TUSSAHAW RESERVES, LLC v. BUTTS COUNTY

• Court: Supreme Court of Georgia
• Decided: October 21, 2025
• Docket: S25G0367
• Status: Published

Opinion

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

Decided: October 21, 2025

S25G0367. TUSSAHAW RESERVES, LLC et al. v. BUTTS COUNTY.

WARREN, Presiding Justice.

The Butts County superior court granted Butts County’s

motion to dismiss a lawsuit filed by Tussahaw Reserves, LLC and

Keys Ferry Crossing, LLC (collectively, “Tussahaw”) on the basis

that Tussahaw’s complaint failed to comply with Article I, Section

II, Paragraph V(b)(2) of the Georgia Constitution, which says, as

pertinent here, that “[a]ctions filed pursuant to [Paragraph V]

against any county … or officer or employee thereof shall be brought

exclusively against such county … and in the name of such county.”

The Court of Appeals affirmed the dismissal in Tussahaw Reserves,

LLC v. Butts County, 373 Ga. App. 322 (2024), and we granted Tussahaw’s petition for certiorari to review that decision. 1 For the

reasons explained below, we vacate the Court of Appeals’s opinion

and remand the case for that court to remand the case to the

superior court, with the direction that the superior court vacate its

order dismissing the lawsuit.

1. As alleged in Tussahaw’s complaint, Tussahaw owned two

parcels of land in Butts County that were zoned for agricultural and

residential use. In October 2020, Tussahaw filed applications to

rezone the property for use as a rock quarry. The Butts County

Board of Commissioners ultimately denied the applications in

February 2021.

About a month later, Tussahaw filed in the Butts County

superior court an “Appeal and Petition for Writ of Certiorari and

Verified Complaint,” challenging the Board’s rezoning denial. The

case caption listed Tussahaw as “Petitioners-in-

Certiorari/Plaintiffs”; the Board and its members in their official

capacities as “Respondents-in-Certiorari”; and the County as

1 The case was orally argued on September 16, 2025.

2 “Defendant-in-Certiorari (opposite party)” and “Defendant.” The

complaint alleged one count seeking a writ of certiorari (under the

certiorari statutes that applied at the time, OCGA § 5-4-1 (2020) et

seq.2) against the Board and its members in their official capacities

as “Respondents-in-Certiorari” and the County as “Defendant-in-

Certiorari (opposite party).” The remaining counts, which were

alleged alternatively to the certiorari count, sought declaratory and

injunctive relief against only the County as “Defendant.”

In April 2021, the County filed an answer to the complaint; the

respondents-in-certiorari also filed an “answer in certiorari,” which

attached as an exhibit a copy of the record on appeal and requested

that the respondents-in-certiorari, “having fully answered, … be

discharged” from the case.3 In May, the respondents-in-certiorari

filed a motion asking the superior court to discharge them from the

2 OCGA § 5-4-1 (2020) et seq. was repealed on July 1, 2023, and replaced

by OCGA § 5-3-2 et seq. See Ga. L. 2022 (vol. 1) at 767.

3 The answer in certiorari also set forth defenses and responded to each

paragraph of the complaint, “[t]o the extent Petitioners-in-Certiorari/Plaintiffs’ alternative claims outside Certiorari [were] to be heard by the [c]ourt.” 3 case because they had filed an answer and the record of the

underlying proceedings had been transmitted, such that they had

“fulfilled their sole function in certiorari proceedings, to wit: filing of

the record in the case.” The superior court denied the motion in June

2021.4

In March 2023, this Court issued its decision in State v. SASS

Group, 315 Ga. 893 (2023), which held that when a plaintiff brings

claims relying on Paragraph V’s waiver of sovereign immunity in an

action that names defendants other than the State or the relevant

local government, “the entire case must be dismissed.” Id. at 904.

