Gardei v. Conway

Citation851 S.E.2d 170,357 Ga.App. 539
Decision Date02 November 2020
Docket NumberA20A0818
Parties GARDEI v. CONWAY et al.
CourtUnited States Court of Appeals (Georgia)

Mark Allen Yurachek, for Appellant.

Tuwanda R. Williams, Murray J. Weed ; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Tina M. Piper, Senior Assistant Attorney General, Rebecca J. Dobras, Assistant Attorney General, for Appellees.

Doyle, Presiding Judge.

Carl Gardei, who previously had been classified as a sex offender in Arizona, filed a petition for declaratory judgment against Gwinnett County Sheriff R. L. Conway and Georgia Bureau of Investigation Director Victor Reynolds, seeking: (1) a declaration that Georgia's sex offender registration statute1 is unconstitutional and that he is not subject to its requirements; and (2) an injunction to bar enforcement of the sex offender registry statute against him. The trial court dismissed the petition as untimely under the two-year statute of limitation for personal injury claims set forth in OCGA § 9-3-33. Gardei appeals, and we affirm for the reasons that follow.

In his 2018 petition, Gardei alleges that he pleaded guilty to three counts each of sexual abuse, attempted sexual assault, and kidnapping in Arizona in 1992. Upon his release from prison in 2003, he moved to New Mexico, where he was required to register as a sex offender. In 2009, Gardei moved from New Mexico to Georgia, registered as a sex offender here, and complied with the requirement that he re-register as a sex offender each year.

Gardei's petition seeks a declaration that Georgia's sex offender registry statute violates the United States Constitution and the Georgia Constitution. Gardei claims that he should not be required to register as a sex offender and that he is entitled to injunctive relief prohibiting enforcement of the statute against him. He also requests an award of attorney fees and other relief deemed appropriate by the court.

Both Conway and Reynolds moved to dismiss the petition for failure to state a claim under OCGA § 9-11-12 (b) (6). The trial court granted the motions to dismiss, finding that Gardei's claims are time-barred by the two-year statute of limitation set forth in OCGA § 9-3-33. This appeal followed.

"[A] motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim."2 "A statute of limitation defense goes to the merits of the claim, and is therefore subject to a motion to dismiss under OCGA § 9-11-12 (b) (6)."3 "A motion to dismiss barred claims is properly granted when a complaint shows on its face that the statute of limitation has run and there is no further showing by amendment or by affidavit that a tolling of the statute is possible."4

1. Two-year statute of limitation. Gardei argues that the trial court erred by applying the two-year statute of limitation set forth in OCGA § 9-3-33 to his claims. We disagree.

Pursuant to OCGA § 9-3-33, "actions for injuries to the person shall be brought within two years after the right of action accrues." Gardei, however, argues that this Code section does not apply here and that there is no statute of limitation applicable to declaratory judgment actions under OCGA § 9-4-2. But the omission of a specific statute of limitation for declaratory judgment actions does not mean that a party can avoid an otherwise applicable statute of limitation.5

The purpose of the Declaratory Judgment Act "is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations[.]"6 The Act grants "respective superior courts of this state ... [the] power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration."7 Thus, a declaratory judgment is a procedural device to determine the legal rights of a party, rather than a substantive claim.8 And it is the nature of the underlying substantive claim that determines the applicable statute of limitation.

Here, as the trial court stated in its dismissal order, "the entirety of [Gardei's] lawsuit rests on the allegation that OCGA § 42-1-12 is unconstitutional and that [the d]efendants’ enforcement of OCGA § 42-1-12 has personally injured him." Accordingly, the two-year statute of limitation set forth in OCGA § 9-3-33 applies to Gardei's claims.

2. No continuing violation.

Gardei further argues that the limitation period is extended because the defendants’ requirement that he annually renew his sex offender registration each year constitutes a continuing violation. We disagree.

"Under [the continuing-violation] doctrine, a plaintiff can sue for actions that occurred outside the applicable limitations period if a defendant's conduct is part of a continuing practice and the last act evidencing the continuing practice falls within the limitations period."9 An analysis of whether an action constitutes a continuing violation "distinguishes between ‘the present consequence of a one[–]time violation, which does not extend the limitations period, and the continuation of the violation into the present, which does.’ "10

Here, the defendants allegedly violated Gardei's rights in 2009, when he was required to register as a sex offender in Georgia, at which time he "he knew, or should have known, all of the facts necessary to pursue a cause of action[.]"11 As the Eleventh Circuit concluded in a similar, albeit unpublished case,

the act [Gardei] contends violated his due-process rights was his classification as a sex offender subject to ... registration requirements. This classification will continue to have effects on [Gardei] into the future, but a new act has not occurred every time [Gardei] feels one of those continuing effects. For this reason, the continuing-violation doctrine does not apply to [Gardei's] claim, and the [trial] court did not err [by] dismissing his claim as untimely.12

Judgment affirmed.

