Warbler Investments, LLC v. City of Social Circle

321 Ga. 125

• Court: Supreme Court of Georgia
• Decided: March 4, 2025
• Docket: S24A1024
• Status: Published

Opinion

321 Ga. 125 FINAL COPY

S24A1024. WARBLER INVESTMENTS, LLC v. CITY OF SOCIAL CIRCLE.

PINSON, Justice.

In 2020, the people of Georgia ratified an amendment to Article

I, Section II, Paragraph V (b) (1) of the Georgia Constitution that

provides a waiver of sovereign immunity for actions seeking declar-

atory relief from certain unlawful acts of the State or a local govern-

ment. That amendment also added a procedural requirement: an ac-

tion brought “pursuant to” this paragraph must be brought against

and in the name of only the State or the relevant local government,

or it “shall be dismissed.” The question presented in this case is

whether a complaint that does not comply with that naming require-

ment may be cured by dropping or adding parties to the action, thus

avoiding dismissal. For the reasons set out below, we conclude that

it may: nothing in Paragraph V prevents the parties or the court

from using the procedure established by our Civil Practice Act, OCGA § 9-11-21, to drop or add parties and thereby cure a failure to

comply with Paragraph V’s naming requirement.

1. Article I, Section II, Paragraph V (b) (1) of the Georgia Con-

stitution provides a waiver of sovereign immunity for certain claims

against the State and local governments. That provision declares

that “[s]overeign immunity is hereby waived for actions in the supe-

rior court seeking declaratory relief from acts of” the State, local gov-

ernments, or their respective subdivisions, officers, or employees

that are “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.” It then “further waive[s]” sovereign immunity to al-

low a court that awards such declaratory relief to then issue injunc-

tive relief. Id.

The subparagraph that follows this waiver of sovereign im-

munity then imposes a procedural requirement. Subparagraph (b)

(2) declares that “[a]ctions filed pursuant to this Paragraph against”

any of the entities whose sovereign immunity was waived in subpar-

agraph (b) (1) “shall be brought exclusively against the state and in

2 the name of the State of Georgia” (if the action was against a state

entity, officer, or employee) or against and “in the name of” the

“county, consolidated government, or municipality” (if the action

was against a local government entity, officer, or employee). Ga.

Const. of 1983, Art. I, Sec. II, Par. V (b) (2). And the provision ex-

plains the consequences for failing to comply with this requirement:

“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.” Id. That said, the follow-

ing subparagraph provides that “[t]he General Assembly by an Act

may limit the power or duty of a court under this Paragraph to dis-

miss any action or deny relief.” Id. at Par. V (b) (3).

2. In July 2021, Warbler sued the City of Social Circle, its

mayor, and three City Council members. The complaint named the

mayor and each of the City Council members in their individual ca-

pacities, and it alleged that those defendants unlawfully rezoned a

property that Warbler owned and sought to develop. According to

the complaint, this rezoning removed the property from a “Planned

3 Unit Development” district, which allowed for both commercial and

residential structures, and “downzone[d]” it to “R-15,” a medium-

density single-family residential district. Warbler also alleged viola-

tions of the Open Records Act, OCGA § 50-18-70 et seq., and it

sought relief under that Act as well as declaratory and injunctive

relief, a writ of mandamus, and a writ of certiorari from the trial

court under OCGA § 5-4-1 et seq. (a provision that has since been

repealed, see Ga. L. 2022, p. 767, § 1-2). The complaint alleged that

the trial court had subject-matter jurisdiction over Warbler’s claims

under Article VI, Section IV, Paragraph I of the Georgia Constitu-

tion and various statutes related to the specific relief sought. 1 It did

not mention Paragraph V or its waiver of sovereign immunity.

In August 2021, the defendants moved to dismiss all the claims

other than one under the Open Records Act because they sought de-

claratory relief against and named “individual members of the city

council in their individual capacity” in violation of Article I, Section

1 Article VI, Section IV, Paragraph I provides in relevant part that “[t]he

superior courts shall have jurisdiction in all cases, except as otherwise pro- vided in this Constitution.” Ga. Const. of 1983, Art. VI, Sec. IV, Par. I. 4 II, Paragraph V (b) (2) of the Georgia Constitution. In response,

Warbler contended that its claims for declaratory, injunctive, and

mandamus relief should have been “pleaded against the City only,”

and it noted that it was moving to amend the complaint “by dropping

the Mayor and City Council Members as parties.” Warbler con-

tended that its claims against the City could then proceed because

Paragraph V (b) (1) waived the City’s sovereign immunity for those

claims.

