DAHLQUIST v. MORRIS (2026)

This case involves a dispute over the use of land by Rocky's Lake Estate, LLC as a special event facility. Christi and Kirk Dahlquist, the owners of property in an adjacent subdivision, brought various claims against two sets of defendants: Cherokee County and several of its officials in their official capacities (collectively, “the county defendants”), and Rocky's Lake Estate and its owner/operator, William “Rocky” Morris (collectively, the “Rocky's Lake defendants”). The trial court granted the county defendants’ motion for judgment on the pleadings and the Rocky's Lake defendants’ motion to dismiss, and the Dahlquists appeal from both rulings.

As detailed below, in each of the orders on appeal the trial court held that the entire lawsuit must be dismissed because the exclusivity requirement of Ga. Const. of 1983, Art. I, Sec. II, Par. V deprived the trial court of jurisdiction over all of the Dahlquists’ claims against both sets of defendants. That rationale is legally incorrect and does not support either order.

In the order granting judgment on the pleadings, the trial court did not address the issue of whether or not the Dahlquists’ claims against the county defendants fall within the waiver of sovereign immunity set forth in Ga. Const. of 1983, Art. I, Sec. III, Par. I(a) (concerning compensation for the taking of private property), which the Dahlquists asserted in their complaint. Instead, the trial court incorrectly held that the Dahlquists had not pled a waiver of sovereign immunity. We vacate the order granting judgment on the pleadings and remand for the trial court to address the applicability of the sovereign immunity waiver in the first instance.

In the order dismissing the claims against the Rocky's Lake defendants, the trial court mischaracterized those claims as attacks on a zoning decision, and she based her legal analysis on that mischaracterization. So we reverse the order dismissing the claims against the Rocky's Lake defendants.

1. Complaint allegations

The operative complaint in this case is the Dahlquists’ “Verified Renewed Complaint,” filed on October 11, 2024. For purposes of today's analysis we assume that the allegations in that complaint are true.

The Dahlquists allege that they own a house in the Fernwood Creek subdivision in unincorporated Cherokee County, adjacent to a 10-acre tract of land owned by Morris. Morris's property is zoned to permit single-family residential and agricultural use.

Several years after the Dahlquists bought their house, Morris began significantly altering his property for use as a commercial special events facility, hosting events for up to 250 guests. That has resulted in the removal of numerous trees from the border with the Dahlquists’ property, construction on the property (in some instances performed without building permits) and increased traffic and noise, including amplified music and noise from helicopters that pick up wedding couples from a helicopter pad built in the middle of a lake on Morris's property. The noise particularly affects the Dahlquists’ property because it is at a higher elevation than other houses in that section of the subdivision.

The Dahlquists allege that the Rocky's Lake defendants’ use of the property violates Cherokee County's noise ordinance and zoning ordinance, including special limitations placed on special event facilities. They allege that the county defendants have allowed these violations to continue.

After Christi Dahlquist complained to the county about the Rocky's Lake defendants’ use of the property, Morris accused her of improperly removing trees to install a putting green in a buffer between their properties. At Morris's bidding, county officials have threatened the Dahlquists with code enforcement violations. In fact, the putting green was installed by a close friend of Morris before the Dahlquists bought the property.

Morris also made a police report against Christi Dahlquist that falsely accused her of trespassing on his property, and at a “meet and greet” event in front of many of the Dahlquists’ neighbors Morris accused Christi Dahlquist of criminal trespass and stated that he had “filed a criminal trespass warrant” against her. In response to Morris's police report, a sheriff's deputy went to the Dahlquists’ house and stated that he was there to arrest Christi Dahlquist. The deputy told Christi Dahlquist that “if Mr. Morris makes a request, we have to honor it.” But in his written report of this incident, the deputy stated that the criminal trespass charge was “unfounded.”

Other neighbors also complained, and county officials met with Morris about some of the noise complaints. Morris agreed to take steps to mitigate the noise from amplified music, but he did not actually do so. And although the county suggested actions that the Dahlquists could take to make noise complaints, such as calling a non-emergency number to request that a deputy marshal be dispatched to Morris's property, the Dahlquists got no meaningful response when they took those actions.

In 2022, the county granted Morris a special event facility special use permit and a non-scheduled chartered air transportation special use permit, which came with specific limitations and restrictions. But the county did not enforce those conditions, and the alleged noise violations have continued.

