2020 Georgia Code
Title 9 - Civil Practice
Chapter 4 - Declaratory Judgments
§ 9-4-1. Purpose and Construction of Chapter

Universal Citation: GA Code § 9-4-1 (2020)

The purpose of this chapter is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and this chapter is to be liberally construed and administered.

(Ga. L. 1945, p. 137, § 13.)

Law reviews.

- For survey article on administrative law, see 60 Mercer L. Rev. 1 (2008). For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Application

General Consideration

Legislative intent.

- Purpose of the provisions on declaratory judgment is to settle and afford relief with respect to rights, status and other legal relations, and the courts of this state will refuse to render or enter a declaratory judgment or decree when such judgment or decree, if rendered, will not terminate the controversy or remove the uncertainty giving rise to the proceeding. Felton v. Chandler, 75 Ga. App. 354, 43 S.E.2d 742 (1947); Pennsylvania Thresherman & Farmers Mut. Cas. Ins. Co. v. Gardner, 107 Ga. App. 472, 130 S.E.2d 507 (1963).

It is the intent and purpose of the provisions on declaratory judgment to settle and afford relief from uncertainty and insecurity with respect to rights and other legal relations between the parties, but it is not the function of the Act (Ga. L. 1945, p. 137) to settle controversies, and make binding declarations, concerning a mere privilege; there must be in the controversy a legally protectible interest existing in virtue of some public law or ordinance. City of Brunswick v. Anderson, 204 Ga. 515, 50 S.E.2d 337 (1948).

Legislative intent and purpose of the provisions on declaratory judgment is to relieve against uncertainty and insecurity, to declare rights, status and legal relations, but not to execute remedies or grant coercive relief. Consequently, a judgment for damages may not be recovered in a declaratory action. Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 66 S.E.2d 726 (1951); Burgess v. Burgess, 210 Ga. 380, 80 S.E.2d 280 (1954).

Purpose of the provisions on declaratory judgment is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and the Act (Ga. L. 1945, p. 137) is to be liberally construed. Parks v. Jones, 88 Ga. App. 188, 76 S.E.2d 449 (1953).

Declaratory judgment law permits one who is walking in the dark to turn on a light to ascertain where one is and where one is going. Venable v. Dallas, 212 Ga. 595, 94 S.E.2d 416 (1956).

Purpose of the provisions on declaratory judgment is to permit one who is walking in the dark to ascertain where one is and where one is going, to turn on the light before one steps rather than after one has stepped in a hole. Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29 (1958); Georgia Power Co. v. City of Cedartown, 116 Ga. App. 596, 158 S.E.2d 475 (1967); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979); Slaughter v. Faust, 155 Ga. App. 68, 270 S.E.2d 218 (1980).

Object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29 (1958); Lumbermens Mut. Cas. Co. v. Moody, 116 Ga. App. 2, 156 S.E.2d 117 (1967); Brogdon v. McMillan, 116 Ga. App. 34, 156 S.E.2d 828 (1967); Georgia Power Co. v. City of Cedartown, 116 Ga. App. 596, 158 S.E.2d 475 (1967); Poole v. City of Atlanta, 117 Ga. App. 432, 160 S.E.2d 874 (1968); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979); Sacks v. Bell Tel. Labs., Inc., 149 Ga. App. 799, 256 S.E.2d 87 (1979); Slaughter v. Faust, 155 Ga. App. 68, 270 S.E.2d 218 (1980).

Provisions on declaratory judgment permit a person to seek direction from the courts without having to make a decision which without such direction might reasonably jeopardize a person's interest. Jahncke Serv., Inc. v. Department of Transp., 134 Ga. App. 106, 213 S.E.2d 150 (1975), later appeal, 137 Ga. App. 179, 223 S.E.2d 228 (1976).

Purpose of the declaratory judgment provisions are not to delay the trial of cases of actual controversy but to guide and protect the parties from uncertainty and insecurity with respect to the propriety of some future act or conduct in order not to jeopardize their interest. Pendleton v. City of Atlanta, 236 Ga. 479, 224 S.E.2d 357 (1976).

It is not purpose of the declaratory judgment law to declare what would be defense to possible action for damages, when the declaration would not also serve as a guide for future conduct. Consolidated Quarries Corp. v. Davidson, 79 Ga. App. 248, 53 S.E.2d 231 (1949).

