In the Supreme Court of Georgia

Decided: August 13, 2024

S24G0336. SATCHER et al. v. COLUMBIA COUNTY.

S24G0340. COLUMBIA COUNTY v. SATCHER et al.

 PETERSON, Presiding Justice.

This is a lawsuit brought by a group of property owners against 

Columbia County over stormwater drainage. The property owners 

won a permanent injunction and money damages at trial, and the 

County appealed to the Court of Appeals, which ruled in favor of the 

property owners on certain aspects of the judgment and in favor of 

the County on others. We granted both sides’ petitions for certiorari

and identified two issues for review. We granted the County’s 

petition to consider whether the permanent injunction granted by 

the trial court in favor of the property owners was barred by the 

County’s sovereign immunity. And we granted the property owners’ 

petition to consider the Court of Appeals’s determination that they 
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could not recover damages for harms that had occurred to their 

property during the course of the litigation after they presented 

their claims to the county through a letter notice pursuant to OCGA 

§ 36-11-1. Our grant question focused in part on an apparent tension 

between that determination and our recent holding in Wise Business 

Forms, Inc. v. Forsyth County, 317 Ga. 636 (893 SE2d 32) (2023).

After briefing, oral argument, and review of the full record, we 

vacate the Court of Appeals’s opinion to the extent that it upheld the 

injunction entered by the trial court, with directions that the Court 

of Appeals vacate the trial court’s injunction as exceeding the 

bounds permitted by the Georgia Constitution’s limited waiver of 

sovereign immunity for such relief.

We also conclude that we should not have granted the property 

owners’ certiorari petition as to the Court of Appeals’s ruling under

OCGA § 36-11-1. That ruling — properly understood — did not 

articulate a general rule of law of the sort that might have gravity 

warranting our review; instead, it simply held that the property 

owners here could not obtain certain damages under the particular 
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facts of this case. Moreover, a review of the full record showed that 

the apparent tension between the Court of Appeals’s ruling and our 

decision in Wise Business Forms is not actually present, given a 

ruling by the trial court that the Court of Appeals did not disturb 

and is not within the scope of our grant of certiorari. We therefore 

vacate the order granting the property owners’ petition for a writ of 

certiorari and deny the petition in that case.

1. Background

Based on the post-trial findings by the trial court, the facts are 

as follows.1 In 1996, plaintiffs William W. Satcher, Pierwood 

Investment Corp., and Columbia Road Professional Centre Owners 

Association, Inc. (collectively, “the Property Owners”) purchased the 

property at issue, located in the County.2 At that time, it was 

1 A trial court’s factual findings after a bench trial will be upheld if there 

is any evidence to support them. See Smith v. Smith, 281 Ga. 380, 383 (1) (637 

SE2d 662) (2006). The sufficiency of the evidence to support the trial court’s 

factual findings is not at issue before this Court.

2 On June 24, 2024, the Property Owners filed in each of these appeals a 

Suggestion of Death stating that William W. Satcher had died on April 20, 

2024. On August 8, 2024, the Property Owners filed consent motions in both 

appeals to substitute Willene Satcher, as Executor of the Estate of William W. 

Satcher, for William W. Satcher. We have separately granted these motions.
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undeveloped, but it contained a 48-inch metal pipe that was 

privately owned and had been used as part of the County’s public 

stormwater drainage system since at least 1976. The property now 

consists of office buildings, parking lots, and surrounding streets.

In March 2011, a storm overwhelmed the pipe at the headwall,

eroded a berm under the parking lot, and a portion of the parking 

lot collapsed. The Property Owners made repairs and replaced 17 

feet of pipe. In spring 2013, heavy rains caused a section of the pipe 

to fail, which in turn caused part of the parking lot to collapse; the 

Property Owners made additional repairs to the pipe and parking 

lot.

In October 2013, the Property Owners sent the County a letter 

pursuant to OCGA § 36-11-1 outlining their claims, specifying that 

they raised “claims . . . based on inverse condemnation, trespass, 

nuisance, and negligence that intentionally caused damage to the 

Claimants’ Property in April of 2013.” The County declined to repair 

the Property. The Property Owners filed their complaint, naming 

the County as the sole defendant, on March 27, 2014. The Property 
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Owners alleged in the complaint that the designs of the County’s 

streets and storm water system cause excessive quantities of storm 

water to be collected and then discharged through and around the 

pipe onto the Property, causing the Property to flood and to incur 

damages, and that this constituted a nuisance. The complaint 

sought an unspecified amount of “actual damages to repair the April, 

2013 physical damages” and “general damages from Columbia 

County in an amount to be determined at trial[.]”The complaint 

asked the trial court to “declare the actions of Columbia County to 

have resulted in an inverse condemnation” and asked that the 

Property Owners “be paid just and adequate compensation for the 

taking.” The complaint also sought an injunction whereby the 

County would “be permanently restrained and enjoined from 

continuing or maintaining the nuisance and trespass as alleged in 

the Complaint.”