2. The county defendants

The Dahlquists assert two causes of action against the county defendants: a claim for inverse condemnation based on the county's alleged actions in concurrence with the Rocky's Lake defendants to create and maintain a nuisance; and a claim for a permanent injunction preventing the continued operation of the special event facility on Morris's property.¹ The trial court granted judgment on the pleadings to the county defendants, holding that sovereign immunity barred the claims and, alternatively, that the Dahlquists failed to state a claim upon which relief could be granted.

As detailed below, due to errors in the trial court's analysis, the trial court did not address the merits of the Dahlquists’ claim that a waiver of sovereign immunity applies to their claims. So we vacate the order granting judgment on the pleadings to them and remand for the trial court to address that issue in the first instance.

“The constitutional doctrine of sovereign immunity bars any suit against the State to which it has not given its consent, including suits for injunctive ․ relief[.]” Starship Enters. of Atlanta v. Gwinnett County, 319 Ga. 293, 297(, (903 S.E.2)d 55) (2024) (citation modified). This doctrine applies to counties. Id. “Sovereign immunity can be waived by statute or constitutional amendment[.]” Id. at 298, 903 S.E.2d 55(2). “The burden of demonstrating a waiver of sovereign immunity rests upon the party asserting it.” Ga. Dept. of Labor v. RTT Assocs., 299 Ga. 78, 81, 786 S.E.2d 840 2016. The trial court did not hear evidence or make findings of fact, so we review the trial court's sovereign immunity ruling de novo. See Garner v. Clayton County, 378 Ga. App. 618, 622(3), (926 S.E.2d 842) (2026) (noting that factual findings made in connection with a ruling on sovereign immunity “are sustained if there is any evidence supporting them” (quotation marks omitted)).

The Dahlquists allege in their complaint that their claims for inverse condemnation and injunctive relief fall within the waiver of sovereign immunity set forth in the “just compensation” or “takings clause” of the Georgia Constitution. Ga. Const. of 1983, Art. I, Sec. III, Par. I(a). See Lathrop v. Deal, 301 Ga. 408, 426, 801 S.E.2d 867 (III)(A) (301 Ga. 408, 801 S.E.2d 867) (2017) (“The Georgia courts have long understood the Takings Clause — which specifically prescribes just and adequate compensation as the remedy for an uncompensated taking — to imply a right of action against the government.”).

But the trial court did not address the issue of whether or not the claims set forth in the Dahlquists’ complaint fall within that waiver of sovereign immunity. Instead, the trial court held that sovereign immunity barred the action because the Dahlquists did not plead a waiver of sovereign immunity — a holding belied by the plain language of the Dahlquists’ complaint.

The trial court also held that she lacked subject matter jurisdiction over the action, and was required to dismiss the lawsuit in its entirety, because the Dahlquists did not comply with an exclusivity requirement in a separate constitutional waiver of sovereign immunity, Ga. Const. of 1983, Art. I, Sec. II, Par. V (hereinafter, “Paragraph V”). The waiver set forth in Paragraph V “allows citizens to sue the State ․ for declaratory relief” and, if they obtain a favorable ruling, to then “seek injunctive relief to enforce the court's judgment.” State v. SASS Group, 315 Ga. 893, (885 S.E.2d 761) (2023) (citation modified). Plaintiffs bringing actions pursuant to Paragraph V's waiver of sovereign immunity must comply with that paragraph's exclusivity provision, which provides that “[a]ctions filed pursuant to this Paragraph naming as a defendant any individual, officer, or entity other than as expressly authorized under this Paragraph shall be dismissed.” Ga. Const. of 1983, Art. I, Sec. II, Par. V(b)(2). Consequently, actions taking advantage of the waiver of sovereign immunity in Paragraph V “must be brought exclusively against the State” and “[w]hen a plaintiff's suit violates this exclusivity provision, the Constitution requires the suit to be dismissed.” SASS Group, 315 Ga. at 894, 885 S.E.2d 761 (citation modified).

The trial court held that Paragraph V's exclusivity provision applies to the Dahlquists’ lawsuit and, therefore, the entire lawsuit must be dismissed for lack of subject matter jurisdiction because it names defendants other than the county. The county defendants also assert this reasoning on appeal.

