CourtListener 10680307

Texte intégral

319 Ga. 293
FINAL COPY

S24A0361. STARSHIP ENTERPRISES OF ATLANTA, INC. v.
GWINNETT COUNTY.

WARREN, Justice.

In October 2022, Starship Enterprises of Atlanta, Inc., filed its

second lawsuit against Gwinnett County challenging a 2015

Gwinnett County ordinance regulating “Adult Establishments.” It

filed that suit under Article I, Section II, Paragraph V of Georgia’s

Constitution (“Paragraph V”), which was added by amendment in

2020 and waives sovereign immunity for certain lawsuits, including

lawsuits against a county for declaratory judgment and related

injunctive relief. In March 2023, the trial court dismissed Starship’s

lawsuit, holding that it was barred by sovereign immunity and by

res judicata. Starship filed an appeal in the Court of Appeals, which

transferred the case to this Court on the ground that the case

involves the novel constitutional question of what counts as a “past,

current, [or] prospective act[ ] occurring . . . after January 1, 2021,”
as used in Paragraph V. For the reasons explained below, we

conclude that although the constitutional waiver of sovereign

immunity contained in Paragraph V applies to Starship’s lawsuit,

the suit is barred by res judicata. We therefore affirm the trial

court’s order dismissing it.1

1. In January 2017, Starship, which owns two stores in

Gwinnett County, filed a lawsuit against Gwinnett County for

declaratory judgment and an injunction, asking the trial court to

declare certain parts of Gwinnett County Ordinance 2015-1082 (“the

Ordinance”) unconstitutional. The Ordinance “amend[ed] Chapter

18 of the Gwinnett County Code of Ordinances by repealing”

ordinances regarding “Adult Entertainment Establishments” and

enacted a new article entitled “Adult Establishments.” As enacted

by the Ordinance, Section 18-292 of the Gwinnett County Code of

Ordinances defines “Adult Establishment” as including a “Sex

Paraphernalia Store,” and defines “Sex Paraphernalia Store” as

a commercial establishment where more than 100 sexual
devices are regularly made available for sale or rental.

1 The case was orally argued before this Court on March 19, 2024.

2
This definition shall not be construed to include any
establishment located within an enclosed regional
shopping mall or any pharmacy or establishment
primarily dedicated to providing medical products.

Section 18-293 (a) says that “[i]t shall be unlawful for any person to

operate an adult establishment in the County without a valid adult

establishment license.”

As alleged in Starship’s complaint, the Gwinnett County

Department of Planning and Development refused to renew

Starship’s occupational tax certificate in February 2016, reasoning

that under the Ordinance, “Starship’s business was unlawful.” As a

result, Starship limited the number of “sexual devices” in each of its

stores to 100. Gwinnett County sent inspectors to Starship’s stores

twice, and in July 2016, the County was satisfied that Starship had

complied with the Ordinance and renewed the occupational tax

certificates for both stores.

In its 2017 complaint, Starship alleged that the Ordinance

violates due process because several terms contained in the

Ordinance, including “regularly made available for sale or rental,”

3
are unconstitutionally vague; violates due-process privacy rights

under the Georgia Constitution by restricting the number of “sexual

devices” available for sale; violates Georgia constitutional due-

process property and liberty rights by exempting certain merchants

from the regulation; and violates Georgia equal-protection rights

because the exemptions to the definition of “sex paraphernalia store”

have no rational relationship to the purpose of the Ordinance.

Gwinnett County filed a counterclaim for injunctive relief, alleging

that Starship had repeatedly violated County ordinances by

operating “sex paraphernalia stores” without an adult

establishment license and in areas where “sex paraphernalia stores”

are not permitted by the County zoning ordinances. The County

requested “a temporary restraining order, an interlocutory

injunction, and a permanent injunction” ordering Starship not to

regularly make “more than 100 sexual devices . . . available for sale

or rental.”

