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official text of the opinion.
In the Supreme Court of Georgia
Decided: February 6, 2024
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, ___ Ga. ___ (___
SE2d ___) (2024 WL 171719, 2024 Ga. LEXIS 5) (Case Nos.
1 We also posed a second question to the parties, but given our disposition
here, we need not reach that issue.
2
S23A0887, S23A1151, decided Jan. 17, 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” against and “in the name of” the State or
local government. See id. at *8. If a party fails to do this, then the
entire action must be dismissed. See id. at *8-9 (“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
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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
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.
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