FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 20, 2019
In the Court of Appeals of Georgia
A18A1951. CARSON, JR. et al. v. BROWN et al.
A18A1978. CARSON, JR. et al. v. BROWN et al.
A18A1979. BROWN et al. v. CARSON, JR. et al.
DILLARD, Chief Judge.
These three consolidated appeals concern the partial grant of a motion for
judgment on the pleadings with respect to an action by E. Howard Carson, Jr. and Red
Bull Holdings II, LLC (collectively, “Carson”) against the director of the Forsyth
County Department of Planning and Community Development, Tom Brown, in his
individual and official capacities, and against the planner technician of the same
department, Carroll Williams, in her individual and official capacities (collectively,
“Brown and Williams”). Carson filed a “petition for mandamus” seeking to compel
Brown and Williams to process his application for a land-disturbance permit
submitted in anticipation of developing certain real property in Forsyth County, and
the trial court subsequently partially granted Brown and Williams’s motion for
judgment on the pleadings.
The procedural history of the various appeals will be further discussed infra,
but in both Case Numbers A18A1951 and A18A1978, Carson argues that, in granting
the motion, the trial court erred by (1) ruling that he cannot challenge the
constitutionality of a Forsyth County moratorium on certain land-disturbance
applications via a petition for mandamus; (2) ruling that his challenge to the
constitutionality and legality of the County’s moratorium on certain land-disturbance
applications really sought declaratory judgment, which was barred by sovereign
immunity; and (3) denying his petition for mandamus and dismissing the action
against Brown and Williams in their individual capacities. And in Case Number
A18A1979, Brown and Williams cross-appeal, arguing that, in partially granting their
motion for judgment on the pleadings, the trial court erred in (1) finding that Carson’s
action was not barred by res judicata; (2) finding that Carson’s land-disturbance
application was not clearly rejected; and (3) failing to dismiss the action for a failure
to first exhaust administrative remedies. For the reasons set forth infra, we affirm in
2
part and reverse in part as to Case Numbers A18A1951 and A18A1978, and affirm
as to Case Number A18A1979.
1. Jurisdiction. Before reaching the merits of the various appeals, we must first
address our jurisdiction to entertain these cases, which Brown and Williams have
challenged from the outset.1 To that end, it is necessary to first detail how the appeals
reached this Court.
(a) Case Numbers A18A1978 and A18A1979.
In Case Number A18A1978, Carson initially filed an application for
discretionary appeal with the Supreme Court of Georgia, which then transferred the
application to this Court. After reviewing the application for a discretionary appeal,
we granted it after concluding that Carson had a right to a direct appeal under OCGA
§ 5-6-34 (a) (7), which provides, in relevant part, for direct appeals to this Court from
“[a]ll judgments or orders granting or refusing to grant mandamus[.]”
Following our grant of Carson’s application on this basis, Brown and Williams
filed a motion for reconsideration, arguing that Carson was required to file an
1
See, e.g., Southall v. State, 300 Ga. 462, 462 (1) (796 SE2d 261) (2017) (“[I]t
is the duty of this Court to inquire into its jurisdiction in any case in which there may
be a doubt about the existence of such jurisdiction.” (punctuation omitted)); State of
Ga. v. Int’l Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 396 (2) (788
SE2d 455) (2016) (same).
3
application for discretionary appeal under OCGA § 5-6-35 (a) (1) because he was
appealing the trial court’s review of a local administrative agency’s decision, citing
Selke v. Carson.2 We denied the appellees’ motion for reconsideration. Thereafter,
Brown and Williams filed their cross-appeal in this Court, which was docketed as
Case Number A18A1979.
(b) Case Number A18A1951.
As discussed supra, in Case Number A18A1978, Carson initially filed an
application for discretionary appeal in the Supreme Court of Georgia; but he did so
out of an abundance of caution after also filing a direct appeal in Case Number
A18A1951 (docketed in the Supreme Court as Case Number S18A0817). In light of
the Supreme Court of Georgia’s transfer of the application in Case Number
A18A1978 to this Court, Carson filed a motion to transfer his direct appeal in
A18A1951 from the Supreme Court to this Court as well, and the Supreme Court
granted that motion.
With three appeals then pending in this Court, we granted a consent motion by
the parties to consolidate the cases. Accordingly, the issues and parties’ arguments
in Case Numbers A18A1978 and A18A1951 are one and the same.
2
295 Ga. 628 (759 SE2d 853) (2014).
4
(c) Our jurisdiction to entertain these appeals.
(i) The right to a direct appeal.
Brown and Williams continue to challenge our earlier determination that
Carson had a right to directly appeal in Case Number A18A1978 and, by extension,
Case Number A18A1951. They also concede that, if this Court lacks jurisdiction over
A18A1978, it likewise lacks jurisdiction to entertain their cross-appeal in
A18A1979.3 Brown and Williams assert that Carson was required to file an
application for discretionary appeal under OCGA § 5-6-35 (a) (1) because his appeal
was from the trial court’s review of a decision by a local administrative agency. And
once again, they rely on Selke v. Carson4 in support of this argument.
3
See OCGA § 5-6-38 (a) (“In civil cases, the appellee may institute cross
appeal by filing notice thereof within 15 days from service of the notice of appeal by
the appellant; and the appellee may present for adjudication on the cross appeal all
errors or rulings adversely affecting him; and in no case shall the appellee be required
to institute an independent appeal on his own right, although the appellee may at his
option file an independent appeal.”); see also Dep’t of Transp. v. Douglas Asphalt
Co., 297 Ga. App. 511, 514 (677 SE2d 728) (2009) (dismissing cross-appeal that had
no independent basis for jurisdiction after the dismissal of the main appeal); Serco
Co. v. Choice Bumper, Inc., 199 Ga. App. 846, 846 (406 SE2d 276) (1991) (holding
that appellant’s voluntary withdrawal of direct appeal required dismissal of
cross-appeal, which had no independent basis for jurisdiction).
4
295 Ga. 628 (759 SE2d 853) (2014).
5
In Selke, the Supreme Court of Georgia dismissed a direct appeal filed by
former deputy sheriffs who had been required to file an application for discretionary
review. The appellants in Selke were terminated from their positions without notice
and appealed their terminations to the Forsyth County Personnel Services Director,
requesting that their appeals be forwarded to the Forsyth County Civil Service
Board.5 The Personnel Services Director denied the appeals because the sheriff
claimed that the former deputies were terminated due to a reduction in force, and
layoffs were not an appealable event; thus, the director refused to forward the appeals
to the Board for its consideration.6 The former deputies then filed a petition for writ
of mandamus against the director, the board, and the county, seeking to compel the
director to forward the appeals to the board.7 The superior court thereafter granted a
motion to dismiss that was filed by the appellees in Selke, and the appeal of the grant
of that motion to dismiss was brought before our Supreme Court by a direct appeal.8
5
Id. at 628-29.
6
Id.
7
Id. at 629.
8
Id.
