Department of Transportation v. Mixon

312 Ga. 548

864 S.E.2d 67

DEPARTMENT OF TRANSPORTATION

v.MIXON.

S20G1410

Supreme Court of Georgia.

Decided: October 5, 2021

Christopher M. Carr, Attorney General, Loretta L. Pinkston-Pope, Senior Assistant Attorney General, Kathleen S. Turnipseed, Assistant Attorney General, Angela Ellen Cusimano, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Kathleen M. Pacious, Deputy Attorney General, Office of the Attorney General, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, for Appellant.

Douglas Lamar Gibson, Gibson & Associates, PC, P. O. Box 1589, Waycross, Georgia 31502-1589, for Appellee.

Peterson, Justice.

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) (the "Just Compensation Provision"). This Court has long held that this Provision waives sovereign immunity for inverse condemnation claims seeking monetary compensation.¹ In this case, the Court of Appeals relied on that precedent to conclude that the Provision also waives sovereign immunity for inverse condemnation claims seeking injunctive relief. See Dept. of Transp. v. Mixon , 355 Ga. App. 463, 465 (1), 467 (3), 844 S.E.2d 524 (2020). We granted certiorari, and we conclude that the 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. This waiver under the Just Compensation Provision, however, 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. Because Mixon's claim for injunctive relief — at least in this procedural posture — falls into at least one of the two categories of situations in which the Just Compensation Provision acts as a waiver of sovereign immunity for injunctive relief, we affirm.

1. Background.

Cathy Mixon sued the Georgia Department of Transportation ("GDOT" or "the State"), bringing claims of nuisance and inverse condemnation based on alleged flooding on her property following a road-widening project. Mixon claims that GDOT's failure to maintain its storm water drainage systems has resulted in regular flooding, drainage, and erosion problems "within and around" her property. Her complaint seeks "just and adequate compensation" for the alleged taking, other money damages, attorney fees, and a permanent injunction "to prevent future nuisance and continual trespass[.]" GDOT filed a motion to dismiss, which the trial court granted in part and denied in part. In particular, the trial court dismissed any claims arising from professional negligence (due to the lack of an expert affidavit, as required by OCGA § 9-11-9.1 ) and any claims arising more than four years prior to the filing of the complaint (due to the applicable statute of limitations). The trial court otherwise denied GDOT's motion. Among other things, the trial court rejected GDOT's argument that sovereign immunity barred Mixon's claims.

The Court of Appeals granted GDOT's application for interlocutory appeal and then affirmed, holding in relevant part that the trial court did not err in ruling that sovereign immunity is waived for Mixon's claims for damages and injunctive relief. See Mixon , 355 Ga. App. at 465 (1), 467 (3), 844 S.E.2d 524. As to Mixon's inverse condemnation claim for damages, the Court of Appeals properly applied Georgia appellate precedent holding that the Just Compensation Provision waives sovereign immunity for damages claims premised on a taking or damaging of private property. See id. at 465 (1), 844 S.E.2d 524 (citing Ga. Dept. of Natural Resources v. Center for a Sustainable Coast , 294 Ga. 593, 600 (2), 755 S.E.2d 184 (2014), and Bray v. Dept. of Transp. , 324 Ga. App. 315, 317 (2), 750 S.E.2d 391 (2013) ). GDOT also argued that sovereign immunity barred Mixon's claim for injunctive relief. But the Court of Appeals rejected that argument by merely referring back to its analysis as to whether Mixon's damages claim was barred by sovereign immunity:

As discussed in greater detail in Division 1, sovereign immunity does not apply to Mixon's claim for inverse condemnation arising out of a nuisance. Accordingly, the trial court did not err in refusing to apply the doctrine of sovereign immunity to dismiss Mixon's claim for injunctive relief.

Mixon , 355 Ga. App. at 467 (3), 844 S.E.2d 524.

We granted GDOT's petition for a writ of certiorari to address whether sovereign immunity had been waived for Mixon's claim for injunctive relief. We affirm, although with different reasoning and a narrower holding.

