O.C.G.A. § 9-4-1 (2019)

Annotations

Law reviews. For survey article on administrative law, see 60 Mercer L. Rev. 1 (2008).

For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION APPLICATION

DECLARATORY JUDGMENTS General Consideration

Legislative intent. - Purpose of the provisions on declaratory judgment is to settle and afford relief with respect to rights, status and other legal relations, and the courts of this state will refuse to render or enter a declaratory judgment or decree when such judgment or decree, if rendered, will not terminate the controversy or remove the uncertainty giving rise to the proceeding. Felton v. Chandler, 75 Ga. App. 354, 43 S.E.2d 742, 1947 Ga. App. LEXIS 543 (1947); Pennsylvania Thresherman & Farmers Mut. Cas. Ins. Co. v. Gardner, 107 Ga. App. 472, 130 S.E.2d 507, 1963 Ga. App. LEXIS 881 (1963). It is the intent and purpose of the provisions on declaratory judgment to settle and afford relief from uncertainty and insecurity with respect to rights and other legal relations between the parties, but it is not the function of the Act (Ga. L. 1945, p. 137) to settle controversies, and make binding declarations, concerning a mere privilege; there must be in the controversy a legally protectible interest existing in virtue of some public law or ordinance. City of Brunswick v. Anderson, 204 Ga. 515, 50 S.E.2d 337, 1948 Ga. LEXIS 480 (1948). Legislative intent and purpose of the provisions on declaratory judgment is to relieve against uncertainty and insecurity, to declare rights, status and legal relations, but not to execute remedies or grant coercive relief. Consequently, a judgment for damages may not be recovered in a declaratory action. Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 66 S.E.2d 726, 1951 Ga. LEXIS 348 (1951); Burgess v. Burgess, 210 Ga. 380, 80 S.E.2d 280, 1954 Ga. LEXIS 314 (1954). Purpose of the provisions on declaratory judgment is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and the Act (Ga. L. 1945, p. 137) is to be liberally construed. Parks v. Jones, 88 Ga. App. 188, 76 S.E.2d 449, 1953 Ga. App. LEXIS 1038 (1953). Declaratory judgment law permits one who is walking in the dark to turn on a light to ascertain where one is and where

one is going. Venable v. Dallas, 212 Ga. 595, 94 S.E.2d 416, 1956 Ga. LEXIS 455 (1956). Purpose of the provisions on declaratory judgment is to permit one who is walking in the dark to ascertain where one is and where one is going, to turn on the light before one steps rather than after one has stepped in a hole. Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29, 1958 Ga. LEXIS 429 (1958); Georgia Power Co. v. City of Cedartown, 116 Ga. App. 596, 158 S.E.2d 475, 1967 Ga. App. LEXIS 902 (1967); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82, 1979 Ga. LEXIS 840 (1979); Slaughter v. Faust, 155 Ga. App. 68, 270 S.E.2d 218, 1980 Ga. App. LEXIS 2461 (1980). Object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29, 1958 Ga. LEXIS 429 (1958); Lumbermens Mut. Cas. Co. v. Moody, 116 Ga. App. 2, 156 S.E.2d 117, 1967 Ga. App. LEXIS 667 (1967); Brogdon v. McMillan, 116 Ga. App. 34, 156 S.E.2d 828, 1967 Ga. App. LEXIS 680 (1967); Georgia Power Co. v. City of Cedartown, 116 Ga. App. 596, 158 S.E.2d 475, 1967 Ga. App. LEXIS 902 (1967); Poole v. City of Atlanta, 117 Ga. App. 432, 160 S.E.2d 874, 1968 Ga. App. LEXIS 1113 (1968); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82, 1979 Ga. LEXIS 840 (1979); Sacks v. Bell Tel. Labs., Inc., 149 Ga. App. 799, 256 S.E.2d 87, 1979 Ga. App. LEXIS 2039 (1979); Slaughter v. Faust, 155 Ga. App. 68, 270 S.E.2d 218, 1980 Ga. App. LEXIS 2461 (1980). Provisions on declaratory judgment permit a person to seek direction from the courts without having to make a decision which without such direction might reasonably jeopardize a person’s interest. Jahncke Serv., Inc. v. Department of Transp., 134 Ga. App. 106, 213 S.E.2d 150, 1975 Ga. App. LEXIS 1923 (1975). Purpose of the declaratory judgment provisions are not to delay the trial of cases of actual controversy but to guide and protect the parties from uncertainty and insecurity with respect to the propriety of some future act or conduct in order not to jeopardize their interest. Pendleton