6
The Supreme Court dismissed the appeal in Selke after determining that the
director “made an administrative department decision refusing to forward appellants’
appeals to the Civil Service Board”9 and because that “decision was reviewed by the
superior court, it was incumbent upon appellants to proceed [to the Supreme Court]
by discretionary appeal.”10 Thus, the Selke Court recognized that while the general
rule is that “judgments or orders granting or refusing to grant mandamus are
appealable directly[,]”11 a direct appeal will not lie “if the underlying subject matter
of a mandamus petition concerns an administrative ruling which is reviewed by a
superior court[.]”12 And the Court further explained that OCGA § 5-6-35 (a) (1)
“requires an appellant to file an application for a discretionary appeal from a decision
9
Id.
10
Id.
11
Id. (citing OCGA § 5-6-34 (a) (7), which provides that “[a]ppeals may be
taken to the Supreme Court and the Court of Appeals from the following judgments
and rulings of the superior courts, the constitutional city courts, and such other courts
or tribunals from which appeals are authorized by the Constitution and laws of this
state: . . . All judgments or orders granting or refusing to grant mandamus or any
other extraordinary remedy, except with respect to temporary restraining orders”).
12
Id.; see Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255,
255 (564 SE2d 715) (2002) (“[T]he underlying subject matter listed in the
discretionary appeal statute prevails over the procedural judgment listed in the direct
appeal statute.”).
7
of a superior court reviewing the decision of a state or local administrative agency.”13
Stated another way, when “both the direct and discretionary appeal statutes are
implicated, it is always the underlying subject matter that will control whether the
appeal must be brought [under] OCGA § 5-6-34 or OCGA § 5-6-35.”14
Here, the record shows that in March 2016, Carson purchased Forsyth County
property in the name of Red Bull and, at the time of purchase, that property was
zoned in an RES3 district, which allowed for property to be developed into residential
lots with a 9,000-square-foot minimum size. Later, in August 2016, the Forsyth
County Board of Commissioners imposed a 30-day moratorium on land-development
permits for RES3 property that sought to develop lots with a size of less than 14,750
square feet.15 Then, on September 7, 2016, Carson submitted a land-disturbance
permit application to the Forsyth County Department of Planning and Community
13
Selke, 295 Ga. at 629.
14
Ferguson, 275 Ga. at 257 (1); see Voyles v. Voyles, 301 Ga. 44, 45 n.2 (799
SE2d 160) (2017) (“This case involves the denial of a motion to set aside that, but for
the fact that it is a domestic relations case, would be directly appealable because it is
based on an alleged lack of notice of a hearing rather than on a non-amendable defect
in the record. The domestic relations subject matter of the case, however, requires a
discretionary application in this context.” (citations omitted)).
15
The moratorium was later modified to allow for development of certain
residential properties with lots at a minimum size of 10,000 square feet.
8
Development, seeking to develop the subject property with residential lots at a
minimum of 9,000 square feet.
The department initially accepted the application, but the next day, Williams,
a planner technician, released the application back to Carson to make certain
corrections. With the application amended accordingly, Carson resubmitted it, but on
September 9, 2016, Williams wrote that she was “releasing this plan back to [Carson]
because of the moratorium on RES3 LDP applications.” Even so, she still asked
Carson to provide additional information. Carson complied with this request, and the
application remained pending after resubmission. Thereafter, when Carson asked
Williams in writing to process the application, he received a response from the county
attorney, who advised Carson that the application would not be processed and that the
September 9, 2016 communication from Williams had been a rejection of same.
As previously detailed, Carson proceeded by filing a verified petition for writ
of mandamus against Brown and Williams, individually and in their official
capacities, seeking an order declaring the moratorium void and ultra vires, and
directing Brown and Williams to process the land-disturbance permit application.
These appeals follow the trial court’s partial grant of Brown and Williams’s motion
for judgment on the pleadings.
9
Looking to Brown and Williams’s jurisdictional challenge on appeal, it is
undisputed that the Forsyth County Department of Planning and Community
Development is a “local administrative agency” for purposes of OCGA § 5-6-35 (a)
(1).16 What is in dispute is whether a “decision” of a local administrative agency is
being reviewed.
In State v. International Keystone Knights of the Ku Klux Klan, Inc.,17 the
Supreme Court of Georgia provides a thorough explanation of what constitutes a
“decision” for purposes of OCGA § 5-6-35 (a) (1),18 explaining that:
Considering the statutory text, its relevant context, the judicial
precedents, and the usual understanding of American courts generally
about administrative determinations of different sorts, we conclude that
“decision”—as the term is used in OCGA § 5-6-35 (a) (1) with reference
to administrative agencies—is most naturally and reasonably understood
to refer to an administrative determination of an adjudicative nature.19
16
Cf. Int’l Keystone Knights of the Ku Klux Klan, 299 Ga. at 399 (4) (a) (“No
one disputes that the [Georgia] Department [of Transportation] is a ‘state
administrative agency’ for the purposes of OCGA § 5-6-35 (a) (1), and in the context
of this case, it quite clearly is.”).
17
299 Ga. 392 (788 SE2d 455) (2016).
18
See generally id. at 399-407 (4) (a).
19
Id. at 404 (4) (a). Our Supreme Court further concluded that “formal
adjudicative procedures” are not essential to reach a “decision” for purposes of
10
In reaching this conclusion, the Supreme Court of Georgia explained that it has
“consistently . . . refused . . . to require applications in cases concerning executive
determinations and those involving rulemaking or other determinations of a
legislative nature.”20 And more recently, in Schumacher v. City of Roswell,21 our
Supreme Court reiterated this point by noting that it has “refused to require an
application in . . . zoning-related cases that were not appealing decisions of
administrative agencies.”22 In both Schumacher and International Keystone Knights,
the Supreme Court cited Mid-Georgia Environmental Management Group v.
OCGA § 5-6-35 (a) (1). See id. at 404-05 (4) (a) (“Although a determination of an
adjudicative nature is essential to an administrative ‘decision’ for the purposes of
OCGA § 5-6-35 (a) (1), the [appellant] says that a ‘decision’ also must be marked by
formal adjudicative procedures. We disagree. In the first place, we do not understand
the usual and common usage of ‘decision’ to connote any particular degree of
formality in the decisional process. Nor is any particular degree of formality inherent
in the notion of adjudicative decisionmaking. . . . More important, our own precedents
foreclose the idea that formal adjudicative procedures are essential to a ‘decision,’ as
that term is used in OCGA § 5-6-35 (a) (1).”).
20
Int’l Keystone Knights of the Ku Klux Klan, 299 Ga. at 403-04 (4) (a)
(footnotes omitted) (citing Danbert v. N. Ga. Land Ventures, 287 Ga. 495, 495 (697
SE2d 204) (2010); Mid-Ga. Envt’l Mgmt. Grp. v. Meriwether Cty., 277 Ga. 670, 671-
72 (594 SE2d 344) (2004); Ga. Dep’t of Transp. v. Peach Hill Props., 278 Ga. 198,
200 (599 SE2d 167) (2004)).
21
301 Ga. 635 (803 SE2d 66) (2017).
22
Id. at 640 (2) (emphasis supplied).
