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: August 13, 2024
S24G0336. SATCHER et al. v. COLUMBIA COUNTY.
S24G0340. COLUMBIA COUNTY v. SATCHER et al.
PETERSON, Presiding Justice.
This is a lawsuit brought by a group of property owners against
Columbia County over stormwater drainage. The property owners
won a permanent injunction and money damages at trial, and the
County appealed to the Court of Appeals, which ruled in favor of the
property owners on certain aspects of the judgment and in favor of
the County on others. We granted both sides’ petitions for certiorari
and identified two issues for review. We granted the County’s
petition to consider whether the permanent injunction granted by
the trial court in favor of the property owners was barred by the
County’s sovereign immunity. And we granted the property owners’
petition to consider the Court of Appeals’s determination that they
could not recover damages for harms that had occurred to their
property during the course of the litigation after they presented
their claims to the county through a letter notice pursuant to OCGA
§ 36-11-1. Our grant question focused in part on an apparent tension
between that determination and our recent holding in Wise Business
Forms, Inc. v. Forsyth County, 317 Ga. 636 (893 SE2d 32) (2023).
After briefing, oral argument, and review of the full record, we
vacate the Court of Appeals’s opinion to the extent that it upheld the
injunction entered by the trial court, with directions that the Court
of Appeals vacate the trial court’s injunction as exceeding the
bounds permitted by the Georgia Constitution’s limited waiver of
sovereign immunity for such relief.
We also conclude that we should not have granted the property
owners’ certiorari petition as to the Court of Appeals’s ruling under
OCGA § 36-11-1. That ruling — properly understood — did not
articulate a general rule of law of the sort that might have gravity
warranting our review; instead, it simply held that the property
owners here could not obtain certain damages under the particular
2
facts of this case. Moreover, a review of the full record showed that
the apparent tension between the Court of Appeals’s ruling and our
decision in Wise Business Forms is not actually present, given a
ruling by the trial court that the Court of Appeals did not disturb
and is not within the scope of our grant of certiorari. We therefore
vacate the order granting the property owners’ petition for a writ of
certiorari and deny the petition in that case.
1. Background
Based on the post-trial findings by the trial court, the facts are
as follows. 1 In 1996, plaintiffs William W. Satcher, Pierwood
Investment Corp., and Columbia Road Professional Centre Owners
Association, Inc. (collectively, “the Property Owners”) purchased the
property at issue, located in the County. 2 At that time, it was
1 A trial court’s factual findings after a bench trial will be upheld if there
is any evidence to support them. See Smith v. Smith, 281 Ga. 380, 383 (1) (637
SE2d 662) (2006). The sufficiency of the evidence to support the trial court’s
factual findings is not at issue before this Court.
2 On June 24, 2024, the Property Owners filed in each of these appeals a
Suggestion of Death stating that William W. Satcher had died on April 20,
2024. On August 8, 2024, the Property Owners filed consent motions in both
appeals to substitute Willene Satcher, as Executor of the Estate of William W.
Satcher, for William W. Satcher. We have separately granted these motions.
3
undeveloped, but it contained a 48-inch metal pipe that was
privately owned and had been used as part of the County’s public
stormwater drainage system since at least 1976. The property now
consists of office buildings, parking lots, and surrounding streets.
In March 2011, a storm overwhelmed the pipe at the headwall,
eroded a berm under the parking lot, and a portion of the parking
lot collapsed. The Property Owners made repairs and replaced 17
feet of pipe. In spring 2013, heavy rains caused a section of the pipe
to fail, which in turn caused part of the parking lot to collapse; the
Property Owners made additional repairs to the pipe and parking
lot.
In October 2013, the Property Owners sent the County a letter
pursuant to OCGA § 36-11-1 outlining their claims, specifying that
they raised “claims . . . based on inverse condemnation, trespass,
nuisance, and negligence that intentionally caused damage to the
Claimants’ Property in April of 2013.” The County declined to repair
the Property. The Property Owners filed their complaint, naming
the County as the sole defendant, on March 27, 2014. The Property
4
Owners alleged in the complaint that the designs of the County’s
streets and storm water system cause excessive quantities of storm
water to be collected and then discharged through and around the
pipe onto the Property, causing the Property to flood and to incur
damages, and that this constituted a nuisance. The complaint
sought an unspecified amount of “actual damages to repair the April,
2013 physical damages” and “general damages from Columbia
County in an amount to be determined at trial[.]”The complaint
asked the trial court to “declare the actions of Columbia County to
have resulted in an inverse condemnation” and asked that the
Property Owners “be paid just and adequate compensation for the
taking.” The complaint also sought an injunction whereby the
County would “be permanently restrained and enjoined from
continuing or maintaining the nuisance and trespass as alleged in
the Complaint.”
