SPCV21-00140-CO

e-Filed in Office
Tammie Mosley
Clerk of Superior Court
IN THE SUPERIOR COURT OF CHATHAM COUNTY Chatham County
Date: 10/15/2021 1:15 PM
STATE OF GEORGIA Reviewer: MS

BACARRA MAULDIN, )
)
Plaintiff, )
)
v. ) Civil Action File No.
) SPCV21-00140-CO
CHATHAM AREA TRANSIT )
AUTHORITY )
)
Defendant. )

DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND

INCOPRORATED MEMORANDUM OF LAW IN SUPPORT

COMES NOW Defendant Chatham Area Transit Authority (“CAT”) and, pursuant

to O.C.G.A. § 9-11-65 and Uniform Superior Court Rule 6.5, files this Motion for Partial

Summary Judgment1 as to Plaintiff Bacarra Mauldin’s (“Plaintiff”) Count II claim for

breach of contract. In support of this Motion, CAT respectfully shows as follows:

INTRODUCTION

Count II of Plaintiff Complaint alleges a cause of action against CAT for breach of

contract. (See Pl’s Verified Complaint (hereinafter, “Compl.”) at ¶¶ 47-53.) Plaintiff’s

claim is based on the assertion that CAT breached her Employment Agreement in two

ways: (1) by interfering with Plaintiff’s job duties, operating outside the scope of its

authority, and micro-managing Plaintiff in the performance of her duties as Chief

1
CAT’s motion is based on the following: (1) Plaintiff’s Verified Complaint; (2)
Plaintiff’s September 16, 2021 deposition testimony; and (3) the previously filed affidavits
of Lee Smith, Deidrick Cody, Tabitha Odell, Helen Stone, Kenneth Adams, Dr. Michael
O’Halloran, Bobby Lockett, and Beverly Dumas.
Executive Officer (“CEO”); and (2) by terminating Plaintiff’s employment on January 26,

2021, purportedly without a valid or legally enforceable vote by its Board of Directors due

to the participation of Tabitha Odell in the voting process. (Id. at ¶¶ 7, 9-13, 24-26, 28, 31,

34-35, 47-53.) These theories of relief fail as a matter of black letter Georgia law.

The undisputed evidence reveals that no provision within the Employment

Agreement prohibited the Board from managing the Plaintiff, who reported to and was

supervised by the Board, or from operating outside the scope of its authority under the CAT

Act. Moreover, only material breaches of a contract are actionable, and a material breach

only occurs when the failure to perform is so fundamental it goes to the root or essence of

the contract and defeats its central purpose. See Lager’s LLC v. Palace Laundry, Inc., 247

Ga. App. 260, 263 (2000). Here, Plaintiff’s alleged freedom from micro-management was

clearly not the central purpose of the Employment Agreement.

Plaintiff’s “wrongful termination” claim fares even worse. First, to the extent

Plaintiff (a) seeks to challenge Ms. Odell’s right to hold office and/or (b) seeks to invalidate

the Board’s January 26, 2021 termination decision based on Ms. Odell’s participation in

the executive session and public vote, she has failed to pursue the correct legal remedies.

Second, even assuming for the sake of argument that (a) Ms. Odell was improperly

appointed, (b) had no legal right to vote on Plaintiff’s January 26, 2021 termination or

participate in the executive session that preceded it, and (c) the vote was a “legal nullity”

as Plaintiff claims (which is not the case), this issue is now legally moot. This is so because

on February 23, 2021, at a public meeting following Ms. Odell’s official appointment and

swearing in by the Chatham County Commission on February 12, 2021, the CAT Board
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voted to re-affirm Plaintiff’s January 26, 2021 termination. This represents a fatal blow to

Plaintiff’s wrongful termination claim, as illustrated by binding precedent. See Avery v.

State of Ga., 295 Ga. 630(4) (2014) (“Since the bond action was discussed and acted upon

at the subsequent open meeting, Avery’s contentions regarding problems with the prior

meeting do not affect the validity of the Authority’s ultimate decision to issue the revised

bond.”); Schoen v. Cherokee County, 242 Ga. App. 501(2) (2000) (“[W]e agree with the

trial court’s holding that subsequent actions taken by the Board to reaffirm actions

allegedly taken in the private, privileged meeting render Schoen’s lawsuit moot.”); Sweet

City Landfill, LLC v. Lyon, 52 Ga. App. 824, 835 (2019) (“[T]he subsequent actions taken

by the County Commission to reaffirm actions allegedly taken in the private meeting render

Sweet City’s claim moot.”). Accordingly, summary judgment is due.