In November 2017, after this Court decided Lathrop v. Deal,

301 Ga. 408 (801 SE2d 867) (2017), Starship voluntarily dismissed

4
its complaint without prejudice. See OCGA § 9-11-41 (a) (1)

(allowing for a plaintiff to dismiss an action without prejudice

“without order or permission of court”).2 Gwinnett County, however,

maintained its counterclaim, and moved for summary judgment. In

January 2018, the trial court granted Gwinnett County’s motion for

summary judgment and injunction. The trial court held that

Starship had routinely violated the Ordinance and granted the

County a permanent injunction restraining Starship from “regularly

making more than 100 sexual devices available for sale” at each of

Starship’s two Gwinnett County locations.3

Starship appealed the decision, arguing that Gwinnett County

2 Lathrop held that “the doctrine of sovereign immunity extends
generally to suits against the State, its departments and agencies, and its
officers in their official capacities for injunctive and declaratory relief from
official acts that are alleged to be unconstitutional.” Lathrop, 301 Ga. at 409.
Lathrop also held that “the doctrine of sovereign immunity usually poses no
bar to suits in which state officers are sued in their individual capacities for
official acts that are alleged to be unconstitutional.” Id. at 434. In December
2017, Starship filed a second lawsuit arguing that the Ordinance is
unconstitutional, this time naming Gwinnett County commissioners in their
individual capacities as the defendants. In January 2019, the trial court
granted the County’s motion for summary judgment on the basis of legislative
immunity.
3 For purposes of this opinion, we will refer to this case as “Starship I.”

5
was not entitled to a permanent injunction because the County had

other remedies available. In a March 2019 unreported decision, the

Court of Appeals affirmed the trial court’s grant of a permanent

injunction against Starship, holding that “there was sufficient

evidence for the trial court to conclude that without enjoining

Starship, it would likely continue to habitually violate the law.”

Starship Enterprises of Atlanta v. Gwinnett County, 349 Ga. App.

XXIII (case no. A18A1492) (March 14, 2019) (unpublished).

In October 2022, Starship filed another lawsuit against

Gwinnett County—which is the subject of this appeal—alleging that

the Ordinance is unconstitutional in several respects and asking for

a declaratory judgment and injunctive relief. In this suit, Starship

invoked Paragraph V’s waiver of sovereign immunity.4 Like the

4 Article I, Section II, Paragraph V (b) of Georgia’s Constitution says, in

relevant part:
(1) Sovereign 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, 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

6
complaint in Starship I, this complaint summarized the same facts

about the Ordinance and Starship’s efforts to reduce the number of

sexual devices for sale in each of its stores to comply with the

Ordinance; raised the same arguments as to due process and equal

protection; and further alleged that the Ordinance violates

Starship’s free speech rights by curtailing the sale of sexual devices.5

In December 2022, Gwinnett County moved to dismiss Starship’s

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. Such waiver of sovereign immunity under this
Paragraph shall apply to past, current, and prospective acts which
occur on or after January 1, 2021.
(2) Actions filed pursuant to this Paragraph against this
state or any agency, authority, branch, board, bureau, commission,
department, office, or public corporation of this state or officer or
employee thereof shall be brought exclusively against the state
and in the name of the State of Georgia. Actions filed pursuant to
this Paragraph against any county, consolidated government, or
municipality of the state or officer or employee thereof shall be
brought exclusively against such county, consolidated government,
or municipality and in the name of such county, consolidated
government, or municipality. Actions filed pursuant to this
Paragraph naming as a defendant any individual, officer, or entity
other than as expressly authorized under this Paragraph shall be
dismissed.

5 Specific allegations in the complaint will be further detailed as
necessary in Division 2 (b) below.
7
complaint on the ground that it was barred by res judicata and

sovereign immunity. In response, Starship argued that res judicata

did not apply because it dismissed its complaint in Starship I

because it was barred by sovereign immunity, and that sovereign

immunity did not bar its new lawsuit because Paragraph V applies

to “past, current, and prospective acts which occur on or after

January 1, 2021,” and the Ordinance would be enforced with

prospective acts occurring after that date.

In March 2023, the trial court granted Gwinnett County’s

motion to dismiss. The court held that Starship’s claims were barred

by res judicata, explaining:

[T]he claims that Starship alleges here are identical to
claims it raised in Starship I, or that it could have put in
issue in that case. . . . Whether Starship’s challenges to
the Ordinance are characterized as affirmative defenses
to, or compulsory counterclaims against, enforcement of
the Ordinance, the time for Starship to assert those
challenges was in Starship I.