2. Analysis.

This case involves the interaction between two longstanding principles of Georgia law. The first principle, known as sovereign immunity, provides that the State cannot be subjected to any legal action without its express consent. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). The second principle, embodied in the Just Compensation Provision, provides that although the government may take or damage private property for public use, it must pay the property owner "just and adequate compensation," and that payment generally must precede the taking or damaging unless an exception applies. Ga. Const. of 1983, Art. I, Sec. III, Par. I (a).

We thus review the standard for waiver of sovereign immunity and our prior treatment of the Just Compensation Provision, particularly with respect to the extent to which that Provision acts as a waiver of sovereign immunity. We conclude that the Just Compensation Provision waives sovereign immunity for some claims of injunctive relief. We also recognize that textual changes to the Just Compensation Provision — with which this Court has not grappled previously — may limit the scope of that waiver for claims for injunctive relief, but not in a way that affects this case in its current posture.

(a) A constitutional provision may waive sovereign immunity by necessary implication, not merely by explicit language.

Article I, Section II, Paragraph IX of the Georgia Constitution states that, except as otherwise provided in that paragraph, "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).² This provision reserved constitutionally the common-law doctrine of sovereign immunity as traditionally understood by Georgia courts. See Lathrop v. Deal , 301 Ga. 408, 423 (II) (C), 801 S.E.2d 867 (2017). That common-law doctrine "was understood ... as a principle derived from the very nature of sovereignty" and generally provided that "[t]he State could not, without its own express consent, be subjected to an action of any kind." Id. at 412-413 (II) (A), 801 S.E.2d 867 (citation and punctuation omitted). "[A]bsent some waiver by the Georgia Constitution itself or the statutory law, the doctrine of sovereign immunity bars suits for injunctive ... relief against the State, its departments, and its officers in their official capacities[.]" Bd. of Commrs. of Lowndes County v. Mayor and Council of the City of Valdosta , 309 Ga. 899, 903 (2) (a), 848 S.E.2d 857 (2020).

"The burden of demonstrating a waiver of sovereign immunity rests upon the party asserting it." Ga. Dept. of Labor v. RTT Assocs., Inc. , 299 Ga. 78, 81 (1), 786 S.E.2d 840 (2016). Implied waivers of sovereign immunity are generally disfavored. See Ga. Dept. of Corrections v. Couch , 295 Ga. 469, 473-474 (2), 759 S.E.2d 804 (2014) ; Colon v. Fulton County , 294 Ga. 93, 95 (1), 751 S.E.2d 307 (2013), overruled on other grounds by Rivera v. Washington , 298 Ga. 770, 778 n.7, 784 S.E.2d 775 (2016) ; Currid v. DeKalb State Court Probation Dept. , 285 Ga. 184, 186-187, 674 S.E.2d 894 (2009). But we have recognized implied waivers when the implication necessarily arises. See Colon , 294 Ga. at 95-96 (1), 751 S.E.2d 307 (sovereign immunity does not bar claims under whistleblower retaliation statute, OCGA § 45-1-4, given that statute specifically creates a right of action against the government that would otherwise be barred by sovereign immunity and expressly states that an aggrieved party may collect money damages against the government in connection with a successful claim); SJN Properties, LLC v. Fulton County Bd. of Assessors , 296 Ga. 793, 799 (2) (b) (ii) & n.6, 770 S.E.2d 832 (2015) (sovereign immunity does not preclude claims for mandamus relief under OCGA § 9-6-20 given express statutory authorization for actions that by their nature may be sought only against public officials). Similarly, a constitutional provision may waive sovereign immunity by necessary implication. See State Highway Dept. of Ga. v. McClain , 216 Ga. 1, 4 (2), 114 S.E.2d 125 (1960) ("It is, of course, well settled that a county in virtue of being a subdivision of the State is not liable to suit for any cause of action unless made so by statute or by necessary implication from some provision of the Constitution. " (emphasis supplied)). And it is on this theory that we have indicated that the Just Compensation Provision waives sovereign immunity as to claims for money damages flowing from a nuisance. See Center for a Sustainable Coast , 294 Ga. at 600 (2), 755 S.E.2d 184 (explaining that the previously recognized "nuisance" exception to sovereign immunity "was not an exception at all, but instead[ ] a proper recognition that the [Georgia] Constitution itself requires just compensation for takings and cannot, therefore, be understood to...