FIRST CENTER, INC. v. COBB COUNTY

318 Ga. 271

• Court: Supreme Court of Georgia
• Decided: February 6, 2024
• Docket: S24A0309
• Status: Published

Opinion

318 Ga. 271 FINAL COPY

S24A0309. FIRST CENTER, INC. et al. v. COBB COUNTY et al.

BETHEL, Justice.

This dispute between the parties stems from a disagreement

about the applicable rules dictating the height of a wall surrounding

a subdivision that is under development. Appellants brought suit

against Cobb County, County Commissioner JoAnn K. Birrell in her

official capacity, and Zoning Division Manager John Pederson in his

official capacity, setting forth numerous counts, including claims for

declaratory, injunctive, and mandamus relief. Appellees responded

by filing a motion to dismiss the complaint pursuant to OCGA § 9-

11-12 (b) (1) and (b) (6) arguing that Appellants’ claim for injunctive

relief was barred by sovereign immunity and asserting other

defenses to the remaining claims. Following a hearing, the trial

court denied Appellants’ request for mandamus relief. As to

Appellants’ remaining claims, the court granted Appellees’ motion

to dismiss for failure to state a claim. Appellants filed an application for discretionary review in the Court of Appeals, which was

transferred to this Court on the basis that the appeal raises a novel

constitutional question left unanswered by this Court’s decision in

State v. SASS Group, 315 Ga. 893, 904 (2) (d) (885 SE2d 761) (2023)

— that is, whether Article I, Section II, Paragraph V (b) (2) of the

Georgia Constitution requires the dismissal of an action seeking

declaratory relief from acts of any county or county officer or

employee that names as a defendant the county officer or employee

in his or her official capacity. We granted Appellants’ discretionary

application pursuant to OCGA § 5-6-35 (j) to consider this question.1

In the time since we granted the application for appeal,

however, we have decided the novel constitutional question

presented in this case. See Lovell v. Raffensperger, 318 Ga. 48 (897

SE2d 440) (2024). There, we made clear that where a party relies,

at least partially, on Paragraph V’s waiver of sovereign immunity in

pursuing its action, the party’s suit must be brought “exclusively”

1 We also posed a second question to the parties, but given our disposition

here, we need not reach that issue. 2 against and “in the name of” the State or local government. See id.

at 51. If a party fails to do this, then the entire action must be

dismissed. See id. at 52 (“The phrase ‘in the name of the State of

Georgia’ in Paragraph V (b) (2) means what it says: actions filed

pursuant to Paragraph V must name as a defendant only the State

of Georgia (or the relevant local government) or the action shall be

dismissed.” (emphasis supplied)). See also Ga. Const. of 1983, Art. I,

Sec. II, Par. V (b) (2) (“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.”).

Here, the trial court dismissed Appellants’ claim for injunctive

relief against the County and the Commissioner on this basis, while

it purported to dismiss Appellants’ remaining claims on other

grounds. However, as Lovell makes clear, the case was due to be

dismissed in its entirety on the basis that Appellants’ suit against

the County also named as defendants the Commissioner and the

Zoning Division Manager. While the trial court should have first

considered the threshold jurisdictional issue of sovereign immunity

3 before reaching the other grounds raised in Appellees’ motion to

dismiss, we nevertheless affirm its ultimate ruling dismissing this

action. See McConnell v. Dept. of Labor, 302 Ga. 18, 18-19 (805 SE2d

79) (2017) (holding that “[t]he applicability of sovereign immunity to

claims brought against the State is a jurisdictional issue” and

“[t]herefore, the applicability of sovereign immunity is a threshold

determination, and, if it does apply, a court lacks jurisdiction over

the case and, concomitantly, lacks authority to decide the merits of

a claim that is barred”).

Judgment affirmed. All the Justices concur.

Decided February 6, 2024.

Sovereign immunity; constitutional question. Cobb Superior

Court. Before Judge Marbutt.

Smith Gambrell & Russell, Kathryn M. Zickert, Kirk R.

Fjelstul, William J. Diehl, for appellants.

Debra L. Blair, Hugh W. Rowling, Jr.; Hall Booth Smith,

Russell A. Britt, Pearson K. Cunningham, for appellees.