The trial court also held that Starship’s claims were barred by

sovereign immunity. The trial court explained that Paragraph V did

not apply in this case because it applies only “to past, current, and

8
prospective acts which occur on or after January 1, 2021.” Ga. Const.

of 1983, Art. I, Sec. II, Par. V (b) (1). The trial court reasoned that

“[t]he Ordinance that Starship wants to challenge was adopted in

2015,” so “Starship’s cause of action against the Ordinance arose

many years before the waiver amendment passed.” Starship

appealed the trial court’s dismissal to the Court of Appeals, which

transferred the case to this Court because the threshold question of

sovereign immunity and the construction of “past, current, and

prospective acts” under Article I, Section II, Paragraph V (b) (1)

poses a novel constitutional question.

2. Sovereign immunity, unlike res judicata, is a threshold

jurisdictional issue, so we address it first. See City of College Park v.

Clayton County, 306 Ga. 301, 314 (830 SE2d 179) (2019) (“The

applicability of sovereign immunity . . . is a jurisdictional issue.”)

(citation and punctuation omitted). See also Joyner v. Leaphart, 314

Ga. 1, 6 n.8 (875 SE2d 729) (2022) (indicating that res judicata is

“an affirmative defense” and not “a jurisdictional matter”). “The

constitutional doctrine of sovereign immunity bars any suit against

9
the State to which it has not given its consent, . . . including suits

for injunctive and declaratory relief from the enforcement of

allegedly unconstitutional laws.” Lathrop, 301 Ga. at 444. See also

Ga. Const. of 1983, Art. I, Sec. II, Par. IX. We have long held that

sovereign immunity applies to counties. See Lathrop, 301 Ga. at

421-422.

Sovereign immunity can be waived by statute or constitutional

amendment, however, and one such waiver was added to our

Constitution when the people of Georgia ratified Act 596 (H.R. No.

1023) in November 2020. As explained above, this waiver is codified

in Article I, Section II, Paragraph V of Georgia’s Constitution and

says, in relevant part:

(b) (1) Sovereign 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, 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

10
Paragraph may, only after awarding declaratory relief,
enjoin such acts to enforce its judgment. Such waiver of
sovereign immunity under this Paragraph shall apply to
past, current, and prospective acts which occur on or after
January 1, 2021.

There is no dispute that Starship’s lawsuit is the type of lawsuit that

this sovereign immunity waiver could apply to; it is an “action[ ] in

the superior court seeking declaratory relief from acts of . . . [a]

county” and seeking to “enjoin such acts.” Paragraph V (b) (1).6

The trial court held, and the County argues, that Paragraph V

does not apply, however, because Starship’s lawsuit does not satisfy

the final sentence of Paragraph V (b) (1): it does not concern any

“past, current, and prospective acts which occur on or after January

1, 2021.” Specifically, the trial court held that Paragraph V did not

apply because the Ordinance was adopted in 2015, so “Starship’s

cause of action against the Ordinance arose many years before the

waiver amendment passed.” The County, although agreeing with

6 There is also no dispute that Starship’s lawsuit, brought against
Gwinnett County, satisfies the requirement in Article I, Section II, Paragraph
V (b) (2) that actions against a county must “be brought exclusively against
such county.”
11
the trial court’s holding, offers a different reason that Paragraph V

does not apply to Starship’s lawsuit. In this Court, the County

conceded that acts of the County other than the passage of the

Ordinance could be “acts” under Paragraph V, such as the County’s

denial of Starship’s occupational tax certificate in 2016. The County

argues, however, that Starship has not met the requirement of

Paragraph V because it has failed to allege any act of the County—

including any “prospective act”—that occurred after January 1,

2021, from which Starship seeks relief.

For the reasons discussed below, we disagree with the trial

court’s holding and with the County’s separate argument and

conclude that Starship’s lawsuit seeks declaratory and injunctive

relief from “prospective acts” that will occur after January 1, 2021,

and therefore Paragraph V’s sovereign immunity waiver applies.

(a) The trial court failed to recognize the breadth of the

definition of “act” in Paragraph V.

The trial court’s holding that Paragraph V does not apply

because the Ordinance was enacted in 2015 appears to be based on

12
the notion that the only relevant “act” about which Starship could

complain—at least for purposes of availing itself of the sovereign

immunity waiver in Paragraph V—was the County’s passage of the

Ordinance. Putting aside whether the mere passage of an ordinance

is the kind of “act” contemplated by the language of Paragraph V,7

we conclude that the word “act” as used in Paragraph V is not

limited to only such an action.