In light of SASS Group, the County filed a motion to dismiss,

contending that because Tussahaw’s lawsuit named parties other

than the County, the action was “barred by sovereign immunity,”

such that the superior court lacked subject-matter jurisdiction. In

response, Tussahaw argued that the complaint complied with

4 In addition, in February 2023, the County filed a motion asserting that

Tussahaw’s certiorari claim was improper and requesting that the lawsuit proceed only on Tussahaw’s remaining claims for declaratory and injunctive relief. It appears that the trial court did not rule on that motion. 4 Paragraph V because the Board and its members were not named

as “defendants” within the meaning of Paragraph V, but as

“respondents-in-certiorari,” with a limited role in the litigation

under the statutory framework set forth in former OCGA § 5-4-1 et

seq. Tussahaw also filed a motion asking the superior court for leave

to drop the respondents-in-certiorari from the lawsuit pursuant to

OCGA § 9-11-21, which says, in pertinent part, that “[p]arties may

be dropped or added by order of the court on motion of any party or

of its own initiative at any stage of the action and on such terms as

are just.” In addition, the respondents-in-certiorari filed a motion

asking the superior court to reconsider its ruling denying their

motion to be discharged from the case.

After a hearing, but without ruling on the motion to drop the

respondents-in-certiorari or the motion for reconsideration, the

superior court granted the County’s motion to dismiss in November

2023. The court determined that Tussahaw “filed a declaratory

judgment action against [the] County” but also “incorporated an

additional claim for certiorari” naming the respondents-in-

5 certiorari, which were “not parties specified in [Paragraph] V’s

waiver.” The court added, in a footnote, that Tussahaw’s “pleadings

establish that [Tussahaw sought] declaratory judgment relief

against both Butts County, Georgia, and the Butts County Board of

Commissioners.” Concluding that the complaint “offend[ed] the

exclusivity requirement of [Paragraph] V” and citing SASS Group,

the superior court ruled that “this action is barred by sovereign

immunity[,] thereby denying this [c]ourt subject matter jurisdiction

over it,” and dismissed the lawsuit.

Tussahaw appealed,5 and the Court of Appeals affirmed. See

Tussahaw Reserves, 373 Ga. App. at 327. The court expressly

declined to address whether the “term ‘defendant’ as used in

Paragraph V includes ‘respondents-in-certiorari’ under the former

statutory scheme for certiorari to the superior courts,” because the

superior court had not distinctly ruled on that issue (despite

5 Tussahaw filed an application for discretionary review in this Court,

which we transferred to the Court of Appeals in January 2024 because the case did not invoke our jurisdiction. The Court of Appeals granted the application in February 2024. 6 Tussahaw raising it in that court). Id. at 325–26. The Court of

Appeals then concluded that the superior court nevertheless

correctly ruled that dismissal was required under Paragraph V on

the basis that the “substance” of Tussahaw’s complaint

demonstrated that Tussahaw “sought declaratory and injunctive

relief directly against the Board.” Id. at 326–27. Citing its own

precedent about the general construction of pleadings in

circumstances unrelated to Paragraph V, the Court of Appeals said

that “[i]n determining whether a governmental agency is immune

from suit, we look to the substance of the claims asserted, rather

than the nomenclature in the pleading.” Id. at 326. The court then

pointed to language in Tussahaw’s complaint asking the superior

court to “order Defendants to rezone their property”; to “declare that

the Board’s actions … were arbitrary, capricious, [and]

unreasonable” and that “the actions of the Board … resulted in a

denial of substantive and procedural due process of law”; and to

“grant … relief … against the Board and Butts County.” Id. at 326–

27 (quotation marks omitted). The Court of Appeals concluded that

7 this language showed that “regardless of the style of the case,

Tussahaw stated independent, substantive claims against the

Board,” such that “the complaint was subject to dismissal under

Paragraph V.” Id. at 327. We granted Tussahaw’s petition for

certiorari review.