STATEMENT OF UNDISPUTED MATERIAL FACTS

A. Plaintiff’s Employment Agreement.

CAT is a public transit authority that was created on March 28, 1986 by local

legislation. (Compl. ¶¶ 4, 7; see also Holmes v. Chatham Area Transit Auth., 234 Ga. App.

42, 43 (1998) (“This local act provided that “[t]here is created a body corporate and politic

to be known as the Chatham Area Transit Authority, which shall be deemed to be an

instrumentality of the State of Georgia and a public corporation.” Id. at 5085, § 2.1. CAT

was authorized to operate “‘a transit system for the purpose of transporting persons inside

and outside of Chatham County.’” (quoting the Act, Ga. L. 1986, pp. 5082 (the “CAT

Act”)). On June 10, 2020, Plaintiff entered into her Employment Agreement, which

provided that she would serve as CAT’s CEO beginning June 29, 2020. (Compl. ¶ 7;
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Deposition of Plaintiff Bacarra Mauldin (“Pl. Dep.”) at 51:13-52:10; Pl. Dep. Ex. 5.)2

The terms of Plaintiff’s Employment Agreement are plain and unambiguous. Under

Section 1(A) of the contract, entitled “Employment,” CAT agreed to appoint, engage, and

employ Plaintiff as its CEO, “under the terms established herein, to perform the duties and

functions specified in the [CAT] Act and to perform such other legally permissible and

proper duties and functions described herein below and as the CAT Board of Directors

shall from time to time assign.” (Pl. Dep. Ex. 5, § 1(A)). Section 3(D), which describes

Plaintiff’s “Duties and Obligations,” provides in relevant part as follows:

The CEO shall have the duties, responsibilities and powers of the Director
provided under the Act and the operating policies and procedures of the
Chatham Area Transit Authority, which duties and responsibilities shall
include, at a minimum, the customary duties and responsibilities generally
expected of and performed by CEOs and Executive Directors of public transit
properties and operations in the United States.

(Id. at § 3(A)). Plaintiff admitted at her deposition that neither these nor any of the other

clauses contained in the Employment Contract state that the Board would be prohibited

from micro-managing her, from acting outside the scope of its authority, or from interfering

with her job duties. (Pl. Dep. 54:16-23; Pl. Dep. Ex. 5).3

2
Relevant excerpts and exhibits from Plaintiff’s deposition are attached to CAT’s
simultaneously filed Theory of Recovery and Statement of Undisputed Material Facts in
Support of its Motion for Partial Summary Judgment.
3
Plaintiff also admitted that, as CAT’s CEO, she was the highest-ranking employee
of the organization, she was responsible for the overall success of the agency, and she
reported directly to CAT’s Board of Directors. (Pl. Dep. 47:5-49:7; Pl. Dep. Ex. 4).
Plaintiff further conceded that she was responsible for soliciting advice and guidance from
CAT’s Board (as well as responsible for providing advice and guidance to the Board), and
that she served at the Board’s pleasure. (Pl. Dep. 49:17-23, 50:8-21, 59:12-60:6; Pl. Dep.
Ex. 4). Notably, Section 12(A) of Plaintiff’s Employment Agreement additionally

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 Almost all of the remaining sections of the Employment Agreement relate to the

financial benefits that Plaintiff was to receive. For instance, Section 2 describes her

entitlement to “Salary, Bonus, Expenses and Evaluation,” Section 4 states that CAT would

provide her with a company vehicle, and Section 6 notes that CAT agrees to pay

registration and travel costs associated with her attendance at American Public

Transportation Association conferences. (Pl. Dep. Ex. 5, §§ 2, 4, and 5). Similarly,

Sections 7 through 11 identify the vacation, sick leave, holiday, insurance, retirement,

relocation, and temporary living expenses to be provided under the Employment

Agreement. (Id. §§ 7-11). Finally, Sections 12 through 16 describe the circumstances in

which she may be eligible for severance pay in the event of a separation, as well as CAT’s

indemnification obligations. (Id. §§ 12-16).4

The Employment Agreement also contains an entire agreement, or “merger clause.”

