SECOND DIVISION RICKMAN, P. J., GOBEIL and DAVIS, JJ.
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
September 17, 2025
In the Court of Appeals of Georgia A25A1063. ZIBTLUDA, LLC et al. v. CITY OF PEACHTREE CORNERS.
DAVIS, Judge.
This appeal requires us to decide whether the trial court erred in denying
Zibtluda, LLC d/b/a Love Shack #2 (“Love Shack”) and its chief operating officer’s
motion to dismiss on mootness grounds. The trial court entered an interlocutory
injunction enjoining Love Shack from operating a sexually oriented business in the
City of Peachtree Corners. Before making the injunction permanent, Love Shack
asked the trial court to dismiss the action, claiming subsequent events had rendered
the case moot. The trial court disagreed. The party seeking dismissal for mootness,
it explained, carries a heavy burden of persuading the court that the challenged
conduct is not capable of restarting. The trial court determined Love Shack did not carry this burden and issued a permanent injunction thereafter. Finding no error, we
affirm.
“We review the trial court’s ruling on a motion to dismiss under the de novo
standard of review.” (Citation omitted.) American Professional Risk Svcs. v. Gotham
Ins. Co., 323 Ga. App. 776, 777 (748 SE2d 134) (2013).
So viewed, the record shows that, in March 2021, Love Shack applied for and
was denied an occupational tax certificate by the City. Around the same time, the City
also denied Love Shack a sexually oriented business license. Nonetheless, Love Shack
continued operating without the requisite approvals. This prompted the City to seek
interlocutory and permanent injunctive relief.
In 2022, the trial court issued an interlocutory injunction, which enjoined Love
Shack and its then chief operating officer, Brian White, from operating the business
until they obtained the requisite certificates and licenses. Love Shack then sought
review of this ruling but later withdrew the appeal. Upon remittitur, the City pursued
a permanent injunction based on, among other things, the likelihood that Love
Shack’s illegal conduct, unchecked by the court’s injunctive powers, would resume.
Love Shack opposed the permanent injunction and moved to dismiss the suit under
2 mootness principles. The business, it claimed, had permanently shut down in
February 2022, and White had no intention of reopening it. So, from Love Shack’s
perspective, its post-injunction conduct rendered the case moot.
The City opposed the motion and, after oral argument, the trial court resolved
the mootness issue against Love Shack. First, the trial court analyzed the voluntary
cessation doctrine and, next, concluded Love Shack failed to carry its heavy burden
under the doctrine’s framework. From there, the trial court entered a permanent
injunction prohibiting Love Shack and White from operating a sexually oriented
business at 6073 Peachtree Pkwy in Peachtree Corners. This is their appeal.
1. Love Shack first argues that its decision to shut down caused the case to
become moot and, in turn, required the trial court to dismiss the action.1 We disagree.
Under the mootness doctrine, “when the remedy sought in litigation no longer
benefits the party seeking it, the case is moot and must be dismissed.” (Citation and
punctuation omitted.) Crary v. Clautice, 318 Ga. 573, 576 (2) (899 SE2d 98) (2024);
see also Cardinale v. State, 363 Ga. App. 873, 875 (1) (873 SE2d 256) (2022) (“When
1 Love Shack does not challenge the sufficiency of the evidence underlying the permanent injunction. Nor does it take issue with the trial court’s findings and conclusions of law or any other aspect of the trial court’s rulings. 3 the act that is the subject of the requested relief is completed, then the matter is
moot[.]”) (citation omitted). In 2012, our Supreme Court announced an exception to
this general rule. See WMW, Inc. v. American Honda Motor Co., 291 Ga. 683 (733 SE2d
269) (2012). There, the Court explained that a litigant’s “voluntary cessation of
challenged conduct does not ordinarily render a case moot because a dismissal for
mootness would permit a resumption of the challenged conduct as soon as the case is
dismissed.” (Citation omitted.) Id. at 685 (2); see also Troiano v. Supervisor of
Elections, 382 F3d 1276, 1282 (II) (11th Cir. 2004)2 (“The doctrine of voluntary
cessation provides an important exception to the general rule that a case is mooted by
the end of the offending behavior.”).