As promised, Warbler moved under OCGA § 9-11-21 for leave

to amend its complaint by dropping the individual defendants from

the suit.2 The defendants consented to the amendment, and the trial

court accordingly granted Warbler’s motion. Warbler then filed an

amended complaint naming only the City.

While Warbler’s amended complaint against the City was still

pending, however, this Court issued its decision in State v. SASS

Group, LLC, 315 Ga. 893 (885 SE2d 761) (2023). There, we held that

2 OCGA § 9-11-21 provides in relevant part that “[p]arties may be dropped or added by order of the court on motion of any party . . . at any stage of the action and on such terms as are just.” 5 when a plaintiff brings claims that “required 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 (2) (d).

In light of SASS Group, the City renewed its motion to dismiss.

The City argued that under SASS Group, “naming individuals is a

fatal flaw that cannot be amended and cannot be waived,” and so the

entire action had to be dismissed.

After more briefing and a hearing, the trial court granted the

City’s renewed motion and dismissed the case. The trial court con-

cluded that Warbler’s claims for declaratory relief “f[e]ll under” Par-

agraph V, and that naming the individual defendants in the initial

complaint violated the naming requirement of Paragraph V (b) (2),

so the entire action had to be dismissed under SASS Group, notwith-

standing that the court had granted Warbler’s motion to drop the

individual defendants from the lawsuit. The trial court reasoned

that Warbler’s amendment could not cure the original defect be-

cause the City’s consent to the filing of the amended complaint was

6 itself an unauthorized waiver of the City’s sovereign immunity.

We granted Warbler’s application for discretionary appeal to

consider whether failing to comply with the naming requirement of

subparagraph (b) (2) requires immediate dismissal of the action, or

if that procedural defect may be cured by dropping from the com-

plaint the defendants who should not have been named.3

3. To answer this question, we start with the provision of the

Civil Practice Act that Warbler relied on to amend its complaint.

That provision, OCGA § 9-11-21, explains that “[m]isjoinder of par-

ties is not ground for dismissal of an action.” And it provides a pro-

cedural mechanism for dropping or adding parties: “Parties 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.” Id. In an ordinary civil action, any party (usually the plaintiff)

can use this procedure to add or drop parties at any stage of the

action with the court’s leave.

3 We assume without deciding that Warbler’s action was “filed pursuant

to” Paragraph V, thus triggering its naming requirement. 7 This established statutory procedure is available in every civil

action by default. The procedure is part of our Civil Practice Act, so

it is available in “all courts of record of this state,” and in “all actions

of a civil nature whether cognizable as cases at law or in equity,”

subject to a limited exception when “special statutory proceedings”

prescribe procedures in express conflict with the Act. OCGA §§ 9-11-

1; 9-11-81.4 Moreover, we presume that our laws are enacted (or in

the case of a constitutional amendment, ratified) with full

knowledge of existing laws, including OCGA § 9-11-21’s established

procedure for dropping or adding parties in any civil action. See, e.g.,

Elliott v. State, 305 Ga. 179, 182 (II) (824 SE2d 265) (2019) (“A con-

stitutional provision must be presumed to have been framed and

4 OCGA § 9-11-81 provides that the Civil Practice Act applies to “all spe-

cial statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law.” Id. It goes on to say that in any event, the provisions of [the Civil Practice Act] governing the sufficiency of pleadings, defenses, amendments, counterclaims, cross-claims, third-party practice, joinder of parties and causes, making parties, discovery and depositions, interpleader, interven- tion, evidence, motions, summary judgment, relief from judg- ments, and the effect of judgments shall apply to all such proceed- ings. Id. 8 adopted in the light and understanding of prior and existing laws

and with reference to them. Constitutions, like statutes, are

properly to be expounded in the light of conditions existing at the

time of their adoption.” (quoting Clarke v. Johnson, 199 Ga. 163, 166

(33 SE2d 425) (1945)) (punctuation omitted)).