General Consideration (Cont’d) v. City of Atlanta, 236 Ga. 479, 224 S.E.2d 357, 1976 Ga. LEXIS 908 (1976). It is not purpose of the declaratory judgment law to declare what would be defense to possible action for damages, when the declaration would not also serve as a guide for future conduct. Consolidated Quarries Corp. v. Davidson, 79 Ga. App. 248, 53 S.E.2d 231, 1949 Ga. App. LEXIS 630 (1949). Declaratory judgment law is not intended to be used to set aside, modify, or interpret judicial decrees or judgments of courts having jurisdiction of the subject matter and parties, but is to be used to obtain a declaration of rights not already adjudicated. Lawrence v. Lawrence, 87 Ga. App. 150, 73 S.E.2d 231, 1952 Ga. App. LEXIS 633 (1952); Burgess v. Burgess, 210 Ga. 380, 80 S.E.2d 280, 1954 Ga. LEXIS 314 (1954); Peeples Indus., Inc. v. Parker Hannifin Corp., 189 Ga. App. 857, 377 S.E.2d 691, 1989 Ga. App. LEXIS 46 (1989). Declaratory judgment law is not intended to blot out innumerable rights and privileges bestowed by the Code and by the fundamental principles of law, but was intended by the very meaning and concept of the word to give additional protection to persons who may become involved in an actual justiciable controversy, in that they differ between themselves as to what their rights are, and to wish to find them out before taking some dangerous step which might or might not be authorized. Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29, 1958 Ga. LEXIS 429 (1958). It is not function of the declaratory judgment law to settle controversies and make binding declarations concerning a mere privilege. Hudon v. North Atlanta, 108 Ga. App. 370, 133 S.E.2d 58, 1963 Ga. App. LEXIS 647 (1963). Limitations on declaratory judgments. - Although this chapter is to be liberally construed and administered, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy since the statute does not take the place of

existing remedies. Mayor of Athens v. Gerdine, 202 Ga. 197, 42 S.E.2d 567, 1947 Ga. LEXIS 395 (1947); Felton v. Chandler, 75 Ga. App. 354, 43 S.E.2d 742, 1947 Ga. App. LEXIS 543 (1947); Findley v. City of Vidalia, 78 Ga. App. 581, 51 S.E.2d 542, 1949 Ga. App. LEXIS 933 (1949); Peoples v. Bass, 93 Ga. App. 71, 90 S.E.2d 926, 1955 Ga. App. LEXIS 479 (1955); Jones v. Moore, 94 Ga. App. 348, 94 S.E.2d 523, 1956 Ga. App. LEXIS 540 (1956); Central Ry. v. Southern Clays, Inc., 94 Ga. App. 377, 94 S.E.2d 625, 1956 Ga. App. LEXIS 549 (1956); United States Cas. Co. v. Georgia, S. & Fla. Ry., 95 Ga. App. 100, 97 S.E.2d 185, 1957 Ga. App. LEXIS 726 (1957), overruled, Atlantic Wood Industries, Inc. v. Argonaut Ins. Co., 190 Ga. App. 814, 380 S.E.2d 504, 1989 Ga. App. LEXIS 438 (1989); Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29, 1958 Ga. LEXIS 429 (1958); Powers v. Kleven, 97 Ga. App. 705, 104 S.E.2d 533, 1958 Ga. App. LEXIS 861 (1958). Declaratory judgment was not available to the insurer in a case when the insurer denied that the insured was responsible for providing coverage because there was no future act to which a declaratory judgment could be used to guide and protect the insurer. Builders Ins. Group, Inc. v. Ker-Wil Enters., 274 Ga. App. 522, 618 S.E.2d 160, 2005 Ga. App. LEXIS 788 (2005). Under the right-for-any-reason rule, the trial court did not err by dismissing a law firm’s case against an insurer under the Declaratory Judgment Act, O.C.G.A. § 94-1, and O.C.G.A. § 15-19-14(b) to enforce its attorney’s lien in a case the firm filed on behalf of an owner against the insurer because declaratory judgment was not available; the issues the firm raised were the same as those raised in an owner’s case against the insurer for failure to provide a defense, and the rights of the parties in the owner’s case had already accrued. McRae, Stegall, Peek, Harman, Smith & Manning, LLP v. Ga. Farm Bureau Mut. Ins. Co., 316 Ga. App. 526, 729 S.E.2d 649, 2012 Ga. App. LEXIS 599 (2012). Because in its counterclaim for declaratory relief, the defendant sought a ruling from the trial court regarding the viability

