FIFTH DIVISION

MCFADDEN, P. J.,

RICKMAN and MARKLE, 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 1, 2019

In the Court of Appeals of Georgia

A18A1481. COOK v. SMITH et al.

MCFADDEN, Presiding Judge.

This appeal challenges a trial court order granting summary judgment to the

members of a county board of education on the basis of sovereign immunity. Because

the trial court correctly ruled that the claims against the board members are barred by

sovereign immunity, we affirm.

1. Record citations.

The rules of this court require that in an appellant’s brief, “[r]ecord and

transcript citations shall be to the volume or part of the record or transcript and the

page numbers that appear on the appellate record or transcript as sent from the trial

court.” Court of Appeals Rule 25 (a) (1). The appellant’s brief in this case, however,

does not contain cites to the appropriate volumes or parts of the appellate record, and
instead references trial court case numbers and records. The appellees’ brief adopts

the appellant’s faulty method and likewise fails to make appropriate citations to the

appellate record. See Court of Appeals Rules 25 (b) (1) & (c) (2).

The rules of this court “were created, not to provide an obstacle, but to aid

parties in presenting their arguments in a manner most likely to be fully and

efficiently comprehended by this court.” In re Estate of Russell, 347 Ga. App. 258,

259 (1) (819 SE2d 68) (2018) (citation and punctuation omitted). “[B]riefs that fail

to provide proper citations can hinder this [c]ourt’s consideration of the parties’

arguments on appeal.” May v. S. E. GA Ford, Inc., 344 Ga. App. 459 n. 1 (811 SE2d

14) (2018) (citations and punctuation omitted). And such deficient briefs “are not

merely an inconvenience [but may constitute] grounds for refusing to consider a

party’s contentions.” Id. (citation and punctuation omitted). “While we will

nonetheless review [the] claims of error to the extent we are able to ascertain them,

[the parties] will not be granted relief should we err in construing [their]

nonconforming appellate brief[s].” In re Estate of Russell, supra (citation and

punctuation omitted).

2. Facts and procedural posture.

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In April 2009, Henry Cook, a member of the Randolph County Board of

Education, filed an action against three other board members – Don Smith, Dymple

McDonald, and James Mock (collectively “the board members”). Cook sought

injunctive relief regarding the board members’ selection of Mock to serve as board

chairman prior to the expiration of Cook’s term in that role. The trial court

subsequently held Cook in contempt for violating a court order and also found that

a local law at issue in the case, which concerned procedures for selecting the board

chairperson, was not unconstitutional. Cook appealed to the Georgia Supreme Court,

which affirmed the trial court’s contempt ruling but reversed its constitutionality

ruling, finding that the law in question was not constitutional as applied to Cook. See

Cook v. Smith, 288 Ga. 409 (705 SE2d 847) (2010).

On the return of the case to the trial court, Cook sought, among other things,

to enforce a purported settlement of the case allegedly voted on by the board and to

recover attorney fees. The board members moved for summary judgment on, among

other grounds, the doctrine of sovereign immunity. In the meantime, Smith and

McDonald had filed their own lawsuit against the Randolph County School District,

seeking certain injunctive relief. Although Cook was not a party to that lawsuit, the

trial court nevertheless consolidated it with Cook’s action against the board members.

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The trial court did not rule on the board members’ motion for summary judgment in

Cook’s case, but denied Cook’s claims to enforce the purported board vote of

settlement and for attorney fees, and ordered certain relief in the consolidated lawsuit

to which Cook was not a party.

Cook appealed to this court, and we transferred the case to our Supreme Court

on the basis that it involves mandamus relief which was, at that time, within the sole

jurisdiction of the Supreme Court.

1 The Supreme Court transferred the case back to

this court, finding that it does not involve mandamus and instead involves injunctive

relief. This court then remanded the case to the trial court, noting that the trial court

had not ruled on the issue of sovereign immunity raised by the board members and

directing the trial court to hold a hearing and rule on whether sovereign immunity

bars Cook’s claims. After a hearing, the trial court found that the claims are barred

by sovereign immunity and granted summary judgment to the board members. Cook

appeals.

3. Sovereign immunity.

1The Supreme Court used to have sole appellate jurisdiction over cases

involving the extraordinary remedy of mandamus. See Liberty County School Dist.

v. Halliburton, 328 Ga. App. 422, 425 (1) (762 SE2d 138) (2014).But OCGA § 15-3-

3.1 (a) (4) now gives this court appellate jurisdiction in all cases involving

extraordinary remedies, except death penalty cases.