Because the Civil Practice Act makes its procedure for adding

or dropping parties available in every civil action, the question here

is whether something unique to Paragraph V conflicts with the Gen-

eral Assembly’s broad grant of that procedure in a way that prevents

a plaintiff or court from using it to cure a failure to comply with Par-

agraph V’s naming requirement. After all, Paragraph V waives sov-

ereign immunity for actions for declaratory relief (and later, injunc-

tive relief): civil actions to which the Civil Practice Act, including

OCGA § 9-11-21, applies. See OCGA §§ 9-11-1 (“This chapter gov-

erns . . . in all actions of a civil nature whether cognizable as cases

at law or in equity.”); 9-11-2 (providing that the only form of action

is a “civil action”). So if that established procedure is not available

in such actions, it can only be because Paragraph V has displaced it

9 somehow. A couple of arguments to that effect have developed in the

course of this litigation, so we turn to those now.

(a) One of those arguments has to do with Paragraph V’s grant

of a waiver of sovereign immunity. We have held that if sovereign

immunity bars an action, the court in which that action has been

filed lacks subject-matter jurisdiction, meaning that the court has

no power to reach the merits of the action. McConnell v. Dep’t of La-

bor, 302 Ga. 18, 19 (805 SE2d 79) (2017) (“[T]he applicability of sov-

ereign immunity is a threshold determination, and, if it does apply,

a court lacks jurisdiction over the case and, concomitantly, lacks au-

thority to decide the merits of a claim that is barred.” (footnote omit-

ted)). Thus, if failing to comply with the naming requirement of Par-

agraph V means that sovereign immunity bars an action brought

pursuant to that paragraph, then a court might simply lack the

power to do anything but dismiss the action.

This argument fails at its premise. Putting aside the separate

question whether a court without subject-matter jurisdiction can do

10 anything other than dismiss a case,5 it is plain from the language of

Paragraph V that a failure to comply with its naming requirement

does not deprive the court of subject-matter jurisdiction. Complying

with that requirement, found in subparagraph (b) (2), is not a pre-

requisite for relying on the waiver of sovereign immunity. That

waiver is set out separately in subparagraph (b) (1), and its only con-

ditions are stated plainly: “[s]overeign immunity is hereby waived”

for an action if it is (1) “in the superior court” and (2) “seeking de-

claratory relief from acts of” the State or a local government “outside

the scope of lawful authority or in violation of the laws or the Con-

stitution of this state or the Constitution of the United States,” as

long as the acts in question are (3) “past, current, [or] prospective

acts which occur[red] on or after January 1, 2021.” That’s it: that’s

the list. Nothing in this subparagraph establishing the waiver of

sovereign immunity suggests that any other condition must be met

5 Some of us doubt whether the only action a court can take when it lacks

subject-matter jurisdiction is to dismiss a case. But we need not resolve that question here because, as explained below, the trial court had subject-matter jurisdiction here under Paragraph V’s waiver of sovereign immunity. 11 before the waiver applies. And nothing in subparagraph (b) (2),

which sets out the naming requirement, gives any indication that

meeting that requirement is a condition or prerequisite for trigger-

ing the waiver of sovereign immunity, either. The naming require-

ment is phrased in mandatory terms — the complaint “shall” be dis-

missed. Hall County Bd. of Tax Assessors v. Westrec Props., 303 Ga.

69, 75 (3) (809 SE2d 780) (2018) (“The word ‘shall’ is generally con-

strued as a word of command.” (citation and punctuation omitted)).

But we do not see how to read that requirement as also being a pre-

requisite to the waiver of sovereign immunity granted by the pre-

ceding subparagraph. It does not say, for instance, “notwithstanding

subparagraph (b) (1), sovereign immunity is not waived if” an action

fails to comply with the naming requirement, or anything like the

kind of language that the General Assembly has used before to put

conditions on waivers of sovereign immunity. Compare OCGA §§ 50-

21-23 (a) (“[S]overeign immunity is waived subject to all exceptions

and limitations set forth in this article.”); 50-21-24 (listing circum-

stances where immunity is not waived).

