PRESTON D. LEWIS v. CITY OF BRUNSWICK

• Court: Court of Appeals of Georgia
• Decided: March 6, 2025
• Docket: A24A1572
• Status: Published

Opinion

FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, P. J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

March 6, 2025

In the Court of Appeals of Georgia A24A1572. LEWIS et al v. CITY OF BRUNSWICK.

MERCIER, Chief Judge.

The Sons of Confederate Veterans1 filed a lawsuit against the City of Brunswick

(“the City”), seeking damages and declaratory relief, regarding a Confederate

monument that was removed from Hanover Square in Brunswick.2 Finding that the

Sons of Confederate Veterans’ lawsuit was barred by sovereign immunity in part, and

1 The plaintiffs in the underlying lawsuit are named as: Preston D. Lewis and Richard Alan Watson, each individually and by Association; The Thomas Marsh Forman Camp # 485 Sons of Confederate Veterans and by Association The Georgia Division Sons of Confederate Veterans; Jeffrey A. Kilgore, Individually; and Barbara Whorton Smith, Individually. For purposes of clarity, we will refer to the plaintiffs collectively as the Sons of Confederate Veterans. 2 A prior version of this lawsuit was before us in Williams v. Harvey, 366 Ga. App. 395 (883 SE2d 145) (2023), where we affirmed the trial court’s dismissal due to lack of standing. that it failed to state a claim in part, the trial court granted the City’s motion to

dismiss. The Sons of Confederate Veterans filed this appeal, arguing, among other

things, that the trial court erred by dismissing the lawsuit on sovereign immunity

grounds. For the following reasons, we affirm.

“We review de novo a trial court’s ruling on a motion to dismiss based on

sovereign immunity grounds, which is a matter of law.” City of Hapeville v. Sylvan

Airport Parking, 359 Ga. App. 448, 450 (2) (858 SE2d 538) (2021) (citation and

punctuation omitted); see also Spann v. Davis, 312 Ga. 843, 850 (2) (866 SE2d 371)

(2021) (“Georgia courts have no subject matter jurisdiction when sovereign immunity

applies[.]”) (footnote omitted).

As alleged in the complaint, the facts state that, in 1902, the Ladies Memorial

Association erected a monument to lost soldiers of the Civil War in Hanover Square

in Brunswick. After the monument was erected, the Ladies Memorial Association

dissolved. Plaintiff Thomas Marsh Forman Camp # 485 “spent thousands of dollars

in upkeep and restoration of the monument in question.”

On May 17, 2022, the City removed the monument from Hanover Square.

Thereafter, the Sons of Confederate Veterans served ante litem notice on the City

2 demanding “damages in this matter in excess of $100,000.00” for the City’s removal

of the monument and violation of OCGA § 50-3-1. After the City failed to pay their

demand, the Sons of Confederate Veterans filed the underlying lawsuit, stating that

the monument was publicly owned. Through their lawsuit, the Sons of Confederate

Veterans seek damages and a declaratory judgment, where they ask “the court to

conduct an evidentiary hearing and require [the City] to provide whatever proof they

have that they do not own the monument.”

1. The Sons of Confederate Veterans argue that the trial court erred by finding

that their lawsuit against the City was barred by sovereign immunity.

“[S]overeign immunity[] provides that the State cannot be subjected to any

legal action without its express consent. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX

(e).” Dept. of Transp. v. Mixon, 312 Ga. 548, 549 (2) (864 SE2d 67) (2021). Municipal

corporations are protected by sovereign immunity pursuant to Article IX, Section II,

Paragraph IX of the Constitution, unless that immunity is waived by the General

Assembly. City of Atlanta v. Mitcham, 296 Ga. 576, 577 (1) (769 SE2d 320) (2015).3 See

also OCGA § 36-33-1.

3 “The General Assembly may waive the immunity of counties, municipalities, and school districts by law.” Ga. Const. of 1983, Art. IX, Sec. II, Par. IX. 3 “The burden of demonstrating a waiver of sovereign immunity rests upon the

party asserting it.” Ga. Dept. of Labor v. RTT Assoc., 299 Ga. 78, 81 (1) (786 SE2d 840)

(2016). “Whether a government entity has waived sovereign immunity is a threshold

issue and not a mere defense to liability.” Augusta Judicial Circuit Office of the Pub.

Defender v. Hodge-Peets, 370 Ga. App. 819, 820 (899 SE2d 363) (2024) (citation and

punctuation omitted). When a party fails to establish a waiver of sovereign immunity,

“the trial court must dismiss the complaint pursuant to OCGA § 9-11-12 (b) (1) for

lack of subject-matter jurisdiction.” Id. (citation and punctuation omitted).

