THIRD DIVISION

ELLINGTON, P. J.,

DILLARD and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

March 16, 2016

In the Court of Appeals of Georgia

A15A2081. CALLOWAY et al. v. CITY OF WARNER ROBINS et

al. 

MCFADDEN, Judge.

The appeal in this wrongful death action is from the grant of summary

judgment to a city and city clerk on sovereign immunity grounds. Because there exist

no genuine issues of material fact as to the applicability of the doctrine of sovereign

immunity, we affirm. 

“Summary judgment is appropriate when no genuine issues of material fact

remain and the moving party is entitled to judgment as a matter of law.” Stennette v.

Miller, 316 Ga. App. 425, 426 (729 SE2d 559) (2012) (citation omitted). On appeal,

we review a trial court’s grant or denial of summary judgment de novo, construing

the evidence and all reasonable inferencestherefromin the light mostfavorable to the
nonmoving party. SKC, Inc. v. eMag Solutions, 326 Ga. App. 798 (755 SE2d 298)

(2014). 

So viewed, the evidence shows that the City of Warner Robins issued a

business license/occupation tax permit to Sheila Henderson, authorizing her to

operate a child day care service. On July 31, 2011, three-year-old Andrew Calloway

was at the day care facility when he died of heat stroke. He had been left inside an

automobile for several hours. Andrew and Brittany Calloway, the child’s parents,

filed a wrongful death action against Henderson, and day care workers Martha

Andrews and Johnnie Mae Grayer - as well as the City of Warner Robins, and City

Clerk Alton Mattox. 

With regard to the city and Mattox, the complaint alleged that they had

negligently issued the business license to Henderson without following certain

procedures. The city and the city clerk moved for summary judgment, and the trial

court granted the motion on the groundsthat the claims against themare barred by the

doctrine of sovereign immunity and that their conduct did not proximately cause the

child’s death. The Calloways appeal. 

1. Sovereign immunity. 

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The Calloways contend that the trial court erred in finding that both the City

of Warner Robins and the city clerk are immune from suit under the doctrine of

sovereign immunity. We disagree. 

As our Supreme Court has explained, the question of soverign immunity turns,

in this context, on the distinction between ministerial duties and governmental

functions.

Under Georgia law, municipal corporations are protected by

sovereign immunity pursuant not to Article I of the Constitution but

rather Article IX, Section II, Paragraph IX, unless that immunity is

waived by the General Assembly. With particular regard to municipal

corporations, our General Assembly has enacted OCGA § 36-33-1

which reiterates that ‘it is the public policy of the State of Georgia that

there is no waiver of the sovereign immunity of municipal corporations

of the state and such municipal corporations shall be immune from

liability from damages.’ OCGA § 36-33-1 (a). The same statute,

however, also providesfor a narrow waiver of a municipal corporation’s

sovereign immunity, expressly providing in subsection (b) that

‘municipal corporations shall not be liable for failure to perform or for

errors in performing their legislative or judicial powers. For neglect to

perform or for improper or unskillful performance of their ministerial

duties, they shall be liable.’ OCGA § 36-33-1 (b). This provision hasfor

more than a century been interpreted to mean that municipal

corporations are immune from liability for acts taken in performance of

a governmentalfunction butmay be liable for the negligent performance

of their ministerial duties. The propriety of the trial court’s ruling on

[the]motion [for summary judgment]thusturns on whether [the city and

the clerk’s issuance of a business license] involved a governmental

function.” 

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City of Atlanta v. Mitcham, 296 Ga. 576, 577-578 (1) (769 SE2d 320) (2015)

(citations and punctuation omitted). 

a. City of Warner Robins. 

As the trial court correctly found, a municipality’s “issuance of a permit or

license is a governmental function[.]” Boatwright v. Flemington, 189 Ga. App. 676,

677 (3) (377 SE2d 1) (1988), reversed on other grounds byFlemington v. Boatwright,

259 Ga. 175 (377 SE2d 843) (1989). See also City of Thomson v. Davis, 92 Ga. App.

216, 218-219 (1) (88 SE2d 300) (1955) (municipality’s act of granting or revoking

a business license constitutes a governmental function). Thus, even assuming, as

alleged in the complaint, that the City of Warner Robins negligently issued the

business license to Henderson, the city is still immune from suit for the negligent

exercise of that governmental function. Under the doctrine of sovereign immunity,

a “municipality is exempt from liability for an injury resulting from the failure to

exercise [governmentalfunctions] or fromtheir improper or negligent exercise.” City

of Atlanta, supra at 579 (2) (citation omitted). See also Hurley v. City of Atlanta, 208

Ga. 457, 458 (67 SE2d 571) (1951) (city not liable for negligent performance of

governmental function). And because there is no evidence of a “waiver of the [c]ity’s

sovereign immunity in this case, [the Calloways are] precluded from pursuing [their]

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negligence claims against . . . the City [of Warner Robins.]” City of Atlanta, supra at

583 (3) (citations omitted). 

b. City Clerk Mattox. 

The Calloways argue that City Clerk Mattox was sued in his individual

capacity and thus is not entitled to the protection of sovereign immunity. However,

a review of the complaint plainly contradicts the argument and reveals that Mattox

was sued only in his official capacity. The style of the complaint does not indicate,

as it did with other named defendants, that Mattox was being sued in his individual

capacity; rather, it named Mattox as a defendant only “in his Official Capacity as City

Clerk of City of Warner Robins, Georgia.” Moreover, the body of the complaint

identified Mattox as the city clerk and averred that he “served in this capacity at all

times relevant to the facts underlying this lawsuit.” Likewise, the complaint also

stated that “[a]t all times relevant to the facts set forth in this Complaint, Defendant

Mattox was acting under his authority as the City Clerk of Warner Robins and to

further the business of the City of Warner Robins.” Thus, it is clear that Mattox was

not sued in his individual capacity and was instead sued only in his official capacity.

See Board ofCommissioners of GlynnCounty v. Johnson, 311 Ga. App. 867, 871-873

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(2) (717 SE2d 272) (2011) (complaint clearly showed that members of board of

commissioners were sued only in their official capacities). 

“Suits against public employees in their official capacities are in reality suits

against the state and, therefore, involve sovereign immunity.” Cameron v. Lang, 274

Ga. 122, 126 (3) (549 SE2d 341) (2001) (citation and punctuation omitted). The

Calloways are therefore precluded from pursuing their negligence claims against

Mattox in his official capacity. See City of Atlanta, supra. Accordingly, “we affirm

the trial court’s[summary judgment] order asto [the] claims asserted against[Mattox]

in his official capacity.” Jobling v. Shelton, 334 Ga. App. 483, 486 (1) (779 SE2d

705) (2015). See also Campbell v. Goode, 304 Ga. App. 47, 50 (2) (695 SE2d 44)

(2010) (claim against a city police officer in his official capacity was, in reality, a suit

against the city and was thus barred by sovereign immunity). 

2. Proximate cause. 

Because of our holdings above affirming the grant of summary judgment to the

city and city clerk on sovereign immunity grounds, we need not address “the

alternative ground [of no proximate cause] relied upon by the trial court.” Gwinnett

Place Associates v. Pharr Engineering, 215 Ga. App. 53, 55 (2) (449 SE2d 889)

(1994). 

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Judgment affirmed. Ellington, P. J., and Dillard, J., concur. 

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