Paragraph V(b)(2) Naming Defects Are Non‑Jurisdictional and Curable via OCGA § 9‑11‑21: Tussahaw Reserves, LLC v. Butts County

Introduction

In Tussahaw Reserves, LLC et al. v. Butts County (Supreme Court of Georgia, Oct. 21, 2025), the Court vacated a dismissal that had been entered under the Georgia Constitution’s sovereign-immunity waiver provision, Article I, Section II, Paragraph V (Paragraph V). The decision clarifies how trial courts must handle alleged defects in the “naming requirement” of Paragraph V(b)(2), which mandates that actions brought under the waiver be filed exclusively against, and in the name of, the governmental entity.

The case arose from a denied rezoning application for a proposed rock quarry. The landowners, Tussahaw Reserves, LLC and Keys Ferry Crossing, LLC (collectively, Tussahaw), filed a combined pleading: a statutory petition for writ of certiorari to review the local decision, paired with alternative claims for declaratory and injunctive relief under Paragraph V. The pleading named the Butts County Board of Commissioners and its members in their official capacities as “respondents-in-certiorari” and named Butts County as the “defendant” for the declaratory/injunctive claims.

After State v. SASS Group (2023) emphasized strict adherence to Paragraph V(b)(2)’s naming rule, Butts County moved to dismiss. Tussahaw countered that “respondents-in-certiorari” are not “defendants” within the meaning of Paragraph V and, in any event, sought leave under OCGA § 9‑11‑21 to drop the respondents. The trial court dismissed on sovereign immunity grounds without ruling on the party-drop motion; the Court of Appeals affirmed, relying on a “substance over nomenclature” reading of the complaint to find impermissible claims against the Board. The Supreme Court granted certiorari.

Summary of the Opinion

The Supreme Court vacated the Court of Appeals’ opinion and remanded with directions to have the superior court vacate its dismissal and conduct further proceedings. The Court:

Reaffirmed that noncompliance with Paragraph V(b)(2)’s naming requirement is a procedural defect, not a jurisdictional bar, under Warbler Investments, LLC v. City of Social Circle (2025). Therefore, the superior court erred in treating the defect as depriving it of subject-matter jurisdiction.
Held that trial courts may cure Paragraph V(b)(2) naming defects by allowing parties to be dropped under OCGA § 9‑11‑21 and should address such motions before dismissing.
Declined to decide two merits questions: (i) whether “respondents-in-certiorari” are “defendants” for purposes of Paragraph V(b)(2), and (ii) whether courts may look to the “substance” of the pleading to identify prohibited defendants in Paragraph V(b) cases. The Court invoked principles of constitutional avoidance and its role as a court of review, not first view.

Analysis

Precedents Cited and Their Influence

State v. SASS Group, 315 Ga. 893 (2023): SASS held that when a plaintiff relies on Paragraph V’s waiver but names defendants other than the State or the relevant local government, “the entire case must be dismissed.” SASS catalyzed Butts County’s dismissal motion here. However, the Supreme Court’s later decision in Warbler qualifies the procedural handling of such defects by clarifying they are not jurisdictional and can be cured.
Warbler Investments, LLC v. City of Social Circle, 321 Ga. 125 (2025): Central to the disposition. Warbler distinguishes Paragraph V(b)(1)’s waiver of sovereign immunity (substantive) from Paragraph V(b)(2)’s naming requirement (procedural). A misnamed case does not strip subject-matter jurisdiction; courts can allow party-dropping under OCGA § 9‑11‑21 to cure the defect and avoid dismissal. Tussahaw applies Warbler’s framework to a mixed certiorari/Paragraph V action.
Wasserman v. Franklin County, 320 Ga. 624 (2025); City of Winder v. Barrow County, 318 Ga. 550 (2024); State v. Chulpayev, 296 Ga. 764 (2015): These cases reinforce two appellate axioms: the Supreme Court is a court of review, not first view, and it will not decide constitutional questions unless the trial court distinctly ruled on them. Here, because the trial court did not decide whether “respondents-in-certiorari” are “defendants” under Paragraph V, the Supreme Court declined to address that issue.
Cottrell v. Smith, 299 Ga. 517 (2016); State v. Randall, 318 Ga. 79 (2024); In the Interest of C.C., 314 Ga. 446 (2022); State v. Mondor, 306 Ga. 338 (2019): These authorities embody constitutional avoidance and insistence on resolving cases on non-constitutional grounds when available. Applying that doctrine, the Court vacated the dismissal so the trial court can first address the curative party-drop motion and other threshold issues.

Legal Reasoning

The Court’s reasoning proceeds in measured steps, grounded in recent doctrinal developments and procedural discipline:

1) Paragraph V’s structure: waiver versus naming. Paragraph V(b)(1) waives sovereign immunity for declaratory relief (and, after declaratory relief is granted, related injunctive relief) against unlawful acts of the State or local governments and their officers or employees. Paragraph V(b)(2) then imposes a naming restriction: such actions “shall be brought exclusively” against, and in the name of, the governmental entity, and any action “naming as a defendant” other individuals or entities “shall be dismissed.”
2) Warbler’s clarification controls. Warbler established that Paragraph V(b)(2) is a procedural naming rule, not a jurisdictional prerequisite to the waiver. Thus, misnaming does not bar the court from acting; instead, the court may permit a cure by dropping parties under OCGA § 9‑11‑21. The superior court’s contrary conclusion—that it lacked subject-matter jurisdiction and therefore could not entertain the party-drop motion—was error.
3) Threshold motions must be decided before reaching constitutional questions. Because Tussahaw moved to drop the respondents-in-certiorari (and those respondents sought reconsideration of an earlier request for discharge), the trial court had a non-constitutional route to potentially resolve the naming issue. Under constitutional avoidance, the court should have addressed those motions first.
4) Unresolved merits questions are left for the trial court. The Supreme Court expressly declined to decide (a) whether a “respondent-in-certiorari” is a “defendant” for Paragraph V(b)(2) purposes, and (b) whether courts should look to the “substance” of the pleading (rather than its caption) to identify impermissible defendants under Paragraph V. Those questions may be unnecessary to reach if the trial court grants party-dropping or otherwise narrows the case.
5) Procedural housekeeping on remand. The superior court also had not ruled on Butts County’s earlier motion to proceed only on declaratory/injunctive relief (challenging the propriety of the certiorari count). Addressing that motion may likewise obviate difficult Paragraph V issues.