The Sons of Confederate Veterans argue that the City violated OCGA § 50-3-1

(b), by removing the monument from Hanover Square. Pursuant to OCGA § 50-3-1

(b) (2),

It shall be unlawful for any person, firm, corporation, or other entity to mutilate, deface, defile, or abuse contemptuously any publicly owned monument located, erected, constructed, created, or maintained on real property owned by an agency or the State of Georgia. No officer or agency shall remove or conceal from display any such monument for the purpose of preventing the visible display of the same. A violation of this paragraph shall constitute a misdemeanor.

The Legislature defined the term “Agency,”within the subsection, as:

4 any state or local government entity, including any department, agency, bureau, authority, board, educational institution, commission, or instrumentality or subdivision thereof, and specifically including a local board of education, the Board of Regents of the University System of Georgia, and any institution of the University System of Georgia.

OCGA § 50-3-1 (b) (1) (A).

(a) The Sons of Confederate Veterans contend that the City is liable to it for

damages, pursuant to OCGA § 50-3-1 (b) (4). Further, they argue that the Legislature

waived sovereign immunity in the same subsection. OCGA § 50-3-1 (b) (4) provides

that:

Any person or entity that damages, destroys, or loses a monument or that takes or removes a monument without replacing it shall be liable for treble the amount of the full cost of repair or replacement of such monument and may be subject to exemplary damages unless such person or entity was authorized to take such action by the public entity owning such monument. In addition to treble the cost of repair or replacement and possible exemplary damages, the person or entity shall also be liable for the attorney’s fees and court costs expended by the public entity owner of the monument or person, group, or legal entity in any action or proceeding required to establish liability and collect amounts owed. Should a public entity owner of the monument or person, group, or other legal entity prevail in any action under this Code section, such prevailing party shall timely pay for the cost of or repair or placement of the monument upon moneys being

5 collected from the party damaging, destroying, or losing such monument.

OCGA § 50-3-1 (b) (4) (emphasis added).

The statute in question does not provide an explicit waiver of sovereign

immunity. Compare OCGA § 33-24-51 (b) (“The sovereign immunity of local

government entities for a loss arising out of claims for the negligent use of a covered

motor vehicle is waived as provided in Code Section 36-92-2.”4); and OCGA § 50-21-

23 (a) (Subject to certain exceptions and limitations, “[t]he state waives its sovereign

immunity for the torts of state officers and employees while acting within the scope

of their official duties or employment and shall be liable for such torts in the same

manner as a private individual or entity would be liable under like circumstances”).

While OCGA § 50-3-1 provides a means for obtaining damages from “[a]ny person

or entity” that violates the statute, the statute does not contain a waiver of sovereign

immunity. The legislature chose not to create monetary liability for agencies, and we

cannot read a waiver of sovereign immunity where there is none. RTT Assoc., 299 Ga.

4 OCGA § 36-92-2 (a) states that “[t]he sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived” up to specified monetary limits.

6 at 87 (3) (“The constitutional provision expressly reserving the power to waive

sovereign immunity to the legislature does not allow for exceptions to be created by

the courts.”) (citation and punctuation omitted). “Nowhere in the statute has the

Legislature specifically provided that sovereign immunity has been waived and the

extent of such waiver, and, without specific statutory language providing for (1) a

waiver of sovereign immunity and (2) the extent of such waiver, no waiver can be

shown.” Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 187 (674 SE2d

894) (2009) (citation, punctuation omitted, emphasis in original); see also CSX

Transp. v. City of Garden City, 277 Ga. 248, 249 (1) (588 SE2d 688) (2003) (“This

Court has long recognized that sovereign immunity applies to all actions where the

State or its departments or agencies is a party, and only the legislature has the

authority to enact a law that specifically waives a municipality’s sovereign immunity.”)

(footnote, citation and punctuation omitted, emphasis supplied).

Further, “[i]mplied waivers of sovereign immunity are generally

disfavored.”Mixon, 312 Ga. at 550-551 (2) (a). “Although no special or magic words

must be used by the legislature when enacting a statutory waiver of sovereign

immunity, implied waivers are not favored, and it must be clear from the statute that

7 immunity is waived and the extent of such waiver.” Ga. Lottery Corp. v. Patel, 353 Ga.