Declaratory judgment law is not intended to be used to set aside, modify, or interpret judicial decrees or judgments of courts having jurisdiction of the subject matter and parties, but is to be used to obtain a declaration of rights not already adjudicated. Lawrence v. Lawrence, 87 Ga. App. 150, 73 S.E.2d 231 (1952); Burgess v. Burgess, 210 Ga. 380, 80 S.E.2d 280 (1954); Peeples Indus., Inc. v. Parker Hannifin Corp., 189 Ga. App. 857, 377 S.E.2d 691, cert. denied, 189 Ga. App. 913, 377 S.E.2d 12 (1988).

Declaratory judgment law is not intended to blot out innumerable rights and privileges bestowed by the Code and by the fundamental principles of law, but was intended by the very meaning and concept of the word to give additional protection to persons who may become involved in an actual justiciable controversy, in that they differ between themselves as to what their rights are, and to wish to find them out before taking some dangerous step which might or might not be authorized. Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29 (1958).

It is not function of the declaratory judgment law to settle controversies and make binding declarations concerning a mere privilege. Hudon v. North Atlanta, 108 Ga. App. 370, 133 S.E.2d 58 (1963).

Limitations on declaratory judgments.

- Although this chapter is to be liberally construed and administered, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy since the statute does not take the place of existing remedies. Mayor of Athens v. Gerdine, 202 Ga. 197, 42 S.E.2d 567 (1947); Felton v. Chandler, 75 Ga. App. 354, 43 S.E.2d 742 (1947); Findley v. City of Vidalia, 78 Ga. App. 581, 51 S.E.2d 542 (1949); Peoples v. Bass, 93 Ga. App. 71, 90 S.E.2d 926 (1955); Jones v. Moore, 94 Ga. App. 348, 94 S.E.2d 523 (1956); Central Ry. v. Southern Clays, Inc., 94 Ga. App. 377, 94 S.E.2d 625 (1956); United States Cas. Co. v. Georgia, S. & Fla. Ry., 95 Ga. App. 100, 97 S.E.2d 185 (1957); Rowan v. Herring, 214 Ga. 370, 105 S.E.2d 29 (1958); Powers v. Kleven, 97 Ga. App. 705, 104 S.E.2d 533 (1958).

Declaratory judgment was not available to the insurer in a case when the insurer denied that the insured was responsible for providing coverage because there was no future act to which a declaratory judgment could be used to guide and protect the insurer. Builders Ins. Group, Inc. v. Ker-Wil Enters., 274 Ga. App. 522, 618 S.E.2d 160 (2005).

In a district attorney's declaratory judgment action seeking an order requiring magistrate judges to admit and consider hearsay evidence at preliminary hearings to determine whether to bind over a defendant for grand jury indictment, the trial court erred in finding that the court's declaration of law was subject to enforcement by a complaint to the Judicial Qualifications Commission (JQC) because the issue was not properly before the trial court, and the trial court's ruling regarding the JQC was merely advisory. Bethel v. Fleming, 310 Ga. App. 717, 713 S.E.2d 900 (2011).

Under the right-for-any-reason rule, the trial court did not err by dismissing a law firm's case against an insurer under the Declaratory Judgment Act, O.C.G.A. § 9-4-1, and O.C.G.A. § 15-19-14(b) to enforce its attorney's lien in a case the firm filed on behalf of an owner against the insurer because declaratory judgment was not available; the issues the firm raised were the same as those raised in an owner's case against the insurer for failure to provide a defense, and the rights of the parties in the owner's case had already accrued. McRae, Stegall, Peek, Harman, Smith & Manning, LLP v. Ga. Farm Bureau Mut. Ins. Co., 316 Ga. App. 526, 729 S.E.2d 649 (2012).

Because in its counterclaim for declaratory relief, the defendant sought a ruling from the trial court regarding the viability of any future lawsuit brought by the administrator of the two estates on behalf of the estates seeking redemption of the disputed property, and entry of a declaratory judgment that ruled in a party's favor as to future litigation over the subject matter would constitute an erroneous advisory opinion, the defendant's counterclaim for declaratory relief was premature and not ripe for adjudication. Strong v. JWM Holdings, LLC, 341 Ga. App. 309, 800 S.E.2d 380 (2017).

Liberal construction.