But the case becomes moot, the Court explained further, if “subsequent events
make it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” (Citation and punctuation omitted.) WMW, Inc., 291 Ga. at 685
(2). The “heavy burden of persuading the court . . . lies with the party asserting
mootness.” Id. (citing Friends of the Earth v. Laidlaw Environmental Svcs. (TOC), 528
2 The WMW, Inc. Court adopted the federal courts’ analysis and application of the voluntary cessation doctrine. See 291 Ga. at 685 (2). Accordingly, we also look to federal law to aid our analysis. 4 U.S. 167 (120 SCt 693, 145 LEd2d 610) (2000)). Thus, if subsequent events make it
absolutely clear that Love Shack will not reopen or otherwise return to its wrongful
behavior after the suit terminates, then the case is moot.
To satisfy its heavy burden, Love Shack produced two affidavits, one of which
claimed that Love Shack no longer leased the space it once occupied and that it
permanently closed in February 2022. In the second affidavit, White insisted his
relationship with Love Shack had ended. He also disclaimed any interest in working
for the organization “ever again.” Beyond these declarations, Love Shack produced
no documents, statements, or other evidence to support its contentions. As an
example, although Love Shack repeatedly referenced a lease and a lease termination,
it did not produce those materials when making its case below.
Given the minimal showing, Love Shack failed to satisfy the heavy burden of
showing it has altogether given up on its bad behavior. The trial court noted, for
example, that if the injunction was vacated there would be nothing to prohibit White’s
current company from resuming a similar operation or using the same trade name
elsewhere — along with the “Love Shack” signs that remain on the vacated property
— or negotiating a new lease and establishing an entirely new sexually oriented
5 business at the Peachtree Corner location. These questions lead us to a single
conclusion: Love Shack’s conclusory declarations fell short of making it “absolutely
clear” that Love Shack could not reasonably be expected to do again what the City
claimed it did in the past. Especially here, “we require[d] more than a private party’s
unsupported assertions[.]” United States v. Askins & Miller Orthopaedics, P.A., 924
F3d 1348, 1356 (III) (11th Cir. 2019).
To persuade us otherwise, Love Shack relies heavily on City News & Novelty,
Inc. v. City of Waukesha, 531 U. S. 278 (121 SCt 743, 148 LE2d 757) (2001). In that
case, a city denied an adult oriented business a license to operate.
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SECOND DIVISION RICKMAN, P. J., GOBEIL and DAVIS, JJ.
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
September 17, 2025
In the Court of Appeals of Georgia A25A1063. ZIBTLUDA, LLC et al. v. CITY OF PEACHTREE CORNERS.
DAVIS, Judge.
This appeal requires us to decide whether the trial court erred in denying
Zibtluda, LLC d/b/a Love Shack #2 (“Love Shack”) and its chief operating officer’s
motion to dismiss on mootness grounds. The trial court entered an interlocutory
injunction enjoining Love Shack from operating a sexually oriented business in the
City of Peachtree Corners. Before making the injunction permanent, Love Shack
asked the trial court to dismiss the action, claiming subsequent events had rendered
the case moot. The trial court disagreed. The party seeking dismissal for mootness,
it explained, carries a heavy burden of persuading the court that the challenged
conduct is not capable of restarting. The trial court determined Love Shack did not carry this burden and issued a permanent injunction thereafter. Finding no error, we
affirm.
“We review the trial court’s ruling on a motion to dismiss under the de novo
standard of review.” (Citation omitted.) American Professional Risk Svcs. v. Gotham
Ins. Co., 323 Ga. App. 776, 777 (748 SE2d 134) (2013).
So viewed, the record shows that, in March 2021, Love Shack applied for and
was denied an occupational tax certificate by the City. Around the same time, the City
also denied Love Shack a sexually oriented business license. Nonetheless, Love Shack
continued operating without the requisite approvals. This prompted the City to seek
interlocutory and permanent injunctive relief.
In 2022, the trial court issued an interlocutory injunction, which enjoined Love
Shack and its then chief operating officer, Brian White, from operating the business
until they obtained the requisite certificates and licenses. Love Shack then sought
review of this ruling but later withdrew the appeal. Upon remittitur, the City pursued
a permanent injunction based on, among other things, the likelihood that Love
Shack’s illegal conduct, unchecked by the court’s injunctive powers, would resume.