App. 320, 322 (836 SE2d 634) (2019). Georgia courts recognize implied waivers

“when the implication necessarily arises.” Mixon, 312 Ga. at 551 (2) (a); See SJN

Properties v. Fulton County Bd. of Assessors, 296 Ga. 793, 799 (2) (b) (ii) n. 6 (770 SE2d

832) (2015) (“mandamus actions . . . by their very nature may be sought only against

public officials” and therefore would be categorically precluded by sovereign

immunity if not for implied waiver of sovereign immunity); City of Rincon v. Ernest

Communities, 356 Ga. App. 84, 86 (1) (846 SE2d 250) (2020) (declaratory relief was

not barred by sovereign immunity because the statute stated that “[i]n any proceeding

involving the validity of a municipal ordinance or franchise, the municipality shall be

made a party and shall be entitled to be heard as a party[,]” which must be interpreted

as an implied waiver or it would be rendered meaningless) (citation and punctuation

omitted). Here, OCGA § 50-3-1 (b) (4) will not be rendered meaningless in the

absence of an implied waiver of sovereign immunity. Instead, if a non-governmental

entity or person damaged or removed a monument, that person or entity would be

liable for damages. OCGA § 50-3-1 (b) (4). An implied waiver of sovereign immunity

is not required in order to give meaning to the statute. Compare Colon v. Fulton

8 County, 294 Ga. 93, 96 (1) (751 SE2d 307) (2013) (“[I]n order for the [Georgia

whistleblower statute, OCGA § 45-1-4] to have any meaning at all here, it can only be

interpreted as creating a waiver of sovereign immunity.”), overruled on other grounds

by Rivera v. Washington, 298 Ga. 770, 778 n.7 (784 SE2d 775) (2016).

In the absence of a necessary implication of an implied waiver of sovereign

immunity, Georgia courts have declined to find such a waiver. See CSX Transp., 277

Ga. at 250 (1) (no implied waiver of municipal’s sovereign immunity as any such

waiver “is expressly reserved to the legislature”); see also Ga. Dept. of Natural

Resources v. Center for a Sustainable Coast, 294 Ga. 593, 603 (2) (755 SE2d 184) (2014)

(“The plain language of OCGA § 12–5–245 does not provide for a specific waiver of

governmental immunity nor the extent of such a waiver, and therefore, no waiver can

be implied or shown.”); Currid, 285 Ga. at 188 (“Because the Community Service

Act does not contain language providing for an express waiver of a county’s sovereign

immunity and the extent of such waiver,” sovereign immunity was not waived, and

the Court declined to find an implied waiver).

As OCGA § 50-3-1 does not contain an explicit waiver of sovereign immunity,

nor does such a waiver arise due to necessary implication, we affirm the trial court’s

9 dismissal of the Sons of Confederate Veterans’ claim for damages due to the City’s

sovereign immunity.

(b) As to the Sons of Confederate Veterans’ declaratory judgment action, the

Georgia Constitution contains a partial waiver of sovereign immunity:

Sovereign immunity is hereby waived for actions in the superior court seeking declaratory relief from acts of the state or any agency, authority, branch, board, bureau, commission, department, office, or public corporation of this state or officer or employee thereof or any county, consolidated government, or municipality of this state or officer or employee thereof outside the scope of lawful authority or in violation of the laws or the Constitution of this state or the Constitution of the United States. Sovereign immunity is further waived so that a court awarding declaratory relief pursuant to this Paragraph may, only after awarding declaratory relief, enjoin such acts to enforce its judgment. Such waiver of sovereign immunity under this Paragraph shall apply to past, current, and prospective acts which occur on or after January 1, 2021.

Ga. Const. of 1983, Art. I, Sec. II, Par. V (b) (1).

“To state a claim for declaratory judgment, a party need only allege the

existence of a justiciable controversy in which future conduct depends on resolution

of uncertain legal relations.” Cobb County v. Floam, 319 Ga. 89, 97 (2) (901 SE2d 512)

10 (2024) (citation and punctuation omitted). See also OCGA § 9-4-2. But, “[w]here the

party seeking declaratory judgment does not show it is in a position of uncertainty as

to an alleged right, dismissal of the declaratory judgment action is proper[.]” Baker

v. City of Marietta, 271 Ga. 210, 214 (1) (518 SE2d 879) (1999).

Here, the Sons of Confederate Veterans filed their declaratory judgment action

asking “the court to conduct an evidentiary hearing and require [the City] to provide

whatever proof they have that they do not own the monument.” The Sons of

Confederate Veterans state that the monument is a public monument, and they do not

claim any ownership interest in the monument. The Sons of Confederate Veterans

face no uncertainty as to their own future conduct, but rather they seek an

adjudication only of issues that will impact the future conduct of the City. See SJN

Properties, 296 Ga. at 803 (2) (b) (iii). As a declaration of rights would not direct the

plaintiffs’ future conduct, their claim for declaratory relief cannot be maintained. See

id.; Floam, 319 Ga. at 101 (2). Accordingly, we affirm the trial court’s dismissal of the

Sons of Confederate Veterans’ declaratory judgment action.

11 2. Any remaining enumerated errors are rendered moot by our ruling in

Division 1.

Judgment affirmed. McFadden, P. J., and Rickman, P. J., concur.