After the October 2013 notice (and unmentioned in their
complaint) but before the final bench trial in March 2022, the
Property Owners experienced harm on additional occasions
5
apparently related to stormwater. In November 2013, additional
sink holes appeared, and a vehicle became stuck in one of the holes.
In fall 2015, the pipe failed again, and the parking lot above it
completely collapsed. In 2016, the Property Owners replaced 140
feet of pipe across the Property and repaired the collapsed parking
lot. In total, the Property Owners spent $118,444.41 on repairs and
at least $12,379.63 in interest on a loan taken out to cover the costs.
After the bench trial, the trial court found in favor of the
Property Owners, ruling that the County had maintained and the
Property Owners had been damaged by “a continuing, abatable
nuisance” that rose “to the level of a taking and/or damaging without
just and adequate compensation.” Alternatively, the trial court
found that the County had obtained an easement in the Property
Owners’ pipe by adverse possession or prescription and thus was
liable for damages from the pipe’s failure. The court awarded the
Property Owners $130,824.04 in damages, indicating that this
included damages experienced both prior to the Property Owners’
October 10, 2013, letter to the County and after the complaint was
6
filed. The original September 14, 2022, Order and Judgment
containing the trial court’s findings of fact and conclusions of law
also provided for injunctive relief, enjoining the County “from
moving any amount of stormwater collected in the public drainage
system upstream across Plaintiffs’ property unless the County
obtains the legal right to do so within 60 days of this order”; the trial
court noted that “if the County agrees with the court’s conclusion
that it has a prescriptive easement, injunctive relief is unnecessary.”
A subsequent Final Judgment order issued on November 4, 2022,
awarded to the Property Owners $73,772.58 in bad-faith attorneys’
fees under OCGA § 13-6-11. The order incorporated the findings of
fact and conclusion of law from the September 14, 2022, order,
except as to injunctive relief. As to injunctive relief, the November
4, 2022, order provided that the County was “permanently enjoined
from maintaining a defective stormwater drainage system that
causes damage to Plaintiffs’ property.”
The County appealed the judgment to the Court of Appeals,
which affirmed in part, vacated in part, and reversed in part. See
7
Columbia County v. Satcher, 369 Ga. App. 608 (894 SE2d 181)
(2023). Relevant to this stage of the proceeding, the County argued
that the nuisance of which the Property Owners complained was
permanent, not abatable, and so “the statute of limitations and ante
litem notice period began to run . . . . no later than 1996” when the
Property Owners “observed stormwater moving riprap and dirt
around the pipe.” The County argued that the Property Owners’
October 2013 letter and March 2014 filing of suit were both therefore
too late. The Court of Appeals generally rejected those arguments.
See id. at 611-613 (2) (b). But the Court of Appeals nonetheless
vacated the damages award, concluding that the award was
erroneous both because the award included damages for harms
incurred after the presentation of the October 2013 notice, see id. at
613-614 (2) (c), and because the Property Owners proved special
damages instead of the proper measure of damages, the diminution
of the Property’s market value. See id. at 617 (4). The Court of
Appeals reversed the attorneys’ fees award, concluding that the trial
court erred in granting it because a bona fide controversy of law
8
existed between the parties. See id. at 618 (5). The Court of Appeals
also concluded that the trial court did not err by granting an
injunction, rejecting the County’s arguments that (1) the Property
Owners were not entitled to any relief at all, let alone an injunction,
and that (2) because the evidence did not show that the storm water
system is defective, the trial court erred by enjoining the County
from maintaining a defective storm water system. See id. at 618-619
(6). The parties filed cross-petitions for certiorari, and we granted
both petitions as to the questions related to OCGA § 36-11-1 and
sovereign immunity referenced above.
2. Sovereign immunity bars at least some of the injunctive relief
awarded below.
We granted the County’s petition for certiorari to consider
whether sovereign immunity barred the injunctive relief provided
by the trial court. We conclude that the injunction issued in this case
exceeds the scope of the sovereign immunity waiver provided by the
Just Compensation Provision.