Specifically, Section 18(D) provides that “[t]his Agreement contains the entire agreement

of the parties,” which “may not be changed verbally, but only by an agreement in writing

of equal dignity and formality as this Agreement signed by the parties.” (Pl. Dep. Ex. 5, §

18(D)) (emphasis in italics). There is no record evidence that Plaintiff executed an

provides that Plaintiff was an at-will employee: “The CEO shall serve at the pleasure of
the CAT Board of Directors, and the CAT Board of Directors may terminate this
Agreement and the CEO’s employment with CAT at any time, for any reason or for no
reason.” (Pl. Dep. Ex. 5, § 12(A)) (emphasis in italics).
4
Section 17 provides that “[i]f any litigation is commenced between the parties
concerning any provision of this Agreement or the rights and duties of any person in
relation thereto, the party prevailing in such litigation will be entitled … to reasonable
attorney’s fees and expenses incurred in connection therewith, including appellate fees and
expenses and costs of court.” (Pl. Dep. Ex. 5, § 17).
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addendum to her Employment Agreement. (Pl. Dep. 64:6-9).

Finally, both CAT and Plaintiff agreed that the Employment Agreement would be

interpreted in accordance with Georgia law, and that “each has shared equally in the

drafting and preparation of this Agreement and, accordingly, no court construing this

Agreement shall construe it more strictly against one party than the other and every

covenant, term and provision of this Agreement shall be construed simply according to its

fair meaning.” (Pl. Dep. Ex. 5, § 18).

B. Odell’s Replacement of Liakakis and Plaintiff’s Subsequent Termination.

Pete Liakakis was previously one of CAT’s nine Board Members, having been

appointed by the Chatham County Board of Commissioners. (Smith Aff. ¶ 4.)5 Mr.

Liakakis is an elderly man, apparently suffering from memory loss, whose wife appeared

to be voting for him during Plaintiff’s tenure as CEO. (Pl. Dep. 237:19-238:11.) Tabitha

Odell was also member of the CAT Board at the time Plaintiff was hired, but her term

expired on December 31, 2020. (Odell Aff. ¶ 2).

Subsequently, at a January 15, 2021 meeting of the Chatham County Board of

Commissioners, Ms. Odell’s nomination to replace Mr. Liakakis was discussed in the

presence of Lee Smith, County Manager for Chatham County. (Smith Aff. ¶ 4).

Thereafter, the Clerk of the Chatham County Commission transmitted a pro forma template

5
The Affidavit of Lee Smith was previously filed with the Court in support of
CAT’s opposition to Plaintiff’s Motion for Preliminary Injunction. All of the other
affidavits referenced herein – including those submitted by Board Members Cody, Odell,
Stone, Adams, Lockett, and O’Halloran, as well as the affidavit of Beverly Dumas – were
also previously filed with the Court in opposition to Plaintiff’s Motion for Preliminary
Injunction.
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used for all appointments made by the Commission to the CAT Board, indicating that Ms.

Odell had been appointed to the Board in place of Mr. Liakakis. (Id.)

Plaintiff was terminated on January 26, 2021 at a meeting of the CAT Board of

Directors. (Compl. ¶ 27; Cody Aff. ¶ 3; Pl. Dep. 256:2-23). During that meeting, six out

of the nine Board members who were present voted to terminate Plaintiff’s employment.

The individuals who voted to terminate Ms. Mauldin’s employment were as follows:

Deidrick Cody, Tabitha Odell, Helen Stone, Kenneth Adams, Bobby Lockett, and Dr.

Michael O’Halloran. (Odell Aff. ¶ 3; Cody Aff. ¶ 3; Stone Aff. ¶ 3; Adams Aff. ¶ 3;

O’Halloran Aff. ¶ 3; Lockett Aff. ¶ 3; Pl. Dep. 256:2-23). The original motion to terminate

Plaintiff was made by Director Stone and seconded by Tabitha Odell. No Board members

who were present raised a timely objection or point of order based on the alleged lack of a

valid second before discussion and voting on the motion began. (Cody Aff. ¶ 7; Odell Aff.

¶ 7; Pl. Dep. 256:2-23.)

