CopyCited 31 times | Published | Supreme Court of Georgia | Mar 15, 2023
...in the constitution. If it is, there is a waiver of sovereign immunity,
not for the claim, but for the action.” (emphasis supplied; footnote
omitted)), superseded by constitutional amendment as stated in
Lathrop,
301 Ga. at 422 (II) (B). See also OCGA §§
9-11-2 (“There
shall be one form of action, to be known as ‘civil action.’”);
9-11-3
(noting that a “civil action” commences with the filing of the
16
complaint and case filing form);
9-2-5 (a) (...
...ants bring all
23
relevant claims related to their case in one action. See, e.g., OCGA
§§
9-11-13 (regarding counter- and cross-claims);
9-11-18 (joinder of
claims and remedies);
9-11-19 (joinder of persons);
9-11-22
(interpleader);
9-11-24 (intervention); Body of Christ Overcoming
Church of God v....
...ividual capacity
in addition to the State.
In any event, Plaintiffs’ suggestion that the Court should view their
amended complaint as one encompassing two separate “actions” that are joined
or “consolidated” into one case under OCGA §
9-11-20 is problematic. The
relevant permissive joinder provision of OCGA §
9-11-20 provides that “[a]ll
persons may be joined in one action as defendants if there is asserted against
them jointly, severally, or in the alternative any right to relief in respect of or
arising out of the same transaction, occurrence, or s...
...injunction as the question should not have been reached by the trial
court, and remand this case with direction that it be dismissed.
Judgment reversed and case remanded with direction. All the
Justices concur.
in the action.” (Emphasis supplied.) OCGA §
9-11-20 (a)....
CopyCited 1 times | Published | Supreme Court of Georgia | Mar 4, 2025
...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....
...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 ....
...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...
...s”
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....
...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”)....
...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....
...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....
...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....
...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.”)....
...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....
...(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...
Published | Supreme Court of Georgia | Mar 15, 2023 | 477 S.E.2d 107, 96 Fulton County D. Rep. 3893
...So, the task is to determine if the claim
asserted here is of the type described in the constitution. If it is,
16
there is a waiver of sovereign immunity, not for the claim, but for
the action.” (emphasis supplied; footnote omitted)). See also OCGA
§§
9-11-2 (“There shall be one form of action, to be known as ‘civil
action.’”);
9-11-3 (noting that a “civil action” commences with the
filing of the complaint and case filing form);
9-2-5 (a) (“No plaintiff
may prosecute two action...
...doctrines generally demonstrate a preference that litigants bring all
relevant claims related to their case in one action. See, e.g., OCGA
§§
9-11-13 (regarding counter- and cross-claims);
9-11-18 (joinder of
claims and remedies);
9-11-19 (joinder of persons);
9-11-22
(interpleader);
9-11-24 (intervention); Body of Christ Overcoming
Church of God, Inc....
...All the
Justices concur.
in addition to the State.
In any event, Plaintiffs’ suggestion that the Court should view their
amended complaint as one encompassing two separate “actions” that are joined
or “consolidated” into one case under OCGA §
9-11-20 is problematic. The
relevant permissive joinder provision of OCGA §
9-11-20 provides that “[a]ll
persons may be joined in one action as defendants if there is asserted against
them jointly, severally, or in the alternative any right to relief in respect of or
arising out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all of them will arise
in the action.” (Emphasis supplied.) OCGA §
9-11-20 (a)....
