City of Albany v. Stanford

• Decision Date: 26 June 2018
• Docket Number: A18A0699
• Court: Georgia Court of Appeals
• Parties: CITY OF ALBANY v. STANFORD et al.

347 Ga.App. 95

815 S.E.2d 322

CITY OF ALBANY

v.STANFORD et al.

A18A0699

Court of Appeals of Georgia.

June 26, 2018

Reconsideration Denied July 17, 2018

Certiorari Denied April 29, 2019

C. Nathan Davis ; Freeman Mathis & Gary, Sun S. Choy, Jacob E. Daly, Wesley C. Jackson, for appellant.

Charles M. Cork III ; Adams Jordan & Herrington, Virgil L. Adams, D. James Jordan, Caroline W. Herrington, Dawn M. Lewis ; Bloom Montrueil & Quail, Renay F. Bloom, Marilyn P. Quail, for appellees.

Rusi C. Patel, amicus curiae.

Bethel, Judge.

The City of Albany (the "City") appeals the denial of its motion for judgment notwithstanding the verdict. The City argues that it should have been protected from suit by the doctrine of sovereign immunity. Alternatively, the City argues that the trial court should have granted its motion for judgment notwithstanding the verdict because longstanding precedent bars the plaintiffs’ nuisance claim, crime is not a legal nuisance, and the City cannot be liable for discretionary nonfeasance. We agree that the City is protected from suit here by the doctrine of sovereign immunity and accordingly reverse the judgment of the trial court.

Sheryl Stanford and Wilfred Foster, individually and as co-administrators of LeSheldon Stanford's estate ("Plaintiffs"), allege that although the City of Albany issued an occupational tax certificate to a business known as Brick City to operate as a recording studio and multi-purpose entertainment facility, the business was actually operating as a night club and was serving alcohol without a license. The police became aware of these facts and also learned of several fights that occurred at the location. There were also numerous incidents of drug use and sex involving minors occurring at the location. Because of these problems, the police reached out to the City's code enforcement division in an attempt to shut the business down. Police also raided the business, uncovering evidence of alcohol sales, weapons, and drugs.

Following this incident, the chief of the City's code enforcement division met with Brick City's owners (the Lovings) and advised them of the changes that were required for their business to operate in conformance with its license. However, following numerous complaints regarding the same problems at Brick City, police executed another search warrant, uncovering evidence of alcohol, drugs, and weapons once again. Daniel Loving was arrested for possession of marijuana, and a citation was issued for selling alcohol without a license. The City's code enforcement division then began preparing a recommendation for revocation of Brick City's licenses. However, no City commission hearing on the recommendation occurred, and the business continued to be re-licensed because the district attorney's office and/or police department decided to further investigate possible criminal activity occurring at the business. Violent crime continued to occur there. Plaintiffs allege that as a result of the dangerous conditions at Brick City, of which the City was aware, LeSheldon Stanford was shot and killed by another individual outside the establishment.

Following the murder, Plaintiffs brought suit against the City of Albany and the Albany Board of City Commissioners¹ for nuisance, and Daniel and Molly Loving for various negligence claims. After trial, a jury returned a verdict for Plaintiffs, awarding them $15,200,000, and apportioning 70% of the fault for those damages to the City. The trial court entered judgment on the verdict against the City for $10,640,000, which represented 70% of the total verdict. The City filed a motion for judgment notwithstanding the verdict or for a new trial, which the trial court denied following a hearing. This appeal followed.

"On appeal from the denial of a motion for judgment notwithstanding the verdict, this court must determine whether, construing the evidence in a light most favorable to the party who obtained the jury verdict, there is any evidence to support the jury's verdict."

Holland v. Holland , 277 Ga. 792, 792, 596 S.E.2d 123 (2004). However, questions of law are reviewed de novo,² and a judgment based on an erroneous legal conclusion or theory will be reversed.³

1. The City first argues that it is entitled to sovereign immunity. After reviewing this argument de novo,⁴ we agree.

"Sovereign immunity is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court's subject matter jurisdiction to try the case[.]" Ambati v. Bd. of Regents of Univ. Sys. of Ga. , 313 Ga. App. 282, 282 n.3, 721 S.E.2d 148 (2011) (citation and punctuation omitted). "A court's lack of subject-matter jurisdiction cannot be waived and may be raised at any time either in the trial court, in a collateral attack on a judgment, or in an appeal." Ga. Assn. of Professional Process Servers v. Jackson , 302 Ga. 309, 312 (1), 806 S.E.2d 550 (2017) (citation and punctuation omitted). Here, the City raised the issue of sovereign immunity in its answer and on a motion to dismiss that was denied.