12 All of this means that if a complaint does not meet the naming

requirement of subparagraph (b) (2), that failure is not a jurisdic-

tional bar to hearing the case. Sovereign immunity has already been

waived. Instead, this naming requirement is a procedural rule, and

failing to follow it is an ordinary procedural defect that carries a

consequence of dismissal. Such mandatory-but-non-jurisdictional

procedural rules are not uncommon in our law. See, e.g., Ga. Pines

Cmty. Serv. Bd. v. Summerlin, 282 Ga. 339, 339-340 (1), 343 (2) (647

SE2d 566) (2007) (requirement in Georgia Tort Claims Act that

plaintiff “must” effect service of process on specific government offi-

cials is procedural, not jurisdictional, and so plaintiff’s failure to

comply does not affect the Act’s waiver of sovereign immunity);

Stubbs v. Hall, 308 Ga. 354, 362 (3) (c) (840 SE2d 407) (2020) (the

requirement to file a notice of intent to apply for certiorari is proce-

dural, not jurisdictional, and so dismissal is not mandatory). In

short, when an action does not comply with subparagraph (b) (2)’s

naming requirement, it does not deprive the trial court of subject-

13 matter jurisdiction or leave it powerless to act in the case.6

For this same reason, we must reject the trial court’s basis for

dismissing Warbler’s action. The trial court reasoned that Warbler’s

amended complaint could not cure the alleged naming defect in its

original complaint because the City had consented to Warbler’s re-

quest to amend its complaint to drop the individual defendants, but

“sovereign immunity can only be waived by an Act of the General

Assembly.” As we have just explained, however, that premise — that

failure to comply with that subparagraph’s naming requirement

meant the action was barred by sovereign immunity — is mistaken,

and so the trial court’s basis for dismissing the complaint was too.

(b) The other arguments that Paragraph V prevents adding or

dropping parties to cure a failure to comply with its naming require-

ment are arguments that Paragraph V’s language conflicts with and

thus displaces OCGA § 9-11-21’s procedure that would allow such a

6 South River Watershed Alliance v. DeKalb County, 373 Ga. App. 285

(908 SE2d 204) (2024), is overruled to the extent that it holds sovereign im- munity bars an action filed pursuant to Paragraph V if the naming require- ment is not met.

14 curative amendment in these circumstances — that is, a partial re-

peal by implication. These arguments focus on the language of sub-

paragraph (b) (2), which says that “[a]ctions 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.” Ga. Const. of 1983, Art. I, Sec. II, Par. V (b) (2). We take

these two arguments in turn.

(i) The first of these arguments depends on the words “filed”

and “brought.” Subparagraph (b) (2) says that “[a]ctions filed pursu-

ant to this Paragraph . . . shall be brought exclusively” against the

relevant governmental entity, and actions that do not comply with

this naming requirement “shall be dismissed.” Id. So, the argument

goes, if an action does not comply with the naming requirement

when it is “filed” or “brought,” it must be dismissed. And amending

a complaint later to add or drop parties cannot change the fact that

the naming requirement was not met at the time of the initial filing.

The problem with this argument is that the supposed timing

requirement — that an action must be immediately dismissed if it

15 names the wrong parties at the time the action is filed or brought —

does not appear anywhere in the text. The text does not say, for in-

stance, that an action must be dismissed if it does not comply with

the naming requirement “at the time of bringing the action,” or “at

the time of filing.” Compare, e.g., OCGA §§ 15-6-77 (d) (“[A]ll sums

specified in this Code section shall be paid to the clerk at the time of

filing.”); 51-14-9 (a) (requiring that a plaintiff in an asbestos or silica

claim be a resident of Georgia “at the time of filing”); 14-11-801 (4)

(requiring that a plaintiff in an LLC derivative action be a member

“at the time of bringing the action”); 7-1-441 (a) (requiring the plain-

tiff allege “that the plaintiff is a shareholder of record at the time of

bringing the action”); 53-2-7 (d) (administrator must show that prop-

erty “is held by the defendant at the time of bringing the action”).