To be sure, Paragraph V does not define “act” or give examples

of what constitutes an “act” under the paragraph. But dictionaries

from around the time Paragraph V was enacted reveal that “act” can

be defined as “the doing of a thing,” Merriam-Webster’s Collegiate

Dictionary (Merriam Webster 2020), at 12, and “a thing done; deed,”

Webster’s New World College Dictionary (Houghton Mifflin

7 We need not decide whether the mere passage of an ordinance is an

“act” subject to Paragraph V’s waiver of sovereign immunity because there is
no question that the Ordinance was enacted well before the effective date of
the waiver of sovereign immunity set out in Paragraph V, so any lawsuit that
challenged the passage of the Ordinance itself could not take advantage of the
Paragraph V waiver. Similarly, we need not decide whether and when a party
would have standing to challenge the mere passage of an ordinance itself, as
opposed to, for example, the past or future enforcement of that ordinance
against the party. As we discuss below, Starship’s lawsuit here challenges the
enforcement of the Ordinance against Starship.
13
Harcourt 2016), at 13. See also State v. SASS Group, LLC, 315 Ga.

893, 898, 900 (885 SE2d 761) (2023) (interpreting Paragraph V and

explaining that when we interpret constitutional provisions, we

“consider the ordinary meaning of the words as they appear in the

Constitution” and “consider text in context”) (citation and

punctuation omitted). That definition is consistent with the text of

Paragraph V, which contemplates lawsuits seeking relief from acts

not only of the state or county but also acts of, for example, “officer[s]

or employee[s]” of a state “board, . . . office, or public corporation.”

See also Kuhlman v. State, 317 Ga. 232, 235 (892 SE2d 753) (2023)

(holding that the appellant’s lawsuit for declaratory relief “comes

within the constitutional waiver of sovereign immunity” in

Paragraph V, where a State board denied the appellant’s application

for relief from the prohibition on the possession of firearms by

convicted felons and the appellant sought declaratory relief that this

denial violated the laws of the state).8

8 An alternate definition of “act” is “the formal product of a legislative

body.” Merriam-Webster’s Collegiate Dictionary (Merriam Webster 2020), at

14
It follows that the trial court should have considered other

“things” the County has “do[ne]” or could “do[ ],” see Merriam-

Webster’s Collegiate Dictionary (Merriam Webster 2020), at 12,

related to the Ordinance from which Starship could seek relief. For

example, denying Starship an occupational tax certificate was a

“thing” the County did to enforce the Ordinance. See id. Thus, the

trial court erred by concluding that because the Ordinance was

passed in 2015, Starship’s lawsuit did not qualify for a waiver of

12. Neither party argues that this is an appropriate definition of act as used in
Paragraph V (b) (1). Notably, even the trial court’s holding—although it
focused on the year the Ordinance was passed—seemed to treat the passing of
the Ordinance as the “act” at issue, as opposed to the Ordinance itself being
the “act.” We agree that this alternate definition does not apply in interpreting
the meaning of “act” in Paragraph V (b) (1). Not only does Paragraph V discuss
acts performed by entities that generally cannot pass laws or ordinances (such
as “officer[s] or employee[s]” of a state “board, . . . office, or public corporation”),
but the provision also talks about “acts which occur,” and generally laws or
ordinances would be described as being “passed” or “enacted,” rather than
“occurring.” Other textual clues in Paragraph V support this interpretation:
later in Paragraph V, when the provision uses “act” to refer to laws, it makes
that clear by referencing the General Assembly and capitalizing “act.” See
Paragraph V (b) (3) (“The General Assembly by an Act may limit . . .”);
Paragraph V (b) (4) (“authorized by Act of the General Assembly”). See also,
e.g., SASS Group, 315 Ga. at 900 (explaining that our determination of the
meaning of the exclusivity requirement in Paragraph V “is further confirmed
by the context of other language in Paragraph V and other parts of the same
section of the Constitution”).