Tabitha Odell was thereafter appointed and sworn into the CAT Board by the

Chatham County Commission in a public meeting on February 12, 2021, retroactive to

January 15, 2021. (See Smith Aff. ¶ 4; Odell Aff. ¶ 2.) Then, on February 23, 2021, during

its regularly scheduled meeting, the CAT Board voted on a motion to re-affirm the decision

to terminate Plaintiff’s employment agreement with CAT. (O’Halloran Aff. ¶ 15; Cody

Aff. ¶ 14; Odell Aff. ¶ 12). Helen Stone made the motion to re-affirm, which was seconded

by Dr. O’Halloran, after which the motion passed by a vote of 6-3. (See id.; see also Dumas

Aff. ¶ 8; Pl. Dep. 258:16-259:3).

While Plaintiff disputes the appointment of Odell and the validity of her votes, she
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admitted at her deposition that only a majority vote of a “quorum” of the nine Board

members is needed for the CAT Board to take official action. (Pl. Dep. 139:7-140:1).

Plaintiff also conceded that she can only speculate as to how Mr. Liakakis would have

voted had he been present at the meeting in which she was terminated. (Pl. Dep. 242:16-

19). Moreover, Plaintiff does not dispute the validity of the appointments of the Board

members other than Odell who voted in favor of her termination and the subsequent vote

to re-affirm her termination. (Pl. Dep. 264:20-266:5.)

ARGUMENT AND CITATION OF AUTHORITY

A. Standard on Motions for Summary Judgment.

Summary judgment should be granted when the movant shows that “there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” O.C.G.A. § 9-11-56(c). If the moving party meets its initial burden of

proof, the nonmoving party cannot rest on mere allegations or denials in its pleadings, but

must, by affidavits or other admissible evidence, set forth specific facts showing that there

is a genuine issue for trial. O.C.G.A. § 9-11-56(e).

B. Summary Judgment is Due on Plaintiff’s “Micro-Management” Claim.

To establish a breach of contract, a party must prove: (1) the existence of a contract;

(2) the breach of an obligation imposed by the contract; and (3) damages that the plaintiff

suffered as a result of the breach. See Alpha Balanced Fund, LLLP v. Irongate

Performance Fund, LLC, 342 Ga. App. 93, 98 (2017). Here, Plaintiff’s breach of contract

claim is based, in part, on her assertion that CAT “breached the terms of the Employment

Agreement by interfering with Plaintiff’s job duties, operating outside the scope of its
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authority, and micro-managing Plaintiff in the performance of her duties as CEO.”

(Compl. ¶ 49; Pl’s Dep. 38:3-39:8.) More specifically, Plaintiff claims the Board made it

difficult to execute or implement decisions within her province as the CEO, and by

constantly asking her for documents and information, which she contends violated the

Board’s role under the CAT Act. (Pl. Dep. 266:6-267:17).

The resolution of Plaintiff’s claim depends on the Court’s construction of her

Employment Agreement. Where the terms of a contract are plain and unambiguous, the

construction of the contract is a question of law for the trial court. See Travelers Ins. Co.

v. Blakey, 255 Ga. 699, 700 (1986); O.C.G.A. § 13-2-1. For this reason, Georgia courts

have repeatedly held that, absent ambiguity, “the interpretation of a written contract is

particularly appropriate for summary adjudication.” Garvin v. Smith, 235 Ga. App. 897,

899 (1999) (emphasis added). See also Foshee v. Harris, 170 Ga. App. 394, 395 (1984).

The cardinal rule of contract construction is to ascertain the intention of the parties

by looking at the contract as a whole. See McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga.

App. 496, 498 (1986). If the language is clear, the contract should be enforced according

to its clear terms. See Carroll v. Bd. of Regents of the Univ. Sys. of Ga., 324 Ga. App.

598, 600 (1) (2013). Notably, “[t]he general rule in determining contract compliance is

substantial compliance, not strict compliance, and this rule applies to a contract’s

termination clause as well.” Rome Healthcare v. Peach Healthcare System, 264 Ga. App.