Instead, subparagraph (b) (2) simply uses the phrase “shall be

brought” to direct the plaintiff to sue only certain parties (that is, to

set out its naming requirement), and it identifies “[a]ctions filed pur-

suant to this Paragraph” as the category of actions that must meet

the naming requirement (and that “shall be dismissed” if they do

16 not). This language tells us exactly nothing about whether a failure

to comply with the naming requirement in an initial complaint can

be cured by adding or dropping parties in a later amended com-

plaint. And if this language does not conflict with or displace OCGA

§ 9-11-21’s procedure for adding or dropping parties, it remains

available for that purpose. See OCGA § 9-11-1; Sutton v. Garmon,

245 Ga. 685, 687 (1) (266 SE2d 497) (1980) (stating that an implied

repeal of an earlier statute only occurs when provisions “are clearly

and indubitably contradictory, when they are in irreconcilable con-

flict with each other, and when they can not [sic] reasonably stand

together” (citation and punctuation omitted)).7

(ii) The other argument that the language of Paragraph V dis-

7 It is also worth noting that under the dissent’s contrary view — where

compliance with the naming requirement is ascertained only “at the time of filing” the action — it would seem that a plaintiff would be free to initially name exclusively the State or local government, thus complying with the nam- ing requirement, and then amend its complaint to add any number of other parties without consequence. To the extent that the aim of that naming re- quirement is to prevent individuals from being named as defendants in actions brought pursuant to Paragraph V, see SASS Group, 315 Ga. at 894, the dis- sent’s construction would appear to frustrate that aim entirely.

17 places OCGA § 9-11-21’s established procedure for adding or drop-

ping parties starts with subparagraph (b) (2)’s statement that an

“[a]ction[ ] filed pursuant to” Paragraph V that does not meet the

naming requirement “shall be dismissed.” If naming the wrong par-

ties counts as a kind of “misjoinder,” then that dismissal language

appears to conflict with OCGA § 9-11-21’s statement that “[m]isjoin-

der of parties is not ground for dismissal of an action.” Id. (emphasis

added).

But even assuming that the dismissal language of subpara-

graph (b) (2) conflicts with that sentence of OCGA § 9-11-21 and thus

repeals it by implication as applied to actions filed pursuant to Par-

agraph V, that conflict does not bleed into OCGA § 9-11-21’s proce-

dure for adding or dropping parties.8 Repeals by implication are “not

favored under Georgia law,” GeorgiaCarry.Org, Inc. v. Code Revision

Comm’n, 299 Ga. 896, 899 (2) (793 SE2d 35) (2016), and any such

8 We assume without deciding that not complying with Paragraph V’s

naming requirement is a kind of “misjoinder.” 18 implied repeal is “measured by the extent of the conflict or incon-

sistency between the acts,” Pickett v. Bank of Ellijay, 182 Ga. 540,

542 (186 SE 426) (1936). See also EC Term of Years Trust v. United

States, 550 U.S. 429, 435 (III) (127 SCt 1763, 167 LE2d 729) (2007)

(“Where provisions . . . are in irreconcilable conflict, the later act to

the extent of the conflict constitutes an implied repeal.” (cleaned up)

(emphasis added)). Within OCGA § 9-11-21, the procedure for drop-

ping or adding parties is set out in a separate sentence after the one

that precludes dismissal for misjoinder. See OCGA § 9-11-21 (“Par-

ties 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.”). And nothing in Paragraph V indicates that par-

ties may not be dropped or added by using this procedure. Absent

any language in Paragraph V in irreconcilable conflict with that es-

tablished procedure, it remains undisturbed and available.

Were this conclusion in any doubt, “basic” canons of construc-

tion tell us to read our laws (statutes and constitutional provisions

alike) (1) together, and (2) in harmony whenever possible. Camden

19 County v. Sweatt, 315 Ga. 498, 509 (2) (b) (883 SE2d 827) (2023) (“It

is a basic rule of construction that a statute or constitutional provi-

sion should be construed to make all its parts harmonize and to give

a sensible and intelligent effect to each part, as it is not presumed

that the drafters intended that any part would be without meaning.”

(cleaned up)). So even if it were possible to read the dismissal lan-

guage of subparagraph (b) (2) to conflict with OCGA § 9-11-21’s pro-

cedure for adding or dropping parties, our canons of construction cut

against that reading in the face of a reasonable alternative reading:

that dismissal is a consequence of failing to comply with the naming

requirement of subparagraph (b) (2), but that OCGA § 9-11-21’s pro-

cedure may be used to cure such a defect. Put simply, if “an action

filed pursuant to” Paragraph V does not comply with its naming re-

quirement, dismissal is required, but such a defect may be cured,

and dismissal avoided, by way of the established procedure for drop-

ping or adding parties that is set out in OCGA § 9-11-21.

