1

In the Supreme Court of Georgia

Decided: June 1, 2021

S21A0329. LOVE et al. v. FULTON COUNTY BOARD OF TAX 

ASSESSORS et al.

 ELLINGTON, Justice.

This case arose from a taxpayer grievance concerning whether 

the Fulton County Board of Tax Assessors (the “Board”) had been 

diligent in determining that the Atlanta Falcons Stadium Company 

LLC (“StadCo”) had a usufruct interest in the Mercedez-Benz 

Stadium that was not subject to ad valorem taxation. In 2017, Albert 

E. Love and other Fulton County taxpayers (“the appellants”) sued 

the Board, the individual members of the Board, and the Board’s 

Chief Appraiser, seeking mandamus and other relief.1 Since then, 

 1 The appellants (plaintiffs below) are Love, Gregory L. Fann, Sr., 

Anthony Kristian Vatalaro, Catherine Rachel Flood, Peter Zyskowski, and 

Lynn Zyskowski. The plaintiffs originally sued Fulton County; the Board;

Board members Salma Ahmed, Michael Fitzgerald, Brandi Hunter, Ed 

London, and Royce Morris; and the Board’s Chief Appraiser, Dwight Robinson.
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the suit has been dismissed, appealed to the Court of Appeals, see 

Love v. Fulton County Board of Tax Assessors, 348 Ga. App. 309 (821 

SE2d 575) (2018), remanded, amended to add claims and 

intervenors, and then dismissed again.

At issue in this appeal is whether the trial court properly 

dismissed the appellants’ fourth amended petition, which asserted

claims for mandamus, declaratory and injunctive relief, and a 

refund of taxes paid. In support of its claims, the appellants asserted 

that the Board and its members had committed a gross abuse of 

discretion by failing to find that StadCo had a leasehold interest in 

the stadium that is subject to ad valorem taxation. The appellants 

also asserted that the Board’s decision was based on an 

“unconstitutionally adopted” exemption codified in OCGA § 10-9-10. 

 

The plaintiffs sued the Board members and the Chief Appraiser in their official 

and individual capacities. In their fourth amended petition, the plaintiffs sued

Fulton County; the Board; Board members Salma Ahmed, Michael Fitzgerald, 

Edward London, Lisa Aman, and Pamela Smith; the Board’s Chief Appraiser, 

Dwight Robinson; and the Fulton County Tax Commissioner, Arthur E. 

Ferdinand. (The trial court, however, denied the plaintiffs’ motion to add 

Fulton County and the Fulton County Tax Commissioner as defendants.) In 

the fourth amended petition, the plaintiffs modified two of their claims (Count 

I for declaratory relief, and Count II for injunctive relief) to sue the Board 

members and the Chief Appraiser in their individual capacities only.
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The appellees and intervenors StadCo and the Georgia World 

Congress Center (“GWCCA”) answered and filed motions arguing, 

among other things, that the Board had properly determined that

StadCo’s interest was a non-taxable usufruct after conducting an 

investigation and holding a hearing at which they considered 

evidence concerning the nature of StadCo’s interest. They also 

argued that the Board’s decision was not based on OCGA § 10-9-10 

but on an evaluation of agreements entered into between the 

intervenors prior to the construction of the stadium. In its order 

dismissing the case, the trial court addressed each of the appellants’

claims and found that the petition lacked any legal basis for 

recovery. On appeal, the appellants contend that the trial court 

erred in dismissing the petition, allegedly sua sponte, arguing 

primarily that the trial court had applied an incorrect standard of 

review. They also contend that the trial court erred in declining to 

find OCGA § 10-9-10 unconstitutional. For the following reasons, we 

see no error and affirm the judgment.

A motion to dismiss for failure to state a claim upon which 
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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.

(Footnotes omitted.) Anderson v. Flake, 267 Ga. 498, 501 (2) (480 

SE2d 10) (1997). See also OCGA § 9-11-12 (b) (6). In assessing 

whether a claim should be dismissed, a court may consider exhibits 

attached to and incorporated into the complaint and answer. 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”); Minnifield 

v. Wells Fargo Bank, N. A., 331 Ga. App. 512, 514-515 (2) (771 SE2d 

188) (2015) (“When considering a motion to dismiss for failure to 

state a claim, a trial court may consider exhibits attached to and 

incorporated into the complaint and answer.” (citation omitted)). To 

the extent there are inconsistences between the allegations in the 

complaint and exhibits attached to the complaint, the exhibits 

control. See Lord v. Lowe, 318 Ga. App. 222, 223-224 (741 SE2d 155) 
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(2012). The appellate court “review[s] de novo the trial court’s ruling 

on the [defendants’] motion to dismiss, accepting as true all wellpled material allegations in the complaint and resolving any doubts 

in favor of [the plaintiff].” Greene County School Dist. v. Circle Y 

Constr., 291 Ga. 111, 112 (728 SE2d 184) (2012).

