held by DeK alb County and approved by Cou nty voters.in an amount that is consistent with the amo unt that was represented to the public in order togarner voter support

Plaintiffs FRANKLIN, CONVERSE and HAROD have an interest in Defendants executing andperforming their clear legal duties to effect the timely transfer of the remaining bond proceedsspecifically designated for the improvement and beautification of Brook Run Park, pursuant tothe Bond Referendum held by DeK alb County and approved by C ounty voters, in an amount thatis consistent with the am ount that w as represented to the pub lic in order to gamer voter support.


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As such, Plaintiffs FR ANK LIN, C ONV ERSE and HA RO D are not required by Georgia law tosho w any legal or special interest in order for Mandam us relief to be proper, because such reliefis one of pub lic right.

Furtherm ore, all Plaintiffs have the c lear legal right to the relief sought, but have no completeremedy other than Mandam us.

Plaintiffs' standing to seek M andam us relief arises from the absence of an adequate legal remedythat equally is convenient. com plete, and beneficial for the irreparable harm and deprivation thatPlaintiffs and the residents of Du nwoo dy have suffered and will continue to suffer if Defendantscontinue to withhold or delay in transferring the remaining bond proceeds to the City ofDunwoody that are required by law.

Accordingly, Plaintiffs are entitled to a Writ of Mandamus requiring Defendants to comply fullywith O.C.G.A. 5 36-1 1-1.1 and to immediately effect the transfer of the remaining bond proceedsspecifically designated for the imp rovem ent and beautification of Brook Run Park, pursuant tothe Bond R eferendum held by D eKalb County and approved by C ounty voters, in an amount thatis consistent with the am oun t that wa s represented to the public in order to garner voter support.

COUNT I11Expenses of Litigation Should Be Awarded

Plaintiffs incorporate the allegations set forth in Paragraphs 1 through 30 above into thisParagraph 66 as if the same were fully set forth within.


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Th e Defendants have operated in bad faith in their willful refusal to perform their lawful dutiesand recognize the Plaintiffs' statutory rights and vested property interest created by Georgia law.Such conduct justifies the award of the cost of litigation, including attorneys fees, pursuant toO.C.G.A. 5 13-6-1 1.

Th e Defendants have shown stubborn litigiousness in their willful refusal to perform their lawfulduties and recogn ize the Plaintiffs' statutory rights and vested property interest created byGeorgia law. Such conduct justifies the award of the cost of litigation, including attorneys fees,pursuant to O.C.G.A. 5 13-6-1 1.

Th e Defendants have c aused the Plaintiffs unnecessary trouble and ex pense by their willfulrefusal to perform the ir lawful duties and recognize the plaintiffs' statutory rights and vestedproperty interest created Ge orgia law. Such conduct justifies the award of the cost of litigation,including attorneys fees, pursuant to O .C.G.A. 5 13-6-1 1.

Plaintiffs submitted ante litern notice to Defendants on December 1,2 01 0, giving them the noticerequired by O.C.G.A. 5 36-1 1-1 1.1 to claim the cost o f litigation, including attorneys fe es, andpunitive damages.

Since the service of anle litem notice, Defendants have not complied with O.C .G.A. 36-1 1-1.1and continue to refuse to perform their clear legal duties under Georgia and DeK alb County law.

Accordingly, Plaintiffs are entitled to the cost of litigation expenses, including but not limited toattorneys fees, for having to bring this Mandam us action.


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WH EREFO RE, Plaintiffs pray that:a) 'The Court issues a declaration of the City of Du nw ood y's vested property right and

entitlement to receive the remaining bond proceeds specifically designated for theimprovement and beautification of Brook Run Park, pursuant to the Bond Referendumheld by D eKalb County and approved by C ounty voters, in an amount that is consistentwith the amount that was represented to the public in order to gamer voter support;

b) The Court issues a Mandam us Nisi to the Defendants requiring them to show cause notless than ten (10) days nor more than thirty (30) d ays from the da te of sanction why aMandamus should not be issued against them requiring them to fulfill their legal duty toeffect the transfer of the remaining bond proceeds specifically designated for theimprovement and beautification of Brook Run Park, pursuant to the Bond Referendumheld by DeKalb County and approved by County voters, in an amount that is consistentwith the amount that was represented to the public in order to garner voter support;