of any future lawsuit brought by the administrator of the two estates on behalf of the estates seeking redemption of the disputed property, and entry of a declaratory judgment that ruled in a party’s favor as to future litigation over the subject matter would constitute an erroneous advisory opinion, the defendant’s counterclaim for declaratory relief was premature and not ripe for adjudication. Strong v. JWM Holdings, LLC, 341 Ga. App. 309, 800 S.E.2d 380, 2017 Ga. App. LEXIS 187 (2017). Liberal construction. - Liberality of construction as to whether resort to a declaratory judgment is available is determined by reference to whether any existing provision of law or equity will provide as complete protection as would a declaratory judgment with respect to some future action or conduct as to the propriety of which a doubt exists. Cohen v. Reisman, 203 Ga. 684, 48 S.E.2d 113, 1948 Ga. LEXIS 498 (1948). “Actual controversy.” - Term “actual controversy” and the terms “rights, status and other legal relations,” all relate to a justiciable controversy, and a controversy is justiciable when there are interested parties asserting adverse claims upon an accrued state of facts. Adler v. Adler, 87 Ga. App. 842, 75 S.E.2d 578, 1953 Ga. App. LEXIS 869 (1953). Court cannot issue advisory opinions. - Trial court erred by failing to dismiss a city’s suits seeking a declaratory judgment as to the annexation of school property because there was no actual annexation of any of the properties in question; thus, the controversy was founded upon proposed legislation and the trial court could not render an advisory opinion. City of Atlanta v. Atlanta Indep. Sch. Sys., 300 Ga. 213, 794 S.E.2d 162, 2016 Ga. LEXIS 762 (2016). Words “rights, status and other legal relations,” have application solely with reference to legal relations. Issues which are based on fictitious, colorable, hypothetical, or academic questions, or questions that have become moot, do not involve legal rights, legal status, and other legal relations within the meaning of an “actual” justiciable controversy. Brown v. Lawrence, 204 Ga. 788, 51 S.E.2d 651, 1949 Ga. LEXIS 475 (1949).

Words “rights, status and other legal relations,” are dependent upon “actual controversy,” in a proceeding for declaratory judgment. The “actual controversy” means a justiciable controversy. Brown v. Lawrence, 204 Ga. 788, 51 S.E.2d 651, 1949 Ga. LEXIS 475 (1949). Petition for declaratory judgment will lie only when there is some fact or circumstances which necessitate determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to the petitioner’s alleged rights, and which future action, without such direction, might reasonably jeopardize the petitioner’s interest. Cohen v. Reisman, 203 Ga. 684, 48 S.E.2d 113, 1948 Ga. LEXIS 498 (1948). Declaratory judgment inappropriate if adjudication of rights was not needed to avoid future undirected action. - When plaintiff landowners filed a declaratory judgment action seeking a finding that the installation of fiber optic cable in a pipeline that ran through defendant pipeline owner’s easement effected a legal abandonment of the easement over the landowners’ property, there was no basis for the trial court’s issuance of a declaratory judgment on the issue under the Declaratory Judgment Act, O.C.G.A. § 9-4-1 et seq., because the rights of the parties had already accrued and no facts were alleged which showed that an adjudication of the landowners’ rights was needed to relieve them from the risk of taking future undirected action incident to their rights that, without direction, would jeopardize their interests. Plantation Pipe Line Co. v. Milford, 257 Ga. App. 709, 572 S.E.2d 67, 2002 Ga. App. LEXIS 1268 (2002). Petition for declaratory judgment is available remedy when there exists justiciable issue, involving uncertainty and danger of loss or detriment to the applicant in the event the applicant chooses the wrong one of two or more legally uncharted courses that appear to be open to the applicant. The remedy is not to be employed to test the validity of