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Cook contends that the trial court erred in granting summary judgment to the

board members. We disagree.

“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) (citations and punctuation omitted). “Simply

put, the constitutional doctrine of sovereign immunity forbids our courts [from]

entertain[ing] a lawsuit against the [s]tate without its consent.” Lathrop v. Deal, 301

Ga. 408 (801 SE2d 867) (2017). Accord Cameron, supra (sovereign immunity

protects all levels of government from legal action unless the immunity has been

waived).

The Georgia Constitution provides: “Except as specifically provided in

this Paragraph, sovereign immunity extends to the state and all of its

departments and agencies. The sovereign immunity of the state and its

departments and agencies 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. Art. I, Sec.

II, Par. IX (e). This [c]ourt has repeatedly ruled on the scope of this

provision. The plain and unambiguous text of the 1991 constitutional

amendment shows that only the General Assembly has the authority to

waive the [s]tate’s sovereign immunity. 

City of Union Point v. Greene County, 303 Ga. 449, 453 (1) (812 SE2d 278) (2018)

(citation and punctuation omitted).

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Cook’s suit against the board members in their official capacities was in reality

a suit against the state that is barred by sovereign immunity unless such immunity has

been waived by the general assembly. See Thigpen v. McDuffie County Bd. of Educ.,

255 Ga. 59 (335 SE2d 112) (1985) (county board of education entitled to sovereign

immunity); Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878) (1980) (school

boards and other authorities in charge of public schools enjoy sovereign immunity);

DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 636 (1) (734 SE2d 466)

(2012) (school board and board members enjoy sovereign immunity), overruled on

other grounds in Rivera v. Washington, 298 Ga. 770, 778 n. 7 (784 SE2d 775) (2016).

See also Georgia Assn. of Professional Process Servers v. Jackson, 302 Ga. 309, 311

(1) (806 SE2d 550) (2017) (sovereign immunity bars claims for injunctive relief).

And Cook, as the party seeking to benefit from a waiver of the state’s sovereign

immunity, has the burden to establish such a waiver. “Sovereign immunity is not an

affirmative defense that must be established by the party seeking its protection.

Instead, immunity from suit is a privilege that is subject to waiver by the [s]tate, and

the waiver must be established by the party seeking to benefit from the waiver.”

Bomia v. Ben Hill County School Dist., 320 Ga. App. 423, 424 (740 SE2d 185)

(2013) (citation omitted).

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Cook has failed to meet his burden of establishing a waiver of sovereign

immunity. “If the consent of the [s]tate [to a waiver of sovereign immunity] is to be

found, it must be found in the [Georgia] Constitution itself or the statutory law.”

Lathrop, supra at 444 (IV). Cook, however, has not pointed to anything in the

constitution or to any act by the General Assembly waiving sovereign immunity in

this case. Id. at 425-426 (III) (“The parties here point to no statutory law that works

a specific waiver of sovereign immunity for suits like this one, and . . . [their claim

that] the Constitution of 1983 authorizes such a suit . . . [is] incorrect.”). Because

Cook has failed to show a waiver ofsovereign immunity, the trial court did not err in

granting summary judgment to the board members.

4. Injunctions.

Cook enumerates that the trial court erred in granting injunctions. It appears

that he may be referring to matters in the consolidated case to which he was not a

party since he has referenced a hearing held on the motion to consolidate, but he has

not cited specific parts of the appellate record where we can find the precise

injunctive orders in question or where we can determine if the issues now sought to

be asserted were preserved for appellate review. “[I]t is not the duty of this [c]ourt to

cull the record on a party’s behalf to locate information or facts in support of a party.”

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Demere Marsh Assoc. v. Boatright Roofing and Gen. Contracting, 343 Ga. App. 235,

236 n. 1 (808 SE2d 1) (2017). Accord RTA Strategy v. Silver Comet Terminal

Partners, 347 Ga. App. 266, 270 (1) (817 SE2d 720) (2018) (“It is not the function

of this [c]ourt to cull this voluminous record on behalf of any party.”) (citation

omitted). Accordingly, this enumeration presents nothing for review. See Henderson

v. State, 304 Ga. 733, 739 (4) (822 SE2d 228) (2018).

5. Remaining enumerations.

Given our holdings above, we need not address Cook’s remaining

enumerations of error.

Judgment affirmed. Rickman and Markle, JJ., concur.

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