Gardei v. Conway, S21G0430

CourtSupreme Court of Georgia
Writing for the CourtMcMillian, Justice.
Citation313 Ga. 132,868 S.E.2d 775
Parties GARDEI v. CONWAY et al.
Decision Date01 February 2022
Docket NumberS21G0430

313 Ga. 132
868 S.E.2d 775

GARDEI
v.
CONWAY et al.

S21G0430

Supreme Court of Georgia.

Decided: February 1, 2022


Mark Allen Yurachek, Yurachek & Associates, LLC, 1344 La France Street NE, Suite #3, Atlanta, Georgia 30308, for Appellant.

Thomas Monroe Mitchell, Carothers & Mitchell, LLC, 1809 Buford Highway, Buford, Georgia 30518, Tuwanda Rush Williams, Murray Joseph Weed, Gwinnett County Department of Law, 75 Langley Drive, Lawrenceville, Georgia 30045-3520, Patricia B. Attaway Burton, Deputy Attorney General, Elizabeth McRary Crowder, Tina Michelle Piper, Assistant Attorney General, Christopher M. Carr, Attorney General, Andrew Alan Pinson, Solicitor-General, Drew F. Waldbeser, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, for Appellee.

McMillian, Justice.

313 Ga. 132

Carl Gardei filed a petition for declaratory judgment against R. L. "Butch" Conway, the Sheriff of Gwinnett County, and D. Victor Reynolds, the Director of the Georgia Bureau of Investigation ("GBI"), in their individual capacities (collectively "Respondents"),1 alleging that Respondents’ continued enforcement against him of the statutory requirements governing Georgia's Sex Offender Registry (the "Registry"),

313 Ga. 133

see OCGA §§ 42-1-12 through 42-1-19 (the "Registry Act"), violated his constitutional rights. The trial court dismissed Gardei's petition on the ground that his claims for relief were time-barred under OCGA § 9-3-33,2 the two-year statute of limitation for personal injury claims, because Gardei had initially registered 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 declaratory and injunctive relief are subject to the limitation period set forth in OCGA § 9-3-33 and whether any applicable statute of limitation was tolled based on the requirement that Gardei annually renew his sex-offender registration. As explained below, we conclude that although Gardei's claims are subject to the two-year statute of limitation under OCGA § 9-3-33, because he seeks only prospective

868 S.E.2d 777

relief, the statute of limitation on those claims has not yet begun to run.3 Therefore, we reverse the Court of Appeals's judgment holding that Gardei's claims are time-barred and remand the case for further proceedings.

Because we are reviewing an order on a motion to dismiss, we accept as true the well-pled material allegations of Gardei's amended petitions and resolve any doubts in his favor. See Williams v. DeKalb County , 308 Ga. 265, 270 (2), 840 S.E.2d 423 (2020). Viewed in that light, Gardei's petition alleges that he pleaded guilty in 1992 to three counts each of sexual abuse, attempted sexual assault, and kidnapping in Arizona. He was released from prison in 2003, without any requirement for additional supervision or registration in Arizona. However, Gardei immediately moved to New Mexico, where he was required to register as a sex offender for a period of ten years based on his Arizona convictions. Gardei then moved from New Mexico to Georgia in 2009, before the ten-year New Mexico registration requirement had expired. Upon his arrival in Georgia, Gardei registered as a sex offender in accordance with the then-existing version of the

313 Ga. 134

Registry Act.4 Since that time, Gardei has complied with the Registry Act's requirement that he renew his sex offender registration each year. See OCGA § 42-1-12 (f) (4).5

However, Gardei now asserts that his Arizona offenses would not have required his registration on any basis other than the nonresident provisions of OCGA § 42-1-12 (e) (6) to (8) and that he has not committed any other criminal offenses. Therefore, since he would no longer be required to be registered as a sexual offender in New Mexico, Gardei argues he should no longer be subject to registration in Georgia or to the annual renewal requirement.

On October 22, 2018, Gardei filed his petition against Respondents,6 asking the trial court for declaratory and injunctive relief from Respondents’ continued enforcement of OCGA § 42-1-12, which he asserted violated the equal protection clause, due process clause, and the privileges and immunities clause of the United States Constitution and parallel provisions in the Georgia Constitution, and the retroactive laws clause and the citizen status clause of the Georgia Constitution, both facially and as applied. Gardei asked the trial court to declare that the statute is unconstitutional and that he is not subject to its requirements. Gardei also sought an injunction barring the enforcement of the Registry Act requirements against

313 Ga. 135

him

868 S.E.2d 778

and requested an award of his attorney fees, expenses, and costs.

After Gardei filed his petition, Conway and Reynolds each moved for dismissal on the ground that Gardei failed to state a claim under OCGA § 9-11-12 (b) (6). The trial court granted the Respondents’ motions to dismiss, concluding that Gardei's claims are time-barred under the two-year statute of limitation for personal injury actions set forth in OCGA § 9-3-33. Gardei appealed,7 and the Court of Appeals, in a divided panel opinion, affirmed the trial court's dismissal of the petition, holding that OCGA § 9-3-33 applied to Gardei's claims, see Gardei , 357 Ga. App. at 541 (1), 851 S.E.2d 170, and that the annual registration requirement did not toll the limitation period under the "continuing violation" doctrine.8 See id. at 541-42 (2), 851 S.E.2d 170. In dissent, then-Chief Judge McFadden agreed that OCGA § 9-3-33 applied to Gardei's claims, but concluded that, because Gardei claims the "violations of his constitutional rights have continued into the present because he must re-register as a sex offender every year," his action is not time-barred under the continuing violation doctrine. Id. at 545 (2), 851 S.E.2d 170.