15
sovereign immunity under Paragraph V.9 We now turn to the

9 In support of its conclusion, the trial court cited Donaldson v.
Department of Transportation, 262 Ga. 49 (414 SE2d 638) (1992); Brantley
County Development Partners, LLC v. Brantley County, 540 FSupp.3d 1291
(S.D. Ga. 2021); and Crisp v. Georgia, 2022 WL 3589673 (11th Cir. Aug. 23,
2022). None of these cases is persuasive here.
First, Donaldson—the only case from this Court the trial court cited—
dealt with a sovereign immunity provision different from Paragraph V, which
means the Court did not consider the meaning of “past, current, and
prospective acts,” but instead decided whether a 1991 amendment to the
Georgia Constitution that pertained to sovereign immunity, which was “silent
on the issue of retroactive application,” would be applied prospectively only.
262 Ga. at 53. And the Court looked not at the date of any alleged wrongs done
by the government, but at the date the lawsuit was filed: “Under Georgia law,
the waiver of sovereign immunity occurs at the time that the action arises, not
at the time that the negligent act was committed. We now hold that the state
may withdraw its waiver of sovereign immunity at any time before a citizen
acts in reliance on that waiver by filing suit.” Donaldson, 262 Ga. at 53 (citation
omitted; emphasis added). Thus, the Court concluded that the 1991
amendment did not apply to an action filed in 1988. See id. This conclusion has
no application to Paragraph V, the text of which makes the relevant sovereign-
immunity waiver applicable based on when “acts of the State” or other
applicable government entities occurred, not when the lawsuit was filed by the
plaintiff. For this reason, we conclude that Donaldson has no bearing on our
analysis of Paragraph V.
In Brantley County, a federal district court purported to apply
Donaldson’s reasoning in interpreting Paragraph V, but—as we have just
explained—the text of the constitutional amendment at issue in Donaldson
was so dissimilar to the text of the 2020 amendment at issue in this case that
Donaldson’s reasoning is not the key to deciphering the meaning of Paragraph
V. See Brantley County, 540 FSupp.3d at 1305 (citing Donaldson to determine
that the waiver in Paragraph V did not apply in a case where the petitioners
filed their lawsuit in September 2020, without considering whether the
complaint concerned any “prospective acts” that would occur after January 1,
2021). Moreover, even if we applied the reasoning of Donaldson and Brantley
County, we would conclude that Paragraph V (effective in January 2021) is
applicable to Starship’s lawsuit (filed in October 2022). Finally, Crisp provides

16
County’s argument that Starship has failed to allege that it seeks

relief from an “act” that happened after January 1, 2021.

(b) The County’s argument fails to acknowledge that Starship

has alleged that it seeks relief from the County’s prospective acts of

enforcement, which will occur after January 1, 2021.

In arguing that Starship has not alleged that it seeks relief

from an act that occurred after January 1, 2021, the County points

out that in its complaint, Starship alleges that the County

committed several acts, such as passing the Ordinance and denying

Starship’s occupational tax certificate, and all of these acts occurred

before January 1, 2021. The County argues that these past acts are

the only ones we should consider when determining if Paragraph V

applies because Starship has failed to allege any “prospective” acts—

i.e., acts that will happen in the future—from which it seeks relief.

We disagree.

no guidance here because the government action at issue in that case related
to an allegedly unlawful arrest, and the court explained that “the challenged
acts all predate January 1, 2021.” See 2022 WL 3589673, at *3. Thus, it does
not appear that the complaint in that case implicated any prospective acts,
whereas, as discussed further below, Starship’s lawsuit here does.
17
In its complaint, Starship alleged that Gwinnett County’s

actions “have created a bonafide controversy between the parties,

and Plaintiffs are in doubt as to their rights, privileges, and

immunities with respect to the enforcement of the licensing scheme

at issue.” Starship sought “a declaratory judgment declaring its

rights, privileges and immunities and injunctive relief enjoining

Defendant from enforcing unconstitutional parts of its Ordinances.”

These statements demonstrate that in its lawsuit for declaratory

judgment and an injunction, Starship sought relief not only from the

passage of the 2015 Ordinance but also from the prospective

enforcement of that Ordinance.

Specifically, in the portion of its complaint titled “Standing,”

Starship alleges that it has “suffered injury-in-fact” by “having and

continuing to suffer a curtailing of its right to sell lawful products.”

