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SUPREME COURT OF GEORGIA
Case No. S24C0347

April 30, 2024

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

CITY OF ATLANTA v. 400 EDGEWOOD, LLC.

The Supreme Court today denied the petition for certiorari in
this case.

All the Justices concur.

Court of Appeals Case No. A23A0903

SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta

I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.

, Clerk
MCMILLIAN, J., concurring in the denial of certiorari.

This case turns on whether it is within the jurisdiction of a

municipal court to order the owner of a gas station and convenience

store to make various changes to its security and operations, after

the City of Atlanta asked that court to abate an alleged public

nuisance on the owner’s property. I concur with the denial of

certiorari because I agree that the municipal court could not order

the measures that it did, but for different reasons not discussed by

the Court of Appeals. See 400 Edgewood, LLC v. City of Atlanta, 369

Ga. App. 673, 674 (893 SE2d 156) (2023).

The factual and procedural background as laid out by the Court

of Appeals is as follows:

After a hearing, the municipal court judge entered
an order finding that “the evidence presented was
insufficient to support a finding that the Property itself
created a public nuisance[.]” . . . However, the municipal
court also found that “the evidence support[ed] a finding
that the operation of the business at the Property [was] a
nuisance.” (Emphasis supplied.) The municipal court then
ordered Edgewood to install additional security cameras,
hire “competent security,” and reduce the hours of
operation of the gas station and convenience store for one
year.

Edgewood filed a petition for certiorari review in the
superior court, which affirmed the municipal court's
order. [The Court of Appeals] granted Edgewood's
application for discretionary appeal[.]

Id. at 673-74 (citation and punctuation omitted). The Court of

Appeals reversed, concluding that the municipal court

impermissibly entered injunctive relief by “impos[ing] an

affirmative duty on Edgewood to both perform (by enhancing

security measures) and refrain from performing (by limiting the

2
business’s hours of operation) specific acts.” Id. at 674 (citing Adams

v. Madison County Planning & Zoning, 271 Ga. App. 333, 334 (1)

(609 SE2d 681) (2005) (“[I]njunctions are within the exclusive

jurisdiction of the superior and appellate courts.”)). Having so

concluded, the Court of Appeals found it unnecessary to consider

whether “the municipal court exceeded its in rem authority under

OCGA § 41-2-1 et seq.” Id. n.5.

It is difficult to see, however, how the Court of Appeals could

conclude that the municipal court acted beyond its jurisdiction in

purportedly abating the nuisance, without grappling with OCGA §

41-2-5. OCGA § 41-2-5 provides: “If the existence of a nuisance is

complained of in a county or city of this state, the municipal court of

the city, if the nuisance complained of is in the city, shall have

jurisdiction to hear and determine the question of the existence of

such nuisance and, if found to exist, to order its abatement.”

(emphasis added). We have long held that under OCGA § 41-2-5 and

its predecessors, a municipal court has the power to abate nuisances.

See Horne v. City of Cordele, 254 Ga. 346, 348 (2) (329 SE2d 134)

3
(1985) (acknowledging a recorder court’s “power to abate nuisances

pursuant to the legislative authorization in OCGA § 41-2-5”); City of

Atlanta v. Wolcott, 240 Ga. 244, 244 (240 SE2d 83) (1977) (stating

that OCGA § 41-2-5’s materially similar predecessor “provides that

the police court of such city shall have jurisdiction to . . . order [a

nuisance’s] abatement”); Yield, Inc. v. City of Atlanta, 239 Ga. 578,

579 (238 SE2d 351) (1977) (“Appellee . . . proceeded under [OCGA §

41-2-5’s materially similar predecessor] which authorizes a

municipal court to determine the existence of and abate nuisances”

(emphasis added)).