1. According to the fourth amended petition and its exhibits, 

before the new stadium was built, the GWCCA owned and operated 

the Georgia Dome, which was the home venue for the Atlanta 

Falcons professional football team. Prior to investing $1.5 billion to 

construct the new stadium, the parties involved in the project 

entered into a number of agreements concerning the tax 

ramifications of their interests in the stadium. On April 5, 2013, 

GWCCA, StadCo, and Atlanta Falcons Football Club, LLC (the 

“Club”) entered into a “Memorandum of Understanding for a 

Successor Facility to the Georgia Dome” (the “MOU”). That same 

day, GWCCA, the Atlanta Development Authority d/b/a Invest 

Atlanta (“Invest Atlanta”), and StadCo entered into a “Tri-Party 

Memorandum of Understanding for a Successor Facility to the 
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Georgia Dome” (the “Tri-Party MOU”). 

With respect to taxation, the MOU states that “[n]either 

[StadCo] nor the GWCCA expect any ad valorem taxes to be payable 

with respect to their respective interests in such real property and 

improvements for the [stadium project], and neither Party will in 

any event assume or undertake any ad valorem tax responsibilities 

or liabilities of the other.” The MOU further provided that “StadCo 

shall have received confirmation from the [Board] or other 

appropriate governmental authority in form reasonably satisfactory 

to StadCo that StadCo’s and [the Club’s] rights with respect to the 

[stadium] under the License Agreement and related agreements will 

constitute a usufruct.”2 On August 6, 2013, StadCo’s counsel 

 2 Under Georgia statutory law, 

the grant by a landowner to another of the right “simply to possess 

and enjoy the use of such real estate either for a fixed time or at 

the will of the grantor” passes no estate; instead it creates a 

landlord-tenant relationship in which the tenant holds only a 

usufruct. OCGA § 44-7-1 (a). Because a usufruct is not considered 

an estate in real property under Georgia law, it is not subject to ad 

valorem property tax.

Clayton County Bd. of Tax Assessors v. Aldeasa Atlanta Joint Venture, 304 Ga. 

15, 16 (1) (815 SE2d 870) (2018). “[D]uring the term of a usufruct, the landlord 

continues to hold the present estate in the property.” GeorgiaCarry.Org, Inc. v. 

Atlanta Botanical Garden, Inc., 306 Ga. 829, 838 (3) (834 SE2d 27) (2019).
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provided the Board and the Board’s chief appraiser with a lengthy 

legal memorandum analyzing the terms of the MOU and Tri-Party 

MOU, which asserted that, “based on the significant amount of 

control over the [stadium] that is retained by the GWCCA, StadCo’s 

License with respect to the [stadium] creates a usufruct and not an 

estate for years.” 

On August 22, 2013, at a regularly scheduled meeting of the 

Board, a motion was introduced to consider whether StadCo’s 

interest would be exempt from ad valorem taxes. After discussing

the motion, the Board unanimously voted that StadCo’s interest in

the stadium was not subject to ad valorem taxes. That same day, the 

Board issued a “Statement of Intent to Exempt Real and Personal 

Property” (the “Exemption Decision”), which expressly provides that 

StadCo’s interest in the stadium would not be subject to ad valorem 

taxation. 

The Board’s Exemption Decision states that it was based on its

evaluation of the MOU and Tri-Party MOU. The MOU is an 86-page 

document that outlines in detail the expectations and 
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understanding of GWCCA, StadCo, and the Club with respect to the 

financing, construction, development, and operation of the stadium, 

including the terms of proposed lease or license agreements. The TriParty MOU is a 99-page document that similarly outlines the 

expectations and understanding between the parties with respect to 

additional rights and obligations concerning the use of the stadium. 