2. As pertinent here, Article I, Section II, Paragraph V(b)(1) of

the Georgia Constitution says: “Sovereign immunity is hereby

waived for actions in the superior court seeking declaratory relief

from acts of … any county … 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.” That provision then “further waive[s]” sovereign

immunity to allow a court that awards such declaratory relief to

then issue injunctive relief. And as mentioned above, Paragraph

V(b)(2) then provides, in pertinent part: “Actions filed pursuant to

this Paragraph against any county … of the state or officer or

employee thereof shall be brought exclusively against such county

… and in the name of such county …. Actions filed pursuant to this

8 Paragraph naming as a defendant any individual, officer, or entity

other than as expressly authorized under this Paragraph shall be

dismissed.”6

Tussahaw contends that the term “defendant” in Paragraph

6 Paragraph V(b) says in full:

(1) 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.

(2) Actions filed pursuant to this Paragraph against this state or any agency, authority, branch, board, bureau, commission, department, office, or public corporation of this state or officer or employee thereof shall be brought exclusively against the state and in the name of the State of Georgia. Actions filed pursuant to this Paragraph against any county, consolidated government, or municipality of the state or officer or employee thereof shall be brought exclusively against such county, consolidated government, or municipality and in the name of such county, consolidated government, or municipality. Actions filed pursuant to this Paragraph naming as a defendant any individual, officer, or entity other than as expressly authorized under this Paragraph shall be dismissed. 9 V(b)(2) does not include “respondents-in-certiorari,” such that the

complaint, which named the Board and its members as respondents-

in-certiorari but only the County as a defendant, complied with

Paragraph V(b)(2). Tussahaw also contends that the Court of

Appeals and the superior court erred by looking to the substance of

the allegations in the complaint to determine that Tussahaw sought

relief from the Board and its members because, Tussahaw says,

Paragraph V expressly permits actions seeking declaratory relief

from acts of county officers and employees, so long as the action

names only the county as a defendant, and Tussahaw sued only the

County as a defendant here.

To begin, the superior court did not explicitly rule on

Tussahaw’s argument that “respondents-in-certiorari” are not

“defendant[s],” within the meaning of Paragraph V(b)(2), and the

Court of Appeals expressly declined to address that argument in the

first instance. See Tussahaw Reserves, 373 Ga. App. at 326.

Because the superior court (and the Court of Appeals) did not

distinctly rule on this issue, we do not consider it in this appeal. See,

10 e.g., Wasserman v. Franklin County, 320 Ga. 624, 653 (2025) (“We

are a court of review, not of first view.”); City of Winder v. Barrow

County, 318 Ga. 550, 557 (2024) (declining to address a

constitutional argument because, even though it was raised below,

the superior court did not rule on it); State v. Chulpayev, 296 Ga.

764, 784 (2015) (noting that “[t]his Court ... will not rule on a

constitutional question unless it clearly appears in the record that

the trial court distinctly ruled on the point” (quotation marks

omitted)).

We also decline to address Tussahaw’s claim that the lower

courts erred by looking to the substance of the allegations in the

complaint—an argument that raises questions that we have not yet

expressly answered about the meaning and scope of Paragraph V(b).

Generally, “this Court will not decide a constitutional question if the

decision in the appeal can be made upon other grounds.” Cottrell v.

Smith, 299 Ga. 517, 520 (2016). See also, e.g., State v. Randall, 318

Ga. 79, 82 (2024) (declining to address the trial court’s ruling on the

defendant’s constitutional claims because his evidentiary argument,

11 which the trial court did not rule on, presented a basis on which his

motion to suppress could be resolved without reaching the

constitutional issues); In the Interest of C.C., 314 Ga. 446, 455–56

(2022) (declining to address the “difficult and consequential merits”

of certain constitutional claims because the juvenile court’s analysis

of a threshold issue to those claims rested on an incorrect legal

standard); State v. Mondor, 306 Ga. 338, 345 (2019) (explaining that

the defendant’s argument that certain evidence was relevant to

causation and that a statute excluding such evidence was thus

unconstitutional presented a “threshold issue of constitutional

avoidance” because if the evidence was not relevant to causation,

“this Court will have no occasion to reach the merits of his

constitutional claim”).