11
Meriwether County23 as an example of a determination that was not a decision for
purposes of OCGA § 5-6-35.24
In Mid-Georgia Environmental Management Group, a landowner contacted
Meriwether County to acquire a verification letter stating that the owner’s proposed
use of its property for development of a landfill complied with the county’s zoning
ordinance and solid waste management plan.25 The letter also informed the county
that the property owner believed the county’s relevant zoning ordinance “had not
been validly adopted and therefore the [c]ounty’s only option was to issue the
verification letter.”26 The county refused to issue the verification letter, asserting that
its zoning ordinance was validly adopted and, thus, the property owner’s proposed
use of the land was impermissible.27 Thereafter, the property owner filed both a
declaratory judgment action as to the validity of the zoning ordinance, and a petition
23
277 Ga. 670 (594 SE2d 344) (2004).
24
See Schumacher, 301 Ga. at 640 (2); Int’l Keystone Knights, 299 Ga. at 403-
04 (4) (a).
25
277 Ga. at 670.
26
Id.
27
Id.
12
for writ of mandamus to require the county to issue the verification letter.28 The trial
court entered declaratory judgment in favor of the county and denied the petition for
writ of mandamus, leading the property owner to seek review by the Supreme Court
of Georgia.29
Our Supreme Court determined in Mid-Georgia Environmental Management
Group that the property owner had a right to directly appeal the trial court’s ruling on
the petition for writ of mandamus because the county’s decision refusing to issue the
requested verification letter was not a “zoning decision” for purposes of OCGA § 5-
6-35.30 And in the cases relied upon by our Supreme Court in reaching this
28
Id. at 670-71.
29
Id.
30
See id. at 672 (“[W]e require an application to appeal in mandamus actions
brought against county boards of commissioners where the decision under review is
a zoning decision. Thus, only if the Board of Commissioners’s decision refusing to
issue the verification letter was a ‘zoning decision’ would an application be required
in this case. This Court has previously accepted direct appeals where a property
owner sought mandamus to require the issuance of a letter verifying that a proposed
use is consistent with zoning and land use plans. Furthermore, the relevant zoning
decision is the one that established the zoning for the site for the proposed landfill,
and no one has ever sought review of this zoning decision.” (footnotes omitted)); see
Fulton Cty. v. Congregation of Anshei Chesed, 275 Ga. 856, 857 (1) (572 SE2d 530)
(2002) (“In essence, this Court determined in [Trend Dev. Co. v. Douglas County,
259 Ga. 425 (383 SE2d 123) (1989)] and its progeny that a zoning decision made by
a local government was the action of a local administrative agency within the
13
conclusion, the Court repeatedly found a right to directly appeal in situations in which
a party sought mandamus to compel the issuance of verification letters, as opposed
to challenging what it deemed a “zoning decision.”31
Here, we must determine whether Williams’s “release” of Carson’s land-
disturbance permit application back to him “because of the moratorium on RES3 LDP
applications” and concurrent request for the provision of additional information
meaning of OCGA § 5-6-35 (a) (1), and an appeal from a superior court decision
reviewing the local administrative agency’s decision must come by way of application
pursuant to § 5-6-35 (a) (1).”), overruled on other grounds by City of Cumming v.
Flowers, 300 Ga. 820, 832 (6) (a) (797 SE2d 846) (2017).
31
Compare Enre Corp. v. Wheeler Cty. Bd. of Commissioners, 274 Ga. 17, 17
(549 SE2d 67) (2001) (concerning direct appeal from the denial of a petition for writ
of mandamus seeking to require the issuance of certificate of consistency with
regional solid waste management plan); Long v. FSL Corp., 268 Ga. 479, 479-80 (1)
(490 SE2d 102) (1997) (holding that appeal from the grant of a petition for writ of
mandamus seeking to require issuance of written approval for construction of a
landfill was subject to direct appeal because case involved “not zoning, but a county’s
decision as a matter of its legislative policy to retain or waive a right given it by the
legislature,” (i.e., “OCGA § 12-8-25 gives every county and municipality the power
to withhold permission for the construction of a landfill in another jurisdiction but
within half a mile of the first jurisdiction’s border”)); Banks Cty. v. Chambers of Ga.,
Inc., 264 Ga. 421, 421-22 (444 SE2d 783) (1994) (concerning direct appeal from the
grant of a petition for writ of mandamus seeking to require the issuance of a written
verification letter), with Trend Dev. Corp. v. Douglas Cty., 259 Ga. 425, 425-26 (1)-
(2) (383 SE2d 123) (1989) (holding that an application for discretionary appeal is
required in “appeals in zoning cases” in which a “zoning decision” is reviewed, and
in which case concerned an application to rezone certain property, which application
was denied).
14
constitute a “decision” for purposes of OCGA § 5-6-35. The Supreme Court of
Georgia has previously permitted a direct appeal from a mandamus action in which
a property owner sought issuance of a land-disturbance permit after no decision was
made for at least three months after the application’s submission, and the application
was eventually rejected by the relevant city employee only after he was instructed by
the board of commissioners not to issue the permit.32 On the other hand, more
recently, our Supreme Court granted an application for discretionary appeal in a case
in which a property owner filed a petition for a writ of mandamus, seeking issuance
of land-disturbance permits.33
The only discernable distinction between these Supreme Court precedents is
that, in the direct appeal, the relevant city employee failed to make any decision on
the application for months after its submission, the applicant filed a petition for a writ
of mandamus, and the application was only officially denied the day before the
32
See City of Albany v. Oxford Solid Waste Landfill, Inc., 267 Ga. 283, 283
(476 SE2d 729) (1996).
33
See DeKalb Cty. v. Cooper Homes, 283 Ga. 111, 111-13 (1) (657 SE2d 206)
(2008); see also JWIC, Inc. v. City of Sylvester, 278 Ga. 416, 416-17 (1) (603 SE2d
247) (2004) (challenge brought by application for interlocutory appeal).
15
hearing on the applicant’s petition for mandamus.34 In the case brought by application
for discretionary appeal, the request for a land-disturbance permit was denied by the
county on the merits, and the applicant challenged the denial through the petition for
writ of mandamus.35 And in this case, in which Carson’s application was simply
“released” back to him due to a moratorium, we, like the trial court, conclude that no
34
See City of Albany, 267 Ga. at 283.
35
See DeKalb Cty., 283 Ga. at 111-12 (“Appellee . . . had its application for
interior side yard setback variances denied by the DeKalb County Zoning Board of
Appeals (ZBA) and its application for land disturbance permits denied by the
county’s planning and development department.”); id. at 114 (1) (“[T]he planning and
development department denied the applications for building permits on the ground
that there was no land development permit for the property on file, as required by .
. . the county’s zoning ordinance.”); see also JWIC, Inc., 278 Ga. at 416 (1)
(“[Appellant] applied for a land disturbance permit with the City for the building of
a 49-unit apartment complex on property located in the City’s R-OI zoning district.
[Appellant] contended that apartments constituted multi-family dwellings under the
ordinance’s definition of that term, and that, as multi-family dwellings were a
permitted use as a matter of right in the R-OI district, apartments were permitted
there. The City . . . contended that apartments were not permitted in the R-OI district,
but instead were only permitted in the R-M Group Development zoning district. That
district is a ‘floating’ district that does not appear on the City’s zoning map, as do its
eight other zoning districts, but it permits group development in each of the
ordinance’s eight actual districts by a special exception permit approved by the
planning commission and the city council. The City contended that, as apartments
were only mentioned in the ordinance as being permitted as part of a group
development, apartments could only appear in such a district by grant of a special
exception permit. The City never issued a land disturbance permit to JWIC,
prompting JWIC to bring this action for injunctive, declaratory, and mandamus
relief.”).