General Consideration (Cont’d) determinations having the force of solemn judgments to which no exceptions have been taken. City of Atlanta v. Lopert Pictures Corp., 217 Ga. 432, 122 S.E.2d 916, 1961 Ga. LEXIS 481 (1961). Trial court correctly found that declaratory relief was appropriate to relieve an electrical transmission corporation of uncertainty and insecurity with regard to its rights after a county board of commission enacted an ordinance that imposed a moratorium on the construction of new power lines since the ordinance expressly targeted the very power line proposed by the corporation and plainly prohibited the construction of that line or similar ones. If the corporation could not have obtained declaratory relief, it would have been in danger of losing a valuable property right as a result of the enforcement of the ordinance, which was declared to be unconstitutional. Cobb County v. Ga. Transmission Corp., 276 Ga. 367, 578 S.E.2d 852, 2003 Ga. LEXIS 285 (2003). Declaratory judgment cannot be advisory to review will’s validity. - Guardian’s declaratory judgment action seeking to have elderly woman’s 2013 last will and testament deemed invalid and void was properly dismissed by the trial court because the elderly woman was still alive and may still revoke the 2013 will; therefore, any ruling determining the will’s validity constituted an improper advisory opinion. Kellar v. Davis, 350 Ga. App. 385, 829 S.E.2d 466, 2019 Ga. App. LEXIS 309 (2019), cert. denied, No. S19C1423, 2020 Ga. LEXIS 26 (Ga. Jan. 13, 2020). Mere dispute of facts insufficient to create “uncertainty and insecurity.” - Mere fact that there is a dispute as to issues of fact could not give the necessary element of “uncertainty and insecurity” to entitle a petitioner to maintain a declaratory judgment action. State v. Hospital Auth., 213 Ga. 894, 102 S.E.2d 543, 1958 Ga. LEXIS 315 (1958). Negative declarations. - Suitability of application for relief by prayer for a negative declaration is clear from this section, even though to call such a prayer negative had been called a colloquialism,

and has been said to describe a positive declaration that no right exists on the part of the defendant. Bond v. Ray, 83 Ga. App. 817, 65 S.E.2d 30, 1951 Ga. App. LEXIS 972 (1951). Testing validity of statute. - Action for declaratory judgment is an available remedy to test the validity and enforceability of a statute when an actual controversy exists with respect thereto. Total Vending Serv., Inc. v. Gwinnett County, 153 Ga. App. 109, 264 S.E.2d 574, 1980 Ga. App. LEXIS 1698 (1980). Party seeking declaratory relief is not required to violate a law about which there is an actual controversy concerning its enforceability and suffer a criminal prosecution, in order to test its validity. Total Vending Serv., Inc. v. Gwinnett County, 153 Ga. App. 109, 264 S.E.2d 574, 1980 Ga. App. LEXIS 1698 (1980). No uncertainty as to alleged right. - In a case arising from a taxpayer grievance concerning whether the Fulton County Board of Tax Assessors had been diligent in determining that the stadium company had a usufruct interest in the new football stadium that was not subject to ad valorem taxation, even if the Exemption Decision (or failure to reconsider that decision) of the Board members was arbitrary, capricious, or simply wrong in light of the Stadium License and Management Agreement, the appellants did not face any uncertainty as to an alleged right, and the trial court properly dismissed their claim for a declaratory judgment. Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682, 859 S.E.2d 33, 2021 Ga. LEXIS 294 (2021). Application Challenge to tax statute. - O.C.G.A. §§ 9-4-1, 9-5-1, 40-2-8, 40-3-6, 40-3-21, and 48-2-59 provided plaintiff challenging automobile “title transfer fee” with “plain, speedy, and efficient” pre-tax and post-tax remedies by which a taxpayer might challenge the constitutional validity of a state tax, and so satisfied the criteria of the Tax Injunction Act, 18 U.S.C. § 1341, so as to bar jurisdiction of the federal court. Johnsen v. Collins, 875 F. Supp. 1571, 1994 U.S. Dist. LEXIS 20214 (S.D. Ga. 1994).