(Emphasis added.) And the “Facts” portion of the complaint makes

clear that Starship has changed its business practices to comply

with the Ordinance to be granted an occupational tax certificate. To

that end, Starship details how in 2016, after the County denied it an

18
occupational tax certificate, Starship limited the number of sexual

devices available for sale in its stores so that it could comply with

the Ordinance, and how the County then sent inspectors to

Starship’s stores on two occasions before eventually concluding that

Starship was in compliance with the Ordinance. Starship’s

complaint asserts: “As a direct result of Defendant’s prohibition of

having ‘available for sale’ no more than 100 sexual devices displayed

or kept in stock,” Starship has “permanently removed” over 800

“products” and over 1,800 “items that were for sale prior to the

enactment of [the] Ordinance” from each of its two stores. And “[t]he

County’s actions have deprived, and will continue to deprive,

Starship of property rights and liberty interests protected by the

Georgia Constitution.” (Emphasis added.)

As described above, Starship’s complaint demonstrates its

concern about prospective enforcement of the Ordinance: Starship

has stopped selling a significant number of sexual devices in

response to the County’s enforcement of the Ordinance, and

Starship alleges that it wants to (and believes it is constitutionally

19
entitled to) resume selling more devices. It is this alleged concern

that animates Starship’s request for a declaratory judgment and

related injunctive relief. And the County’s representations at oral

argument before this Court validate that concern; the County

acknowledged that it plans to continue enforcing the Ordinance.10

Because Starship sufficiently alleges in its complaint that

Starship seeks to stop future enforcement of the Ordinance—and

such an act of enforcement is a “prospective act[ ]” that will occur

after January 1, 2021—the County’s sovereign immunity is waived

under Paragraph V for Starship’s lawsuit, and the trial court erred

by concluding otherwise.

3. Starship’s complaint must still be dismissed, however,

because it is barred by res judicata. OCGA § 9-12-40 codifies

“Georgia’s basic common law rule of res judicata.” Coen v. CDC

10 At oral argument, the County initially argued that any future acts of

enforcement would be enforcement of the 2018 injunction that was granted to
the County in Starship I requiring Starship to follow the Ordinance, and not
enforcement of the Ordinance itself. However, the County later conceded that
the Ordinance was the basis for the injunction and that as long as the
Ordinance remained the law, the County has an obligation to enforce it. We do
not decide here whether or how Starship could challenge the 2018 injunction.

20
Software Corp., 304 Ga. 105, 107 (816 SE2d 670) (2018). OCGA § 9-

12-40 says:

A judgment of a court of competent jurisdiction shall
be conclusive between the same parties and their privies
as to all matters put in issue or which under the rules of
law might have been put in issue in the cause wherein the
judgment was rendered until the judgment is reversed or
set aside.

For res judicata to apply in Georgia, three requirements must be

met: “(1) identity of the cause of action, (2) identity of the parties or

their privies, and (3) previous adjudication on the merits by a court

of competent jurisdiction.” Coen, 304 Ga. at 105. There is no dispute

that the second requirement is met: in both Starship I and this case,

the parties are Starship and Gwinnett County. Thus, we consider

whether the first and third requirements have been met, beginning

with the third.