265, 272 (5) (2003) (citations and punctuations omitted). Similarly, under Georgia law,

only material breaches of a contract are actionable, and a material breach only occurs when

the failure to perform is so fundamental it goes to the root or essence of the contract and
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defeats its central purpose. See Lager’s LLC, 247 Ga. App. at 263. See also Forsyth Cnty

v. Waterscape Servs., LLC, 303 Ga. App. 623, 633 (2010) (“A breach is material when it

is so substantial and fundamental as to defeat the object of the contract.”) (citing Lanier

Home Center v. Underwood, 252 Ga. App. 745, 746 (2001)). See also Glower v.

Orthalliance, Inc., 337 F. Supp. 2d 1322, 1333 (II) (C) (N.D. Ga. 2004) (applying Georgia

law and concluding that breach of contract was not material where the party “lost $8,000

out of a revenue stream that totaled more than $1,000,000 over the life of the contract” and

“the underlying purpose of the contract was not thwarted”); Waterscape Servs., 303 Ga.

App. at 633-34 (finding that a dispute regarding the final $265,657 of a construction

contract involving more than $11,000,000 in compensation for Waterscape was an

immaterial breach as a matter of law).

The rules of construction and the caselaw set forth above mandate summary

judgment in favor of CAT. Simply put, no provision within the Employment Agreement

prohibited the Board of Directors from managing or micro-managing Plaintiff, allegedly

interfering with her job duties, or overstepping its authority. In fact, the contract expressly

contemplates that she would be subject to the Board’s supervision. Based on the contract’s

merger clause, also known as an “entire agreement” clause, Plaintiff is prohibited from

asserting that the Board breached a promise or obligation not contained within the four

corners of her Employment Agreement.6 Thus, she cannot establish a breach of contract

Under Georgia law, “a merger clause operates as a disclaimer of all representations

6

not made on the face of the contract.” Ekeledo v. Amporful, 281 Ga. 817, 819 (2007). See
also C&C Family Tr. v. AXA Equitable Life Ins. Co., 654 F. App'x 429, 434 (11th Cir.

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on this basis under any set of provable facts. Stated differently, the Board’s obligations

under the CAT Act and its obligations and duties under the Employment Agreement are

two entirely different things. It is the plain language of the Employment Agreement which

governs the analysis before the Court.

Of course, even if the Court were to somehow construe the contract as prohibiting

the Board’s micro-management, Plaintiff still could not establish a material breach. The

central purpose of Plaintiff’s Employment Agreement served to memorialize her

employment as the CEO and to describe the various financial benefits to which she would

be entitled. It would be plain error to conclude that the central, fundamental purpose of the

Employment Agreement was to prevent the Board from managing or micro-managing the

Plaintiff. Thus, summary judgment is due for this additional reason.

C. Summary Judgment is Also Due on Plaintiff’s “Wrongful Termination” Claim.

The portion of Plaintiff’s breach of contract that is claim tied to her allegedly

wrongful termination is also meritless. This cause of action rises and falls on Plaintiff’s

assertion that CAT terminated her “without a valid or legally enforceable vote by its Board

of Directors.” (Compl. ¶ 50). Plaintiff’s theory, which the Court previously rejected7 at

2016) (applying Georgia law); Morris v. Progressive Health Rehab. LLC, No. 3:05-cv-
00010, 2007 WL 908646, at *10 (M.D. Ga. Mar. 22, 2007) (“If the contract contains a
merger clause, a party cannot argue that it relied upon representations other than those
contained in the contract.”); Arieso, Inc. v. Rhamani, 397 Fed. Appx. 570, 571 (11th Cir.
2010) (same).
7
During the preliminary injunction hearing, the Court asked Plaintiff’s counsel, “So
tell me why, one, as far as the vote is concerned, why I shouldn’t find that issue is rendered
moot by the subsequent vote…” (Transcript of Feb. 26, 2021 Hearing at p. 44). The Court

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the preliminary injunction phase, is based on the premise that Ms. Odell was improperly

appointed to replace Mr. Liakakis as a Board member and, as such, her participation in the

executive sessions and/or votes in question rendered them a legal nullity and violated

Section 12 of Plaintiff’s Employment Agreement (i.e., the termination clause). (Pl. Dep.

38:3-39:8, 264:18-266:5, 272:24-274:8). This claim fails for at least four independent

reasons.

