                           FIFTH DIVISION
                          MCFADDEN, C. J.,
      MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

                    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


                                                                    October 21, 2019




In the Court of Appeals of Georgia
 A19A1538. BOARD OF COMMISSIONERS OF LOWNDES PH-050
     COUNTY v. MAYOR AND COUNCIL OF THE CITY OF
     VALDOSTA, et al.

      PHIPPS, Senior Appellate Judge.

      In this action arising under the Service Delivery Strategy Act, OCGA § 36-70-1

et seq., the Board of Commissioners of Lowndes County (the “ Board”) appeals from

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

dismissed the Board’s claims for injunctive and declaratory relief on the grounds that

they were barred by sovereign immunity and dismissed the Board’s claims for

mandamus relief because the facts of the petition showed with certainty that the

Board was not entitled to any mandamus relief. For the following reasons, we affirm.

      This case involves the Service Delivery Strategy Act (“SDS Act”), OCGA §

36-70-1 et seq., and a dispute between the Board and the cities within Lowndes
County (the “Cities”). The purpose of the SDS Act was to authorize and promote the

“establishment, implementation, and performance of coordinated and comprehensive

planning by municipal governments and county governments[.]” OCGA § 36-70-1.

The SDS Act provides a

      flexible framework within which local governments in each county can
      develop a service delivery system that is both efficient and responsive
      to citizens in their county. . . . The process provided by [the SDS Act]
      is intended to minimize inefficiencies resulting from duplication of
      services and competition between local governments and to provide a
      mechanism to resolve disputes over local government service delivery,
      funding equity, and land use. The local government service delivery
      process should result in the minimization of noncompatible municipal
      and county land use plans and in a simple, concise agreement describing
      which local governments will provide which service in specified areas
      within a county and how provision of such services will be funded.


OCGA § 36-70-20.

      The record shows that Lowndes County and the Cities operated under a service

delivery strategy agreement implemented in 2008. (The “2008 Strategy Agreement”).

The 2008 Strategy Agreement provided that it “shall become effective July 1, 2008

and shall remain in force and effect until reviewed and revised by the parties in

accordance with the Act.” (Emphasis supplied.) The SDS Act contemplates that


                                         2
“Each county and affected municipality shall review, and revise if necessary, the

approved strategy: (1) In conjunction with updates of the comprehensive plan as

required by Article 1 of this Chapter; (2) Whenever necessary to change service

delivery or revenue distribution arrangements; [or] (3) Whenever necessary due to

changes in revenue distribution arrangements[.]” OCGA § 36-70-28 (b) (1)-(3).

      On April 12, 2016, the Chairman of the Board of Commissioners of Lowndes

County sent a letter to the Mayors of the Cities of Dasher, Hahira, Lake Park,

Remerton and Valdosta giving notice of a joint meeting scheduled for the “purpose

of commencing deliberations on the statutorily required review, and a revision if

necessary, of our service delivery strategy” The letter also stated that “OCGA § 36-

70-28 requires us to review, and revise if necessary, our service delivery strategy in

connection with the update of our comprehensive plan, which is also required by

statute.”

      In June 2016, a new draft 2016 Service Delivery Strategy Agreement (“2016

Strategy Agreement”) was prepared and circulated to the mayors of the Cities. The

County and the Cities were instructed to notify the Department of Community Affairs

(“DCA”) either that the required review of the service delivery strategy had been



                                          3
completed and that they had determined that no revisions were necessary or to file a

revised service delivery strategy with DCA, by October 31, 2016.

      DCA did not receive any such notification or revised Service Delivery Strategy

from Lowndes County or the Cities by the deadline. Because Lowndes County and

the Cities failed to provide the requisite notifications to the DCA regarding the status

of their Service Delivery Strategy Agreement, DCA could not verify that the 2008

Strategy Agreement continued to comply with the Act, as is required pursuant to

OCGA § 36-70-26. On November 1, 2016, DCA imposed sanctions on the County

and the Cities pursuant to OCGA § 36-70-271 and notified the County and Cities that

they would be ineligible for state-administered financial assistance, grants, loans, or

permits until DCA could verify that Lowndes County and the Cities have complied

with the Service Delivery Act.

      1
         OCGA § 36-70-27 (a) (1) provides that “[n]o state administered financial
assistance or grant, loan, or permit shall be issued to any local government or
authority which is not included in a department verified strategy[.]” OCGA § 36-70-
27 (c) then goes on to provide that “[a]ny local government or authority which is
subject to the sanctions specified in subsection (a) of this Code section shall become
eligible for state administered financial assistance of grants, loans, or permits on the
first day of the month following verification by the department that the requirements
of [OCGA §] 36-70-26 have been met.” OCGA § 36-70-25.1 then provides a
statutory process for mediation and dispute resolution if affected municipalities
cannot reach an agreement after the imposition of sanctions provided in OCGA § 36-
70-27.