1. The threshold issue is whether a statute of limitation applies to Gardei's claims. Gardei argues that the Declaratory Judgment Act is a statutorily created cause of action and, because the Act does not include a statute of limitation, declaratory judgment actions are not subject to any statute of limitation. We disagree.

The Declaratory Judgment Act provides:

In cases of actual controversy, the respective superior courts of this state and the Georgia State-wide Business Court shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further
313 Ga. 136
relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.

OCGA § 9-4-2 (a). As described in the Act, the purpose "is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations[.]" OCGA § 9-4-1. See also Love v. Fulton County Bd. of Tax Assessors , 311 Ga. 682, 696 (3) (c), 859 S.E.2d 33 (2021) ("[T]he object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated." (citation omitted)); Baker v. City of Marietta , 271 Ga. 210, 213 (1), 518 S.E.2d 879 (1999) ("The Declaratory Judgment Act provides a means by which a superior court simply declares the rights of the parties or expresses its opinion on a question of law, without ordering anything to be done." (cleaned up)).

Thus, the Declaratory Judgment Act merely creates a procedural device for the declaration of rights between parties and does not otherwise override substantive or procedural law. Indeed, over 70 years ago, this Court determined that the predecessor to the current Declaratory Judgment Act "does not nullify statutes of limitations and established principles of law[.]" Bingham v. Citizens of Southern Nat. Bank , 205 Ga. 285, 288, 53 S.E.2d 228 (1949). Accord Burgess v. Burgess , 210 Ga. 380, 383 (2), 80 S.E.2d 280 (1954) (quoting Bingham );

868 S.E.2d 779

Capitol Infrastructure, LLC v. Plaza Midtown Residential Condo. Assn., Inc. , 306 Ga. App. 794, 800, 702 S.E.2d 910 (2010) (rejecting party's contention that the Declaratory Judgment Act "tolls, enlarges, or otherwise nullifies" the applicable limitation period). See also OCGA § 9-3-3 ("Unless otherwise provided by law, limitation statutes shall apply equally to all courts.").

In Bingham , we held that the trial court properly sustained demurrers to the petitioner's suit for declaratory judgment to declare his rights under a will after two previous proceedings in the same court had adjudicated the issues. See 205 Ga. at 285-86, 53 S.E.2d 228. These prior proceedings occurred more than three years before the filing of the declaratory judgment action was brought, and therefore, the...

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3 practice notes
  • Terrell v. State, S21A0942
    • United States
    • Supreme Court of Georgia
    • 1 Febrero 2022
    ...only the effects of matters determined to be error rather than the cumulative effect of non-errors." (citation and punctuation omitted)).313 Ga. 132 7. Although Terrell does not raise the issue on appeal, we have identified a merger issue in his sentencing. See Dixon v. State , 302 Ga. 691,......
  • Hicks v. Universal Health Servs., A22A0204
    • United States
    • United States Court of Appeals (Georgia)
    • 17 Junio 2022
    ...purposes of addressing the partial motion to dismiss, we take as true the allegations of the complaints. See generally Gardei v. Conway, 313 Ga. 132, 133 (868 S.E.2d 775) (2022) ("Because we are reviewing an order on a motion to dismiss, we accept as true the well-pled material allegations ......
  • Gardei v. Conway, A20A0818
    • United States
    • United States Court of Appeals (Georgia)
    • 23 Agosto 2022
    ...case remanded with direction. McFadden, P. J., and Hodges, J., concur 1 --------- Notes: [1] 357 Ga.App. 539 (851 S.E.2d 170) (2020). [2] 313 Ga. 132 (868 S.E.2d 775) (2022). --------- ...
4 cases
  • Terrell v. State, S21A0942
    • United States
    • Supreme Court of Georgia
    • 1 Febrero 2022
    ...only the effects of matters determined to be error rather than the cumulative effect of non-errors." (citation and punctuation omitted)).313 Ga. 132 7. Although Terrell does not raise the issue on appeal, we have identified a merger issue in his sentencing. See Dixon v. State , 302 Ga. 691,......
  • Hicks v. Universal Health Servs., Inc., A22A0204, A22A0205
    • United States
    • United States Court of Appeals (Georgia)
    • 17 Junio 2022
    ...purposes of addressing the partial motion to dismiss, we take as true the allegations of the complaints. See generally Gardei v. Conway , 313 Ga. 132, 133, 868 S.E.2d 775 (2022) ("Because we are reviewing an order on a motion to dismiss, we accept as true the well-pled material allegations ......
  • Hicks v. Universal Health Servs., A22A0204
    • United States
    • United States Court of Appeals (Georgia)
    • 17 Junio 2022
    ...purposes of addressing the partial motion to dismiss, we take as true the allegations of the complaints. See generally Gardei v. Conway, 313 Ga. 132, 133 (868 S.E.2d 775) (2022) ("Because we are reviewing an order on a motion to dismiss, we accept as true the well-pled material allegations ......
  • Gardei v. Conway, A20A0818
    • United States
    • United States Court of Appeals (Georgia)
    • 23 Agosto 2022
    ...case remanded with direction. McFadden, P. J., and Hodges, J., concur 1 --------- Notes: [1] 357 Ga.App. 539 (851 S.E.2d 170) (2020). [2] 313 Ga. 132 (868 S.E.2d 775) (2022). --------- ...

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