                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, JJ.

                    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


                                                                      March 6, 2020




In the Court of Appeals of Georgia
    A19A2487. HILDEBRAND v. CITY OF WARNER ROBINS, et al.

         MARKLE, Judge.

    John Joseph Hildebrand, III brought a claim for mandamus against the City of

Warner Robins, Georgia (“the City”), Mayor Randy Toms, and the members of the

City Council (collectively, “the defendants”), seeking to compel them to abide by the

City’s ordinances, rules, and procedures, as well as the terms of an oral agreement,

regarding his demotion and other disciplinary actions imposed on him.1 The trial

court dismissed the complaint for failure to state a claim pursuant to OCGA § 9-11-12

(b) (6), and Hildebrand appeals. Because Hildebrand did not enumerate as error the


1
  Hildebrand sued Mayor Toms in his individual and official capacity, and the
councilpersons in their official capacities. The councilpersons named in the petition
are Tim Thomas, Carolyn Robbins, Chuck Shaheen, Keith Lauritsen, Clifford
Holmes, and Mike Davis.
trial court’s dismissal of the City, we affirm in part the trial court’s order with respect

to the City. However, because the allegations of the complaint, viewed in the light

most favorable to Hildebrand, do not preclude the possibility that he could introduce

evidence that would entitle him to mandamus relief against the remaining parties, we

reverse in part.

       A motion to dismiss for failure to state a claim upon which relief may be

granted

       should not be sustained unless (1) the allegations of the complaint
       disclose with certainty that the claimant would not be entitled to relief
       under any state of provable facts asserted in support thereof; and (2) the
       movant establishes that the claimant could not possibly introduce
       evidence within the framework of the complaint sufficient to warrant a
       grant of the relief sought. If, within the framework of the complaint,
       evidence may be introduced which will sustain a grant of the relief
       sought by the claimant, the complaint is sufficient and a motion to
       dismiss should be denied. In deciding a motion to dismiss, all pleadings
       are to be construed most favorably to the party who filed them, and all
       doubts regarding such pleadings must be resolved in the filing party’s
       favor.

(Citation omitted.) Quarters Decatur, LLC v. City of Decatur, 347 Ga. App. 723, 724

(1) (820 SE2d 741) (2018). We review de novo the trial court’s grant of the City’s

motion to dismiss. Sweet City Landfill, LLC v. Lyon, ___ Ga. App. ___ (835 SE2d

764, 769) (2019).


                                            2
      Bearing these principles in mind, we turn to the allegations of the amended

complaint.2 Hildebrand was employed as a network administrator for the City, and

was allowed access to all of the City’s offices and computer systems. Following an

investigation into a suspicious Open Records Act request, he was suspended without

pay and later discharged for, among other things, willfully giving false statements to

his superiors or to the public, including the falsification of City records. Hildebrand

appealed his termination, but, prior to an administrative hearing, he and his attorney

met with Mayor Toms and the City attorney, and the parties orally agreed that he

would be reinstated with no discipline, paid for the days he was on leave without pay,

and reimbursed a portion of his attorney fees. The hearing was then canceled.

      Despite the agreement, after returning to work, Hildebrand was demoted and

his access to certain departments restricted. He asserts that these adverse employment

actions violate the City’s code of ordinances, which provides for notice and the

opportunity of a hearing when an employee is so disciplined.3 He further claims that

2
 Initially, Hildebrand brought claims for violations of due process, equal protection,
and 42 USCA § 1983, and the defendants removed the action to federal district court.
Hildebrand then amended his complaint to assert the single mandamus claim that is
the subject of this appeal, and the federal court remanded the case to the superior
court.
3
  We note that the notices of disciplinary action with respect to Hildebrand’s
suspension and termination are attached to his original complaint and incorporated
                                        3
he has not received the full back pay owed to him. Hildebrand’s complaint seeks the

issuance of a writ of mandamus to compel the defendants to comply with the City’s

ordinances, rules, and regulations regarding employment discipline, as well as to

enforce the parties’ oral agreement.