We disagree with this reasoning. Decisions of our Supreme Court and this court construing SASS Group have now explained both that the exclusivity requirement of Paragraph V is procedural, rather than jurisdictional, meaning that a trial court may allow a plaintiff to cure the problem by dropping parties from the action; and that the exclusivity requirement does not apply to actions relying solely on waivers of sovereign immunity other than Paragraph V. See Tussahaw Reserves v. Butts County, 323 Ga. 84, 89-90, 922 S.E.2d 363 2025; Warbler Invs. v. City of Social Circle, 321 Ga. 125, 129-30, 913 S.E.2d 674(3)(a) (321 Ga. 125, 913 S.E.2d 674) (2025); Garner, 378 Ga. App. at 623-25, 926 S.E.2d 842(3).² The Dahlquists did not file their action against the county defendants pursuant to the waiver of sovereign immunity set forth in Paragraph V; as stated above, they filed their action pursuant to the waiver set forth in the “just compensation clause,” Ga. Const. of 1983, Art. I, Sec. III, Par. I(a). Under this circumstance, the procedural exclusivity requirement of Paragraph V does not apply. See Garner, 378 Ga. App. at 624(3), 926 S.E.2d 842. And even if it did apply, it would not divest the trial court of subject matter jurisdiction.

Due to these errors, the trial court did not address the issue of whether or not the constitutional waiver of sovereign immunity pled by the Dahlquists — that in the “just compensation clause” — covers their claims against the county defendants. “[S]overeign immunity is a threshold issue that should be decided before addressing the merits of a plaintiff's claims[.]” Bray v. Watkins, 317 Ga. 703, 704, (895 S.E.2d 282) (2023) (citation modified). Consequently, at this stage we cannot consider the county defendants’ alternative arguments that the Dahlquists failed to state a claim for inverse condemnation or that they have an adequate remedy at law that precludes their claim for injunctive relief. See id. at 705, 895 S.E.2d 282 (holding that it is error for an appellate court to affirm a trial court's ruling on the merits if sovereign immunity has not first been addressed).

Instead, we vacate the trial court's order granting judgment on the pleadings to the county defendants and remand this case for the trial court to address the issue of the applicability of the “just compensation clause” waiver in the first instance and for any further proceedings not inconsistent with this opinion. See Bray v. Watkins, 370 Ga. App. 299, (896 S.E.2d 913) (2024). See also Garner, 378 Ga. App. at 624-25, 926 S.E.2d 842(3).

3. The Rocky's Lake defendants

The Dahlquists assert three causes of action against the Rocky's Lake defendants: a claim for nuisance per se under OCGA § 51-1-6, for violating the special use permit, the zoning ordinance governing special event facilities, and the county noise ordinance; a claim for nuisance per accidens (“a nuisance by reason of circumstances and surroundings,” Galaxy Carpet Mills v. Massengill, 255 Ga. 360, 361, 338 S.E.2d 428 1986) under OCGA §§ 41-1-1 et seq., for engaging in conduct incompatible with the surrounding residential subdivisions; and a claim for a permanent injunction preventing the continuing nuisance on Morris's property. The Dahlquists also assert a claim for slander per se against Morris based on his statements to neighbors at the “meet and greet” event. And they seek punitive damages and attorney fees against the Rocky's Lake defendants.

The trial court dismissed all of these claims with prejudice on the ground that the Dahlquists’ failure to comply with the exclusivity provision of Paragraph V demanded dismissal of the entire lawsuit for lack of subject matter jurisdiction. As discussed above, that legal conclusion was erroneous. It does not support dismissal of the claims against the Rocky's Lake defendants.

Alternatively, the trial court dismissed all but the slander per se claim for lack of subject matter jurisdiction, reasoning that the claims challenged a zoning decision — the 2022 decision to grant Morris a special use permit — but the Dahlquists had failed to timely appeal that zoning decision and lacked standing to mount an attack against it. We disagree with this characterization of the Dahlquists’ complaint.

Because the trial court did not make any factual findings in dismissing the Dahlquists’ claims for lack of subject matter jurisdiction, we review that ruling under the same de novo standard under which we review dismissals for failure to state a claim. See James v. Ga. Dep't of Pub. Safety, 337 Ga. App. 864, 865(1), (789 S.E.2d 236) (2016). The standard “is a demanding one[.]” Norman v. Xytex Corp., 310 Ga. 127, 130(, (848 S.E.2)d 835) (2020). We must take the relevant allegations of the complaint as true, see Dep't of Pub. Safety v. Johnson, 343 Ga. App. 22, 26, (806 S.E.2d 195) (2017) (discussing standard applicable to facial challenges to subject matter jurisdiction under OCGA § 9-11-12(b)(1), in which the trial court does not make factual findings), and construe any doubts regarding the complaint in favor of the Dahlquists. Norman, 310 Ga. at 131, 848 S.E.2d 835(2).