The City contends that our decision in SASS Group, 315 Ga.

893, supports the contrary view that an action that does not comply

20 with Paragraph V’s naming requirement must be dismissed. But as

the City concedes, SASS Group did not address this question. That

decision addressed only whether the entire action must be dismissed

under subparagraph (b) (2) if the naming requirement applies to the

action and is not met. SASS Group, 315 Ga. at 894 (holding that

naming a defendant not specifically authorized by Paragraph V “re-

quires that the entire suit be dismissed”). SASS Group did not ad-

dress the follow-up question we address today — that is, whether

the failure to comply with the naming requirement, which would re-

quire dismissal of the entire action under SASS Group, may be

cured by dropping or adding parties to the action. We hold that it

may.

(c) In light of this conclusion, the trial court erred in dismissing

this action on the basis that it was barred by sovereign immunity.

Warbler’s failure to comply with the naming requirement of subpar-

agraph (b) (2) did not affect the waiver of sovereign immunity

granted by Paragraph V. And once Warbler filed its amended com-

plaint, which complied with the naming requirement, dismissal was

21 no longer required under subparagraph (b) (2).

Judgment reversed and case remanded. All the Justices concur, except Ellington, LaGrua, and Colvin, JJ, who dissent.

COLVIN, Justice, dissenting.

Because the plain language of Paragraph V (b) (2) requires

that “[a]ctions” that fail to comply with its requirements at the time

of filing “shall be dismissed,” noncompliance with these

requirements may not be cured by amendment, as the majority

opinion holds. Ga. Const. of 1983, Art. I, Sec. II, Par. V (b) (2). I

therefore respectfully dissent.

1. (a) Paragraph V (b) (2) contains naming requirements, as

expressed in its first two sentences, and a dismissal provision, as

expressed in its third and final sentence. See id. Read together,

Paragraph V (b) (2)’s first two sentences provide that “[a]ctions filed

pursuant to this Paragraph” against State or local governmental

entities and individuals “shall be brought exclusively against . . . and

in the name of” the State or local government from which relief is

sought. Id. These naming provisions describe the parties against

22 whom an “[a]ction[ ] filed pursuant to this Paragraph” may be

“brought” (i.e., the State or local government) and how such actions

must be brought against those parties (i.e., “exclusively”).

Paragraph V (b) (2)’s dismissal provision, in turn, provides that

“[a]ctions 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.” Id. (emphasis supplied).

This provision mandates the dismissal of actions that are filed

naming an unauthorized defendant and actions that are filed

naming an authorized defendant in an unauthorized manner.

The phrase “as expressly authorized” links

Paragraph V (b) (2)’s naming requirements with its dismissal

provision. Id. Paragraph V (b) (2)’s first two sentences collectively

describe the class of cases that name defendants as “authorized.”

And Paragraph V (b) (2)’s third sentence mandates dismissal of any

action not within that class. There is no daylight between these

provisions: either an action is filed naming only authorized

defendants in an authorized manner, or it is not, and if it is not, the

23 action “shall be dismissed.” Id. (emphasis supplied).

(b) The majority opinion challenges this reading of

Paragraph V (b) (2) with two arguments. First, it argues that a

party who files an action naming an unauthorized defendant may

cure this defect by moving to drop the party under OCGA § 9-11-21.

Second, the majority argues that I have incorrectly read a timing

requirement into Paragraph V (b) (2)’s text. I address each

argument in turn.

(i) First, the majority opinion argues that a party who files an

action pursuant to Paragraph V that was not “brought exclusively”

against an authorized defendant may avoid dismissal by moving

under OCGA § 9-11-21 for a court order permitting the litigant to

file an amended pleading that drops the unauthorized defendants.

This argument begins with the premise that dismissal is only

required for “[a]ctions filed pursuant to this Paragraph naming” an

unauthorized party “as a defendant[.]” Because a pleading which

has been amended to exclude unauthorized parties is no longer an

action “naming” an unauthorized defendant, so the argument goes,

24 the action need not be dismissed. Thus, in the majority opinion’s

view, Paragraph V (b) (2) permits a litigant to violate the

constitutional rule announced there but to avoid the sanction

prescribed for such violation by amending its pleading.