The Board’s Exemption Decision provides, in relevant part:

Based on the [MOU, the Tri-Party MOU], and pursuant

to OCGA § 10-9-10[3], it is the intent of the Fulton County 

 3 The GWCCA owns and operates the stadium and the land it sits upon, 

and, as an agency of the State of Georgia, it is exempt from ad valorem taxes 

pursuant to OCGA § 10-9-10. That Code section provides: 

It is found, determined, and declared that the creation of the 

[Georgia World Congress Center Authority] and the carrying out 

of its corporate purposes are in all respects for the benefit of the 

people of this state and are public purposes and that the authority 

will be performing an essential governmental function in the 

exercise of the powers conferred upon it by this chapter. The 

authority shall be required to pay no taxes or assessments upon 

any property acquired or under its jurisdiction, control, possession, 

or supervision or upon its activities in the development, 

construction, operation, or maintenance of any of the projects or 

facilities erected, maintained, or acquired by it or any fees, rentals, 

or other charges for the use of such facilities or other income 

received by the authority and shall not be subject to regulation of 

its activities in the acquisition, development, construction, 

operation, or maintenance of any of the projects or facilities 

acquired, developed, constructed, operated, or maintained by it by 

any county or municipal corporation of this state. The exemption 
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Board of Assessors to recognize the exempt status to the 

real and business personal property included in the 

[MOUs] and the lease/license of the stadium property 

including all buildings, parking areas and other real and 

personal property to be constructed and utilized under the 

terms of the lease/license.

This exemption will take effect upon commencement of 

construction of the stadium and remain in effect 

throughout the term of the lease/license agreement 

provided that the terms of the [MOUs] are not altered and 

the lease/license does not substantially change the terms 

and conditions of the [MOUs]. Any changes or alterations 

of such [MOUs] or lease/license agreements will be 

subject to review by the Fulton County Board of Assessors 

to ensure that such changes do not alter the relationship 

of the parties substantially that would create a change 

that would render the property taxable under Georgia 

Law.

Based on the Exemption Decision, StadCo was not required to nor 

has it paid ad valorem taxes on its right to use the stadium.

On May 18, 2015, StadCo, consistent with the MOU and TriParty MOU, entered into a Stadium License and Management 

 

from taxation provided for in this Code section shall include an 

exemption from sales and use tax on tangible personal property 

purchased by the authority for use exclusively by the authority. 

The revenue bonds or other evidence of indebtedness issued by the 

authority, their transfer, and the income therefrom shall at all 

times be exempt from taxation within this state by the state or its 

municipalities or political subdivisions.
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Agreement (“the SLM Agreement”) with GWCCA. In the SLM 

Agreement, the GWCCA formally granted StadCo a usufruct in the 

stadium improvements and set forth the terms and conditions for 

the development, construction, and operation of the stadium

between the GWCCA, as licensor, and StadCo, as licensee. The SLM 

Agreement provided that the GWCCA did not transfer an estate for 

years, a tenancy, a leasehold interest, or other real property interest.

The term of the SLM Agreement runs through February 28, 2047, 

and is subject to extension or renewal by the parties. Because the 

Board’s Exemption Decision provided that the tax exemption 

remains in effect throughout the term of the lease/license agreement

described in the MOUs (provided that any subsequent agreement 

does not substantially change the terms and conditions of the 

MOUs), the exemption remains in effect until February 28, 2047, 

when the SLM Agreement is set to expire.

The appellants filed suit on October 17, 2017. The petition

included two counts for a writ of mandamus seeking to have the 

Board and its members reevaluate the taxability of StadCo’s interest 
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in the stadium. It also included a count for a declaratory judgment,

asserting that StadCo’s interest in the stadium was not a usufruct 

but, rather, a taxable leasehold interest. The appellants 

subsequently amended the petition to add a fourth count seeking to 

enjoin the Board and its members from treating StadCo’s leasehold 

interest in the stadium as tax exempt, and a fifth count seeking a 

declaration that OCGA § 10-9-10, as it was amended in 1989, was 

unconstitutional. Thereafter, the Board filed a motion to dismiss the 

amended petition for failure to state a claim upon which relief may 

be granted.