After the October 2013 notice (and unmentioned in their 

complaint) but before the final bench trial in March 2022, the 

Property Owners experienced harm on additional occasions 
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apparently related to stormwater. In November 2013, additional 

sink holes appeared, and a vehicle became stuck in one of the holes.

In fall 2015, the pipe failed again, and the parking lot above it 

completely collapsed. In 2016, the Property Owners replaced 140 

feet of pipe across the Property and repaired the collapsed parking 

lot. In total, the Property Owners spent $118,444.41 on repairs and 

at least $12,379.63 in interest on a loan taken out to cover the costs.

After the bench trial, the trial court found in favor of the 

Property Owners, ruling that the County had maintained and the 

Property Owners had been damaged by “a continuing, abatable

nuisance” that rose “to the level of a taking and/or damaging without 

just and adequate compensation.” Alternatively, the trial court 

found that the County had obtained an easement in the Property 

Owners’ pipe by adverse possession or prescription and thus was 

liable for damages from the pipe’s failure. The court awarded the 

Property Owners $130,824.04 in damages, indicating that this 

included damages experienced both prior to the Property Owners’ 

October 10, 2013, letter to the County and after the complaint was 
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filed. The original September 14, 2022, Order and Judgment 

containing the trial court’s findings of fact and conclusions of law 

also provided for injunctive relief, enjoining the County “from 

moving any amount of stormwater collected in the public drainage 

system upstream across Plaintiffs’ property unless the County 

obtains the legal right to do so within 60 days of this order”; the trial 

court noted that “if the County agrees with the court’s conclusion 

that it has a prescriptive easement, injunctive relief is unnecessary.”

A subsequent Final Judgment order issued on November 4, 2022, 

awarded to the Property Owners $73,772.58 in bad-faith attorneys’

fees under OCGA § 13-6-11. The order incorporated the findings of 

fact and conclusion of law from the September 14, 2022, order, 

except as to injunctive relief. As to injunctive relief, the November 

4, 2022, order provided that the County was “permanently enjoined 

from maintaining a defective stormwater drainage system that 

causes damage to Plaintiffs’ property.”

The County appealed the judgment to the Court of Appeals, 

which affirmed in part, vacated in part, and reversed in part. See 
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Columbia County v. Satcher, 369 Ga. App. 608 (894 SE2d 181) 

(2023). Relevant to this stage of the proceeding, the County argued 

that the nuisance of which the Property Owners complained was 

permanent, not abatable, and so “the statute of limitations and ante 

litem notice period began to run . . . . no later than 1996” when the 

Property Owners “observed stormwater moving riprap and dirt 

around the pipe.” The County argued that the Property Owners’ 

October 2013 letter and March 2014 filing of suit were both therefore 

too late. The Court of Appeals generally rejected those arguments. 

See id. at 611-613 (2) (b). But the Court of Appeals nonetheless 

vacated the damages award, concluding that the award was 

erroneous both because the award included damages for harms 

incurred after the presentation of the October 2013 notice, see id. at 

613-614 (2) (c), and because the Property Owners proved special 

damages instead of the proper measure of damages, the diminution 

of the Property’s market value. See id. at 617 (4). The Court of 

Appeals reversed the attorneys’ fees award, concluding that the trial 

court erred in granting it because a bona fide controversy of law 
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existed between the parties. See id. at 618 (5). The Court of Appeals 

also concluded that the trial court did not err by granting an 

injunction, rejecting the County’s arguments that (1) the Property 

Owners were not entitled to any relief at all, let alone an injunction, 

and that (2) because the evidence did not show that the storm water 

system is defective, the trial court erred by enjoining the County 

from maintaining a defective storm water system. See id. at 618-619 

(6). The parties filed cross-petitions for certiorari, and we granted 

both petitions as to the questions related to OCGA § 36-11-1 and 

sovereign immunity referenced above. 

2. Sovereign immunity bars at least some of the injunctive relief 

awarded below.

We granted the County’s petition for certiorari to consider 

whether sovereign immunity barred the injunctive relief provided 

by the trial court. We conclude that the injunction issued in this case 

exceeds the scope of the sovereign immunity waiver provided by the 

Just Compensation Provision.