16
clear “decision” was made on the merits of Carson’s application. Instead, even Brown
and Williams’s explanation that the moratorium prevented acceptance of such
applications supports this conclusion: if the application could not be accepted, no
decision could be rendered. Thus, because no decision was made for purposes of
OCGA § 5-6-35 (a) (1), the discretionary appeal procedure was not implicated.
(ii) Whether an application for interlocutory appeal was required.
Although we have concluded that no “decision” was made for purposes of
OCGA § 5-6-35 (a) (1), Brown and Williams also argue that this Court lacks
jurisdiction because Carson was required to follow the procedures for an interlocutory
appeal because the trial court made no final ruling on the question of mandamus, and
one claim remains pending below.36
36
See OCGA § 9-11-54 (b) (“When more than one claim for relief is presented
in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, . . .
the court may direct the entry of a final judgment as to one or more but fewer than all
of the claims . . . only upon an express determination that there is no just reason for
delay and upon an express direction for the entry of judgment. In the absence of such
determination and direction, any order or other form of decision, however designated,
which adjudicates fewer than all the claims . . . shall not terminate the action as to any
of the claims or parties, and the order or other form of decision is subject to revision
at any time before the entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.”).
17
The Supreme Court of Georgia recently rejected a similar argument when a
county asserted that an appeal was subject to dismissal because the trial court’s grant
of a motion to dismiss was not a final order when “it did not adjudicate all the claims
against the multiple parties in the case[.]”37 But our Supreme Court found the “final
order” statute, OCGA § 5-6-34 (a) (1), irrelevant because the trial court’s order “also
dismissed the . . . claim for mandamus relief, and therefore was, at the time the notice
of appeal was filed, immediately and directly appealable to this Court [under] OCGA
§ 5-6-34 (a) (7).”38 Accordingly, because the trial court dismissed a claim for
mandamus as to Brown and Williams in their individual capacities, Carson was not
37
Stuttering Found., Inc. v. Glynn Cty., 301 Ga. 492, 493 (1) (801 SE2d 793)
(2017).
38
Id.; see also Westberry v. Saunders, 250 Ga. 240, 241-42 (3) (296 SE2d 596)
(1982) (rejecting argument that direct appeal was subject to dismissal for failure to
file an application for appeal because appeals taken under former codification of
OCGA § 5-6-34 (a) (7) “may be appealed directly to this court without regard to a
pending counterclaim” and “[n]o certificate of immediate review is necessary and the
lack of a final judgment as to the counterclaim is no bar to this direct appeal” because
former codification of OCGA § 5-6-34 (a) (7) “grants a privilege of direct appeal
‘from all judgments or orders granting or refusing to grant mandamus or other
extraordinary remedy,’” and case was concerned with dismissal of a petition for quo
warranto, which is an extraordinary remedy).
18
required to follow the interlocutory appeal procedures and was, as we held supra,
entitled to a direct appeal under OCGA § 5-6-34 (a) (7).39
Having concluded that we have jurisdiction over Carson’s appeals, we will now
proceed to considering his enumerations of error in Case Numbers A18A1951 and
A18A1978.
2. Case Numbers A18A1951 and A18A1978. In both Case Number A18A1951
and Case Number A18A1978, Carson contends that the trial court erred in partially
granting Brown and Williams’s motion for judgment on the pleadings by (1) ruling
that Carson cannot challenge the constitutionality of a Forsyth County moratorium
on certain land-disturbance applications via a petition for mandamus; (2) ruling that
his challenge to the constitutionality and legality of the County’s moratorium on
certain land-disturbance applications really sought declaratory judgment, which was
barred by sovereign immunity; and (3) denying his petition for mandamus and
dismissing the action against Brown and Williams in their individual capacities.
39
See supra citations in note 38.
19
When reviewing a trial court’s decision on a motion for judgment on the
pleadings, we do so de novo, construing the complaint “in a light most favorable to
the appellant, drawing all reasonable inferences in his favor.”40 And when, as in this
case, a defendant files a motion for judgment on the pleadings “and does not
introduce affidavits, depositions or interrogatories in support of the motion, such
motion is the equivalent of a motion to dismiss the complaint for failure to state a
claim upon which relief can be granted.”41 A motion to dismiss for failure to state a
claim, then, “should not be granted unless the averments in the complaint disclose
with certainty that the plaintiff would not be entitled to relief under any state of facts
which could be proved in support of the plaintiff’s claim.”42 In this regard, the issue
is whether “the undisputed facts appearing from the pleadings entitle the movant to
judgment as a matter of law,”43 and “all well-pleaded material allegations of the
40
Hewell v. Walton Cty., 292 Ga. App. 510, 510-11 (664 SE2d 875) (2008)
(punctuation omitted); accord McCobb v. Clayton Cty., 309 Ga. App. 217, 217 (710
SE2d 207) (2011).
41
McCobb, 309 Ga. App. at 217; accord Hewell, 292 Ga. App. at 511 (1).
42
McCobb, 309 Ga. App. at 217; accord Hewell, 292 Ga. App. at 511 (1).
43
Hewell, 292 Ga. App. at 511 (1).
20
opposing party’s pleading are to be taken as true, and all allegations of the moving
party which have been denied are taken as false.”44
So viewed, and as discussed supra, the complaint alleges that in March 2016,
Carson was interested in purchasing 17.6 acres of land in Forsyth County zoned in
the RES3 district, which permitted development into a residential subdivision with
lots at a minimum size of 9,000 square feet. Carson thereafter purchased the property
on March 29, 2016, and titled it in the name of Red Bull Holdings. For the next three
months, in coordination with the Forsyth County Water and Sewer Department,
Carson pursued plans to develop the subject property into a residential subdivision
with lots at a minimum size of 9,000 square feet.
On August 9, 2016, during a work session of the Forsyth County Board of
Commissioners, the Board voted on oral motion to approve the imposition of a 30-
day moratorium on land-development permits for RES3 properties when applicants
sought to “develop the RES3 at any lot square footage less than our existing table of
14,750 square feet and that this item is approved as time sensitive.” According to
44
Sherman v. Fulton Cty. Bd. of Assessors, 288 Ga. 88, 90 (701 SE2d 472)
(2010); accord Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 86-87 (1) (764 SE2d
398) (2014); see Hewell, 292 Ga. App. at 511 (1) (“All well-pleaded material
allegations by the nonmovant are taken as true, and all denials by the movant are
taken as false[.]” (punctuation omitted)).
21
Carson’s complaint, the referenced table, Table 11.2 (b), in footnote 1 of the Forsyth
County Unified Development Code as it was in effect at the relevant time, provided
as follows:
RES3 rezoning applications applied for and/or approved by the Board
of Commissioners between the following dates may comply with the
minimum lot size requirements as follows: (a) prior to November 1,
2007: 9,000 square feet; (b) between November 1, 2007 and July 18,
2013: 14,500 square feet; (c) between July 18, 2013 and October 2,
2014: 10,000 square feet.