On March 13, 2018, the trial court granted the Board’s motion 

to dismiss. The trial court found that the Board “exercised its 

discretion in determining that StadCo’s contractual rights in the 

[stadium] were not subject to ad valorem taxes.” It further found 

that “[the Board] and its members reviewed the MOU and the TriParty MOU, evaluated StadCo’s contractual rights in the [stadium], 

determined that the contractual rights constituted a non-taxable 

usufruct, and prepared the [Exemption Decision], which was voted 
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on and unanimously approved.” The trial court further found: 

“Indeed, it is clear based upon the pleadings alone that the [Board] 

considered this issue and made a decision based upon all of the

information before it[.]” The trial court noted that “Petitioners may 

have preferred a different result, but that does not entitle them to 

mandamus relief against the [Board] and its members.” Finally, the 

court found that “[t]he terms of the SLM Agreement are consistent 

with the terms contemplated by the MOU and the Tri-Party MOU,” 

and that “Petitioners failed to rebut (or even address) Respondents[’]

assertion that the SLM Agreement is consistent with the MOU and 

the Tri-Party MOU, which assertion is supported by the Exhibits 

attached to the Amended Petition and Second Amended Petition and 

adopted by the Court as a finding of fact.” 

The appellants appealed this first dismissal order to the Court 

of Appeals. The court held that the trial court properly considered 

the exhibits to the petitions in dismissing the amended petition, and 

that any findings based on the trial court’s review of those exhibits 

did not convert the motion to dismiss into a motion for summary 
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judgment. See Love, 348 Ga. App. at 315-316 (1). The appellants 

urged the Court of Appeals to hold that the Board and its members 

had a nondiscretionary duty to investigate and determine whether 

property in the county was subject to ad valorem taxation. They

argued that the amended petition and exhibits showed that the 

Board failed to exercise this duty because the Board did not review

the SLM Agreement to determine whether StadCo’s interest in the 

stadium was taxable. Thus, the appellants contended, if their 

amended complaint were accepted as true, they were entitled to a 

writ of mandamus compelling the Board to investigate and 

determine whether StadCo’s interest was subject to ad valorem 

taxation based on the SLM Agreement. The Court of Appeals held, 

however, that the appellants had failed to state a mandamus claim 

under OCGA § 48-5-299, which pertains to the duties of a county 

board of tax assessors.4 The court held that OCGA § 48-5-299

 4 OCGA § 48-5-299 (a) provides: 

It shall be the duty of the county board of tax assessors to 

investigate diligently and to inquire into the property owned in the 

county for the purpose of ascertaining what real and personal 
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“affords the [Board] discretion in the process it follows to investigate 

and inquire into whether property is subject to ad valorem property 

taxation.” Love, 348 Ga. App. at 318 (2). It also stated that it is 

within the Board’s discretion to determine the manner in which to 

conduct its investigation, what evidence should be reviewed, and 

how it reaches decisions. Id. The court went on to explain that:

Given that the [Board] is afforded discretion in how to 

conduct an investigation, mandamus relief would be 

appropriate only if the Board failed entirely to conduct an 

investigation and reach a decision regarding the tax 

status of [StadCo’s] interest in the New Stadium. 

However, the plaintiffs’ amended petition and attached 

exhibits disclose with certainty that the [Board]

investigated the taxability of [StadCo’s] interest and 

reached a decision on that question. In this regard, the 

 

property is subject to taxation in the county and to require the 

proper return of the property for taxation. The board shall make 

such investigation as may be necessary to determine the value of 

any property upon which for any reason all taxes due the state or 

the county have not been paid in full as required by law. In all 

cases where the full amount of taxes due the state or county has 

not been paid, the board shall assess against the owner, if known, 

and against the property, if the owner is not known, the full 

amount of taxes which has accrued and which may not have been 

paid at any time within the statute of limitations. In all cases 

where taxes are assessed against the owner of property, the board 

may proceed to assess the taxes against the owner of the property 

according to the best information obtainable; and such assessment, 

if otherwise lawful, shall constitute a valid lien against the 

property so assessed.
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[Exemption Decision] and the minutes from the August 

22, 2013 [Board] meeting attached to the plaintiffs’ 

amended petition reflect that the Board reviewed the 

MOU and the Tri-Party MOU, determined that the 

interest of [StadCo] was not subject to ad valorem 

taxation, and specified that the Board’s decision would 

“take effect upon commencement of construction of the 

[New Stadium]” and remain in effect throughout the term 

of the parties’ agreement, with the caveat that any 

substantial changes in the final agreement reached by the 

parties could lead the Board to reconsider its decision.