c) That the Defendants, each of them, be served in accordance with law;d) That this Court issue an Absolute Writ of Mandamus requiring Defendants to fully

comply with the Bond Referendum and O.C.G.A. 5 36-1 1-1.1, requiring them toimmediately effect the transfer of the remaining bond proceeds specifically appropriatedfor the improvement and beautification of Brook Run Park, pursuant to the BondReferendum held by DeK alb County and approved by County vo ters, in an amount that isconsistent with the amount that was represented to the public in order to garner votersupport, a sum not less than $7,015,072.23;

e) Further Order the award to Plaintiffs the cost of litigation expense s, including but notlimited to attorneys fees;

f) All such other and further relief as the Court deem s just and prope r.

[Signatures on, ollowing pag e]


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Date: December 27 ,20 10 By:Georgia Bar No. 633750Eric L. BarnumGeorgia Bar No. 039305Kimberly R. BourroughsGeorgia Bar No. 23 1480SCHIFF HARDIN LLPOne Atlantic Center, Suite 2300120 1 West Peachtree StreetAtlanta, GA 30309Telephone: (404) 437-7000Facsimile: (404) 437-7 100

Attorneys fo r Plaintiffs


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IN THE SUPEMO R COURT OF DEKALB COUIaTTUSTATE OF GEORGIA

THE CITY OF DVNWOODY , INC., CARLFRANKLIN, DON CONVERSE, and E N A T AHAROD,

Plaintiffs,VS.

DEKALB COUNTY; BURR ELL ELLIS, In HisCapacity As Chief Ex ecutive Officer of DeKalbCounty; JOEL G OTTL IEB, In His Capacity AsInterim DeKalb County Finance Director; ELAINEBOYER, JEFF RADER, LARRY JOETNSON,SHARON BARN ES SUTTON, LEE MAY,KATHIE GANNO N, and CONNIE STOKES, InTheir Capacities As M embers of the DeKalb Coun tjBoard of Com missioners; and ROY E. WILSON In13 s Capacity A s DeK alb County Parks andRecreation Director;

Defendants.

Civil Action No.

VERIFICATIONI, BRIAN AND ERSO N, City Attorney for the City of Dunw oody, Inc., declare under penalty ofperjury under the laws of the United States of America, that the foregoing C omplaint ForDeclaratory Judgment, Petition For M andamus and Conlplaint For Expenses Of Litigation aretrue and correct,

Executed on this 27"' ay of December, 20 10.

Brian Anderson, City AttorneyThe City of ~ u n w o o d ~ ,nc .41 Perimeter Center East, Suite 250Dunwoody, Georgia 30346


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IN TH E SUPERIOR COURT OF DEKALB COUNTYSTATE OF GEORGIA

TH E CITY OF DUNWO ODY, INC., CARLFRANKLIN, DON CO NVER SE, and RENATAHAROD,

VS.Plaintiffs,

DEKALB COUNTY; BUR REL L ELLIS, In HisCapacity As Chief Executive Officer of DeKalbCounty; JOEL GO TTL IEB, In His Capacity AsInterim DeKalb County Fina nce Director; ELAINEBOYER, JEFF RADER, LARRY JOHNSON,SHARON BARNES SUTTO N, LEE MAY,KATHIE GANNON, and CONhTIESTOK ES, InTheir Capacities As M em bers of the DeK alb Count]Board of Comm issioners; and R OY E. WILSON InHis Capacity As DeK alb C ounty Parks andRecreation Director;

Defendants. I

Civil Action No .

MANDAMUS NISI

Th e Petition of the Plaintiffs in the ab ove-entitled cause having been read and considered, thesame is hereby sanctioned and ordered filed; and it is further ordered that the Defendants namedbe and appear before this Court on the day of ,2011, at : o'clocka.rn./p.m., or so soon thereafter a s can be heard, then and there to show cause w hy a Mandam usAbsolute sho uld not be issu ed ag ainst them as prayed for in the petition, and further relief begranted as the facts of the cas e m ay w arrant.

It is further ordered that in default of such appearance and showing the mandamus prayed forwill be made absolute and the Plaintiffs will be accorded such relief as it m ay show it is entitledto.


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It is further ordered that a copy of said Petition an d this Order be served upon said Defendants.

Dated and signed, this day of ,2 0 1 1.

Judge, DeKalb County Superior CourtStone Mountain Judicial District

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