                                           4
      On January 23, 2017, the Board filed suit against DCA and the Cities of

Valdosta, Hahira, Dasher, Remerton and Lake Park relating to the Service Delivery

Strategy Agreement. The petition requested declaratory and injunctive relief, as well

as mandamus relief against DCA and the Cities. The petition argues that the 2008

Strategy Agreement remains in effect, and that the County and Cities remained

eligible for state-administered financial assistance, grants, loans, and permits. DCA

filed a motion to dismiss the declaratory and injunctive relief claims under sovereign

immunity grounds and asserted that the mandamus claim should be dismissed for

failure to state a claim. The Board then filed an amended petition for declaratory,

equitable and mandamus relief, adding Camila Knowles, as the Commissioner of the

Georgia Department of Community Affairs (“Knowles”), and members of the Board

of the Department of Community Affairs (“DCA Board Members”). Counts One and

Six of the amended petition sought declaratory and injunctive relief against Knowles

and the DCA Board Members in their official and individual capacities. Count Seven

of the petition seeks mandamus relief against Knowles and the DCA Board Members

in their official capacities. The amended petition also removed DCA as a party.

      On June 2, 2017, the trial court entered an order holding that the sanctions

imposed on the County and Cities pursuant to OCGA § 36-70-27 (a) (1) to be held

                                          5
in abeyance during the pendency of this case and ordered the DCA to reinstate the

qualified local government status for the County and Cities as of May 18, 2017.

      Knowles and the DCA Board Members filed a motion to dismiss the amended

petition on the basis that sovereign immunity barred the claims for injunctive and

declaratory relief and that the mandamus claim failed to state a claim for relief. The

trial court granted the motion to dismiss.

      1. The Board first argues that the trial court erred by dismissing its petition for

declaratory and injunctive relief against Knowles and the DCA Board Members in

their individual capacities. Defendants, however, contend that the State is the real

party in interest because the County’s petition is seeking relief that can be granted by

the State, and that such relief is barred by sovereign immunity.

      “The trial court’s ruling on the motion to dismiss on sovereign immunity

grounds is reviewed de novo, while factual findings are sustained if there is evidence

supporting them.” (Citation and punctuation omitted.) Coosa Valley Tech. College

v. West, 299 Ga. App. 171, 172 (682 SE2d 187) (2009). Accord James v. Ga. Dept.

of Public Safety, 337 Ga. App. 864, 865 (1) (789 SE2d 236) (2016). Further, “[t]he

burden of demonstrating a waiver of sovereign immunity rests upon the party



                                             6
asserting it.” (Citation omitted.) Ga. Dept. of Labor v. RTT Assocs., Inc., 299 Ga. 78,

81 (1) (786 SE2d 840) (2016).

      In recent cases, our Supreme Court has ruled that sovereign immunity barred

claims against the State for injunctive and declaratory relief. See Lathrop v. Deal, 301

Ga. 408, 428-429 (III) (B) (801 SE2d 867) (2017); Olvera v. Univ. Sys. of Ga. Bd. of

Regents, 298 Ga. 425, 426 (782 SE2d 436) (2016); Ga. Dept. of Nat. Resources v.

Center for a Sustainable Coast, 294 Ga. 593, 602 (2) (755 SE2d 184) (2014). Our

Supreme Court in Lathrop, supra, indicated that such suits against state officers in

their individual capacities, however, may not be barred by sovereign immunity.

Lathrop, 301 Ga. at 434-435 (III) (C). It is well-settled that a

      suit cannot be maintained against the State without its statutory consent.
      This general rule can not be evaded by making an action nominally
      against the servants or agents of a State, when the real claim is against
      the State itself and it is the party vitally interested. Therefore, generally,
      where a suit is brought against an officer or agency of the State with
      relation to some matter in which the defendant represents the State in
      action and liability, and the State, while not a party to the record, is the
      real party against which relief is sought, so that a judgment for plaintiff,
      although nominally against the named defendant as an individual or
      entity distinct from the State, will operate to control the action of the
      State or subject it to liability, the suit is in effect one against the State.
      If, however, the sole relief sought is relief against the State officers, it

                                            7
      is maintainable. . . . A suit may be maintained against officers or agents
      personally, because, while claiming to act officially, they have
      committed or they threaten to commit wrong or injury to the person or
      property of plaintiff, either without right and authority or contrary to the
      statute under which they purport to act.


Lathrop, 301 Ga. at 414-415 (II) (A) (citing Cannon v. Montgomery, 184 Ga. 588,

591 (192 SE2d 206) (1937)).