Declaratory judgment law does not nullify statutes of limitations and established principles of law, so as to authorize a petitioner to brush aside previous judgments of the same court, and seek a determination of the petitioner’s rights as if the rights had never been adjudicated. Bingham v. Citizens & S. Nat’l Bank, 205 Ga. 285, 53 S.E.2d 228, 1949 Ga. LEXIS 344 (1949); Burgess v. Burgess, 210 Ga. 380, 80 S.E.2d 280, 1954 Ga. LEXIS 314 (1954); Royal v. Royal, 246 Ga. 229, 271 S.E.2d 144, 1980 Ga. LEXIS 1064 (1980). Petition seeking to compel husband to provide additional funds. - Wife did not file a declaratory judgment action since the wife sought guidance with respect to provisions in a settlement agreement in order to compel a husband to provide the wife with additional funds; as the trial court’s decision was interlocutory and the wife did not secure a certificate of immediate review, the discretionary appeal to resolve whether the trial court’s declaratory ruling was appealable as a final judgment was dismissed. Gelfand v. Gelfand, 281 Ga. 40, 635 S.E.2d 770, 2006 Ga. LEXIS 642 (2006). Declaratory judgment action not applicable to criminal case. - Petition was not saved by its prayer for declaratory relief under the Declaratory Judgment Act, O.C.G.A. § 9-4-1 et seq., as the dispute between the solicitor general and the recorder’s court judges was not a controversy between two adverse parties because a judge acting in an official capacity in a criminal case was not an adverse party with interests antagonistic to those of the state or the defendant, but instead served in the role of a neutral decision maker; and the underlying decisions that the solicitor general challenged arose in criminal cases, and not justiciable controversies of a civil nature. Armstrong v. Solicitor General of Gwinnett County, 366 Ga. App. 865, 884 S.E.2d 556, 2023 Ga. App. LEXIS 90 (2023). Declaratory judgment action not applicable to moot issue. - Plaintiff’s appeal of the dismissal of a declaratory judgment complaint failed when there was no longer a justiciable controversy as a declaratory judgment action could not lie for a probable future contingency.

Barksdale v. DeKalb County, 254 Ga. App. 7, 561 S.E.2d 163, 2002 Ga. App. LEXIS 244 (2002). Superior court’s judgment declaring that an agreement between a condominium association and a telecommunications company was subject to termination by the association pursuant to O.C.G.A. § 44-3-101 was vacated because the 12month period of O.C.G.A. § 44-3-101(c) expired without the association having terminated any telecommunications contract, rendering the issue in its declaratory judgment action moot, and the declaratory judgment upon a moot issue was not authorized under the Declaratory Judgment Act, O.C.G.A. § 9-4-1 et seq.; by the time the superior court issued the declaratory judgment, the statutory period of O.C.G.A. § 44-3-101(c) had expired, and any right the association had to cancel and terminate contracts under that statute expired. Capitol Infrastructure, LLC v. Plaza Midtown Residential Condo. Ass’n, 306 Ga. App. 794, 702 S.E.2d 910, 2010 Ga. App. LEXIS 1058 (2010), cert. denied, No. S11C0500, 2011 Ga. LEXIS 331 (Ga. Apr. 18, 2011). Declaratory judgment was not appropriate in a derivative action by two property management entities against a managing member of a limited liability company because the entities did not seek guidance as to future actions, but instead sought a determination as to whether the managing member had already breached a contract. Pinnacle Benning, LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609, 724 S.E.2d 894, 2012 Ga. App. LEXIS 247 (2012). Declaratory action as to regulatory investigation. - Trial court properly dismissed a declaratory judgment action brought by a bank and a cash advance lender, which was operating as an agent for the bank, to stop the Georgia Industrial Loan Commissioner from conducting an investigation of their lending activities because the Commissioner was authorized to conduct an investigation of the two entities’ loan activities, notwithstanding the lender’s claim that the bank and the lender were operating under the authority of federal banking law. BankWest, Inc. v. Oxendine, 266 Ga. App. 771, 598