The August 9th work session was held without notice to the public or opportunity to
be heard, and the session was not memorialized in an ordinance or resolution.
At another work session on August 23, 2016, the Board voted to approve a
verbal motion to modify the previously approved moratorium so as to exempt land-
disturbance permit applications for RES3 properties that sought to develop lots at a
minimum size of 10,000 square feet. The modification also provided that a public
hearing on the continued moratorium would take place on September 1, 2016. This
second work session was also held without notice to the public or opportunity to be
heard. But on August 14, 2016, the County advertised a notice of public hearing to
be held on September 1, 2016, to consider possible extension of the moratorium until
22
December 7, 2016. Thereafter, on September 1, 2016, the Board adopted a resolution
titled “A Resolution of the Forsyth County Board of Commissioners Extending until
December 7, 2016, an existing moratorium on acceptance of applications for land
disturbance permits on certain RES3 zoned parcels.”
On September 7, 2016, Carson submitted a land-disturbance permit application
to the Forsyth County Department of Planning and Community Development, seeking
to develop the subject property into a residential subdivision with 39 lots. The
application was accepted by the Department and assigned a file number, and Carson
paid the required filing fee and submitted the required surveys and plans. The
following day, Williams told Carson that she was “releasing this plan back to you to
make the following correction[s].” Under the Forsyth County Unified Development
Code, the “Land Disturbance Permit Plan Review Procedures” provides as follows:
Each Land Disturbance Permit (LDP) application must be
approved and a LDP issued within twelve (12) months of the initial plan
submittal date. Failure to obtain a permit within twelve (12) months will
require the submittal of a new Land Disturbance Permit application . .
. . [C]omments will be returned to the developer and/or their agent for
corrections by their engineer and/or surveyor. After the departmental
comments have been addressed, and corrections to the plans are made,
the developer and/or their agent will return to each reviewing
department to provide evidence that such changes have been made.
23
Thus, in response to Williams’s communication, Carson made the requested
corrections and resubmitted the application.
On September 9, 2016, Williams responded to the resubmitted application as
follows: “I am releasing this plan back to you because of the moratorium on RES3
LDP applications.” Nevertheless, Williams asked Carson to provide information on
a paid sewer reservation, “or any other information regarding the RES3 zoning,” and
said that the plan would need to be resubmitted with the requested information.
Meanwhile, that same day, Carson paid a plan review fee to the Fire Marshal’s Office
for review of the application plans. And following the September 9, 2016
communication from Williams, Carson’s LDP application “remained open and
pending and [Carson] investigated the alleged moratorium, the availability of sewer
for the Property, the RES3 zoning, and the pending Application.” Then, nearly one
month after Williams’s communication with Carson, on October 6, 2016, the Forsyth
County Board of Commissioners adopted an amendment to the Unified Development
Code to partially delete footnote 1 containing Table 11.2 (b), except for the
subparagraph permitting 10,000 minimum square foot residential lots approved after
July 18, 2013.
24
Carson amended the LDP application on January 30, 2017, to update the
property-owner information. Then, on February 7, 2017, Carson directed
correspondence to Williams’s September 9, 2016 response, providing additional
information and demanding that the LDP application be processed for approval.
Within that correspondence, Carson alleged that the moratorium was ultra vires,
illegal, unconstitutional, and otherwise null and void. In response to this
communication, the Forsyth County Attorney responded to Carson, stating that the
LDP application would not be processed because Williams’s September 9, 2016
communication amounted to a rejection of the application.
Carson proceeded by filing his verified petition for writ of mandamus in the
Superior Court of Forsyth County on March 10, 2017, in which he challenged “the
constitutionality of the Alleged Moratorium facially, and as applied to [him] and the
Property.” He also alleged that the moratorium was “ultra vires, null and void,” and
that Brown and Williams had “failed and/or refused to take any action on [the LPD]
Application.” Thus, because the moratorium “is ultra vires, illegal, null, void and
unconstitutional,” Carson asserted that he was entitled to have the LPD application
“processed without regard to the Alleged Moratorium.”
25
Carson’s petition set forth three claims for mandamus. The first was against
Brown and Williams in their official capacities, seeking to require them to “perform
their official duties and to process [the] Application in a manner that complies with
the laws of the State of Georgia as well as the County’s own Code.” The second and
third claims were against Brown and Williams in their individual capacities. And in
the ultimate prayer for relief, Carson asked the court to, inter alia, “issue an order
granting a Writ of Mandamus finding that the Alleged Moratorium is ultra vires,
illegal, null, void and/or unconstitutional and compelling Defendants to process the
Application without regard to the Alleged Moratorium and in accordance with the law
in effect when the Application was submitted[.]”
Brown and Williams answered the petition, and subsequently filed a motion for
judgment on the pleadings , arguing that (1) they were entitled to sovereign immunity
in their official capacities; (2) the issue of mandamus was barred by claim preclusion
due to a previously filed, but voluntarily dismissed, lawsuit on behalf of Red Bull
against the Forsyth County Board of Commissioners; and (3) the individual claims
were subject to dismissal due to a failure to exhaust administrative remedies, and
because the plaintiffs had no clear right to the relief.
26
Carson opposed the motion for judgment on the pleadings, again arguing that
the moratorium was ultra vires, illegal, null, void, and unconstitutional, and, thus, that
he was entitled to have the LDP application processed. In response to Carson’s
opposition, Brown and Williams argued that although a claim for mandamus is not
barred by sovereign immunity, Carson’s petition additionally sought, by way of
requesting a “finding,” declaratory judgment as to the validity or non-validity of the
moratorium, and, they asserted, declaratory judgment was barred by sovereign
immunity.
On December 6, 2017, the trial court issued its order granting Brown and
Williams’s motion for judgment on the pleadings in part. The trial court agreed with
Brown and Williams that Carson’s petition was barred by sovereign immunity to the
extent that it sought declaratory judgment as to the validity or non-validity of the
moratorium. But to the extent the petition sought relief via mandamus to have the
LDP application processed, the court concluded that the claims were not barred by
sovereign immunity. Nevertheless, the court concluded that Carson could not pursue
mandamus against Brown and Williams in their individual capacities because
“processing the application and rendering a denial or approval occurs in [their]
official capacities.” The court further directed that if Carson could “prove that
27
[Brown and Williams] failed to comply with the UDC and issue a final rejection of
[the] application within the one-year period, then mandamus relief could be
appropriately granted[.]” Altogether, the court granted the motion for judgment on the
pleadings as to declaratory relief and for mandamus against Brown and Williams in
their individual capacities; but the court denied the motion as to mandamus against
Brown and Williams in their official capacities. These appeals follow.
(a) Constitutional Challenge via Mandamus. First, Carson argues that the trial
court erred in ruling that he could not challenge the constitutionality of the relevant
Forsyth County moratorium via a petition for writ of mandamus.45 We disagree.
None of the cases Carson relies upon support the position that he may, via a
petition for mandamus, have the moratorium declared ultra vires, illegal, null, void,
and unconstitutional when those cases either dealt with review of the criteria relied
upon on the face of the law to deny approval46 or were actions not based solely in
45
We pause to note that these appeals were transferred to us from the Supreme
Court of Georgia because it determined that the issues on appeal did not implicate its
constitutional-question jurisdiction, and because “there appeared to be no other basis
for invoking” its jurisdiction.
