POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC.
CUNARD et al.
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. 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.
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. 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.
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.
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
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.
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"),  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.
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.
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
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.
Motion for ...