Article I, Section II, Paragraph IX of the Georgia Constitution 

states that, except as otherwise provided in that paragraph, 
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“sovereign immunity extends to the state and all of its departments 

and agencies” and “can only be waived by an Act of the General 

Assembly which specifically provides that sovereign immunity is 

thereby waived and the extent of such waiver.” Ga. Const. of 1983, 

Art. I, Sec. II, Par. IX (e). Absent some waiver by the Georgia 

Constitution itself or a statute, sovereign immunity bars claims for 

injunctive relief against the State. See Dept. of Transp. v. Mixon, 312 

Ga. 548, 550 (2) (a) (864 SE2d 67) (2021). And that sovereign 

immunity also extends to “all of [the state’s] departments and 

agencies,” which we have held includes counties. See Gilbert v. 

Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994). “[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.” McConnell v. Dept. of Labor, 302 Ga. 18, 19 (805 SE2d 79) 

(2017).

Although implied waivers of sovereign immunity are generally 

disfavored, a constitutional provision may waive sovereign 
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immunity by necessary implication. See Mixon, 312 Ga. at 550-551 

(2) (a). The Georgia Constitution provides that, as a general matter, 

“private property shall not be taken or damaged for public purposes 

without just and adequate compensation being first paid.” Ga. 

Const. of 1983, Art. I, Sec. III, Par. I (a). We made clear in Mixon

that this Just Compensation Provision “waives sovereign immunity 

for claims seeking injunctive relief in two circumstances: (1) where 

the Just Compensation Provision’s requirement of prepayment 

before a taking or damaging applies and has not yet been met; or (2) 

where the authority effecting a taking or damaging has not invoked 

the power of eminent domain.” 312 Ga. at 548. But “[t]his waiver 

under the Just Compensation Provision . . . allows an injunction only 

to stop the taking or damaging until such time as the authority 

fulfills its legal obligations that are conditions precedent to eminent 

domain.” Id.

The injunction entered here clearly exceeds the scope of the 

sovereign immunity waiver provided by the Just Compensation 

Provision. The trial court “permanently enjoined” the County “from 
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maintaining a defective storm water drainage system that causes 

damage to Plaintiffs’ property.” Under Mixon, the waiver of 

sovereign immunity in this context is limited to that necessary “to 

stop the taking or damaging until such time as the authority fulfills 

its legal obligations that are conditions precedent to eminent 

domain”; i.e., prepayment of just and adequate compensation or 

exercise of the power of eminent domain under a statute that waives 

the general requirement of prepayment. 312 Ga. at 548. The 

injunction here is permanent; on its face, its duration is not limited 

to the extent of the sovereign immunity waiver recognized in Mixon.3

Thus, the injunction exceeds the waiver of sovereign immunity in 

this context.

3 The language of the September 14, 2022, order, which provided for 

injunctive relief “unless the County obtains the legal right to [move water 

across the Property] within 60 days of this order[,]” came closer to falling 

within the scope of the Just Compensation Clause’s waiver of sovereign 

immunity because it provided the County the ability to terminate the 

injunction by providing compensation for the taking found by the trial court.

But the time-limited nature of the County’s ability to terminate the injunction 

meant that the September 2022 injunction likely would not have survived 

scrutiny from a sovereign immunity perspective. And in its Final Judgment 

issued less than two months later, the trial court modified the injunctive relief, 

making clear that it was “permanently” enjoining the County.
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To be clear, we do not embrace the County’s argument that 

sovereign immunity bars injunctive relief altogether in this case. 

The County argues that sovereign immunity bars injunctive relief 

here because the limited waiver of sovereign immunity described in 

Mixon does not apply to immediately obvious, permanent nuisances 

for which the statute of limitations has expired. But the Court of 

Appeals concluded that, regardless of whether the plaintiff elected 

to treat the nuisance as abatable or permanent, the statute of 

limitations on claims over the harms experienced in 2013 and 2016 

had not expired. See Satcher, 369 Ga. App. at 611-612 (2) (b). 

Although the County enumerated this ruling as error in its 

certiorari petition, we did not grant certiorari on that particular 

question and do not address it here.