46
See Hixon v. Walker Cty., 266 Ga. 641, 641 (468 SE2d 744) (1996) (“The
only authority cited for the denial of the applications was those sections of the
Regulations which generally provided . . . the ‘Purpose’ thereof[.] . . . The ‘Purpose’
sections appear only in the preamble of the Regulations and there is no
28
mandamus.47 And indeed, Brown and Williams point us to Supreme Court of Georgia
precedent strongly suggesting that Carson cannot challenge the moratorium in this
fashion.
cross-reference to those subsequent sections of the Regulations which address the
substantive requirements for obtaining a building permit. . . . The ‘Purpose’ sections
of the Regulations contain no standard to control the discretion of the Planning
Commission. It follows that the trial court erred in refusing to grant a writ of
mandamus, since it would violate due process to rely upon the ‘Purpose’ sections of
the Regulations as a substantive basis for the denial of the . . . application for the
building permits.” (punctuation omitted)); FSL Corp. v. Harrington, 262 Ga. 725, 725
(425 SE2d 276) (1993) (“The Superior Court of Forsyth County denied . . .
Appellant[‘s] petition for mandamus to require the Board of Commissioners . . . to
approve a special-use permit for a sanitary landfill. Because the zoning ordinance
authorizing the permit provides no ascertainable limits on the Board’s discretion to
grant or deny applications, we reverse the trial court’s order.”); Crymes v. DeKalb
Cty., 258 Ga. 30, 30-31 (364 SE2d 852) (1988) (“The ordinance’s provision for the
Board’s discretionary approval or disapproval of the landfill is invalid. . . . The
DeKalb County Ordinance sets forth no criteria by which the Board might exercise
its discretion in approving or disapproving the landfill. The Board’s refusal to
approve the landfill constitutes an act of discretion without any articulable, objective
ground of support[.] . . . Because he had a clear legal right to the Board’s approval of
his landfill, the trial court erred by denying [the appellant’s] petition for
mandamus.”).
47
See Tilley Prop. Inc. v. Bartow Cty., 261 Ga. 153, 153 (401 SE2d 527) (1991)
(noting that complaint sought “among other things, the rezoning of the property” and
that complaint was “amended and the appellants prayed for a writ of mandamus”);
Davidson Mineral Props., Inc. v. Monroe Cty., 257 Ga. 215, 215 (357 SE2d 95)
(1987) (“[Appellant] brought this action against Monroe County and its Board of
Commissioners seeking mandamus, as well as declaratory, injunctive, and other
relief.” (emphasis supplied)).
29
In Harper v. Burgess,48 our Supreme Court affirmed the denial of mandamus
brought by a petitioner who “sought to compel the Clerk of the Superior Court . . . to
file a complaint for divorce without requiring her to make a ‘cost deposit’” because
the petitioner claimed that the law requiring the payment of costs was
unconstitutional.49 The Court explained that
the real and substantial relief which the plaintiff seeks, that is, the right
to file a complaint for divorce on a pauper’s affidavit without first
making the advance deposit demanded by the clerk was denied to her by
the defendant clerk of the superior court because he considered the law
to forbid him to file her complaint under those circumstances; and that
the right to this real and substantial relief depends upon a declaration by
the court that the law upon which the clerk relied in refusing to file her
complaint is unconstitutional.50
In affirming the denial of mandamus to the petitioner, the Court concluded that she
had “as another available remedy, an action for declaratory judgment to test the
validity of the statute which she claims is unconstitutional, and that she cannot, so
long as such a remedy is available to her, resort to the harsh remedy of mandamus to
48
225 Ga. 420 (169 SE2d 297) (1969).
49
Id. at 420.
50
Id. at 422 (3).
30
compel the clerk to file her petition for divorce.”51 Prior to doing so, the Court
explained that “[a] declaratory judgment action is an especially and particularly
appropriate method of determining a controversy with respect to the constitutionality
of an Act of the legislature”52 and that “[a]n action for a declaratory judgment has
been held by this court to be an available remedy to test the constitutionality of a
statute in a case where an actual controversy exists with respect thereto.”53
So too here. To the extent that Carson seeks to have the moratorium at issue
declared ultra vires, illegal, null, void, and unconstitutional so as to compel Brown
and Williams to process his application for a land disturbance permit without
reference to the moratorium that they contend bars processing the application, the
method of seeking such a determination was via a declaratory judgment action, not
mandamus.54 Accordingly, the trial court did not err in determining that the portion
51
Id.
52
Id.
53
Id.; accord Higdon v. City of Senoia, 273 Ga. 83, 85 (1) (583 SE2d 39)
(2000); see OCGA § 9-4-1 (“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.”).
54
See Union Cty. v. CGP, Inc., 277 Ga. 349, 350 (1) (589 SE2d 240) (2003)
(“[T]he trial court’s order, though it clearly held mandamus was denied, awarded
31
of Carson’s petition seeking to have the moratorium declared invalid was, in
actuality, seeking a declaratory judgment because that specific request could not be
brought by way of an action solely in mandamus.
(b) Constitutional Challenge Barred by Sovereign Immunity.
Carson next argues that the trial court erred by ruling that the challenge to the
moratorium was barred by sovereign immunity. But because we agree with the trial
court that Carson’s request that it declare the moratorium ultra vires, illegal, null,
void, and unconstitutional really sought declaratory judgment against Brown and
Williams in their official capacities, the trial court did not err in concluding that this
[appellee] under the heading of declaratory judgment exactly what [appellee] sought
in the mandamus portion of its complaint, and based that relief on the ground asserted
in the mandamus portion of the complaint, that [appellee] had obtained a vested right
to continue the development without the impact of the flood ordinance. Mandamus
is used to compel an official to perform a duty. Ordering Union County to issue the
building permits [appellee] sought thus amounts to the grant of mandamus.” (citations
& punctuation omitted)); see also City of Atlanta v. McLennan, 237 Ga. 25, 25 (226
SE2d 732) (1976) (“The [declaratory judgment] issue for decision by the trial judge
was whether the zoning ordinance as applied to the subject property (residential uses
only) was confiscatory, arbitrary, and unreasonable to the extent of unconstitutionally
depriving the appellees of their property and its reasonable use[.]”); Buckler v.
DeKalb Cty. Bd. of Commissioners, 299 Ga. App. 465, 465-66 (683 SE2d 22) (2009)
(“[T]he [appellants] filed . . . a complaint for mandamus and a declaratory judgment
with the trial court, seeking an order compelling the county to issue them a certificate
of appropriateness . . . for their proposed development and seeking a ruling that the
county’s designation of the historic district was invalid.”).
32
request was barred by sovereign immunity. Suits for declaratory relief against public
officials in their official capacities are barred by sovereign immunity.55
(c) Dismissal of Mandamus Against Brown and Williams Individually.
Finally, Carson contends, and Brown and Williams concede, that the trial court
erred in dismissing the claim for mandamus against Brown and Williams in their
individual capacities. Indeed, our Supreme Court has recognized that “mandamus is
55
See Lathrop v. Deal, 301 Ga. 408, 425 (III) (801 SE2d 867) (2017)
(“Sovereign immunity extends . . . to suits for declaratory relief.”); Olvera v. Univ.