The question then is whether the municipal court, in ordering

the relief it did, acted within its authority under OCGA § 41-2-5 to

order a nuisance be abated. 1 Wolcott answers this question. See 240

1 The other question, which the parties do not raise before us and I do

not answer, is whether OCGA § 41-2-5 violates Article VI, Section I, Paragraph
IV (“Par. IV”) of the 1983 Georgia Constitution, which provides that “only the
superior and appellate courts and state-wide business court shall have the
power to issue process in the nature of . . . injunction.” This constitutional
question hinges on whether a nuisance-abatement order is inherently an
injunction. In raising this issue, I note that Paragraph I of Art. VI, Sec. I of the
1983 Georgia Constitution, which provides that “[m]unicipal courts shall have
jurisdiction over ordinance violations and such other jurisdiction as provided
by law,” may also bear on whether OCGA § 41-2-5 is constitutional.
4
Ga. at 244-45. In Wolcott, property owners alleged that they were

harmed by the continued use of an adjacent recreational park

maintained by the City of Atlanta and filed an action in superior

court seeking nuisance abatement. See id. at 244. The superior court

ordered the City to “submit a plan for abatement” of a nuisance, and

the City appealed, arguing that under Ga. Code Ann. § 72-401 (a

materially similar predecessor to OCGA § 41-2-5), the superior court

lacked original jurisdiction over a nuisance abatement action

because a city “police court” was the proper forum under § 72-401.

See id. We disagreed, reasoning that § 72-401 did not provide “a

complete and adequate remedy at law,” because the nuisance

complained of “did not result from the existence of a nuisance per se

but from the continuing overuse of the park by members of the

public, absent controls.” Id. at 244-45. The relief ordered was that

the City “develop a plan to control the public use of the park,” rather

than “the removal of the recreational facilities as is contemplated by

[ ] § 72-401.” Id. at 245. Because the relief ordered “would have been

beyond the power of the municipal court of Atlanta,” “jurisdiction

5
was properly maintained in the Superior Court.” Id. at 244-45

(referencing Ga. Const. of 1976, Art. VI, Sec. IV, Par. I (“The

Superior Courts shall have exclusive jurisdiction in . . . equity

cases.”)).

Wolcott supports that the relief granted in this case is also

“beyond the power of the municipal court.” 240 Ga. at 245. Here, the

City of Atlanta originally filed a complaint in rem to abate an alleged

public nuisance on the owner’s property, requesting the municipal

court to ‘“close and immediately secure the Property so that it cannot

be used in connection with the commission of illegal activity.’” 400

Edgewood, LLC, 369 Ga. App. at 673. But while the municipal court

found “the operation of the business at the Property” to be a

nuisance, it did not find that the “Property itself created a public

nuisance.” Id. at 673-74 (emphasis omitted). At this point then, the

municipal court should have denied the City’s in rem abatement

action. Instead, the court ordered the property owner “to install

additional security cameras, hire ‘competent security,’ and reduce

the hours of operation of the gas station and convenience store for

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one year.” Id. at 674. Ordering these changes to how the owner

controlled and operated its business on the property—rather than

ordering the property itself be closed—was injunctive relief beyond

the municipal court’s authority under OCGA § 41-2-5 to order a

nuisance abated. See Wolcott, 240 Ga. at 244 (while ordering the

removal of a park’s recreational facilities was relief “contemplated”

by OCGA § 41-2-5’s predecessor, ordering the City to “develop a plan

to control the public use of the park” was equitable relief beyond

municipal court’s jurisdiction (emphasis added)).

For these reasons, I agree that the Court of Appeals reached

the right result, but caution that the Court of Appeals’s opinion

should not be read as prohibiting a municipal court from abating a

nuisance altogether, given a municipal court’s explicit authority to

do so under OCGA § 41-2-5. 2

2 A party seeking to abate a nuisance may consider filing such an action

in a superior court that has the jurisdiction to impose injunctive relief, should
the nuisance-abatement action be denied.
7

319 Ga. 13
FINAL COPY

S24C0347. CITY OF ATLANTA v. 400 EDGEWOOD, LLC.

ORDER OF THE COURT.

The Supreme Court today denied the petition for certiorari in
this case.

All the Justices concur.

MCMILLIAN, Justice, concurring in the denial of certiorari.