ELLINGTON, P. J., BETHEL and GOBEIL, JJ.
City of Albany 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.
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.
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.
the murder, Plaintiffs brought suit against the City of
Albany and the Albany Board of City
Commissioners 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.
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,
a judgment based on an erroneous legal conclusion or theory
will be reversed.
City first argues that it is entitled to sovereign immunity.
After reviewing this argument de novo,  we agree.
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
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 (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
n.10 (1) (718 S.E.2d 4) (2011).
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.
City of Thomasville v. Shank,  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 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 ...