Sys. of Ga.’s Bd. of Regents, 298 Ga. 425, 428 n.4 (782 SE2d 436) (2016) (“[W]e
squarely address [the] question and find that declaratory judgment actions of this type
are, in fact, barred by the doctrine of sovereign immunity.”). Because Carson did not
explicitly plead declaratory judgment or, accordingly, clearly challenge the
moratorium’s enforcement by a County employee—be it Brown, Williams, or
someone else—in their individual capacity, we decline to engage in the speculative,
theoretical gymnastics that would be required to determine whether such a claim
would survive. See Lathrop, 301 Ga. at 415 (II) (A) (“In other cases, . . . we found
that the doctrine posed no bar to suits in which state officers were sued in their
individual capacities with respect to the enforcement of allegedly unconstitutional
laws.”); Ga. Dep’t of Nat’l Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593,
603 (2) (755 SE2d 184) (2014) (“Our decision today does not mean that citizens
aggrieved by the unlawful conduct of public officers are without recourse. It means
only that they must seek relief against such officers in their individual capacities. In
some cases, qualified official immunity may limit the availability of such relief, but
sovereign immunity generally will pose no bar.”). Given the state of the complaint,
we leave that question for another day.
33
a personal action against a public official, not against the government.”56 And
sovereign immunity is “no bar to petitions for writs of mandamus.”57 Accordingly, we
reverse the trial court’s dismissal of Carson’s petition for mandamus against Brown
and Williams in their individual capacities.
3. Case Number A18A1979.
In Case Number A18A1979, Brown and Williams cross-appeal from the trial
court’s partial grant of their motion for judgment on the pleadings, arguing that the
trial court erred in (1) finding that Carson’s action was not barred by res judicata; (2)
failing to dismiss the action for a failure to first exhaust administrative remedies; and
(3) finding that Carson’s land-disturbance application was not clearly rejected. We
will address each of these contentions in turn.58
56
Britton v. Regus, 270 Ga. 313, 313 (509 SE2d 918) (1998); see Harper v.
State Bd. of Pardons & Paroles, 260 Ga. 132, 132 (390 SE2d 592) (1990) (per
curiam) (“[M]andamus lies against an official to require the performance of a clear
legal duty. The writ of mandamus does not reach the office, but is a personal action
against the official.”); Bulloch Cty. v. Ritzert, 213 Ga. 818, 818 (2) (102 SE2d 40)
(1958) (“[T]he writ of mandamus is personal and issues to the individual to compel
performance, and it does not reach the office but is directed against the officer to
compel him to perform the required legal duty.”).
57
Lathrop, 301 Ga. at 434 (III) (C).
58
Carson argues that we lack jurisdiction over the cross-appeal because Brown
and Williams failed to file a notice of cross appeal within fifteen days from service
34
(a) Action Barred by Res Judicata.
Brown and Williams assert that the trial court erred in failing to address their
argument that Carson’s claims were barred by claim preclusion, or res judicata,59
because Red Bull had previously filed a declaratory judgment action against the
Forsyth County Board of Commissioners; but Red Bull never served the case and
eventually voluntarily dismissed same. Brown and Williams included the relevant
documents related to this proceeding as exhibits to one of their amended answers, and
of the notice of appeal in the main case on January 3, 2018. But we agree with Brown
and Williams that their notice of cross-appeal was properly filed on April 4, 2018.
The convoluted procedural history of these appeals is detailed in Division 1 supra,
but following this Court’s grant of Carson’s application for discretionary appeal,
Carson filed a second notice of appeal on March 30, 2018, making the April 4, 2018
notice of cross-appeal timely. See OCGA § 5-6-35 (g) (“Within ten days after an
order is issued granting the appeal, the applicant, to secure a review of the issues,
shall file a notice of appeal as provided by law. The procedure thereafter shall be the
same as in other appeals.”); CT. OF APPEALS R. 31 (k) (“If the discretionary
application is granted, the appellant must file a notice of appeal in the trial court
within 10 days of the date of the order granting the application.”); see also Zekser v.
Zekser, 293 Ga. 366, 369 (2) n.13 (744 SE2d 698) (2013) (“Nothing is required of a
cross-appellant in response to an application for discretionary review, and the
cross-appeal follows the grant of discretionary review and the timely filing of a notice
of appeal, at which time, the procedure shall be the same as in other appeals.”
(punctuation omitted)).
59
See Washington v. Hopson, 299 Ga. 358, 362 (2) n.2 (788 SE2d 362) (2016)
(noting that claim preclusion and res judicata are the same thing); Ames v. JP Morgan
Chase Bank, N.A., 298 Ga. 732, 737 (2) n.4 (783 SE2d 614) (2016) (same).
35
the issue of res judicata was argued and briefed before the trial court in their
motion.60 Nevertheless, the trial court did not rule upon same when it partially granted
the motion for judgment on the pleadings.
In Georgia, OCGA § 9-12-40 represents a codification of the common law
doctrine of res judicata, and provides as follows:
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.
The purpose of this doctrine is to prevent the “re-litigation of claims which have
already been adjudicated, or which could have been adjudicated, between identical
60
In ruling on a motion to dismiss, a trial court is “authorized to consider
exhibits attached to and incorporated into the complaint.” Lord v. Lowe, 318 Ga. App.
222, 223 (741 SE2d 155) (2012); see OCGA § 9-11-10 (c) (“A copy of any written
instrument which is an exhibit to a pleading is a part thereof for all purposes.”); see
also Trop, Inc., 296 Ga. at 89 (2) (“Consideration of . . . exhibits to the pleadings did
not convert the motion to dismiss into a motion for summary judgment.”); Stendahl
v. Cobb Cty., 284 Ga. 525, 526 (1) n.2 (668 SE2d 723) (2008) (“A copy of any
written instrument which is an exhibit to a pleading is a part thereof for all purposes
and, if incorporated into the pleadings, may be considered when deciding a motion
to dismiss for failure to state a claim without converting the motion into one for
summary judgment.” (citations & punctuation omitted)).
36
parties or their privies in identical causes of action.”61 And three prerequisites must
be satisfied before res judicata acts as a bar to subsequent litigation, those being (1)
the identity of the cause of action, (2) identity of the parties or their privies, and (3)
a previous adjudication on the merits by a court of competent jurisdiction.62 The party
invoking the doctrine of res judicata, of course, bears the burden of proving the
defense.63
Here, the record shows that on November 7, 2016, Red Bull Holdings II, LLC,
filed suit against Forsyth County and its Board of Commissioners (suing the members
of the Board in their official capacities) via a verified complaint in equity for
declaratory judgment. The suit concerned the same property at issue in this matter.
Red Bull alleged that imposition of the moratorium on the property and the
subsequent amendment of the Unified Development Code amounted to a down-
zoning that violated Red Bull’s constitutional rights. Accordingly, Red Bull
61
Crowe v. Elder, 290 Ga. 686, 688 (723 SE2d 428) (2012); see also Body of
Christ Overcoming Church of God, Inc. v. Brinson, 287 Ga. 485, 486 (696 SE2d 667)
(2010) (same).
62
Crowe, 290 Ga. at 688; Brinson, 287 Ga. at 486.
