HALL COUNTY v. MARK DOUGLAS FAUL
CourtCourt of Appeals of Georgia
Date FiledOctober 27, 2026
DocketA26A0908
StatusPublished
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Full Opinion
FIFTH DIVISION
BROWN, C. J.,
MERCIER, P. J., and EPPS, J.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 27, 2026
In the Court of Appeals of Georgia
A26A0908. HALL COUNTY et al. v. FAUL et al.
BROWN, Chief Judge.
Mark Douglas Faul and several other petitioners (collectively, “Petitioners”)
filed a petition in the trial court to challenge a rezoning decision, naming Hall County,
the Hall County Board of Commissioners, several Hall County employees, and several
individual property owners as respondents. Hall County and the Hall County Board
of Commissioners filed a motion for summary judgment arguing, in part, that the
claims were barred by sovereign immunity. The trial court denied the motion, and
Hall County and the Hall County Board of Commissioners appeal. For the following
reasons, we reverse the trial court’s denial of summary judgment.
“On appeal from the denial or grant of summary judgment, the appellate court
conducts a de novo review of the evidence to determine whether there is a genuine
issue of material fact and whether the undisputed facts, viewed in the light most
favorable to the nonmoving party, warrant judgment as a matter of law.” Macon-Bibb
County v. Kalaski, 355 Ga. App. 24, 24 (842 SE2d 331) (2020) (punctuation omitted).
So viewed, the record shows that in 2024, several property owners (“the
Property Owner Respondents”) submitted a rezoning application to Hall County,
seeking to rezone approximately 114 acres owned by the Property Owner Respondents
from “agricultural residential” zoning to a planned residential development. Faul,
who owns Arrowquest Services, Inc., that operates a winery on a 2.21-acre tract of
land in Hall County, opposed the rezoning. The Hall County Board of Commissioners
approved the application.
Petitioners filed a petition pursuant to OCGA § 36-66-5.1(a)(1) in the Superior
Court of Hall County for review of the zoning decision. They named as respondents
Hall County, the Hall County Board of Commissioners, several Hall County
employees,1 and the Property Owner Respondents. Petitioners sought review of the
1
Petitioners named the Hall County Chairperson, members of the Hall County
Commission, and the Director of Planning and Zoning (the “Hall County
2
decision to rezone the approximately 114 acres for the purpose of the construction of
high density housing. Petitioners claimed they owned property that is adjacent to or
in the immediate vicinity of the rezoned property and asserted that they would suffer
“loss of business and business income, loss of property values, heavy and congested
traffic, ... substantial percentage decrease in the value of their properties[,] ... [and]
damages in the form of noise, odor, [and] mosquitos from excessive planned retention
ponds, water run-off and visual intrusions on peace and privacy.” In addition to their
appeal of the zoning decision, they brought claims for violation of due process, taking
without the payment of just and adequate compensation, and equal protection under
both the Georgia and United States Constitution. As relief, they requested to “have
the re-zoning reversed” and sought “both a temporary and permanent injunction as
well as a [d]eclaratory [j]udgment that the zoning decision appealed from is void.”
They also sought damages and attorney fees.
The respondents removed the case to the United States District Court for the
Northern District of Georgia pursuant to 28 USC §§ 1331, 1441, and 1446, but the
case was subsequently remanded after Petitioners dismissed their federal claims
employees”).
3
pursuant to the Fifth and Fourteenth Amendments of the United States Constitution
giving rise to federal question jurisdiction.
The Property Owner Respondents filed a motion for judgment on the pleadings
in the superior court, arguing, in part, that the entire action should be dismissed
because Petitioners failed to comply with the exclusivity provision of Ga. Const. of
1983, Art. I, Sec. II, Par. V(b)(2) (“Paragraph V”).2 Petitioners then moved to dismiss
the Hall County employees, but did not move to dismiss the Property Owner
Respondents or the Hall County Board of Commissioners, and filed a response in
opposition to the motion for judgment on the pleadings. The trial court granted the
motion to dismiss the Hall County employees. In a separate order, the trial court ruled
on the motion for judgment on the pleadings, finding, in part, that the voluntary
dismissal of the Hall County employees remedied any defect in the pleadings as it
related to the exclusivity provision of Paragraph V.