Love Shack opposed the permanent injunction and moved to dismiss the suit under
2 mootness principles. The business, it claimed, had permanently shut down in
February 2022, and White had no intention of reopening it. So, from Love Shack’s
perspective, its post-injunction conduct rendered the case moot.
The City opposed the motion and, after oral argument, the trial court resolved
the mootness issue against Love Shack. First, the trial court analyzed the voluntary
cessation doctrine and, next, concluded Love Shack failed to carry its heavy burden
under the doctrine’s framework. From there, the trial court entered a permanent
injunction prohibiting Love Shack and White from operating a sexually oriented
business at 6073 Peachtree Pkwy in Peachtree Corners. This is their appeal.
1. Love Shack first argues that its decision to shut down caused the case to
become moot and, in turn, required the trial court to dismiss the action.1 We disagree.
Under the mootness doctrine, “when the remedy sought in litigation no longer
benefits the party seeking it, the case is moot and must be dismissed.” (Citation and
punctuation omitted.) Crary v. Clautice, 318 Ga. 573, 576 (2) (899 SE2d 98) (2024);
see also Cardinale v. State, 363 Ga. App. 873, 875 (1) (873 SE2d 256) (2022) (“When
1 Love Shack does not challenge the sufficiency of the evidence underlying the permanent injunction. Nor does it take issue with the trial court’s findings and conclusions of law or any other aspect of the trial court’s rulings. 3 the act that is the subject of the requested relief is completed, then the matter is
moot[.]”) (citation omitted). In 2012, our Supreme Court announced an exception to
this general rule. See WMW, Inc. v. American Honda Motor Co., 291 Ga. 683 (733 SE2d
269) (2012). There, the Court explained that a litigant’s “voluntary cessation of
challenged conduct does not ordinarily render a case moot because a dismissal for
mootness would permit a resumption of the challenged conduct as soon as the case is
dismissed.” (Citation omitted.) Id. at 685 (2); see also Troiano v. Supervisor of
Elections, 382 F3d 1276, 1282 (II) (11th Cir. 2004)2 (“The doctrine of voluntary
cessation provides an important exception to the general rule that a case is mooted by
the end of the offending behavior.”).
But the case becomes moot, the Court explained further, if “subsequent events
make it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” (Citation and punctuation omitted.) WMW, Inc., 291 Ga. at 685
(2). The “heavy burden of persuading the court . . . lies with the party asserting
mootness.” Id. (citing Friends of the Earth v. Laidlaw Environmental Svcs. (TOC), 528
2 The WMW, Inc. Court adopted the federal courts’ analysis and application of the voluntary cessation doctrine. See 291 Ga. at 685 (2). Accordingly, we also look to federal law to aid our analysis. 4 U.S. 167 (120 SCt 693, 145 LEd2d 610) (2000)). Thus, if subsequent events make it
absolutely clear that Love Shack will not reopen or otherwise return to its wrongful
behavior after the suit terminates, then the case is moot.
To satisfy its heavy burden, Love Shack produced two affidavits, one of which
claimed that Love Shack no longer leased the space it once occupied and that it
permanently closed in February 2022. In the second affidavit, White insisted his
relationship with Love Shack had ended. He also disclaimed any interest in working
for the organization “ever again.” Beyond these declarations, Love Shack produced
no documents, statements, or other evidence to support its contentions. As an
example, although Love Shack repeatedly referenced a lease and a lease termination,
it did not produce those materials when making its case below.
Given the minimal showing, Love Shack failed to satisfy the heavy burden of
showing it has altogether given up on its bad behavior. The trial court noted, for
example, that if the injunction was vacated there would be nothing to prohibit White’s
current company from resuming a similar operation or using the same trade name
elsewhere — along with the “Love Shack” signs that remain on the vacated property
— or negotiating a new lease and establishing an entirely new sexually oriented
5 business at the Peachtree Corner location. These questions lead us to a single
conclusion: Love Shack’s conclusory declarations fell short of making it “absolutely
clear” that Love Shack could not reasonably be expected to do again what the City
claimed it did in the past. Especially here, “we require[d] more than a private party’s
unsupported assertions[.]” United States v. Askins & Miller Orthopaedics, P.A., 924
F3d 1348, 1356 (III) (11th Cir. 2019).