Article I, Section II, Paragraph IX of the Georgia Constitution
states that, except as otherwise provided in that paragraph,
9
“sovereign immunity extends to the state and all of its departments
and agencies” and “can only be waived by an Act of the General
Assembly which specifically provides that sovereign immunity is
thereby waived and the extent of such waiver.” Ga. Const. of 1983,
Art. I, Sec. II, Par. IX (e). Absent some waiver by the Georgia
Constitution itself or a statute, sovereign immunity bars claims for
injunctive relief against the State. See Dept. of Transp. v. Mixon, 312
Ga. 548, 550 (2) (a) (864 SE2d 67) (2021). And that sovereign
immunity also extends to “all of [the state’s] departments and
agencies,” which we have held includes counties. See Gilbert v.
Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994). “[T]he
applicability of sovereign immunity is a threshold determination,
and, if it does apply, a court lacks jurisdiction over the case, and
concomitantly, lacks authority to decide the merits of a claim that is
barred.” McConnell v. Dept. of Labor, 302 Ga. 18, 19 (805 SE2d 79)
(2017).
Although implied waivers of sovereign immunity are generally
disfavored, a constitutional provision may waive sovereign
10
immunity by necessary implication. See Mixon, 312 Ga. at 550-551
(2) (a). The Georgia Constitution provides that, as a general matter,
“private property shall not be taken or damaged for public purposes
without just and adequate compensation being first paid.” Ga.
Const. of 1983, Art. I, Sec. III, Par. I (a). We made clear in Mixon
that this Just Compensation Provision “waives sovereign immunity
for claims seeking injunctive relief in two circumstances: (1) where
the Just Compensation Provision’s requirement of prepayment
before a taking or damaging applies and has not yet been met; or (2)
where the authority effecting a taking or damaging has not invoked
the power of eminent domain.” 312 Ga. at 548. But “[t]his waiver
under the Just Compensation Provision . . . allows an injunction only
to stop the taking or damaging until such time as the authority
fulfills its legal obligations that are conditions precedent to eminent
domain.” Id.
The injunction entered here clearly exceeds the scope of the
sovereign immunity waiver provided by the Just Compensation
Provision. The trial court “permanently enjoined” the County “from
11
maintaining a defective storm water drainage system that causes
damage to Plaintiffs’ property.” Under Mixon, the waiver of
sovereign immunity in this context is limited to that necessary “to
stop the taking or damaging until such time as the authority fulfills
its legal obligations that are conditions precedent to eminent
domain”; i.e., prepayment of just and adequate compensation or
exercise of the power of eminent domain under a statute that waives
the general requirement of prepayment. 312 Ga. at 548. The
injunction here is permanent; on its face, its duration is not limited
to the extent of the sovereign immunity waiver recognized in Mixon.3
Thus, the injunction exceeds the waiver of sovereign immunity in
this context.
3 The language of the September 14, 2022, order, which provided for
injunctive relief “unless the County obtains the legal right to [move water
across the Property] within 60 days of this order[,]” came closer to falling
within the scope of the Just Compensation Clause’s waiver of sovereign
immunity because it provided the County the ability to terminate the
injunction by providing compensation for the taking found by the trial court.
But the time-limited nature of the County’s ability to terminate the injunction
meant that the September 2022 injunction likely would not have survived
scrutiny from a sovereign immunity perspective. And in its Final Judgment
issued less than two months later, the trial court modified the injunctive relief, making clear that it was “permanently” enjoining the County.
12
To be clear, we do not embrace the County’s argument that
sovereign immunity bars injunctive relief altogether in this case.
The County argues that sovereign immunity bars injunctive relief
here because the limited waiver of sovereign immunity described in
Mixon does not apply to immediately obvious, permanent nuisances
for which the statute of limitations has expired. But the Court of
Appeals concluded that, regardless of whether the plaintiff elected
to treat the nuisance as abatable or permanent, the statute of
limitations on claims over the harms experienced in 2013 and 2016
had not expired. See Satcher, 369 Ga. App. at 611-612 (2) (b).
Although the County enumerated this ruling as error in its
certiorari petition, we did not grant certiorari on that particular
question and do not address it here.