First, it is undisputed that the motion to terminate Plaintiff during the January 26,

2021 meeting was made by Helen Stone, and was seconded by Ms. Odell. Deidrick Cody,

the Chairman of CAT’s Board of Directors, testified that “since it was clear to me that the

motion was met with wide approval, I would have allowed the motion to proceed without

a second.” (Cody Aff. ¶ 7). Further, it is undisputed that none of the other Board members

present raised a timely objection or ‘point of order’ based on the alleged lack of a valid

second before discussion and voting on the motion began.” (Cody Aff. ¶ 7; Odell Aff. ¶ 7;

Pl. Dep. 256:2-23.) Thus, Plaintiff’s contention that the absence of valid “second” rendered

the motion to terminate null and void is wholly without merit. See Robert’s Rules of Order

Newly Revised § 4:13 (“If a motion is considered and adopted without having been

seconded…the absence of a second does not affect the validity of the motion’s adoption”),

§ 23:5-6 (“A Point of Order must be timely. This means that, with some important

exceptions, it must be made at the time the rules violation occurs. … Once debate has

then stated to Plaintiff’s counsel, “[a]summing you would agree that the issue is now
mooted by the fact that there has been a subsequent vote … that is not a basis for seeking
injunctive relief at this point.” (Id. at p. 56). The Court subsequently issued an order
denying Plaintiff’s Motion for Preliminary Injunction. (See Order dated March 3, 2021).
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already begun on that motion, it is too late to make the point of order that the motion had

no second.”) (Emphasis in italics). Moreover, Plaintiff does not have standing to object on

the alleged lack of a “second,” as she is not on the Board. Even so, the presence of six

votes in favor of termination – a supermajority in parliamentary terms – clearly indicates

an assent to second and proceed with voting on the motion. No Georgia court appears to

have ever invalidated the vote of a public entity’s governing body on this basis.

Second, no Georgia statutory authority or caselaw supports the proposition that Ms.

Odell’s presence in the executive session and/or the Board’s vote to terminate Plaintiff

somehow invalidated the entire vote, let alone that Plaintiff suffered any harm as a result.

Nothing in the Georgia Open Meetings Act prohibits an invited person to attend an

executive session, let alone provides that an “interloper” – a term no Georgia court

interpreting the Open Meetings Act has ever used – renders the whole session invalid. See

O.C.G.A. § 50-14-1 et seq. See also Black’s Law Dictionary, “Executive Session” (defined

to mean “a meeting, usually held in secret, that only the members and invited nonmembers

may attend.”) (Emphasis added). See also Cypert v. Indep. Sch. Dist. No. I-050, 2010 U.S.

Dist. LEXIS 102482, *29-30 (N.D. Okla. Aug. 31, 2010) (presence of non-member in

executive session did not render termination hearing inadequate or unfair). In turn, under

O.C.G.A. § 1-3-1(c), “substantial compliance with any statutory requirement, especially

on the part of public officers, shall be deemed and held sufficient, and no proceeding shall

be declared void for want of such compliance, unless expressly so provided by law.”

Finally, it is undisputed that a quorum of validly appointed members of the Board was

present at the termination meeting, and even excluding Ms. Odell’s vote, Plaintiff still
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would have been terminated by a vote of 5-3. See Trump v. Kemp, 2021 U.S. Dist. LEXIS

4185, *27-28 (N.D. Ga. Jan. 5, 2021) (“The Complaint also fails to explain how, even if

this Court granted the relief requested, Plaintiff will avoid any specific harm…If this Court

did grant the relief requested, it would not change the result of the November 3, 2020

Presidential Election.”).

Third, to the extent Plaintiff seeks (a) to challenge Ms. Odell’s right to hold office

and/or (b) to invalidate the Board’s January 26, 2021 termination decision based on Ms.

Odell’s participation in the executive session and public vote, she has failed to pursue the

correct legal remedies. Again, it is the writ of quo warranto that is used to challenge a

person’s right to hold a public or corporate office, and a claim pursuant to O.C.G.A. § 50-

14-1(b)(2) is the proper mechanism for “contesting a resolution, rule, regulation, ordinance,

or other formal action of an agency based on an alleged violation” of the Open Meetings

Act. See O.C.G.A. § 9-6-60; O.C.G.A. § 50-14-1(b)(2). However, Plaintiff has not asserted

such a cause of action, and the limitations period for doing so under the Open Meetings

Act has passed. See O.C.G.A. § 50-14-1(b)(2) (providing that any action contesting a

resolution, rule, regulation, or other formal action of an agency under the OMA “shall be

commenced within 90 days of the date such contested action was taken or, if the meeting

was held in a manner not permitted by law, within 90 days from the date the party alleging

the violation knew or should have known about the alleged violation so long as such date

is not more than six months after the date the contested action was taken.”) (emphasis in

italics).