Hodges, J., concurs. McFadden, C. J., concurs in part and dissents in part in Division 1 and dissents as to Division 2.

McFadden, Chief Judge, concurring in part and dissenting in part.

I concur in part and dissent in part to Division 1 of the majority opinion, and dissent to all of Division 2. I agree with the majority that the two-year statute of limitation set forth in OCGA § 9-3-33 governs Gardei's federal and state constitutional claims. But his claims are not barred by that statute because the requirement that Gardei re-register as a sex offender each year constitutes a continuing violation that extended the limitation period.

1. Applicability of two-year statute of limitation.

I concur in the majority's finding in Division 1 that OCGA § 9-3-33 provides the applicable statute of limitation in this case. But I dissent to the extent that the majority implicitly holds in Division 1 that Gardei's respective federal and state constitutional claims are time-barred by that statute.

(a) Declaratory judgment.

As an initial matter, I agree with the majority's rejection of Gardei's contention that the two-year statute of limitation set forth in OCGA § 9-3-33 does not apply to his claims because he sought declaratory judgment pursuant to OCGA § 9-4-2, which has no statute of limitation. "[T]he Supreme Court of Georgia has held that the Declaratory Judgments Act[, OCGA § 9-4-1 et seq. ,] does not nullify statutes of limitation[ ]." Capitol Infrastructure v. Plaza Midtown Residential Condo. Assn. , 306 Ga. App. 794, 800 (1), 702 S.E.2d 910 (2010) (citation and punctuation omitted). Accord Burgess v. Burgess , 210 Ga. 380, 383 (2), 80 S.E.2d 280 (1954) (declaratory judgment act does not nullify statutes of limitation). Gardei "has cited no authority that filing a declaratory judgment petition tolls, enlarges, or otherwise nullifies [an applicable] time period expressly prescribed in [a statute of limitation], and we find none." Capitol Infrastructure , 306 Ga. App. at 800 (1), 702 S.E.2d 910 (dismissing declaratory judgment action where applicable statutory time period had expired). See also Collins v. Fulton County School Dist. , 2012 WL 7802745, 2012 U. S. Dist. LEXIS 187392, *102 (N.D. Ga. 2012) ("Plaintiff cannot escape the limitations period governing breach of contract claims by re-casting his claim as seeking declaratory judgment that the contract was breached.... [D]eclaratory relief is a mere procedural device by which various types of substantive claims — in this case, alleged breach of contract — may be vindicated. Thus, Plaintiff's request for declaratory relief based on the alleged breach is no more timely than a request for damages or other relief.") (citations and punctuation omitted); National Union Fire Ins. Co. v. F. Vicino Drywall II, 2011 WL 13214288, *5, 2011 U.S. Dist. LEXIS 169108, *13 (III) (c) (S.D. Fla. 2011) (discussing Eleventh Circuit cases that "involved Georgia's Declaratory Judgment Act, which is undisputedly procedural") (punctuation omitted); Acevedo v. Kim , 284 Ga. 629, 631-633 (2), 669 S.E.2d 127 (2008) (discussing declaratory judgment action as procedural vehicle for resolving certain underlying claims); Morgan v. Guaranty Nat. Cos. , 268 Ga. 343, 345, 489 S.E.2d 803 (1997) (same).

The trial court therefore did not err in applying the statute of limitation to Gardei's action simply because it seeks declaratory judgment; rather, as stated by the majority, we must look to the substance of the underlying claims to determine the applicable statute of limitation. See Luckenbach Steamship Co. v. United States , 312 F.2d 545, 548 (2nd Cir. 1963) (substance of the claim underlying an action for declaratory judgment determines the applicable statute of limitation).

(b) Federal constitutional claims.

The appellees assert that Gardei originally filed an identical lawsuit in federal court pursuant to 42 USC § 1983, that he voluntarily dismissed that suit after a...

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3 cases
  • Gardei v. Conway
    • United States
    • Georgia Supreme Court
    • February 1, 2022
    ...under the Registry Act in 2009 and every year thereafter. The Court of Appeals affirmed in a divided opinion. See Gardei v. Conway , 357 Ga. App. 539, 851 S.E.2d 170 (2020). We granted Gardei's petition for certiorari, noting our particular concern as to whether Gardei's claims for declarat......
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    • United States
    • Georgia Court of Appeals
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    • United States
    • Georgia Court of Appeals
    • August 23, 2022
    ...the Supreme Court's opinion.Judgment reversed and case remanded with direction. McFadden, P. J., and Hodges, J., concur.1 357 Ga. App. 539, 851 S.E.2d 170 (2020).2 313 Ga. 132, 868 S.E.2d 775 ...

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