      The defendants moved to dismiss the complaint for failure to state a claim

under OCGA § 9-11-12 (b) (6). Notably, however, neither party attached certified

copies of the applicable City ordinances to their pleadings, nor do the ordinances

appear anywhere in the record. Following a hearing, the trial court granted the motion

and dismissed Hildebrand’s complaint, finding that the City was not a proper party

to the action pursuant to OCGA § 9-4-7 (b); Mayor Toms did not have a clear legal

duty to carry out the requested relief; and Hildebrand failed to exhaust his

administrative remedies. This appeal followed.

      In his sole enumeration of error, Hildebrand contends that the trial court’s

dismissal of his mandamus action for failure to state a claim was in error.

Specifically, he contends that he has a clear legal right to relief because the discipline

is in contravention of the notice and hearing requirements set forth in the City’s

ordinances. He further contends that he has no recourse to alternative legal remedies


by reference therein.
                                            4
because the administrative grievance and hearing process is now foreclosed to him

due to the outcome of the aborted termination process. We conclude that the trial

court prematurely disposed of this action without proper consideration of the

controlling law, namely the City’s code of ordinances.

       OCGA § 9-6-20 sets forth a remedy for unlawful governmental inaction: “[A]ll

official duties should be faithfully performed, and whenever, from any cause, a defect

of legal justice would ensue from a failure to perform or from improper performance,

the writ of mandamus may issue to compel a due performance if there is no other

specific legal remedy for the legal rights[.]” Quarters Decatur, LLC, 347 Ga. App.

at 724 (1); see also Bibb County v. Monroe County, 294 Ga. 730, 734 (2) (755 SE2d

760) (2014). Mandamus relief is available “only if (1) no other adequate legal remedy

is available to effectuate the relief sought; and (2) the applicant has a clear legal right

to such relief.” (Citations omitted.) Bibb County, 294 Ga. at 734 (2). Importantly,

“[w]hether a litigant has a clear legal right to the relief sought depends on the law

governing the subject matter at issue.” Hansen v. DeKalb County Bd. of Tax

Assessors, 295 Ga. 385, 387 (2) (761 SE2d 35) (2014).

       On its face, the complaint states a claim for mandamus. Hildebrand asserted

that he has a property interest in his position with the City, and that he can only be

                                            5
disciplined in accordance with the procedures set forth in the City’s code. He further

alleged that he has been demoted and otherwise disciplined without recourse to those

procedures, and that the City is in violation of its own ordinances. Thus, Hildebrand

alleged a clear legal right to relief. See Quarters Decatur, LLC, 347 Ga. App. at 726-

27 (“A clear right to relief exists where an official or agency fails entirely to act or

commits a gross abuse of discretion in performing a public duty that the official or

agency is required by law to perform. Mandamus is the proper remedy when a

governmental board fails to conduct a hearing as required by law.”) (citations

omitted). Additionally, Hildebrand alleged that he has no adequate legal remedy. At

this stage of the litigation, we must take these allegations as true. See Quarters

Decatur, LLC, 347 Ga. App. at 724 (1).

      This is especially so due to the absence of the applicable ordinances from the

record. See Hansen, 295 Ga. at 387 (2). Had they been attached to the pleadings in

proper form and incorporated by reference, the trial court could have considered them

on the City’s motion to dismiss. Babalola v. HSBC Bank, USA, N.A., 324 Ga. App.

750, 751, n. 4 (751 SE2d 545) (2013); OCGA § 9-11-10 (c); see also Lord v. Lowe,

318 Ga. App. 222, 224 (741 SE2d 155) (2012) (“If there is any discrepancy between



                                           6
the allegations in the complaint and the attached exhibits, the latter control.”) (citation

omitted).

       Moreover, the trial court could not, nor may we, take judicial notice of the

ordinances Hildebrand asserts as the basis for his mandamus claim. Whitfield v. City

of Atlanta, 296 Ga. 641 (769 SE2d 76) (2015) (“City and county ordinances must be

alleged and proven in order to be considered by the superior and appellate courts of

this State. The proper method of proving a city ordinance is production of the original

ordinance or a certified copy thereof.”) (citations omitted). And, although Hildebrand

bears the ultimate burden of proving that a clear duty is imposed by the ordinances,

Forsyth County v. White, 272 Ga. 619, 620 (2) (532 SE2d 392) (2000), at this stage

of the litigation, when the relevant ordinances may still be introduced, we cannot say

that he “could not possibly introduce evidence within the framework of the complaint




                                            7
sufficient to warrant a grant of the relief sought.”4 Quarters Decatur, LLC, 347 Ga.