The County also argues that sovereign immunity as to
injunctive relief is not waived here because the Property Owners
have not introduced evidence to support the appropriate amount of
damages (which, according to the Court of Appeals, is the
diminution of value of the Property) and thus there are no conditions
13
precedent that the County can be compelled to perform. But
although the County argues that the record does not show the
evidence of a compensable taking at this point, the trial court found
that the County had maintained and the Property Owners had been
damaged by “a continuing, abatable nuisance” that rose “to the level
of a taking and/or damaging without just and adequate
compensation.” The Court of Appeals did not disturb that general
ruling and in fact, in rejecting the County’s challenge to the award
of injunctive relief, concluded that the County “has not established
that the [Property Owners] are not entitled to any relief
whatsoever[.]” Satcher, 369 Ga. App. at 619 (6). Our grant of
certiorari in this case did not disturb these rulings. Even more
important, the County’s argument misunderstands the
constitutional limitations on its power of eminent domain. The
exercise of eminent domain is a power of the government that is
conditioned in the Georgia Constitution on the government paying
just and adequate compensation. If the government wants to take or
damage private property for public use, it is the government’s
14
responsibility to pay just compensation. The County’s argument
inverts this key principle.
Because the Court of Appeals here affirmed an injunction that
exceeded the waiver of sovereign immunity effected by the Just
Compensation Clause, we vacate that portion of the Court of
Appeals’s opinion affirming that injunction. We remand for the
Court of Appeals to remand the case to the trial court with
instructions to consider the issuance of a new injunction that does
not exceed the constitutional waiver of sovereign immunity.
3. We decline to decide the question we posed as to the
availability of damages for harms incurred after sending a notice
pursuant to OCGA § 36-11-1.
We also granted the Property Owners’ petition for certiorari in
S24G0336 to consider their argument that the Court of Appeals
erred by vacating the damages award as to harms occurring after
the date of the Property Owners’ October 2013 letter sent pursuant
to OCGA § 36-11-1. We now conclude that we should not have
granted certiorari on this issue.
The Court of Appeals did not hold that plaintiffs may never
15
recover for damages incurred after presentation of a claim under
OCGA § 36-11-1. Rather, after reviewing that opinion and full
briefing in the context of the full record now available to us, we see
that the Court of Appeals’s holding was more limited than was clear
at the certiorari stage. That court’s conclusion that these plaintiffs
“could recover only damages incurred during the 12 months
preceding the presentation of their ante litem notice,” Satcher, 369
Ga. App. at 613 (2) (c), did not foreclose the possibility that a plaintiff
could recover damages incurred after the presentation of a claim
pursuant to OCGA § 36-11-1. The court merely held on the
particular facts of this case that the Property Owners could not
obtain damages incurred after the presentation of the October 2013
notice. We do not read the Court of Appeals’s opinion as stating any
general rule as to the availability of damages incurred after
presentation of a claim pursuant to OCGA § 36-11-1. And so the
Court of Appeals’s ruling as to the availability of the particular
damages at issue in this case does not pose a question of gravity for
16
this Court to review on certiorari. See Supreme Court Rule 40 (1).4
We express no opinion as to whether that narrow ruling was correct.
Moreover, the question on which we granted certiorari is not,
upon further review, actually posed by this case. We stated that
question as whether a property owner may “be awarded damages for
harms occurring after the property owner sent a county an ante
litem notice where the subsequent harms are based upon the same
permanent and continuing nuisance encompassed by and forming
the basis for the first ante litem notice[.]” We cited Wise Business
Forms, implying there was a possible tension between that decision
and the Court of Appeals’s ruling here. But the language at issue in
Wise Business Forms refers to options for suing over a permanent
nuisance. See 316 Ga. at 640-643 (2). Here, the trial court found that
4 That rule states:
Review on certiorari is not a right. A petition for the writ will be
granted only in cases of great concern, gravity, or importance to
the public. . . . Certiorari generally will not be granted merely to
correct an asserted error, particularly when the asserted error
concerns only the sufficiency of the evidence, the correctness of
factual findings, or the application of a properly stated rule of law
to the facts of a particular case.
17
the nuisance in question was abatable, not permanent. The Court of
Appeals did not disturb that finding, and we did not grant review of
this aspect of the trial court’s judgment. Thus, this case does not
present a proper vehicle for resolving any tension between Wise
Business Forms’ guidance as to suing over a permanent nuisance
and a strict reading of OCGA § 36-11-1 that does not allow recovery
for harms incurred after a presentation of a claim under that
statute.
For these reasons, the Property Owners’ petition for certiorari
was improvidently granted.
Judgment vacated in part and case remanded in Case No.
S24G0340. Writ of certiorari in Case No. S24G0336 improvidently
granted and petition for certiorari denied. All the Justices concur.
18