Impact

This decision, in tandem with Warbler, meaningfully reshapes the practical landscape for Paragraph V litigation and for mixed actions combining certiorari review with constitutional or declaratory claims:

Tempering the harshness of SASS dismissals. After SASS Group, many defendants pressed for immediate dismissal when complaints included any non-entity defendants. Warbler—and now Tussahaw’s application of Warbler—confirms that trial courts should not treat such defects as jurisdictional and should permit curative party-dropping where appropriate. Dismissal is not automatic if a cure is available.
Pleading strategy in local-government cases. Plaintiffs who pair Paragraph V claims with statutory review mechanisms must take care with party designations. If respondents must be named for the review mechanism (e.g., in certiorari proceedings), practitioners should consider either: (i) filing separate actions and moving to coordinate, or (ii) carefully structuring captions and prayers for relief to ensure that Paragraph V claims are brought “exclusively against” the governmental entity. If a misstep occurs, OCGA § 9‑11‑21 offers a path to cure.
Open question on “respondents-in-certiorari.” The Court left unresolved whether a “respondent-in-certiorari” constitutes a “defendant” under Paragraph V(b)(2). This matters for legacy cases filed under former OCGA § 5‑4‑1 et seq. (repealed in 2023 and replaced by OCGA § 5‑3‑2 et seq.) and potentially for current review frameworks with analogous “respondent” roles. Until the Supreme Court answers this definitively, litigants should assume risk and structure pleadings conservatively.
Trial court sequencing and constitutional avoidance. The opinion underscores that trial courts should resolve threshold procedural or evidentiary issues (including party-drop motions and motions to narrow claims) before addressing constitutional questions embedded in Paragraph V practice. This will streamline litigation and reduce premature constitutional rulings.
Subject-matter jurisdiction clarified. By reiterating that Paragraph V(b)(2)’s naming rule is non-jurisdictional, the Court ensures that trial courts retain authority to manage and cure pleading defects rather than terminating cases at the threshold. That promotes adjudication on the merits where feasible.
Land use and zoning disputes. For property owners seeking review of local zoning decisions, the decision facilitates dual-track litigation strategies (administrative review and Paragraph V declaratory/injunctive relief) so long as party-naming pitfalls are managed and curable defects are promptly addressed.

Complex Concepts Simplified

Sovereign immunity and its waiver (Paragraph V). Sovereign immunity generally bars suits against the State and its political subdivisions. Paragraph V(b)(1) creates a limited waiver for suits seeking a declaration that government action is unlawful or unconstitutional, and allows injunctive relief after declaratory relief is granted.
Paragraph V(b)(2) naming requirement. Even when suing over unlawful acts by officers or employees, the suit must be brought exclusively against, and in the name of, the governmental entity (e.g., the county). If a plaintiff names as a “defendant” any other person or entity, the action is subject to dismissal. Warbler clarifies this is a procedural requirement.
Jurisdictional versus procedural rules. A jurisdictional defect deprives a court of power to hear a case. A procedural defect concerns how the case is framed or processed. Warbler holds that violating Paragraph V(b)(2) is procedural, not jurisdictional, so courts retain authority to fix the problem.
OCGA § 9‑11‑21 (dropping or adding parties). Georgia’s civil procedure rule allows courts, at any stage and “on such terms as are just,” to add or drop parties. In this context, it enables plaintiffs to remove improperly named defendants to satisfy Paragraph V(b)(2).
Statutory certiorari and “respondents-in-certiorari.” Under the former certiorari statutes (OCGA § 5‑4‑1 et seq., repealed 2023), the administrative body and its members are typically named as “respondents-in-certiorari” with a limited role—often to transmit the record. Whether such respondents are “defendants” for Paragraph V(b)(2) remains unresolved in this opinion.
Constitutional avoidance. Courts avoid deciding constitutional questions if a case can be resolved on non-constitutional grounds (like resolving a party-drop motion).
Court of review, not first view. Appellate courts generally do not decide issues that the trial court did not first address and decide.

Conclusion

Tussahaw Reserves, LLC v. Butts County fortifies a practical and orderly approach to Paragraph V litigation. The Court vacated the dismissal and remanded for the superior court to exercise its authority to consider curative party-dropping and other threshold motions. Echoing Warbler, the opinion confirms that Paragraph V(b)(2)’s naming requirement is a procedural rule that does not strip courts of subject-matter jurisdiction, and that dismissal should not be reflexive when a defect can be cured under OCGA § 9‑11‑21.

While the Court left open whether “respondents-in-certiorari” are “defendants” for purposes of Paragraph V and whether courts should look beyond captions to the substance of pleadings in this context, it signaled that those difficult constitutional questions should be reached only if necessary. The decision thus promotes curative procedural mechanisms, guards against premature constitutional rulings, and offers clearer guidance for litigants navigating the intersection of administrative review and Paragraph V’s waiver of sovereign immunity in Georgia.

Judgment vacated and remanded with direction; all Justices concurred, except Justice Land, who was disqualified.