- Liberality of construction as to whether resort to a declaratory judgment is available is determined by reference to whether any existing provision of law or equity will provide as complete protection as would a declaratory judgment with respect to some future action or conduct as to the propriety of which a doubt exists. Cohen v. Reisman, 203 Ga. 684, 48 S.E.2d 113 (1948).

"Actual controversy."

- Term "actual controversy" and the terms "rights, status and other legal relations," all relate to a justiciable controversy, and a controversy is justiciable when there are interested parties asserting adverse claims upon an accrued state of facts. Adler v. Adler, 87 Ga. App. 842, 75 S.E.2d 578 (1953).

Court cannot issue advisory opinions.

- Trial court erred by failing to dismiss a city's suits seeking a declaratory judgment as to the annexation of school property because there was no actual annexation of any of the properties in question; thus, the controversy was founded upon proposed legislation and the trial court could not render an advisory opinion. City of Atlanta v. Atlanta Indep. Sch. Sys., 300 Ga. 213, 794 S.E.2d 162 (2016).

Words "rights, status and other legal relations," have application solely with reference to legal relations. Issues which are based on fictitious, colorable, hypothetical, or academic questions, or questions that have become moot, do not involve legal rights, legal status, and other legal relations within the meaning of an "actual" justiciable controversy. Brown v. Lawrence, 204 Ga. 788, 51 S.E.2d 651 (1949).

Words "rights, status and other legal relations," are dependent upon "actual controversy," in a proceeding for declaratory judgment. The "actual controversy" means a justiciable controversy. Brown v. Lawrence, 204 Ga. 788, 51 S.E.2d 651 (1949).

Petition for declaratory judgment will lie only when there is some fact or circumstances which necessitate determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to the petitioner's alleged rights, and which future action, without such direction, might reasonably jeopardize the petitioner's interest. Cohen v. Reisman, 203 Ga. 684, 48 S.E.2d 113 (1948).

Declaratory judgment inappropriate if adjudication of rights was not needed to avoid future undirected action.

- When plaintiff landowners filed a declaratory judgment action seeking a finding that the installation of fiber optic cable in a pipeline that ran through defendant pipeline owner's easement effected a legal abandonment of the easement over the landowners' property, there was no basis for the trial court's issuance of a declaratory judgment on the issue under the Declaratory Judgment Act, O.C.G.A. § 9-4-1 et seq., because the rights of the parties had already accrued and no facts were alleged which showed that an adjudication of the landowners' rights was needed to relieve them from the risk of taking future undirected action incident to their rights that, without direction, would jeopardize their interests. Plantation Pipe Line Co. v. Milford, 257 Ga. App. 709, 572 S.E.2d 67 (2002).

Petition for declaratory judgment is available remedy when there exists justiciable issue, involving uncertainty and danger of loss or detriment to the applicant in the event the applicant chooses the wrong one of two or more legally uncharted courses that appear to be open to the applicant. The remedy is not to be employed to test the validity of determinations having the force of solemn judgments to which no exceptions have been taken. City of Atlanta v. Lopert Pictures Corp., 217 Ga. 432, 122 S.E.2d 916 (1961).

Trial court correctly found that declaratory relief was appropriate to relieve an electrical transmission corporation of uncertainty and insecurity with regard to its rights after a county board of commission enacted an ordinance that imposed a moratorium on the construction of new power lines since the ordinance expressly targeted the very power line proposed by the corporation and plainly prohibited the construction of that line or similar ones. If the corporation could not have obtained declaratory relief, it would have been in danger of losing a valuable property right as a result of the enforcement of the ordinance, which was declared to be unconstitutional. Cobb County v. Ga. Transmission Corp., 276 Ga. 367, 578 S.E.2d 852 (2003).

Declaratory judgment cannot be advisory to review will's validity.

- Guardian's declaratory judgment action seeking to have elderly woman's 2013 last will and testament deemed invalid and void was properly dismissed by the trial court because the elderly woman was still alive and may still revoke the 2013 will; therefore, any ruling determining the will's validity constituted an improper advisory opinion. Kellar v. Davis, 350 Ga. App. 385, 829 S.E.2d 466 (2019), cert. denied, No. S19C1423, 2020 Ga. LEXIS 26 (Ga. 2020).

Mere dispute of facts insufficient to create "uncertainty and insecurity."