Application (Cont’d) S.E.2d 343, 2004 Ga. App. LEXIS 397 (2004), cert. denied, No. S04C1408, 2004 Ga. LEXIS 731 (Ga. Sept. 7, 2004). Trust beneficiary entitled to declaration of rights despite settlement agreement. - Both a settlement agreement between a trustee and several beneficiaries and the trial court’s temporary restraining order maintained the status quo with regard to the personal contents of the beneficiaries’ father’s home and preserved the issue of one beneficiary’s entitlement to the contents for a declaration of the parties’ respective rights. Garner v. Redwine, 309 Ga. App. 158, 709 S.E.2d 569, 2011 Ga. App. LEXIS 178 (2011), cert. denied, No. S11C1234, 2011 Ga. LEXIS 593 (Ga. Sept. 6, 2011), cert. denied, No. S11C1236, 2011 Ga. LEXIS 600 (Ga. Sept. 6, 2011). Uncertain future act for determination essential. - Automobile liability insurer’s declaratory judgment action was dismissed for mootness and lack of jurisdiction since the insurer sought to determine if the insurer was required to provide coverage in the underlying personal injury action, but although the insurer had filed the declaratory judgment action before judgment was entered in the underlying suit, the insurer already had refused coverage and refused to provide a defense for its insured in that action, thus removing any uncertain future act as the basis for determination by the court. Empire Fire & Marine Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670, 507 S.E.2d 525, 1998 Ga. App. LEXIS 1332 (1998), cert. denied, No. S99C0295, 1999 Ga. LEXIS 184 (Ga. Feb. 19, 1999). In a dispute over marble and mineral rights, plaintiff had begun subsurface mining operations, but it had not conducted any activity on the surface of the property and had been ordered by the defendant not to enter; thus, a declaratory judgment would have the effect of “guiding and protecting plaintiff with regard to some future act.” J.M. Huber Corp. v. Georgia Marble Co., 239 Ga. App. 271, 520 S.E.2d 296. In an action against an airport authority for violations of the Open Meetings

Act, O.C.G.A. § 50-14-1 et seq., taxpayers did not seek to contest any decisions made at any of the challenged meetings or assert that the taxpayers were in a position of uncertainty as to an alleged right, but sought to prohibit future violations and punish the authority for the authority’s violations; dismissal of the taxpayers’ claim for declaratory relief was proper. Avery v. Paulding County Airport Auth., 343 Ga. App. 832, 808 S.E.2d 15, 2017 Ga. App. LEXIS 566 (2017). Controversy not created by filing lawsuit. - Insurer improperly sought a declaratory judgment that the insurer had mistakenly made payments under a policy since the declaration would be merely advisory; the only actual controversy was created by the action itself, and one cannot create a controversy for declaratory judgment purposes by filing a lawsuit. Miller v. Southern Heritage Ins. Co., 215 Ga. App. 173, 450 S.E.2d 432, 1994 Ga. App. LEXIS 1165 (1994), cert. denied, No. S95C0393, 1995 Ga. LEXIS 305 (Ga. Feb. 20, 1995), overruled, Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 470 S.E.2d 659, 1996 Ga. LEXIS 245 (1996). Judicial review of administrative decision. - Action for declaratory judgment challenging the validity of an agency rule has no place once judicial review of an administrative decision is sought. State Health Planning Agency v. Coastal Empire Rehabilitation Hosp., 261 Ga. 832, 412 S.E.2d 532, 1992 Ga. LEXIS 76 (1992). Trial court properly dismissed a mortgagor’s declaratory judgment counterclaim, which related to the purported conduct of the lender before the lender’s failure, because the claim was not filed until after the Federal Deposit Insurance Corporation (FDIC) assumed control of the failed lender and, thus, constituted a post-receivership claim for which the mortgagor was required to exhaust administrative remedies before the FDIC prior to asserting the counterclaim against the lender. Bobick v. Cmty. & S. Bank, 321 Ga. App. 855, 743 S.E.2d 518, 2013 Ga. App. LEXIS 425 (2013), cert. denied, No. S13C1454, 2013 Ga. LEXIS 825 (Ga. Oct. 7, 2013). Declaratory relief is available to an insured seeking a determination as to