Hall County and the Hall County Board of Commissioners filed a motion for
summary judgment. In the motion, they argued, in part, that sovereign immunity bars
2
As explained below, the exclusivity provision of Paragraph V requires that, in
order for there to be a waiver of sovereign immunity in actions seeking declaratory
relief, such actions must be brought “exclusively” against the State. See Ga. Const.
of 1983, Art. I, Sec. II, Par. V(b)(2).
4
Petitioners’ claims because Petitioners failed to comply with the exclusivity provision
of Paragraph V, because although they had dismissed the individual county
employees, they failed to dismiss the Hall County Board of Commissioners. The
Property Owner Respondents also filed a motion for summary judgment. Petitioners
filed a response in opposition to both motions, in which they note that in addition to
their appeal of the zoning decision, they sought a declaratory judgment and damages
for inverse condemnation.
The trial court denied the motions for summary judgment. As to the argument
regarding sovereign immunity, the trial court determined that the procedures
prescribed in OCGA § 36-66-5.1 and Paragraph V operated as a waiver of sovereign
immunity, and, therefore, the claims against Hall County, the Hall County Board of
Commissioners, and the Property Owner Respondents were allowed to proceed.3 Hall
County and the Hall County Board of Commissioners now appeal from the denial of
their motion for summary judgment.
3
The trial court dismissed the claims of one petitioner based on lack of
standing. This dismissal is not at issue on appeal.
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1. Hall County and the Hall County Board of Commissioners argue that the trial
court erred by not dismissing the case because Petitioners failed to comply with the
exclusivity provision of Paragraph V. We agree.
“The doctrine of sovereign immunity, as enshrined in our Constitution, bars
suits against the State and its employees in their official capacities unless a statute or
the Constitution itself specifically waives that immunity.” State v. SASS Group, 315
Ga. 893, 893 (885 SE2d 761) (2023). In 2020, “an amendment to [Paragraph V(b)(1)]
of the Georgia Constitution that provides a waiver of sovereign immunity for actions
seeking declaratory relief from certain unlawful acts of the State or a local
government” was ratified. Warbler Invs., LLC v. City of Social Circle, 321 Ga. 125, 125
(913 SE2d 674) (2025). To the extent that citizens obtain a favorable ruling on their
claim for declaratory relief, they may then also seek injunctive relief to “enforce [the
court’s] judgment.” Ga. Const. of 1983 Art. I, Sec. II, Par. V(b)(1).4
4
Specifically, Ga. Const. of 1983, Art. I, Sec. II, Par.V(b)(1) states that
[s]overeign immunity is hereby waived for actions in the superior court
seeking declaratory relief from acts of the state or any agency, authority,
branch, board, bureau, commission, department, office, or public
corporation of this state or officer or employee thereof or any county,
6
However, in order to take advantage of this new waiver of sovereign immunity,
the Georgia Constitution requires such actions to be brought “exclusively” against the
State. See Ga. Const. of 1983, Art. I, Sec. II, Par. V(b)(2). To comply with the
exclusivity provision of Paragraph V(b)(2), the plaintiff’s action
must be brought exclusively against the state and in the name of the State
of Georgia (or against the relevant local government as may be the case).
If a lawsuit does not comply, then the entire lawsuit must be dismissed[.]
SASS Group, 315 Ga. at 897(2) (punctuation omitted; emphasis added). See also Ga.