Finally, even if (a) Ms. Odell was improperly appointed, (b) had no legal right to
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vote on Plaintiff’s termination or participate in the executive session that preceded it, and

(c) the vote was a “legal nullity” – as Plaintiff claims without any legal support – this issue

is now legally moot. This is so because on February 23, 2021, at a properly noticed public

meeting following Ms. Odell’s official appointment by the Chatham County Commission

on February 12, 2021, the CAT Board voted to re-affirm Plaintiff’s January 26, 2021

termination by a 6-3 margin. It is black letter law that under these circumstances, no case

or controversy surrounding the appointment and/or vote involving Ms. Odell exists. See

Avery v. State of Ga., 295 Ga. 630(4) (2014) (“Since the bond action was discussed and

acted upon at the subsequent open meeting, Avery’s contentions regarding problems with

the prior meeting do not affect the validity of the Authority’s ultimate decision to issue the

revised bond.”); Schoen v. Cherokee County, 242 Ga. App. 501(2) (2000) (“[W]e agree

with the trial court’s holding that subsequent actions taken by the Board to reaffirm actions

allegedly taken in the private, privileged meeting render Schoen’s lawsuit moot.”); Sweet

City Landfill, LLC v. Lyon, 52 Ga. App. 824, 835 (2019) (“[T]he subsequent actions taken

by the County Commission to reaffirm actions allegedly taken in the private meeting render

Sweet City’s claim moot.”); Gumz v. Irvin, 300 Ga. App. 426, 430 (2009) (subsequent

public meeting and vote cured any issue with a meeting that was not publicly announced).

CONCLUSION

This motion is based upon undisputed facts and well-settled matters of law. As

shown above, Plaintiff cannot establish any material breach of her Employment

Agreement, whether based on the Board’s alleged micro-management or the votes to

terminate and re-affirm the termination of her employment. Thus, CAT respectfully
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requests that the Court promptly dismiss Plaintiff’s Count II claims with prejudice.

Respectfully submitted,

FREEMAN MATHIS & GARY, LLP

/s/ John D. Bennett
JOHN D. BENNETT
Georgia Bar No. 059212
jbennett@fmglaw.com
TIMOTHY M. BOUGHEY
Georgia Bar No. 832112
tboughey@fmglaw.com
DOUGLAS BLATECKY
Georgia Bar No. 747274
dblatecky@fmglaw.com
Attorneys for Defendant
100 Galleria Parkway, Suite 1600
Atlanta, Georgia 30339
T: (770) 818-0000
F: (770) 937-9960

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 IN THE SUPERIOR COURT OF CHATHAM COUNTY
STATE OF GEORGIA

BACARRA MAULDIN, )
)
Plaintiff, )
)
v. ) Civil Action File No.
) SPCV21-00140-CO
CHATHAM AREA TRANSIT )
AUTHORITY )
)
Defendant. )

CERTIFICATE OF SERVICE

I hereby certify that I have this day electronically submitted the foregoing

DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND

INCOPRORATED MEMORANDUM OF LAW IN SUPPORT to the Clerk of Court

using the Odyssey e-filing system which will automatically send electronic mail

notification of such filing to counsel of record:

Edward D. Buckley, Esq.

Ashley Wilson Clark, Esq.
Buckley Beal, LLP
600 Peachtree Street, N.E., Ste. 3900
Atlanta, Georgia 30308
Email: edbuckley@buckleybeal.com
Email: awilsonclark@buckleybeal.com

This 15th day of October, 2021.

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 /s/ John D. Bennett
John D. Bennett
Georgia Bar No. 059212
jbennett@fmglaw.com

FREEMAN MATHIS & GARY, LLP

100 Galleria Parkway, Suite 1600
Atlanta, Georgia 30339-5948
T: (770) 818-0000
F: (770) 937-9960

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