Accordingly, as reflected by the amended petition and 

attached exhibits, there was not a total failure by the 

[Board] to investigate and reach a decision, and 

mandamus relief would not be an appropriate mechanism 

to compel the Board to conduct its investigation in a 

particular manner under OCGA § 48-5-299 (a). 

(Citations omitted; emphasis supplied.) Love, 348 Ga. App. at 318-

319 (2). 

The Court of Appeals concluded that the mandamus claims 

brought in the amended petition against the Board members failed 

as a matter of law. See id. at 319 (3). The court noted, however, that 

mandamus relief may be appropriate where an official, acting in an 

official capacity, performs a discretionary duty in a manner so 

unreasonable, arbitrary, and capricious that it amounts to a gross 
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abuse of discretion. See id. at 319 n.8. The court did not address that

circumstance because the appellants had not framed their 

mandamus claim to allege a gross abuse of discretion. 

The Court of Appeals also affirmed the dismissal of appellants’

claims for declaratory and injunctive relief against the Board as well 

as against the individual defendants in their official capacities on

sovereign immunity grounds. See id. at 320 (4) n.9. However, the

court reversed the trial court’s order dismissing the counts as 

asserted against the individual defendants, in their individual 

capacities only, for a declaratory judgment as to whether the SLM 

Agreement transferred to StadCo a taxable leasehold interest in the 

stadium, and for an injunction to prevent the Board members from 

implementing the Exemption Decision. And, finally, the court 

reversed the trial court’s dismissal of the appellants’ challenge to 

the constitutionality of OCGA § 10-9-10 on mootness grounds. See 

Love, 348 Ga. App. at 320-321 (4), (5). The Court of Appeals 

remanded the case for the resolution of these matters.

After the case was remanded to the trial court, the appellants
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amended their petition a third time and the trial court permitted 

GWCCA and StadCo to intervene. Thereafter, GWCCA filed a 

motion to dismiss, and StadCo filed a motion for summary judgment.

Then, on October 22, 2019, the appellants filed their fourth amended 

petition. The fourth amended petition restates most of the 

appellants’ earlier claims, including counts for: (a) a writ of 

mandamus based on the Board members’ “gross abuse of discretion” 

in issuing and in failing to review the Exemption Decision; (b) 

injunctive relief to enjoin and restrain the Board members in their 

individual capacities from implementing the Exemption Decision; (c) 

a judgment against the Board members in their individual 

capacities declaring that the SLM Agreement granted StadCo a 

taxable leasehold interest; (d) a judgment against the Board, as well 

as against the Board members and the Chief Appraiser in their 

official and individual capacities, declaring that OCGA § 10-9-10, as 

amended in 1989, is unconstitutional. The fourth amended petition 

also added a new claim seeking an order directing Fulton County 

and the Fulton County Tax Commissioner to issue a refund under 
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OCGA § 48-5-380 to every county resident who was allegedly 

overcharged for property taxes in 2018 and 2019 based on the 

Board’s alleged failure to assess taxes against StadCo in connection 

with its interest in the stadium (Count V).5 On April 22, 2020, the 

trial court entered an order dismissing the fourth amended petition 

in its entirety for failing to state a claim upon which relief may be 

granted. This appeal followed.

 5 The trial court did not address whether the doctrine of sovereign 

immunity barred any of the recast claims or the new claim brought in the 

fourth amended petition. As we have explained,

[t]he applicability of sovereign immunity to claims brought against 

the State is a jurisdictional issue. Indeed, sovereign immunity [–] 

like various other rules of jurisdiction and justiciability [–] is 

concerned with the extent to which a case properly may come 

before a court at all. Therefore, 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.

(Citation, punctuation, and footnote omitted.) McConnell v. Ga. Dept. of Labor, 

302 Ga. 18, 18-19 (805 SE2d 79) (2017). We note that the trial court should 

have addressed whether the doctrine of sovereign immunity barred the claim 

for declaratory relief challenging OCGA § 10-9-10 because it was brought 

against the Board as well as against the Chief Appraiser and the Board 

members in their official capacities. However, because the appellants also 

sought prospective declaratory relief against the Board members and Chief 

Appraiser in their individual capacities, the claim would have survived the 

sovereign immunity analysis as to those defendants in their individual 

capacities, see, e.g., Lathrop v. Deal, 301 Ga. 408, 443-444 (III) (C) (801 SE2d 

867) (2017), and the trial court was authorized to address the merits of those 

claims. 
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2. The appellants contend that the trial court erred in allegedly 

dismissing their fourth amended petition sua sponte. They also 

argue at length that the trial court erred by evaluating their claims 

under the “any evidence” standard applicable to appellate review of 

administrative decisions instead of the legal standard a trial court 

must apply when considering whether to grant a motion to dismiss. 