whether insurers were obligated to defend a pending action. Atlantic Wood Indus., Inc. v. Argonaut Ins. Co., 190 Ga. App. 814, 380 S.E.2d 504, 1989 Ga. App. LEXIS 438 (1989). Declaratory relief available to insurer. - In a declaratory action brought by an insurer, the trial court properly granted the insurer summary judgment because there was no evidence that the insurer ever denied coverage. Barclay v. Stephenson, 337 Ga. App. 365, 787 S.E.2d 322, 2016 Ga. App. LEXIS 336 (2016). Insurer’s motion for directed verdict should have been granted in declaratory judgment action. - Trial court’s denial of a directed verdict in favor of the insurer was reversed on the issue of whether the policy was void based upon misrepresentations in the application because the undisputed evidence showed that the use of a certified public accountant audit and a requirement that checks be countersigned were material to the insurer’s decision to issue crime coverage to the insured and that the insurer would not have issued the policy if the insurer had known the true facts. Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 336 Ga. App. 795, 783 S.E.2d 441, 2016 Ga. App. LEXIS 229 (2016), cert. denied, No. S16C1468, 2016 Ga. LEXIS 714 (Ga. Oct. 31, 2016). Dentist’s action for declaratory and injunctive relief, seeking to prevent the board of dentistry from taking action against the dentist based on an opinion of the attorney general to the effect that certain procedures being performed by the dentist were not within the lawful scope of the practice of dentistry, was not barred by a failure to exhaust administrative remedies since the only way for the dentist to challenge the board’s position was to continue performing the procedures, thereby risking criminal prosecution for the felony offense of practicing medicine without a license and/or the initiation of administrative proceedings to revoke the dentist’s license to practice dentistry. Thomas v. Georgia Bd. of Dentistry, 197 Ga. App. 589, 398 S.E.2d 730, 1990 Ga. App. LEXIS 1395 (1990). Viability of comparative negligence defense. - When the insurer conceded that the insurer owed a duty to defend

under a liability policy, a declaratory judgment action was not available to determine the identity of the driver of a vehicle involved in an accident as the insurer sought merely to test the viability of its comparative negligence defense in the main tort action or any future bad faith action. Cotton States Mut. Ins. Co. v. Stallings, 235 Ga. App. 212, 508 S.E.2d 688. Insurance company which informed an insured that the insured’s policy did not provide coverage for an accident caused by the insured’s nephew was not permitted to seek a judgment declaring that it did not have an obligation to defend or indemnify the insured. Drawdy v. Direct Gen. Ins. Co., 277 Ga. 107, 586 S.E.2d 228, 2003 Ga. LEXIS 714 (2003). Ascertaining property rights. - Declaratory relief was appropriate to relieve a niece of uncertainty and insecurity with regard to her property rights under a prior consent order; the unclear provisions in the decree concerning the amount of tax liability and the amount to be paid by the niece if she were the high bidder on the property at issue in the prior consent decree authorized the use of declaratory relief to ascertain the parties’ rights and duties. McClure v. Raper, 277 Ga. 642, 594 S.E.2d 330, 2004 Ga. LEXIS 196 (2004). That disputed factual issues remained as to the actualization of a judgment creditor’s claimed interest in properties that allegedly were fraudulently transferred by the judgment debtor did not foreclose on the judgment creditor’s standing to seek a declaratory judgment as to the priority of that interest. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713, 798 S.E.2d 315, 2017 Ga. App. LEXIS 130 (2017). Proper remedy in dispute over zoning ordinance. - In a declaratory judgment action brought by a county against a property owner, the trial court properly granted the county a declaratory judgment because there was a bona fide dispute over the applicability of the county’s zoning ordinance and over whether the property owner had vested rights to use a petroleum gas tank on the property. Since the county was in a position of uncertainty