As to the third requirement, Starship does not argue that the

trial court was not a “court of competent jurisdiction,” but it argues

that there was no “adjudication on the merits” because Starship

voluntarily dismissed its lawsuit in Starship I, and a first voluntary

21
dismissal does not constitute an adjudication on the merits. Starship

is correct that there was no adjudication of the merits of its lawsuit

against the County in Starship I. See OCGA § 9-11-41 (a) (3) (stating

that only a second notice of dismissal under that subsection

“operates as an adjudication upon the merits”).11 However, not every

11 In Starship I, the trial court actually did rule on some of Starship’s

constitutional claims, holding that the phrase “available for sale” is not
unconstitutionally vague and that the County can “constitutionally regulate
stand-alone adult stores differently than stores in a regional shopping mall.”
On appeal to the Court of Appeals, however, Starship argued that the trial
court erred by addressing these constitutional matters because they were
raised in Starship’s dismissed claim against the County. (In oral argument
before this Court, Starship’s counsel similarly argued that he did not raise the
constitutional matters in defending against the counterclaim. Although
counsel acknowledged that he “talked about” constitutional considerations
during the hearing on the County’s counterclaim in Starship I, he asserted that
he did not make a “complete presentation” of the constitutional matters. This
Court does not have the record of the hearing in Starship I before us in this
case.) The Court of Appeals agreed with Starship’s assertion that the
constitutional matters were raised only as part of the dismissed claim and
reversed the trial court’s holdings as to the constitutional matters on the
ground that the trial court erred by addressing claims Starship raised in its
dismissed complaint: “Assuming, arguendo, that Starship argued the merits of
some of its constitutional claims during the hearing, the trial court had no
power to reinstate the dismissed action and adjudicate any of Starship’s
dismissed claims. Consequently, the trial court’s entry of summary judgment
on Starship’s constitutional claims was improper, and we reverse the trial
court’s grant of summary judgment as to those claims.” 349 Ga. App. XXIII
(citation omitted).
In light of this unique situation—where Starship has argued that it did
not raise the constitutional matters in defending against the County’s
counterclaim and the Court of Appeals concluded that the constitutional

22
claim in Starship I was dismissed; the County continued to assert

its counterclaim, and that lawsuit was adjudicated on the merits.

And the preclusive effect of res judicata applies not only to matters

that were “put in issue” but also those that “might have been put in

issue.” OCGA § 9-12-40 (emphasis added). Because, as we explain

further below, Starship could have raised the constitutional matters

in this counterclaim that was adjudicated on the merits, the third

requirement of res judicata is met. See OCGA § 9-12-42 (“For a

former judgment to be a bar to subsequent action, the merits of the

case must have been adjudicated.”) (emphasis added).

As to the final requirement of res judicata—“identity of the

cause of action”—we have explained that “cause of action” in this

context means “the entire set of facts which give rise to an

matters were raised only as part of Starship’s dismissed lawsuit and reversed
the trial court’s ruling on the constitutional issues—and because the
correctness of the Court of Appeals’s Starship I holding is not at issue in this
case, we will treat these constitutional matters as not having been raised in
Starship I. We also note that the Court of Appeals’s holding that the trial court
had “no power” to rule on dismissed claims has no bearing on whether the trial
court could have ruled on the constitutional matters if Starship had raised
them in defending against the County’s counterclaim.
23
enforceable claim.” Coen, 304 Ga. at 105 (citation and punctuation

omitted). “In considering the ‘entire set of facts,’ we focus on the

‘wrong’ that is asserted.” Id. (citation omitted).

This Court has explained that the requirement of identity of

the cause of action is met “so long as a party pleads but one wrong

in respect to the same transaction, . . . and it makes no difference

that the remedy sought to be applied under different procedures

growing out of the same wrong may be different.” McCracken v. City

of College Park, 259 Ga. 490, 491 (384 SE2d 648) (1989) (citation and

punctuation omitted). For example, in the first case at issue in

McCracken, the city revoked McCracken’s liquor license based on

her violation of a city ordinance, McCracken filed a writ of certiorari

to the superior court to appeal that judgment, and the superior court

dismissed the writ and affirmed the judgment. See id. at 490.

McCracken then filed a separate action for an injunction and

damages sustained as a result of the enforcement of the same

ordinance. See id. The trial court granted summary judgment to the

city on the ground that McCracken’s suit was barred by res judicata,

24
and this Court affirmed, explaining that in both cases “only one

wrong is complained of, namely, the enforcement of an allegedly

unconstitutional ordinance,” and “[t]he principal difference between

the two actions is the nature of the relief sought,” which we held did

not defeat res judicata. Id. at 491. See also Waggaman v. Franklin

Life Ins. Co., 265 Ga. 565, 565-566 (458 SE2d 826) (1995) (holding

that because Waggaman had the opportunity to litigate the

ownership of his life insurance policy in an earlier divorce action, res

judicata barred him from filing a later action against the insurance

company and his ex-wife for a declaratory judgment that he owned

the policy).12

12 We note that Body of Christ Overcoming Church of God v. Brinson, 287

Ga. 485 (696 SE2d 667) (2010), held, with no clear analysis, that a quiet-title
action and a declaratory judgment action did not have “an identity of causes of
action.” See id. at 487. To the extent that case could be read to indicate that
res judicata did not apply simply because different relief was sought, it was
inconsistent with McCracken, a case it did not acknowledge. More importantly,
to the extent Body of Christ failed to consider the “entire set of facts which give
rise” to the claim as the touchstone for whether the cases shared an identity of
causes of action, it was implicitly overruled by Coen. See Coen, 304 Ga. at 105.
Thus, Body of Christ does not prevent our application of res judicata in this
case. See Caldwell v. State, 313 Ga. 640, 644-645, n.7 (872 SE2d 712) (2022)
(explaining that this Court is not bound by cases that have been implicitly
overruled, and we generally follow the decision in the most recent case).