- Mere fact that there is a dispute as to issues of fact could not give the necessary element of "uncertainty and insecurity" to entitle a petitioner to maintain a declaratory judgment action. State v. Hospital Auth., 213 Ga. 894, 102 S.E.2d 543 (1958).

Negative declarations.

- Suitability of application for relief by prayer for a negative declaration is clear from this section, even though to call such a prayer negative had been called a colloquialism, and has been said to describe a positive declaration that no right exists on the part of the defendant. Bond v. Ray, 83 Ga. App. 817, 65 S.E.2d 30 (1951).

Testing validity of statute.

- Action for declaratory judgment is an available remedy to test the validity and enforceability of a statute when an actual controversy exists with respect thereto. Total Vending Serv., Inc. v. Gwinnett County, 153 Ga. App. 109, 264 S.E.2d 574 (1980).

Party seeking declaratory relief is not required to violate a law about which there is an actual controversy concerning its enforceability and suffer a criminal prosecution, in order to test its validity. Total Vending Serv., Inc. v. Gwinnett County, 153 Ga. App. 109, 264 S.E.2d 574 (1980).

Cited in Brown v. Mathis, 201 Ga. 740, 41 S.E.2d 137 (1947); Hansell v. Citizens & S. Nat'l Bank, 213 Ga. 205, 98 S.E.2d 622 (1957); State v. Hospital Auth., 213 Ga. 894, 102 S.E.2d 543 (1958); Insurance Ctr., Inc. v. Hamilton, 218 Ga. 597, 129 S.E.2d 801 (1963); Pennsylvania Thresherman & Farmers Mut. Cas. Ins. Co. v. Gardner, 107 Ga. App. 472, 130 S.E.2d 507 (1963); Lott Inv. Corp. v. City of Waycross, 218 Ga. 805, 130 S.E.2d 741 (1963); Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 291 S.E.2d 410 (1982); Taylor v. Mosley, 252 Ga. 325, 314 S.E.2d 184 (1984); Fourth St. Baptist Church v. Board of Registrars, 253 Ga. 368, 320 S.E.2d 543 (1984); Universal Underwriters Ins. Co. v. Georgia Auto. Dealers' Group Self-Insurers' Fund, 182 Ga. App. 595, 356 S.E.2d 686 (1987); Atlantic Wood Indus., Inc. v. Argonaut Ins. Co., 258 Ga. 800, 375 S.E.2d 221 (1989); Interactive Learning Sys. v. Akers, 201 Ga. App. 784, 412 S.E.2d 291 (1991); Baker v. City of Marietta, 271 Ga. 210, 518 S.E.2d 879 (1999); Burton v. Composite State Bd. of Med. Examin'rs, 245 Ga. App. 587, 538 S.E.2d 501 (2000); Dean v. City of Jesup, 249 Ga. App. 623, 549 S.E.2d 466 (2001); Nicholson v. Windham, 257 Ga. App. 429, 571 S.E.2d 466 (2002); Ga. Interlocal Risk Mgmt. Agency v. Godfrey, 273 Ga. App. 77, 614 S.E.2d 201 (2005); Fireman's Fund Ins. Co. v. Univ. of Ga. Ath. Ass'n, 288 Ga. App. 355, 654 S.E.2d 207 (2007); Sinclair v. Sinclair, 284 Ga. 500, 670 S.E.2d 59 (2008); Airport Auth. v. City of St. Marys, 297 Ga. App. 645, 678 S.E.2d 103 (2009); SJN Props., LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 770 S.E.2d 832 (2015); U-Haul Co. v. Rutland, 348 Ga. App. 738, 824 S.E.2d 644 (2019).

Application

Challenge to tax statute

- O.C.G.A. §§ 9-4-1,9-5-1,40-2-8,40-3-6,40-3-21, and48-2-59 provided plaintiff challenging automobile "title transfer fee" with "plain, speedy, and efficient" pre-tax and post-tax remedies by which a taxpayer might challenge the constitutional validity of a state tax, and so satisfied the criteria of the Tax Injunction Act, 18 U.S.C. § 1341, so as to bar jurisdiction of the federal court. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

Declaratory judgment law does not nullify statutes of limitations and established principles of law, so as to authorize a petitioner to brush aside previous judgments of the same court, and seek a determination of the petitioner's rights as if the rights had never been adjudicated. Bingham v. Citizens & S. Nat'l Bank, 205 Ga. 285, 53 S.E.2d 228 (1949); Burgess v. Burgess, 210 Ga. 380, 80 S.E.2d 280 (1954); Royal v. Royal, 246 Ga. 229, 271 S.E.2d 144 (1980).