Although the trial court premised her dismissal of the claims against the Rocky's Lake defendants on a reading of the complaint as challenging a zoning decision, the complaint does not demand such a reading. As stated above, the complaint asserts claims against the Rocky's Lake defendants for two types of nuisance (one based on violating applicable ordinances and one based on using the property in a manner incompatible with the surrounding residential area) and for a permanent injunction to prevent the maintenance of that nuisance.

Those claims are not coextensive with a challenge to the 2022 issuance of a special use permit to Morris. The claim for negligence per se does not attack the issuance of the special use permit, but rather assert that Morris is violating the conditions of the permit, as well as other applicable zoning and noise ordinances. And the claim for negligence per accidens does not concern the special use permit at all, as such a claim may exist even if zoning requirements have been met. See Stanfield v. Glynn County, 280 Ga. 785, 788, 631 S.E.2d 374 2006 (“zoning compliance is not a defense to liability which would otherwise exist for the maintenance of a nuisance”); Galaxy Carpet Mills, 255 Ga. at 360-61, 338 S.E.2d 428(1) (“a lawful business may, by reason of its location in a residential area, cause hurt, inconvenience, and damage to those residing in the vicinity and become a nuisance per accidens ․, against which an injunction will be granted”).

For these reasons, and construing any doubts in favor of the Dahlquists, as we must, see Norman, 310 Ga. at 131, 848 S.E.2d 835(2), we cannot agree with the trial court's treatment of the claims against the Rocky's Lake defendants as an attack on a zoning decision. Consequently, the legal principles upon which the trial court based her dismissal of these claims are inapposite.

The trial court held that the Dahlquists could not bring their claims against the Rocky's Lake defendants because they had not complied with OCGA § 5-3-7(b), which requires a petition for review of the final judgment of a lower judicatory to be filed within 30 days after the entry of that judgment. But there has been no final judgment of a lower judicatory as to the Dahlquists’ claims for a continuing nuisance and injunctive relief based thereon, so the procedural requirements of OCGA § 5-3-7(b) have no applicability to those claims.

The trial court also held that the Dahlquists could not bring their claims against the Rocky's Lake defendants because they lacked the “substantial interest-aggrieved citizen” standing required of plaintiffs who challenge zoning decisions by local governing authorities. See The Stuttering Found. v. Glynn County, 301 Ga. 492, 494, 801 S.E.2d 793(2)(a) & n.4 (301 Ga. 492, 801 S.E.2d 793) (2017). Neither the authorities cited by the trial court for this proposition, nor the authorities cited by the Rocky's Lake defendants in their appellate brief, apply this specific standing requirement to nuisance claims that do not attack a zoning decision. See The Stuttering Found., 301 Ga. at 492, 801 S.E.2d 793 (addressing a county's rezoning of property and approval of a site plan); Massey v. Butts County, 281 Ga. 244, (637 S.E.2d 385) (2006) (addressing the “issue of a party's standing to use equitable means to enforce or attack the issuance of a building permit” by a county); Davis v. Rockdale Art Farm, 354 Ga. App. 82, 82-83 & n.1, (840 S.E.2d 160) (2020) (addressing the grant of a special use permit by a county); Harden v. Banks County, 294 Ga. App. 327, (670 S.E.2d 133) (2008) (addressing a county's rezoning of property for the development of a subdivision).

Indeed, Georgia law recognizes that a right of action accrues to any “person who is injured or whose property is damaged” by a private nuisance. OCGA § 41-1-4. The Dahlquists, as well as the county defendants, assert in their appellate briefs that the nuisance in this case is a “private nuisance.” The Rocky's Lake defendants make no argument to the contrary; they do not address the issue.

Because dismissal is not authorized on the grounds asserted by the Rocky's Lake defendants and relied on by the trial court, we reverse the order dismissing the Dahlquists’ claims against the Rocky's Lake defendants.

Judgment reversed in part and vacated in part, and case remanded with direction.

FOOTNOTES

1.   The Dahlquists also initially asserted an additional claim against the county defendants for mandamus, but they later withdrew that claim.

2.   We recognize that the decisions in Tussahaw Reserves and Garner were issued after the trial court ruled in this case, and so the trial court did not have the benefit of those decisions when she entered her ruling.

McFadden, Presiding Judge.

Watkins and Padgett, JJ., concur.