App. at 724 (1).

      Additionally, without the ordinances, the trial court lacked authority to find that

Hildebrand had no clear legal right to the relief he sought, and that he failed to

exhaust his administrative remedies arising from them. “Neither the superior courts

nor the appellate courts can adjudicate a claim or defense based on a city ordinance


4
  The defendants contend that Hildebrand’s mandamus claim fails because it seeks to
enforce the terms of the oral agreement between the parties, and “mandamus will not
lie to enforce private rights under a contract.” (Citation and punctuation omitted.)
Layer v. Barrow County, 297 Ga. 871, 872 (1) (778 SE2d 156) (2015). The trial
court’s order is silent with regard to this specific issue, although the defendants did
argue it before the trial court. We note that, in his prayer for relief, Hildebrand seeks
to enforce the oral contract, however, he also requests that the defendants be
compelled to abide by “the ordinances, rules and regulations of the City of Warner
Robins with regard to employee termination and discipline.” Without the ordinances,
or any relevant City employment policies and procedures as yet to be introduced, we
cannot tell whether the relief sought, including the failure to pay backpay, arises
under the oral contract or under Hildebrand’s rights under the City code. Similarly,
the defendants’ argument that Hildebrand’s mandamus claim fails because it
impermissibly seeks to compel a general course of conduct is unavailing. Hildebrand
seeks specific relief under the City code and, given our notice pleading standard, that
is sufficient to state a claim upon which relief may be granted. See Campbell v.
Ailion, 338 Ga. App. 382, 384-85 (790 SE2d 68) (2016) (“[T]he Georgia Civil
Practice Act requires only notice pleading and, under the Act, pleadings are to be
construed liberally and reasonably to achieve substantial justice consistent with the
statutory requirements of the Act.”); see also OCGA § 9-11-81 (the Civil Practice Act
applies to all special statutory proceedings with regard to sufficiency of the
pleadings).
                                            8
unless the ordinance has been properly presented.” (Citations omitted.) Whitfield, 296

Ga. at 641.5 Because the ordinances were not properly before the trial court, the

dismissal of Hildebrand’s mandamus claim pursuant to OCGA § 9-11-2 (b) (6) was

premature.

      Nevertheless, Hildebrand neither enumerated as error nor argued in his brief

before this Court that the trial court’s dismissal of the City pursuant to OCGA § 9-4-7

(b) was improper, and has thus failed to preserve this issue for appellate review.

Pouncey v. Adams, 206 Ga. App. 126, 129 (2) (424 SE2d 376) (1992). We are

therefore constrained to affirm the dismissal of the City, but otherwise reverse the

trial court’s order granting the defendants’ motion to dismiss.6


5
  In Whitfield, our Supreme Court ruled that the City of Atlanta was properly
dismissed for failure to state a claim because Whitfield failed to properly introduce
the relevant parking ordinance. 296 Ga. at 642. However, that case involved a
declaratory action seeking a judgment that the ordinance was unconstitutional, and
the trial court heard and entered a final ruling on that ultimate issue. Id. at 641.
Whereas, here, the trial court heard and ruled on the defendant’s motion to dismiss
alone, rather than issuing a mandamus nisi to try the merits of the claim pursuant to
OCGA § 9-6-27.
6
  The dismissal of the City does not otherwise bar Hildebrand’s mandamus claim
because “mandamus is a personal action against a public official, not against the
government.” (Citations and punctuation omitted.) Carson v. Brown, 348 Ga. App.
689, 709 (3) (a) (824 SE2d 605) (2019). For this reason, we are wholly unpersuaded
by the defendants’ contention that the mandamus claim lies against the City, and upon
the dismissal of the City, the claim likewise fails against the mayor and
                                          9
       Judgment affirmed in part and reversed in part. Doyle, P. J., and Coomer, J.,

concur.




councilpersons in their official capacities. See City of College Park v. Clayton
County, 306 Ga. 301, 314 (4) (830 SE2d 179) (2019) (noting that mandamus “is by
definition a claim against officials in their official capacities.”). Additionally, we note
that the defendants rely on cases that do not involve state law mandamus claims, but
rather claims brought under 42 USCA § 1983.
                                             10