Petition seeking to compel husband to provide additional funds.

- Wife did not file a declaratory judgment action since the wife sought guidance with respect to provisions in a settlement agreement in order to compel a husband to provide the wife with additional funds; as the trial court's decision was interlocutory and the wife did not secure a certificate of immediate review, the discretionary appeal to resolve whether the trial court's declaratory ruling was appealable as a final judgment was dismissed. Gelfand v. Gelfand, 281 Ga. 40, 635 S.E.2d 770 (2006).

Declaratory judgment action not applicable to moot issue.

- Plaintiff's appeal of the dismissal of a declaratory judgment complaint failed when there was no longer a justiciable controversy as a declaratory judgment action could not lie for a probable future contingency. Barksdale v. DeKalb County, 254 Ga. App. 7, 561 S.E.2d 163 (2002).

Superior court's judgment declaring that an agreement between a condominium association and a telecommunications company was subject to termination by the association pursuant to O.C.G.A. § 44-3-101 was vacated because the 12-month period of O.C.G.A. § 44-3-101(c) expired without the association having terminated any telecommunications contract, rendering the issue in its declaratory judgment action moot, and the declaratory judgment upon a moot issue was not authorized under the Declaratory Judgment Act, O.C.G.A. § 9-4-1 et seq.; by the time the superior court issued the declaratory judgment, the statutory period of O.C.G.A. § 44-3-101(c) had expired, and any right the association had to cancel and terminate contracts under that statute expired. Capitol Infrastructure, LLC v. Plaza Midtown Residential Condo. Ass'n, 306 Ga. App. 794, 702 S.E.2d 910 (2010).

Declaratory judgment was not appropriate in a derivative action by two property management entities against a managing member of a limited liability company because the entities did not seek guidance as to future actions, but instead sought a determination as to whether the managing member had already breached a contract. Pinnacle Benning, LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609, 724 S.E.2d 894 (2012).

Declaratory action as to regulatory investigation.

- Trial court properly dismissed a declaratory judgment action brought by a bank and a cash advance lender, which was operating as an agent for the bank, to stop the Georgia Industrial Loan Commissioner from conducting an investigation of their lending activities because the Commissioner was authorized to conduct an investigation of the two entities' loan activities, notwithstanding the lender's claim that the bank and the lender were operating under the authority of federal banking law. BankWest, Inc. v. Oxendine, 266 Ga. App. 771, 598 S.E.2d 343 (2004).

Trust beneficiary entitled to declaration of rights despite settlement agreement.

- Both a settlement agreement between a trustee and several beneficiaries and the trial court's temporary restraining order maintained the status quo with regard to the personal contents of the beneficiaries' father's home and preserved the issue of one beneficiary's entitlement to the contents for a declaration of the parties' respective rights. Garner v. Redwine, 309 Ga. App. 158, 709 S.E.2d 569 (2011).

Uncertain future act for determination essential.

- Automobile liability insurer's declaratory judgment action was dismissed for mootness and lack of jurisdiction since the insurer sought to determine if the insurer was required to provide coverage in the underlying personal injury action, but although the insurer had filed the declaratory judgment action before judgment was entered in the underlying suit, the insurer already had refused coverage and refused to provide a defense for its insured in that action, thus removing any uncertain future act as the basis for determination by the court. Empire Fire & Marine Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670, 507 S.E.2d 525 (1998).

In a dispute over marble and mineral rights, plaintiff had begun subsurface mining operations, but it had not conducted any activity on the surface of the property and had been ordered by the defendant not to enter; thus, a declaratory judgment would have the effect of "guiding and protecting plaintiff with regard to some future act." J.M. Huber Corp. v. Georgia Marble Co., 239 Ga. App. 271, 520 S.E.2d 296 (1999).