      The Board argues that Knowles and the DCA Board Members were without

authority to impose sanctions against it because, it argues, the 2008 Service Delivery

Strategy did not expire until all the affected municipalities within the county agreed

to the revised service delivery strategy agreement pursuant to OCGA § 36-70-28.

      The test for determining whether a suit is in reality one against the State though

the State is not named as a party is whether “if the relief prayed [for] in the present

case is granted, it will not operate to control the action of the State or subject it to

liability[.]” (Citation omitted.) Moore v. Robinson, 206 Ga. 27, 37 (2) (55 SE2d 711)

(1949). See Holcombe v. Ga. Milk Producers Confederation, 188 Ga. 358, 363 (3

SE2d 705) (1939) (sovereign immunity did not bar a suit for injunctive relief against

board members, as individuals, because “the State is not a party to the record, [and]

[n]o judgment is asked which will take any property of the State, or fasten a lien on

                                           8
it, or interfere with the disposition of funds in its treasury, or compel the State

indirectly, by controlling its officers, to affirmatively perform any contract, or pay any

debt, or direct the exercise of any discretion committed to its officers”).

      Here, the Board’s pleadings and briefs demonstrate that the DCA, and not

Knowles and the DCA Board Members in their individual capacities, is the real party

in interest. The Board’s Petition states that “DCA has posted and is posting on its

website notice that the County and the Cities are ineligible for state administered

financial assistance,” and that “Knowles and the members of the Board [] are

permitting the DCA to post on its website notice that the County and the Cities are

ineligible for state administered financial assistance, grants, loans, and permits,

contrary to OCGA § 36-70-25.1 (f), the terms and provisions of the existing strategy

agreement, and OCGA § 36-70-27.” (Emphasis supplied.) Thus, it is clear that the

Board is arguing that the DCA (and not Knowles and the DCA Board Members) is

the entity who has posted information on its website preventing the Board from

receiving state administered financial assistance.

      Further, the Board seeks a declaration that (1) the 2008 Strategy Agreement

remains in effect; (2) the County remains eligible for State administered financial

assistance, grants, loans and permits; and (3) the sanctions provided in OCGA § 36-

                                            9
70-27 have not been imposed according with the law. The Board also seeks an

injunction ordering Knowles and the DCA Board Members in their individual

capacities to direct DCA to stop listing Lowndes County as ineligible for State

administered financial assistance, grants, loans, and permits.2 This relief would

control the actions of the State by requiring Knowles and the DCA Board Members

to “direct the department to stop notifying state departments and agencies the County

is ineligible for state administered financial assistance, grants, loans, and permits.”

Moreover, Knowles and the DCA Board Members have no statutory authority in their

individual capacity under the SDS Act to direct the DCA to do anything. The SDS

Act contains no mention of the Commissioner or DCA Board Members, and thus, the

relief the Board is seeking against the individual defendants in their individual

capacities is in reality relief that can only be granted by the State. See City of Union

Point v. Greene County, 303 Ga. App. 449 (1) (a) (812 SE2d 278) (2018)

(disapproved of on other grounds by City of College Park v. Clayton County, __ Ga.

__ (2), n. 7 (830 SE2d 179) (2019)) (holding that the judicial resolution provision of

the SDS Act is constitutional, and that “the only potential parties to an action under

      2
         As noted above, the trial court’s order held these sanctions in abeyance. The
effect is that Lowndes County has been eligible for financial assistance, grants, loans
and permits since May 18, 2017.

                                          10
OCGA § 36-70-25.1 are counties and affected municipalities”). If granted, the

requested relief would affirmatively compel the actions of a state agency, which is

impermissible. See Holcombe, 188 Ga. at 362 (1).

       Moreover, because Knowles is no longer the Commissioner and four of the

DCA Board Members sued in their individual capacities are no longer serving on the

Board, they have no authority in their individual capacity to direct DCA to do

anything.3

      Based upon the above, the trial court did not err in granting the defendants’

motion to dismiss the claims for declaratory and injunctive relief on sovereign

immunity grounds.

      2. The Board next argues that the trial court erred by concluding that the

Board’s Petition failed to state a claim for mandamus relief against Knowles and the

DCA Board Members in their individual capacities. We find no error.

      A motion to dismiss for failure to state a claim “should only be granted if the

allegations of the complaint, construed most favorably to the plaintiff, disclose with


      3
        See Bethel v. Porterfield, 293 F.Supp.2d 1307, 1318 (III) (A) (S.D. Ga. 2003)
(affirmed without opinion by 116 Fed. Appx. 246 (11th Cir. 2004)) (When a public
officer is sued in his individual capacity, there will be no automatic substitution of
parties when he is no longer acting as a public officer).