63
Sanders v. Trinity Universal Ins. Co., 285 Ga. App. 705, 707 (3) (647 SE2d
388) (2007); see also Callaway v. Irvin, 123 Ga. 344, 351 (4) (51 SE 477) (1905)
(“Upon the party setting up an estoppel by judgment rests the burden of proving it.”).
37
challenged the constitutionality of “the Defendants’ Unified Development Code, and
the Downzoning, facially and as applied to the Property.”
To that end, Red Bull made claims based upon the allegation that the down-
zoning resulted in a taking of the property; asserting a violation of due-process rights;
seeking equitable relief by way of having the down-zoning declared null and void,
and set aside or rescinded; arguing that the down-zoning amounted to an inverse
condemnation; and seeking declaratory judgment that the down-zoning was “illegal,
unconstitutional, null, void and of no further force or effect.” Thereafter, on February
2, 2017, Red Bull voluntarily dismissed its action under OCGA § 9-11-41 (a) (1)
(A)64 without prejudice.
Brown and Williams argue that the claims made by Carson and Red Bull were
required to be brought in Red Bull’s voluntarily dismissed suit and, accordingly, are
barred by res judicata. In assessing this contention, we must consider whether Brown
and Williams have met their burden of proof on the three prerequisites for
establishing res judicata.
64
This Code Section provides as follows: “Voluntary dismissal; effect: (1) By
plaintiff; by stipulation. Subject to the provisions of subsection (e) of Code Section
9-11-23, Code Section 9-11-66, and any statute, an action may be dismissed by the
plaintiff, without order or permission of court: (A) By filing a written notice of
dismissal at any time before the first witness is sworn[.]”
38
Setting aside the issue of whether the identity of the cause of action is the same
or whether Red Bull’s voluntary dismissal of the prior suit constituted an adjudication
on the merits, Brown and Williams have failed to establish that the parties in the two
actions were identical or in privity.65 And because Brown and Williams were not
parties to the prior suit, nor is the Board of Commissioners a party to the current case,
Brown and Williams must establish that they are in privity with the Board of
Commissioners.
As our Supreme Court has explained, a privy is generally defined as “one who
is represented at trial and who is in law so connected with a party to the judgment as
to have such an identity of interest that the party to the judgment represented the same
legal right.”66 In other words, before privity can be established, “the interests of the
party must fully ‘represent’ the interests of the privy and be fully congruent with
those interests.”67
65
Although Carson was not a party to the prior suit, Red Bull undisputedly
was, and Carson signed Red Bull’s verified pleading in the former case.
66
Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 421 (1) (627
SE2d 549) (2006) (punctuation omitted); accord Butler v. Turner, 274 Ga. 566, 568
(1) (555 SE2d 427) (2001).
67
Butler, 274 Ga. at 568 (1) (punctuation omitted).
39
Here, we have determined, and Brown and Williams have conceded, that the
trial court improperly dismissed the petition for mandamus as it was asserted against
them in their individual capacities.68 And because, as we explained supra, “mandamus
is a personal action against a public official, not against the government,”69 the Board
of Commissioners and Brown and Williams could not possibly be in privity. Nor can
the Board of Commissioners be said to have represented the interests of Brown and
Williams in their official capacities on the issue of mandamus,70 i.e. the issue of
whether the director and planner technician for the Forsyth County Department of
Planning and Community Development can be compelled to process a land
68
See supra Division 2 (c).
69
Britton, 270 Ga. at 313; see Harper, 260 Ga. at 132 (per curiam)
(“[M]andamus lies against an official to require the performance of a clear legal duty.
The writ of mandamus does not reach the office, but is a personal action against the
official.”); Bulloch Cty., 213 Ga. at 818 (2) (“[T]he writ of mandamus is personal and
issues to the individual to compel performance, and it does not reach the office but
is directed against the officer to compel him to perform the required legal duty.”).
70
We reiterate the distinction between Carson’s request that Brown and
Williams be compelled to process the application and the request that the trial court
find the moratorium to be invalid, which latter request was, in actuality, a request for
declaratory judgment that was barred by sovereign immunity. See supra Division 2
(a) & (b).
40
disturbance application within that department.71 Accordingly, the trial court did not
err in failing to dismiss Carson’s claims on the basis of res judicata.
(b) Failure to Exhaust Administrative Remedies.
Next, Brown and Williams argue that the trial court erred in failing to address
their argument that Carson’s claim for mandamus should be dismissed for failure to
exhaust administrative remedies. In a separate but related argument, Brown and
Williams argue that the trial court erred in finding that the land-disturbance permit
application was not clearly rejected by Williams. We disagree with both assertions.
Brown and Williams contend that because Carson did not appeal the rejection
of their permit application to the Zoning Board of Appeals within 30 days of its
rejection, as required by the County’s Unified Development Code, the petition for
mandamus is barred by the failure to exhaust administrative remedies.72 But for this
71
See Gary v. Dollar Thrifty Automotive Grp., 329 Ga. App. 320, 322 (763
SE2d 354) (2014) (holding that parties to two suits could not be said to be in privity
“because their interests were not fully congruent”).
72
See City of Suwanee v. Settles Bridge Farm, LLC, 292 Ga. 434, 437 (738
SE2d 597) (2013) (“Requiring exhaustion of administrative remedies prevents
unnecessary judicial intervention into local affairs and promotes judicial economy
because local authorities, unlike the court, have the power to grant the zoning relief
sought.” (punctuation omitted)); Powell v. City of Snellville, 266 Ga. 315, 316 (467
SE2d 540) (1996) (same).
41
to be true, there must have been a decision made on the permit application. And as
we explained at length in Division 1 (c) (i), no zoning decision was made on the
application.73 Once again, the “release” of the application back to Carson by Williams
on September 9, 2016, did not amount to a rejection. And we, like the trial court, view
the County attorney’s letter to Carson not as its own independent rejection of the
application, or a confirmation of rejection, but instead an interpretation of Williams’s
prior communication to Carson.74 Accordingly, Brown and Williams’s final two
enumerations of error in their cross-appeal are without merit.
73
Cf. Cooper Homes, 283 Ga. at 114-15 (1) (holding that trial court erred in
applying “futility” exception in the face of argument that property owner failed to
exhaust administrative remedies before petitioning for mandamus because an appeal
to the Zoning Board of Appeals on the Planning and Development Department’s
decision to deny a building permit was not the same decision the Zoning Board of
Appeals itself had made to deny an application for interior side yard setback).
74
We also reject Brown and Williams’s contention that Carson was required
by the UDC to submit a new application within twelve months of the initial plan’s
submission if no permit had been obtained by that time (i.e., by September 2017).
Suffice to say that, upon being informed by the County attorney that the permit
application would not be processed, Carson was not required to wait another six or
seven months to resubmit an application rather than proceeding to file a petition for
writ of mandamus, as was done in March 2017.
42
For all these reasons, we affirm in part and reverse in part in Case Numbers
A18A1978 and A18A1751, and we affirm in Case Number A18A1979.
Judgment affirmed in Case No. A18A1979. Judgments affirmed in part and
reversed in part as to Case Nos. A18A1951 and A18A1978. Doyle, P. J., and Mercier,
J., concur.
43