In an action against an airport authority for violations of the Open Meetings Act, O.C.G.A. § 50-14-1 et seq., taxpayers did not seek to contest any decisions made at any of the challenged meetings or assert that the taxpayers were in a position of uncertainty as to an alleged right, but sought to prohibit future violations and punish the authority for the authority's violations; dismissal of the taxpayers' claim for declaratory relief was proper. Avery v. Paulding County Airport Auth., 343 Ga. App. 832, 808 S.E.2d 15 (2017).

Controversy not created by filing lawsuit.

- Insurer improperly sought a declaratory judgment that the insurer had mistakenly made payments under a policy since the declaration would be merely advisory; the only actual controversy was created by the action itself, and one cannot create a controversy for declaratory judgment purposes by filing a lawsuit. Miller v. Southern Heritage Ins. Co., 215 Ga. App. 173, 450 S.E.2d 432 (1994), overruled in part on other grounds, Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 470 S.E.2d 659 (1996).

Judicial review of administrative decision.

- Action for declaratory judgment challenging the validity of an agency rule has no place once judicial review of an administrative decision is sought. State Health Planning Agency v. Coastal Empire Rehabilitation Hosp., 261 Ga. 832, 412 S.E.2d 532 (1992).

Trial court properly dismissed a mortgagor's declaratory judgment counterclaim, which related to the purported conduct of the lender before the lender's failure, because the claim was not filed until after the Federal Deposit Insurance Corporation (FDIC) assumed control of the failed lender and, thus, constituted a post-receivership claim for which the mortgagor was required to exhaust administrative remedies before the FDIC prior to asserting the counterclaim against the lender. Bobick v. Cmty. & S. Bank, 321 Ga. App. 855, 743 S.E.2d 518 (2013).

Declaratory relief is available to an insured seeking a determination as to whether insurers were obligated to defend a pending action. Atlantic Wood Indus., Inc. v. Argonaut Ins. Co., 190 Ga. App. 814, 380 S.E.2d 504 (1989).

Declaratory relief available to insurer.

- In a declaratory action brought by an insurer, the trial court properly granted the insurer summary judgment because there was no evidence that the insurer ever denied coverage. Barclay v. Stephenson, 337 Ga. App. 365, 787 S.E.2d 322 (2016).

Insurer's motion for directed verdict should have been granted in declaratory judgment action.

- Trial court's denial of a directed verdict in favor of the insurer was reversed on the issue of whether the policy was void based upon misrepresentations in the application because the undisputed evidence showed that the use of a certified public accountant audit and a requirement that checks be countersigned were material to the insurer's decision to issue crime coverage to the insured and that the insurer would not have issued the policy if the insurer had known the true facts. Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 336 Ga. App. 795, 783 S.E.2d 441 (2016).

Dentist's action for declaratory and injunctive relief, seeking to prevent the board of dentistry from taking action against the dentist based on an opinion of the attorney general to the effect that certain procedures being performed by the dentist were not within the lawful scope of the practice of dentistry, was not barred by a failure to exhaust administrative remedies since the only way for the dentist to challenge the board's position was to continue performing the procedures, thereby risking criminal prosecution for the felony offense of practicing medicine without a license and/or the initiation of administrative proceedings to revoke the dentist's license to practice dentistry. Thomas v. Georgia Bd. of Dentistry, 197 Ga. App. 589, 398 S.E.2d 730 (1990).

Viability of comparative negligence defense.

- When the insurer conceded that the insurer owed a duty to defend under a liability policy, a declaratory judgment action was not available to determine the identity of the driver of a vehicle involved in an accident as the insurer sought merely to test the viability of its comparative negligence defense in the main tort action or any future bad faith action. Cotton States Mut. Ins. Co. v. Stallings, 235 Ga. App. 212, 508 S.E.2d 688 (1998).

Insurance company which informed an insured that the insured's policy did not provide coverage for an accident caused by the insured's nephew was not permitted to seek a judgment declaring that it did not have an obligation to defend or indemnify the insured. Drawdy v. Direct Gen. Ins. Co., 277 Ga. 107, 586 S.E.2d 228 (2003).

Ascertaining property rights.

- Declaratory relief was appropriate to relieve a niece of uncertainty and insecurity with regard to her property rights under a prior consent order; the unclear provisions in the decree concerning the amount of tax liability and the amount to be paid by the niece if she were the high bidder on the property at issue in the prior consent decree authorized the use of declaratory relief to ascertain the parties' rights and duties. McClure v. Raper, 277 Ga. 642, 594 S.E.2d 330 (2004).