Const. of 1983, Art. I, Sec. II, Par. V(b)(2) (Actions filed pursuant to this Paragraph
against any county or county employee “shall be brought exclusively against such
county[,]” and “[a]ctions filed pursuant to this Paragraph naming as a defendant any
[entity] other than as expressly authorized under this Paragraph shall be dismissed.”).
consolidated government, or municipality of this state or officer or
employee thereof outside the scope of lawful authority or in violation of
the laws or the Constitution of this state or the Constitution of the
United States. Sovereign immunity is further waived so that a court
awarding declaratory relief pursuant to this Paragraph may, only after
awarding declaratory relief, enjoin such acts to enforce its judgment.
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The Supreme Court of Georgia has held that when a plaintiff tries to avail
themselves “of Paragraph V’s waiver of sovereign immunity in any way—i.e., even
for one claim—then it is an action filed pursuant to Paragraph V.” Lovell v.
Raffensperger, 318 Ga. 48, 50(2)(a) (897 SE2d 440) (2024), citing SASS Group, 315
Ga. at 897(2) (finding that pro se plaintiffs relied, at least partially, on Paragraph V’s
waiver of sovereign immunity where they sought a declaratory judgment and
injunctive relief against the State of Georgia and thus, the lawsuit that also named a
state actor as a defendant should be dismissed). If a lawsuit does not comply with this
exclusivity requirement, “then the entire lawsuit must be dismissed, even if some
claims within the lawsuit could have otherwise been brought on their own without
relying on Paragraph V’s waiver.” Lovell, 318 Ga. at 50(2)(a). But see Garner v.
Clayton County, 378 Ga. App. 618, 624–25(3) (926 SE2d 842) (2026) (holding that the
trial court erred by dismissing a complaint seeking declaratory and injunctive relief
where the plaintiff explicitly provided she was not relying on Paragraph V’s waiver of
sovereign immunity but instead was relying on a waiver of sovereign immunity in
Georgia’s Open Records Act, OCGA § 50-18-70 et seq.).
8
Here, Petitioners filed their action against Hall County, the Hall County Board
of Commissioners, the Hall County employees, and the Property Owner Respondents.
Their petition included a claim for a declaratory judgment that the rezoning decision
was void. Although Petitioners dismissed the Hall County employees, the claims
against the Hall County Board of Commissioners and the Property Owner
Respondents were still pending at the time the trial court denied the motion for
summary judgment. Because Petitioners were relying, at least partially, on Paragraph
V’s waiver of sovereign immunity by seeking a declaratory judgment, the suit was due
to be dismissed in its entirety on the basis that it also named as defendants the Hall
County Board of Commissioners and the Property Owner Respondents. First Ctr., Inc.
v. Cobb County, 318 Ga. 271, 272 (897 SE2d 854) (2024) (affirming dismissal of action
for failing to comply with Paragraph V’s exclusivity provision where the appellants
brought an action setting forth numerous counts, including claims for declaratory,
injunctive, and mandamus relief, against the county, the county commissioner, and
the zoning division manager).
Petitioners argue that dismissal is not required because the naming of additional
parties is merely a procedural defect that may be cured, rather than a jurisdictional
9
defect, citing Warbler, 321 Ga. at 125. In Warbler, our Supreme Court held that a
failure to comply with the exclusivity provision of Paragraph V “is not a jurisdictional
bar to hearing the case,” and was merely a procedural “naming requirement” that
could be cured by dropping parties to the action under OCGA § 9-11-21 to avoid
dismissal. Id. at 129–30(3)(a). However, this case is distinguishable from Warbler
because the plaintiff in that case sought to dismiss the individual defendants prior to
the trial court’s dismissal of the action. Id. at 127(2). In this case, despite being aware
of Hall County’s sovereign immunity argument, Petitioners only dismissed the Hall
County employees from the action, yet left their claims pending against the Hall
County Board of Commissioners and the Property Owner Respondents. Accordingly,
they failed to cure the procedural defect and dismissal is warranted. See Lovell, 318
Ga. at 50(2)(a).
2. In light of our holding in Division 1, we need not address Hall County and the
Hall County Board of Commissioners’ remaining arguments.
Judgment reversed. Mercier, P. J., and Epps, J., concur.
10