To persuade us otherwise, Love Shack relies heavily on City News & Novelty,
Inc. v. City of Waukesha, 531 U. S. 278 (121 SCt 743, 148 LE2d 757) (2001). In that
case, a city denied an adult oriented business a license to operate. Id. at 282 (I). The
business appealed the city’s decision and, after a series of adverse rulings, petitioned
the United States Supreme Court for review. Id. The business later withdrew its
license application and closed soon afterward. Id. at 283 (II). That led the city to say
the case was moot, a contention the business opposed. Id. Ultimately, the Supreme
Court sided with the city after observing the dismissal would not “reward an arguable
manipulation of [its] jurisdiction[.]” Id. at 284 (II).
Here, although the roles are reversed, unlike City News & Novelty, the defendant
Love Shack argues for dismissal while the City-plaintiff urges we maintain the
6 injunction. So the potential for manipulation is strong, given that “a dismissal for
mootness would permit a resumption of the challenged conduct as soon as the case is
dismissed.” (Citation omitted.) WMW, Inc., 291 Ga. at 685. In this way, the
“[m]ootness doctrine protects plaintiffs from defendants who seek to evade sanction
by predictable protestations of repentance and reform.” (Citation and punctuation
omitted; emphasis supplied.) City News & Novelty, 531 U.S. at 284 (II) n.1. Thus, aside
from some factual similarities, City News & Novelty is mostly distinguishable and does
not help Love Shack — whose conduct we are required to “view[ ] with a critical
eye.” Knox v. SEIU, Local 1000, 567 U.S. 298, 307 (II) (132 SCt 2277, 183 LEd2d 281)
(2012).
2. The trial court’s permanent injunction restrained, among others, Love
Shack’s former chief operating officer, Brian White. White argues this was error
because, according to him, he neither had nor has control over Love Shack’s
operations. Again, we disagree.
Under OCGA § 9-5-1, the trial court may issue injunctions that restrain private
individuals (and corporations) who act “contrary to equity and good conscience.”
“[P]ast infractions and a reasonable fear of future infractions justify a permanent
7 injunction.” Jacobs v. Chatham County, 295 Ga. App. 74, 77 (670 SE2d 885) (2008).
As outlined above, Love Shack and White committed past infractions by continuing
to operate without the necessary approvals and then failed to persuade the trial court
that such infractions would not recur. For one thing, even though White says he cut
ties with Love Shack, the injunction staves off future misconduct. And nothing except
an injunction would prohibit White from rekindling his relationship with Love Shack
and restarting the business. As such, based on the circumstances in this case, the trial
court did not abuse its discretion in enjoining White along with the corporate entity.
See OCGA § 9-5-8 (“The granting and continuing of injunctions shall always rest in
the sound discretion of the judge, according to the circumstances of each case.”).
White also appears to argue that Love Shack’s corporate status limits the
injunction’s reach. We disagree. OCGA § 9-11-65 (d) authorizes injunctions against
“the parties to the action, their officers, agents, servants, employees, and attorneys [.]”
(Emphasis supplied.) As a party to the action, White falls within the statute’s purview.
He also fits two other categories: officer and employee. In fact, we upheld a similar
injunction enjoining the owners and employees of a sexually oriented business. See
Stardust, 3007, LLC v. City of Brookhaven, 348 Ga. App. 711, 719 (824 SE2d 595)
8 (2019). While that case centered on fines, White does not explain why the result
should be different in this case. Plus, Love Shack’s corporate status does not justify
limiting the injunction since both Love Shack and White engaged in operating an
unlicensed business and other malfeasance.
To conclude, a defendant’s voluntary cessation of a challenged practice does
not ordinarily moot the case unless the defendant satisfies the heavy burden of
persuading the trial court that the conduct cannot reasonably be expected to recur.
Love Shack did not carry its heavy burden. Therefore, we affirm the trial court’s order
denying Love Shack’s motion to dismiss.
Judgment affirmed. Rickman, P. J., and Gobeil, J., concur.