As discussed above, after the County moved to dismiss the

lawsuit on the ground that Tussahaw failed to comply with

Paragraph V(b)(2), Tussahaw moved to drop the respondents-in-

certiorari pursuant to OCGA § 9-11-21, and the respondents-in-

certiorari asked the superior court to reconsider its ruling denying

12 their motion to be discharged from the case. The superior court,

however, did not rule on those motions and instead proceeded to rule

on the constitutional issue, concluding that because Tussahaw

“offend[ed] the exclusivity requirement” in Paragraph V(b)(2), the

action was “barred by sovereign immunity[,] thereby denying th[e]

[c]ourt subject matter jurisdiction over it.” We conclude that, to the

extent that the superior court presumed that it lacked the subject-

matter jurisdiction to rule on the pending motions, the court was

incorrect.

As we recently explained in Warbler Investments, LLC v. City

of Social Circle, 321 Ga. 125 (2025), a failure to comply with

Paragraph V(b)(2) “is not a jurisdictional bar to hearing the case.”

Id. at 130. We reasoned that Paragraph V(b)(1) “provides a waiver

of sovereign immunity for certain claims against the State and local

governments,” while Paragraph V(b)(2) merely imposes a procedural

“naming requirement.” Id. at 125–26. Because complying with the

naming requirement “is not a pre-requisite for relying on the waiver

of sovereign immunity,” we concluded that when an action does not

13 comply with Paragraph V(b)(2), “it does not deprive the trial court

of subject-matter jurisdiction or leave it powerless to act in the case.”

Id. at 129–30. And, importantly, we ultimately held that a

complaint that does not comply with Paragraph V(b)(2)’s naming

requirement may be cured by dropping parties to the action under

OCGA § 9-11-21, thus avoiding dismissal. See id. at 125.

Notably, the superior court did not have the benefit of our

decision in Warbler when it dismissed Tussahaw’s lawsuit on the

basis that it was “barred by” sovereign immunity because Tussahaw

did not comply with the naming requirement in Paragraph V(b)(2).7

As we explained in Warbler, any such failure to comply with that

“procedural rule” has no effect on the waiver of sovereign immunity

granted by Paragraph V(b)(1). 321 Ga. at 130, 133-34. Nor did it

prevent the superior court from ruling on the pending motions to

drop the respondents-in-certiorari from the case. See id. at 125.

These motions present a basis on which the motion to dismiss may

7 We also note that Warbler was issued after the Court of Appeals issued

its decision in this case. 14 be resolved without reaching Tussahaw’s claim that Paragraph V(b)

does not call for an examination of the “substance” of the allegations

in the complaint.8 We therefore decline to resolve that claim here.

Accordingly, we vacate the Court of Appeals’s opinion and

remand the case for that court to remand the case to the superior

court, with the direction that the superior court vacate its order

dismissing the lawsuit and conduct further proceedings consistent

with this opinion. See, e.g., Randall, 318 Ga. at 82–83 (vacating the

trial court’s ruling on the defendant’s constitutional claims and

remanding for the court to rule on his evidentiary claim because it

“present[ed] a basis on which his motion to suppress [could] be

resolved without reaching his constitutional claims”); In the Interest

of C.C., 314 Ga. at 458 (vacating the juvenile court’s ruling on

certain constitutional claims and remanding the case for the court

to properly address a preliminary question with respect to those

8In addition, it appears that the superior court did not rule on the County’s February 2023 motion requesting that the lawsuit proceed only on Tussahaw’s claims for declaratory and injunctive relief, mentioned in footnote 4 above. A ruling on that motion by the superior court on remand also may make deciding the difficult merits issues presented in this case unnecessary. 15 claims).

Judgment vacated and case remanded with direction. All the Justices concur, except Land, J., disqualified.