The County also argues that sovereign immunity as to 

injunctive relief is not waived here because the Property Owners 

have not introduced evidence to support the appropriate amount of 

damages (which, according to the Court of Appeals, is the 

diminution of value of the Property) and thus there are no conditions 
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precedent that the County can be compelled to perform. But 

although the County argues that the record does not show the 

evidence of a compensable taking at this point, the trial court found 

that the County had maintained and the Property Owners had been 

damaged by “a continuing, abatable nuisance” that rose “to the level 

of a taking and/or damaging without just and adequate 

compensation.” The Court of Appeals did not disturb that general 

ruling and in fact, in rejecting the County’s challenge to the award 

of injunctive relief, concluded that the County “has not established 

that the [Property Owners] are not entitled to any relief 

whatsoever[.]” Satcher, 369 Ga. App. at 619 (6). Our grant of 

certiorari in this case did not disturb these rulings. Even more 

important, the County’s argument misunderstands the 

constitutional limitations on its power of eminent domain. The 

exercise of eminent domain is a power of the government that is 

conditioned in the Georgia Constitution on the government paying 

just and adequate compensation. If the government wants to take or 

damage private property for public use, it is the government’s
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responsibility to pay just compensation. The County’s argument 

inverts this key principle.

Because the Court of Appeals here affirmed an injunction that 

exceeded the waiver of sovereign immunity effected by the Just 

Compensation Clause, we vacate that portion of the Court of 

Appeals’s opinion affirming that injunction. We remand for the 

Court of Appeals to remand the case to the trial court with 

instructions to consider the issuance of a new injunction that does 

not exceed the constitutional waiver of sovereign immunity.

3. We decline to decide the question we posed as to the 

availability of damages for harms incurred after sending a notice 

pursuant to OCGA § 36-11-1.

We also granted the Property Owners’ petition for certiorari in 

S24G0336 to consider their argument that the Court of Appeals 

erred by vacating the damages award as to harms occurring after 

the date of the Property Owners’ October 2013 letter sent pursuant 

to OCGA § 36-11-1. We now conclude that we should not have 

granted certiorari on this issue.

The Court of Appeals did not hold that plaintiffs may never 
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recover for damages incurred after presentation of a claim under 

OCGA § 36-11-1. Rather, after reviewing that opinion and full 

briefing in the context of the full record now available to us, we see 

that the Court of Appeals’s holding was more limited than was clear 

at the certiorari stage. That court’s conclusion that these plaintiffs 

“could recover only damages incurred during the 12 months 

preceding the presentation of their ante litem notice,” Satcher, 369 

Ga. App. at 613 (2) (c), did not foreclose the possibility that a plaintiff 

could recover damages incurred after the presentation of a claim

pursuant to OCGA § 36-11-1. The court merely held on the 

particular facts of this case that the Property Owners could not 

obtain damages incurred after the presentation of the October 2013 

notice. We do not read the Court of Appeals’s opinion as stating any 

general rule as to the availability of damages incurred after 

presentation of a claim pursuant to OCGA § 36-11-1. And so the 

Court of Appeals’s ruling as to the availability of the particular 

damages at issue in this case does not pose a question of gravity for 
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this Court to review on certiorari. See Supreme Court Rule 40 (1).4

We express no opinion as to whether that narrow ruling was correct.

Moreover, the question on which we granted certiorari is not, 

upon further review, actually posed by this case. We stated that 

question as whether a property owner may “be awarded damages for 

harms occurring after the property owner sent a county an ante 

litem notice where the subsequent harms are based upon the same 

permanent and continuing nuisance encompassed by and forming 

the basis for the first ante litem notice[.]” We cited Wise Business 

Forms, implying there was a possible tension between that decision 

and the Court of Appeals’s ruling here. But the language at issue in 

Wise Business Forms refers to options for suing over a permanent 

nuisance. See 316 Ga. at 640-643 (2). Here, the trial court found that 

4 That rule states:

Review on certiorari is not a right. A petition for the writ will be 

granted only in cases of great concern, gravity, or importance to 

the public. . . . Certiorari generally will not be granted merely to 

correct an asserted error, particularly when the asserted error 

concerns only the sufficiency of the evidence, the correctness of 

factual findings, or the application of a properly stated rule of law 

to the facts of a particular case.
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the nuisance in question was abatable, not permanent. The Court of 

Appeals did not disturb that finding, and we did not grant review of 

this aspect of the trial court’s judgment. Thus, this case does not 

present a proper vehicle for resolving any tension between Wise 

Business Forms’ guidance as to suing over a permanent nuisance 

and a strict reading of OCGA § 36-11-1 that does not allow recovery 

for harms incurred after a presentation of a claim under that 

statute.

For these reasons, the Property Owners’ petition for certiorari 

was improvidently granted.

Judgment vacated in part and case remanded in Case No. 

S24G0340. Writ of certiorari in Case No. S24G0336 improvidently 

granted and petition for certiorari denied. All the Justices concur.