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Polo Golf and Country Club Homeowners Association, Inc. v. Cunard

Supreme Court of Georgia

September 23, 2019

POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC.
v.
CUNARD et al.

          Benham, Justice.

         Appellant Polo Golf and Country Club Homeowners Association, Inc. ("PGHOA") filed a complaint for declaratory and injunctive relief against appellees John Cunard, Director of Forsyth County's Department of Engineering, and Benny Dempsey, Stormwater Division Manager of Forsyth County's Department of Engineering (the "stormwater executives"), in their individual capacities to determine their constitutional authority to prospectively enforce an addendum to Forsyth County's stormwater ordinance.[1] The stormwater executives filed a motion for judgment on the pleadings, and all parties filed motions for summary judgment. The trial court granted the motion for judgment on the pleadings in favor of the stormwater executives, denying the motions for summary judgment as moot.

         According to the complaint filed in this matter and considered by the trial court, PGHOA is a nonprofit corporation which oversees a housing subdivision in unincorporated Forsyth County called "the Polo Fields." The stormwater mechanisms in the subdivision including the Wellington Dam, which shores up a body of water known as the Wellington Lake, are failing due to age. The failure of these various stormwater mechanisms has caused flooding, sinkholes, and other property damage for some individual homeowners. This situation has resulted in almost a decade's worth of litigation, including a previous decision in this Court concerning similar underlying facts and some of the same parties. See Polo Golf and Country Club Homeowners' Assoc., Inc. v. Rymer, 294 Ga. 489 (754 S.E.2d 42) (2014) ("Polo Golf I"). In Polo Golf I, John and Diane Rymer, who were individual homeowners of the Polo Fields, PGHOA, and Forsyth County disagreed as to who was responsible for repairing failing stormwater mechanisms affecting the Rymers' property pursuant to the 2004 version of Section 4.2.2 set forth in Forsyth County's Addendum to the Georgia Stormwater Management Design Manual.[2] The 2004 version of Section 4.2.2 provided in pertinent part as follows:

When a subdivision or industrial/commercial park has a legally created property or homeowners association, the association will be responsible for maintenance of all drainage easements and all stormwater facilities within the entire development. . . . Forsyth County Department of Engineering, Stormwater Division personnel may perform periodic inspections of existing and new private stormwater management facilities to determine whether they are maintained properly. Deficiencies will be noted to the association in writing. It shall be the responsibility of the association to repair deficiencies in a timely manner.

         In Polo I, PGHOA contended the 2004 version of Section 4.2.2 was unconstitutional; however, this Court did not reach the constitutional issue in Polo I because we concluded that the provision applied to new developments and redevelopments, but not to already-existing developments such as the Polo Fields. 294 Ga. at 495.

         In January 2014, while this Court's decision in Polo Golf I was still pending, Forsyth County enacted a new version of Section 4.2.2 which now states in pertinent part as follows:

When any subdivision or industrial/commercial park, whether new or existing, has a legally created property or homeowners association, the association will be responsible for maintenance of all drainage easements and all stormwater facilities within the entire development.

(Emphasis supplied.) It is this 2014 version of Section 4.2.2 that is at issue in this appeal.

         PGHOA argued below and continues to argue on appeal that the 2014 version of Section 4.2.2 is unconstitutional because: (1) it impairs PGHOA's contractual obligations with homeowners inasmuch as the 2014 version of Section 4.2.2 makes PGHOA responsible for the maintenance of all stormwater mechanisms within the subdivision and (2) it is retrospective in nature. According to PGHOA's complaint, the 2014 version of Section 4.2.2 precludes it from enforcing the Declaration of Covenants, Restrictions and Easements (the "Declaration"), [3] which requires individual homeowners of the Polo Fields to maintain such drainage and stormwater mechanisms. The trial court rejected these constitutional challenges to the 2014 version of Section 4.2.2. Because it determined that the 2014 version of 4.2.2 was constitutional, the trial court concluded the stormwater executives were immune from suit based on the doctrine of sovereign immunity and granted the stormwater executives' motion for judgment on the pleadings. This appeal followed.

         1. Preliminary Matters

         a. The trial court ruled that granting the motion for judgment on the pleadings was justified in part because it concluded sovereign immunity applied after it first determined PGHOA's private contract-based constitutional claims were not viable. The trial court's analysis was incorrect. Sovereign immunity is a threshold determination that must be ruled upon prior to the case moving forward on the more substantive matters. See McConnell v. Department of Labor, 302 Ga. 18, 19 (805 S.E.2d 79) (2017) ("[T]he applicability of sovereign immunity is a threshold determination, and, if it does apply, a court lacks jurisdiction over the case and, concomitantly, lacks authority to decide the merits of a claim that is barred."). Accordingly, the trial court erred when it did not make a ruling on whether sovereign immunity applied before it considered more substantive matters.

         The trial court's finding that sovereign immunity barred PGHOA's suit was also erroneous. As we stated in Lathrop v. Deal, "the doctrine of sovereign immunity usually poses no bar to suits [for prospective relief] in which state officers are sued in their individual capacities for official acts that are alleged to be unconstitutional." 301 Ga. 408 (III) (C) (801 S.E.2d 867) (2017). Here, PGHOA sued the stormwater executives in their individual capacities for prospective relief from acts which PGHOA alleged were unconstitutional. Accordingly, the suit was not barred by sovereign immunity. Id. Therefore, the portion of the trial court's judgment dismissing the case on sovereign immunity grounds is reversed.

         b. The stormwater executives' argument that PGHOA lacks standing is incorrect. The stormwater executives allege the dismissal of the suit was authorized because PGHOA lacks standing, inasmuch as the stormwater executives have not taken any enforcement actions against PGHOA for the failing stormwater mechanisms at the Polo Fields. However, "a party has standing to pursue a declaratory action where the threat of an injury in fact is 'actual and imminent, not conjectural or hypothetical.' [Cit.]." Women's Surgical Center, LLC v. Berry, 302 Ga. 349 (1) (806 S.E.2d 606) (2017). Forsyth County enacted the 2014 version of Section 4.2.2 while this Court's decision in Polo I was pending. In Polo I, Forsyth County, through its counsel - who also represents the stormwater executives in this case - filed a motion for reconsideration in which it stated its intent to enforce the 2014 version of 4.2.2 against PGHOA. During the oral argument in this appeal, counsel for the stormwater executives admitted that the stormwater executives would be the county personnel who would enforce Section 4.2.2 against PGHOA. Thus the enforcement of Section 4.2.2 is imminent in these circumstances and not merely conjectural or hypothetical, meaning that PGHOA does not lack standing. See id. at 351.

         2. Motion for ...


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