--- title: FIRST CENTER, INC. v. COBB COUNTY collection: opinions id: S24A0309 cite_as: FIRST CENTER, INC. v. COBB COUNTY, 318 Ga. 271 (2024) canonical_url: https://georgiacommons.org/opinions/S24A0309 md_url: https://georgiacommons.org/opinions/S24A0309.md text_url: https://georgiacommons.org/opinions/S24A0309/text source_url: https://www.courtlistener.com/opinion/10680402/first-center-inc-v-cobb-county/ date: 2024-02-06 status: published corpus_version: opinions-2026-09-14 license: Public record of the Supreme Court of Georgia, via CourtListener and the court's own website; see about.md publisher: Georgia Commons, an independent project of Georgia Civic Data. Not the State of Georgia. Not legal advice. up: https://georgiacommons.org/opinions/2024.md previous: https://georgiacommons.org/opinions/S23A0810.md next: https://georgiacommons.org/opinions/S23A0821.md index: https://georgiacommons.org/opinions/index.md omitted: opinion extras omitted_chars: 2077 omitted_url: https://georgiacommons.org/opinions/S24A0309.md?full=1 docket: S24A0309 citation: 318 Ga. 271 court: Supreme Court of Georgia case_type: civil authoring_justice: Bethel disposition: Affirmed vote: All the Justices concur word_count: 694 date_filed_source: courtlistener record_source: courtlistener legal_areas: - constitutional law - civil procedure - local government law upstream_id: "10680402" summaries_model: claude-sonnet-5 --- # FIRST CENTER, INC. v. COBB COUNTY Supreme Court of Georgia, docket S24A0309, filed 2024-02-06, 318 Ga. 271. ## 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. 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 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. ## Summaries written by Georgia Commons The following was written by claude-sonnet-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary. The Supreme Court of Georgia upheld the dismissal of a wall-height dispute against Cobb County and two officials, ruling that suing a county officer by name alongside the county violates the state constitution's sovereign immunity rule. ### Plain-language summary A subdivision developer sued Cobb County, a county commissioner, and a zoning official over disagreements about the rules governing the height of a wall around a subdivision under construction. The developer sought declaratory relief, an injunction, and a court order forcing officials to act (called mandamus). The county and officials asked the trial court to dismiss the case, arguing sovereign immunity, which protects governments from certain lawsuits, barred at least the injunction claim, and that the rest failed to state a valid claim. The Cobb Superior Court denied mandamus relief and dismissed the remaining claims on other grounds. While the appeal was pending, the Supreme Court of Georgia decided a related case, Lovell v. Raffensperger, holding that when a lawsuit relies on the constitution's waiver of sovereign immunity, it must be brought only against the state or local government itself, not against individual officials, or the whole case must be dismissed. Applying that rule here, the court found the developer's suit was defective because it named the commissioner and zoning official individually along with the county, so the entire case was properly dismissed. ### Holding, as summarized When a lawsuit relies on Paragraph V's waiver of sovereign immunity, it must be brought exclusively against and in the name of the state or relevant local government; naming an individual officer or employee as a defendant requires dismissal of the entire action, not just the claims against that individual. ### Disposition Affirmed. All the Justices concur. ### Why it matters The ruling tells Georgians and their lawyers that suits against local governments seeking to use the constitution's sovereign immunity waiver must name only the government itself, not its officers or employees, or risk total dismissal, affecting how citizens challenge county actions statewide. > The summarized reasoning, checked quotes, suggested questions, and the CourtListener opinion records (2,077 characters) are at https://georgiacommons.org/opinions/S24A0309.md?full=1