The majority opinion’s argument is flawed, however. As

explained above, Paragraph V (b) (2)’s dismissal provision provides

that litigants must not only name the right type of defendants, but

that they must name such defendants in the manner “expressly

authorized” by Paragraph V (b) (2)’s naming provisions. Those

provisions require that “[a]ctions filed pursuant to” Paragraph V be

“brought exclusively against . . . and in the name of” the State or

local government. And because an action is “filed” or “brought” only

once,9 the action must name the State or local government

“exclusively” at the time of filing in order to name such a defendant

“as expressly authorized[.]” Accordingly, an action that is not

brought in this way cannot be cured by amendment. Put simply, to

9 An “action” begins when the original complaint is filed, see OCGA § 9-11-3 (a), and it remains the same “action” even if the complaint is amended, see OCGA § 9-11-15 (a). 25 determine whether an action filed under Paragraph V should be

dismissed under Paragraph V (b) (2), a trial court need only look at

the defendants named at the time the suit was brought. If the suit

was not brought exclusively against the State or the appropriate

local government, the suit must be dismissed.

(ii) In its second argument, the majority opinion claims that

the timing requirement I contend Paragraph V (b) (2) contains is not

found in its text. In support of its argument, the majority opinion

cites numerous statutory provisions containing express timing

requirements and argues that because similar language is not found

in Paragraph V (b) (2), Paragraph V (b) (2) lacks such a timing

requirement. See Maj. Op. at 131 (3) (b) (i) (citing OCGA

§§ 15-6-77 (d); 51-14-9 (a); 14-11-801 (4); 7-1-441 (a); 53-2-7 (d)). The

majority opinion further contends that the text of

Paragraph V (b) (2)’s naming provisions — including the language

requiring that actions be “brought exclusively” against and in the

name of the State or local government — tell us nothing about

whether a defective action can be cured by amendment.

26 But this is simply not so. As we have already explained, the

phrase “as expressly authorized” links Paragraph V (b) (2)’s

dismissal provisions back to its naming provisions. And the timing

requirement with which the majority opinion takes issue is the

necessary consequence of those naming provisions: it arises from the

fact that a suit is “filed” and “brought” only once.

It follows that a Paragraph V action against a State or local

government which improperly names other defendants cannot be

cured by amendment. Though an amendment could drop the

improperly joined parties, it could never change the fact that the

action was not “brought exclusively” against the State or local

government. And because the suit was not brought exclusively in

this manner, the State or local government is not named as

expressly authorized by Paragraph V (b) (2), even after amendment,

and the action must therefore “be dismissed.”

2. Warbler Investments, LLC (“Warbler”), initially filed suit

against the City of Social Circle (the “City”) as well as the City’s

mayor and three members of its City council. As noted by the

27 majority opinion, Warbler later amended its suit by dropping each

of the individual defendants. See Maj. Op. at 127 (2). Though the

suit, as amended, named only the City, the amendment did not

change the fact that Warbler failed to bring its suit exclusively

against the City in the first instance. And because the action was

not “brought exclusively” against the City at the time it was filed,

the City was not named “as expressly authorized[.]” See Paragraph

V (b) (2). Accordingly, the trial court was required to dismiss the

action, which it ultimately did, albeit for different reasons than

those expressed here.

Because my views would compel me to affirm the trial court’s

dismissal, I respectfully dissent from the majority opinion.10 I am

authorized to state that Justice Ellington and Justice LaGrua join

this dissent.

10 As explained by the majority opinion, Paragraph V waives sovereign

immunity for claims brought under that Paragraph. Accordingly, we need not reach our second certiorari question, which asked whether a governmental de- fendant’s consent to the filing of an amended complaint waives sovereign im- munity. 28 Decided March 4, 2025.

Sovereign immunity; constitutional question. Walton Superior

Court. Before Judge Morris.

Holt Ney Zatcoff & Wasserman, J. Scott Jacobson, Scott E. Mor-

ris, for appellant.

Powell & Edwards, Anthony O. L. Powell, Wesley C. Ross, John

J. Crowley, for appellee.