Application (Cont’d) as to the county’s legal rights, a declaratory judgment was authorized. U. S. A. Gas, Inc. v. Whitfield County, 298 Ga. App. 851, 681 S.E.2d 658, 2009 Ga. App. LEXIS 797 (2009). County’s action against an airport authority stated grounds for relief. - County’s action against an airport authority seeking a declaration that the authority lacked the authority to submit an application to the Federal Aviation Administration for an Airport Operating Certificate without the county’s consent stated an actual controversy under the Declaratory Judgment Act, O.C.G.A. § 94-1 et seq., and should not have been dismissed. Avery v. Paulding County Airport Auth., 343 Ga. App. 832, 808 S.E.2d 15, 2017 Ga. App. LEXIS 566 (2017). Standing to file for declaratory judgment established. - Participants, the pension board members, and the advocates were authorized under O.C.G.A. § 9-4-1 to file for a declaratory judgment on behalf of the municipal pension funds against the City of Atlanta, in which they sought a declaration allowing the funds to hire a third party administrator and an outside counsel; the participants, the members, and the advocates had an interest in having the matters at issue resolved as the members owed duties to the beneficiaries of the pension funds, the participants had an interest in how the funds were administered, and the advocates engaged in advocacy for the participants. City of Atlanta v. S. States Police Benevolent Ass’n, 276 Ga. App. 446, 623 S.E.2d 557, 2005 Ga. App. LEXIS 1282 (2005), cert. denied, No. S06C0609, 2006 Ga. LEXIS 314 (Ga. May 8, 2006). Involuntary dismissal must be without prejudice. - Involuntary dismissal of a declaratory-judgment action for want of justiciability does not operate as an adjudication on the merits and is instead an issue of subject-matter jurisdiction. Accordingly, dismissal must be

without prejudice. Pinnacle Benning, LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609, 724 S.E.2d 894, 2012 Ga. App. LEXIS 247 (2012). Because the defendant’s counterclaim for declaratory judgment was premature and sought an opinion that was advisory in nature, the trial court lacked subject matter jurisdiction over the counterclaim; thus, the trial court’s final order and judgment denying the defendant’s counterclaim for a declaratory judgment had to be vacated, and the case was remanded for the trial court to dismiss the counterclaim without prejudice. Strong v. JWM Holdings, LLC, 341 Ga. App. 309, 800 S.E.2d 380, 2017 Ga. App. LEXIS 187 (2017). Insurer not required to rescind policy and return premium before seeking judgment. - Based on evidence from an insurance underwriter that the underwriter would have rejected an application for crime coverage if the application had accurately stated that the insured was not audited by a CPA and did not require countersignatures on checks, these misrepresentations were material under O.C.G.A. § 33-24-7(b) and entitled the insurer to a declaratory judgment; the insurer was not required to rescind the policy and return the premium prior to seeking judgment. Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 336 Ga. App. 795, 783 S.E.2d 441, 2016 Ga. App. LEXIS 229 (2016), cert. denied, No. S16C1468, 2016 Ga. LEXIS 714 (Ga. Oct. 31, 2016). Declaratory judgment action not justified to challenge will. - Probate court properly dismissed the brothers’ petition because the proposed declaratory judgment action would have triggered the in terrorem clause since although the brothers claimed that their proposed declaratory judgment action sought to interpret the father’s will, the proposed declaratory judgment action made clear that what the brothers truly sought was to remove the father’s girlfriend as a beneficiary, executor, and trustee. In re Estate of Johnson, 352 Ga. App. 164, 834 S.E.2d 283, 2019 Ga. App. LEXIS 543 (2019).

RESEARCH REFERENCES Am. Jur. 2d. 22A Am. Jur. 2d, Declaratory Judgments, §§ 1 et seq., 5, 6, 11. C.J.S. 26 C.J.S., Declaratory Judgments, § 1 et seq. U.L.A. Uniform Declaratory Judgments Act (U.L.A.) § 12. ALR. Declaration of rights or declaratory

judgments, 12 A.L.R. 52; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205; 114 A.L.R. 1361; 142 A.L.R. 8. What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.