Further, sovereign immunity applies to municipalities, unless waived by the General Assembly or by the terms of the State Constitution itself. Ga. Const. of 1983, Art. IX, Sec. II, Par. IX. See also OCGA § 36–33–1 ; Godfrey v. Ga. Interlocal Risk Mgmt. Agency , 290 Ga. 211, 214, 719 S.E.2d 412 (2011) ; Mayor and Aldermen of City of Savannah v. Herrera , 343 Ga. App. 424, 427 (1), 808 S.E.2d 416 (2017).

Waiver of a municipality's sovereign immunity in tort law is narrow, and only the General Assembly has the authority to enact a law that specifically provides for such a waiver. Any waiver of sovereign immunity is solely a matter of legislative grace. There is no authority for a waiver of sovereign immunity beyond the legislative scheme.

Godfrey , 290 Ga. at 214, 719 S.E.2d 412 (citations and punctuation omitted; emphasis supplied). Thus, the Georgia Constitution confers sovereign immunity on municipalities, and any exception or waiver must be found in that same document or in a law passed by the General Assembly. See Ga. Dep't of Nat. Resources v. Ctr. for a Sustainable Coast, Inc. , 294 Ga. 593, 597 (2), 755 S.E.2d 184 (2014) (noting that the courts no longer have the authority to abrogate or modify the doctrine of sovereign immunity as they could when it was a product of the common law rather than constitutional law). The plaintiffs, who seek to benefit from an alleged waiver of sovereign immunity, have the burden of proving such a waiver. See Albertson v. City of Jesup , 312 Ga. App. 246, 249 (1) n.10, 718 S.E.2d 4 (2011).

Plaintiffs first argue that the doctrine of sovereign immunity does not apply because cities have always been responsible for damages caused by nuisances maintained by the city that endanger life. In short, Plaintiffs argue that an "exception" to sovereign immunity exists for nuisance actions. However, there is no such "exception" applicable to the facts of this case.

In City of Thomasville v. Shank ,⁵ the Supreme Court of Georgia mentioned a "nuisance exception" to sovereign immunity. In that case, the Supreme Court of Georgia stated that a municipality may be liable for damages caused from the operation or maintenance of a nuisance, "irrespective of whether it is exercising a governmental or a ministerial function[,]" because "a municipal corporation can not, under the guise of performing a governmental function, create a nuisance dangerous to life and health or take or damage private property for public purpose without just and adequate compensation being first paid." Id. at 624–625 (1), 437 S.E.2d 306 (citations and punctuation omitted).

The Supreme Court of Georgia later clarified in Georgia Department of Natural Resources v. Center for a Sustainable Coast, Inc. ,⁶ that this language was "rooted in the concept that the government may not take or damage private property for public purposes without just and adequate compensation." Id. at 600 (2), 755 S.E.2d 184. Thus, "the ‘nuisance exception’ recognized in Shank was not an exception at all, but instead, a proper recognition that the Constitution itself requires just compensation for takings and cannot, therefore, be understood to afford immunity in such cases." Id. See also City of Greensboro v. Rowland , 334 Ga. App. 148, 149–150 (1), 778 S.E.2d 409 (2015). Accord City of Columbus v. Myszka , 246 Ga. 571, 571–572 (1), 272 S.E.2d 302 (1980) (nuisance action permitted in a case involving water runoff onto private land); Duffield v. DeKalb Cty. , 242 Ga. 432, 433–434 (2), 249 S.E.2d 235 (1978) (suit permitted against county for nuisance and inverse condemnation where property was allegedly rendered unmarketable due to noise, odor, and pollution resulting from a plant).

But such an "exception" for cases triggering application of the eminent domain clause of the Constitution does not apply here in this case where the "damage" is injury to a person or loss of life.⁷ See, e.g. , Davis v. Effingham Cty. Bd. of Comm'rs , 328 Ga. App. 579, 583 (1) (a), 760 S.E.2d 9 (2014) (with respect to counties, sovereign immunity bars any personal injury or wrongful death action arising from nuisance or inverse condemnation); Bd. of Comm'rs of Glynn Cty. v. Johnson , 311 Ga. App. 867, 871 (1) (c), 717 S.E.2d 272 (2011) ("a personal injury for purposes of inverse condemnation does not constitute personal property that can be taken" (punctuation omitted)); Rutherford v. DeKalb Cty. , 287 Ga. App. 366, 369 (2), 651 S.E.2d 771 (2007) ; Howard v. Gourmet Concepts Int'l, Inc. , 242 Ga. App. 521, 524 (3), 529 S.E.2d 406 (2000). Rather, as indicated above, Plaintiffs must be able to point to some statutory or constitutional provision waiving the City's sovereign immunity. See OCGA § 36–33–1 ; Godfrey , 290 Ga. at 214, 719 S.E.2d 412 ; Herrera , 343 Ga. App. at 427 (1), 808 S.E.2d 416.

To this end, Appellees next argue that the City waived its sovereign immunity under OCGA § 36–33–1 (b). We ...