                                         11
certainty that the plaintiff would not be entitled to relief under any state of provable

facts.” (Punctuation and footnote omitted.) Ewing v. City of Atlanta, 281 Ga. 652, 653

(2) (642 SE2d 100) (2007).

      The Board argues in its petition that it “seeks mandamus relief against Knowles

in her official capacity and the named members of the [DCA Board] in their official

capacities and the named members of the [DCA Board] in their official capacities .

. . [because they] are improperly performing their official duties.” The Board seeks

an order from the trial court to “compel Knowles and the named members of the

Board to cause and direct [DCA] to stop notifying departments and agencies of the

State of Georgia that the County and the Cities are ineligible for state administered

financial assistance, grants, loans, and permits.”

      Georgia’s mandamus statute provides, in relevant part: “All 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.” OCGA § 9-6-20. “Mandamus is a remedy for

improper government inaction – the failure of a public official to perform a clear

duty. The writ of mandamus is properly issued only if (1) no other adequate legal

                                          12
remedy is available to effectuate the relief sought; and (2) the applicant has a clear

right to such relief.” (Citation and punctuation omitted.) Love v. Fulton Co. Bd. of

Tax Assessors, 348 Ga. App. 309, 316 (2) (821 SE2d 575) (2018).

      Here, we cannot say that the Board has a clear legal right to the relief sought

or that there is no alternative adequate legal remedy available to the Board to

effectuate the relief sought.

      The Board has not pointed to any specific statute or duty in the SDS Act

requiring Knowles and the DCA Board Members to act in the way the Board is

seeking. Further, we cannot say that there is a clear legal right to lift the sanctions

imposed against the Board pursuant to OCGA § 36-70-27. The SDS Act clearly

provides that “Each county and affected municipality shall review, and revise if

necessary, the approved strategy: (1) In conjunction with updates of the

comprehensive plan as required by Article 1 of this Chapter[, or] (2) Whenever

necessary to change service delivery or revenue distribution arrangements[.]” OCGA

§ 36-70-28 (b) (1) - (2). The SDS Act also provides that sanctions may be imposed

against municipalities that fail to comply with these provisions of the SDS Act, and

that such sanctions include the fact that “No state administered financial assistance

or grant, loan, or permit shall be issued to any local government or authority which

                                          13
is not included in a department verified strategy[.]” OCGA § 36-70-27 (a) (1).

Accordingly, the SDS Act clearly contemplates that a Service Strategy Agreement

will not continue unaltered despite a municipalities failure to review or revise the

agreement upon request. The Board has not pointed to any “clear legal duty” to act

on the part of Knowles or the DCA Board Members. In fact, the SDS Act does not

contain any requirements for the DCA Board Members or the commissioner at all.

      Further, we cannot say that there is no other adequate legal remedy available

to the Board to effectuate the relief sought. The SDS Act itself provides a method by

which parties can resolve disputes regarding the revision of a service delivery

strategy. OCGA § 36-70-28 (c) provides that “In the event that a county or an affected

municipality located within the county refuses to review and revise, if necessary, a

strategy in accordance with paragraphs (2) and (3) of subsection (b) of this Code

section, then any of the parties may use the alternative dispute resolution and appeal

procedures set forth in subsection (d) of Code Section 36-70-25.1.” See Cobb County

v. City of Smyrna, 270 Ga. App. 471, 475 (2) (606 SE2d 667) (2004). See OCGA §

36-70-25.1 (f) (“In the event that the county and the affected municipalities in the

county fail to reach an agreement after the imposition of sanctions provided in

[OCGA §] 36-70-27, then the following process is available to the parties[,]” which

                                         14
includes mandatory mediation in superior court and an evidentiary hearing in the

superior court). The Board has not availed itself to this dispute resolution procedure.

Further, the trial court in this case has placed the sanctions in abeyance. The effect

is that Lowndes County has been eligible for financial assistance, grants, loans and

permits since May 18, 2017.

      Despite the Board’s argument, OCGA § 36-70-25.1 (f)’s mandate that “Any

service delivery agreement implemented as a result of the process set forth in this

Code section shall remain in effect until revised pursuant to OCGA § 36-70-28” does

not apply in this case. OCGA § 36-70-25.1 (f) applies only to service delivery

agreements entered into as a result of the mediation and appeal process described in

OCGA § 36-70-25.1 (a) - (c).

      Because the grant of a writ of mandamus requires the petitioner to establish a

clear legal right and that there is no other specific legal remedy available to the

petitioner and because the Board has not made this showing, the trial court correctly

denied the writ. See, e. g., Clayton County Bd. of Commissioners v. Murphy, 297 Ga.

763, 766 (778 SE2d 193) (2015).

      Judgment affirmed. McFadden, C. J., and McMillian, P. J., concur.



                                          15