That disputed factual issues remained as to the actualization of a judgment creditor's claimed interest in properties that allegedly were fraudulently transferred by the judgment debtor did not foreclose on the judgment creditor's standing to seek a declaratory judgment as to the priority of that interest. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713, 798 S.E.2d 315 (2017).

Proper remedy in dispute over zoning ordinance.

- In a declaratory judgment action brought by a county against a property owner, the trial court properly granted the county a declaratory judgment because there was a bona fide dispute over the applicability of the county's zoning ordinance and over whether the property owner had vested rights to use a petroleum gas tank on the property. Since the county was in a position of uncertainty as to the county's legal rights, a declaratory judgment was authorized. U.S. A. Gas, Inc. v. Whitfield County, 298 Ga. App. 851, 681 S.E.2d 658 (2009).

County's action against an airport authority stated grounds for relief.

- County's action against an airport authority seeking a declaration that the authority lacked the authority to submit an application to the Federal Aviation Administration for an Airport Operating Certificate without the county's consent stated an actual controversy under the Declaratory Judgment Act, O.C.G.A. § 9-4-1 et seq., and should not have been dismissed. Avery v. Paulding County Airport Auth., 343 Ga. App. 832, 808 S.E.2d 15 (2017).

Standing to file for declaratory judgment established.

- Participants, the pension board members, and the advocates were authorized under O.C.G.A. § 9-4-1 to file for a declaratory judgment on behalf of the municipal pension funds against the City of Atlanta, in which they sought a declaration allowing the funds to hire a third party administrator and an outside counsel; the participants, the members, and the advocates had an interest in having the matters at issue resolved as the members owed duties to the beneficiaries of the pension funds, the participants had an interest in how the funds were administered, and the advocates engaged in advocacy for the participants. City of Atlanta v. S. States Police Benevolent Ass'n, 276 Ga. App. 446, 623 S.E.2d 557 (2005).

Involuntary dismissal must be without prejudice.

- Involuntary dismissal of a declaratory-judgment action for want of justiciability does not operate as an adjudication on the merits and is instead an issue of subject-matter jurisdiction. Accordingly, dismissal must be without prejudice. Pinnacle Benning, LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609, 724 S.E.2d 894 (2012).

Because the defendant's counterclaim for declaratory judgment was premature and sought an opinion that was advisory in nature, the trial court lacked subject matter jurisdiction over the counterclaim; thus, the trial court's final order and judgment denying the defendant's counterclaim for a declaratory judgment had to be vacated, and the case was remanded for the trial court to dismiss the counterclaim without prejudice. Strong v. JWM Holdings, LLC, 341 Ga. App. 309, 800 S.E.2d 380 (2017).

Insurer not required to rescind policy and return premium before seeking judgment.

- Based on evidence from an insurance underwriter that the underwriter would have rejected an application for crime coverage if the application had accurately stated that the insured was not audited by a CPA and did not require countersignatures on checks, these misrepresentations were material under O.C.G.A. § 33-24-7(b) and entitled the insurer to a declaratory judgment; the insurer was not required to rescind the policy and return the premium prior to seeking judgment. Georgia Casualty & Surety Company v. Valley Wood, Inc., 336 Ga. App. 290, 785 S.E.2d 1 (2016).

Declaratory judgment action not justified to challenge will.

- Probate court properly dismissed the brothers' petition because the proposed declaratory judgment action would have triggered the in terrorem clause since although the brothers claimed that their proposed declaratory judgment action sought to interpret the father's will, the proposed declaratory judgment action made clear that what the brothers truly sought was to remove the father's girlfriend as a beneficiary, executor, and trustee. In re Estate of Johnson, 352 Ga. App. 164, 834 S.E.2d 283 (2019).

RESEARCH REFERENCES

Am. Jur. 2d.

- 22A Am. Jur. 2d, Declaratory Judgments, §§ 5, 6, 11.

C.J.S.

- 26 C.J.S., Declaratory Judgments, § 7 et seq.

U.L.A.

- Uniform Declaratory Judgments Act (U.L.A.) § 12.

ALR.

- Declaration of rights or declaratory judgments, 12 A.L.R. 52; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205; 114 A.L.R. 1361; 142 A.L.R. 8.

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

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