25
Here, as in McCracken, the “wrong” at issue for Starship in

both cases is the same: the County’s enforcement of the allegedly

unconstitutional Ordinance. See McCracken, 259 Ga. at 491.

And the “entire set of facts” at issue in both the County’s

counterclaim for an injunction in Starship I and in Starship’s

current lawsuit are the same: both cases concern the County’s

enforcement of the Ordinance against Starship and what Starship

has done to come into compliance. See Coen, 304 Ga. at 105

(explaining that in determining if the “cause of action” is the same,

we look at “the entire set of facts which give rise to an enforceable

claim”) (citation and punctuation omitted). And because the “wrong”

and “entire set of facts” raised here are the same as those implicated

in Starship I, the constitutional matters Starship raises here could

have been raised in Starship I: although Starship voluntarily

dismissed its claims, it still could have raised the relevant

constitutional matters in response to the County’s counterclaim,

which the County pursued even after Starship dismissed its claims.

In other words: in defending against the County’s claim that it was

26
entitled to an injunction enforcing the Ordinance against Starship,

Starship could have argued that it should not be forced to comply

with the Ordinance because the Ordinance was unconstitutional—

which would have “put in issue” in Starship I the constitutional

matters that are now at issue on appeal after Starship filed this

lawsuit based on the same wrong. See OCGA § 9-12-40.13

Because the requirements of res judicata are met and the

13 Although, as quoted in Division 1 above, the trial court in this case

indicated that Starship’s constitutional claims could be characterized as a
“compulsory counterclaim,” Starship actually could not have raised its
constitutional claims affirmatively in Starship I in a claim or counterclaim
against the County because such claims were barred by sovereign immunity at
that time. See Lathrop, 301 Ga. at 444. See also Heiskell v. Roberts, 295 Ga.
795, 801 (764 SE2d 368) (2014) (“A ‘counterclaim’ is simply the way that a
defendant brings a ‘claim’ against the plaintiff in an existing lawsuit. OCGA §
9-11-13 (a), (b). Such claims do not avoid immunity defenses because they are
labeled ‘counterclaims.’ See OCGA § 9-11-13 (d); Dept. of Human Resources v.
Money, 222 Ga. App. 149, 149 (473 SE2d 200) (1996) (applying sovereign
immunity to counterclaims).”). However, sovereign immunity did not bar
Starship from raising its claims that the Ordinance is unconstitutional in
defending against the County’s lawsuit against Starship for an injunction
enforcing the Ordinance. See Lathrop, 301 Ga. at 425 (“[T]he doctrine of
sovereign immunity bars suits against the State to which the State has not
consented.”) (emphasis added). See also Piedmont Cotton Mills, Inc. v. Woelper,
269 Ga. 109, 110 (498 SE2d 255) (1998) (“[I]t is only where the merits were not
and could not have been determined under a proper presentation and
management of the case that res judicata is not a viable defense. If, pursuant
to an appropriate handling of the case, the merits were or could have been
determined, then the defense is valid.”) (emphasis omitted).
27
constitutional matters Starship now seeks to raise “might have been

put in issue” in Starship I, Starship’s lawsuit is barred by res

judicata. OCGA § 9-12-40. We therefore affirm the trial court’s

dismissal of Starship’s complaint on the basis of res judicata.

Judgment affirmed. All the Justices concur, except Bethel and
Ellington, JJ., not participating.

Decided June 11, 2024.

Adult establishments; constitutional question. Gwinnett

Superior Court. Before Judge Hutchinson.

Begner & Begner, Alan I. Begner, for appellant.

Scott D. Bergthold, Bryan A. Dykes, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: June 11, 2024

S24A0361. STARSHIP ENTERPRISES OF ATLANTA, INC. v.
GWINNETT COUNTY.

WARREN, Justice.

In October 2022, Starship Enterprises of Atlanta, Inc. filed its