Our review of the trial court’s dismissal order is de novo. See Greene 

County School District, 291 Ga. at 112.

First, pretermitting whether the trial court dismissed the 

petition on its own, it had the authority to do so. See Roberts v. 

DuPont Pine Prods., 352 Ga. App. 659, 661 (2) (835 SE2d 661) (2019)

(“A trial court has the authority to dismiss claims sua sponte if it 

can determine from the pleadings that the claims cannot succeed as 

a matter of law.” (citation omitted)).6 Second, the trial court 

evaluated the petition under the legal standard applicable to 

 6 The trial court noted that it had already considered “the merits and 

deficiencies” of many of the claims raised in the fourth amended petition 

because those same claims had been raised in prior petitions and had been

debated in previous as well as in pending motions to dismiss or for summary 

judgment.
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motions to dismiss, expressly stating that dismissal for failure to 

state a claim was appropriate “where a complaint lacks any legal 

basis for recovery.” The trial court referenced several cases that

correctly explain or elaborate on this legal standard, including the 

trial court’s authority to consider exhibits attached to and 

incorporated into a petition.7 Contrary to the appellants’ 

contentions, the trial court did not apply an “any evidence” standard

of review. Rather, in discussing how the Board had evaluated

 7 The trial court dismissed the fourth amended complaint pursuant to 

OCGA § 9-11-12 (b) (6) for failure to state a claim, based on its determination 

that “[the] complaint lack[ed] any legal basis for recovery,” quoting AutoOwners Ins. Co. v. Tracy, 344 Ga. App. 53, 54 (806 SE2d 653) (2017) (“[W]e 

view all of the plaintiff’s well-pleaded material allegations as true, and view 

all denials by the defendant as false, noting that we are under no obligation to 

adopt a party’s legal conclusions based on these facts.”). The court also cited

Villa Sonoma at Perimeter Summit Condo. Assn. v. Commercial Indus. Bldg. 

Owners Alliance, 349 Ga. App. 666, 667 (1) (824 SE2d 738) (2019) (A complaint 

lacks any basis for recovery when “(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.” (citations 

omitted.)); Roberts, 352 Ga. App. at 661 (2) (“[A] trial court has the authority 

to dismiss claims sua sponte if it can determine from the pleadings that the 

claims cannot succeed as a matter of law.”); Minnifield, 331 Ga. App. at 514-

515 (2) (“When considering a motion to dismiss for failure to state a claim, a 

trial court may consider exhibits attached to and incorporated into the 

complaint and answer.” (citation omitted)).
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StadCo’s interest in the stadium and reached its exemption decision, 

the trial court explained that “it is helpful to put this case in its 

proper context,” stating that the appellants were collaterally 

attacking an agency decision, one that, if appealed to a superior 

court, would be entitled to great deference under the “any evidence” 

standard.8

Having concluded that the trial court applied the correct legal 

standard in dismissing the appellants’ fourth amended petition, and 

considered only the appellants’ “pleadings and their attachments” in 

concluding that each claim contained in the petition failed as a 

 8 In such an appeal, the appellants would not be allowed to expand the 

record. The trial court continued:

[I]ndeed, the reviewing court’s “quantum of proof” inquiry is 

limited to determining if any evidence supported the agency 

decision. Emory Univ. v. Levitas, 260 Ga. 894, 896-897 [401 SE2d 

691] (1991), abrogated on other grounds by Pruitt Corp. v. Georgia 

Dept. of Community Health, 284 Ga. 158 [664 SE2d 223] (2008). If 

the reviewing court finds that at least some evidence supports the 

ruling – and that the ruling was not so arbitrary and capricious as 

to constitute a gross abuse of discretion – then the ruling stands. 

Importantly, the court does not re-weigh the evidence, as 

Petitioners here seek it to do, nor does the court consider evidence 

outside the record that was before the agency. Fulton County v. 

Berry, [354 Ga. App. 841 (841 SE2d 744)] (2020).
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matter of law,9 we now evaluate whether the trial court properly 

dismissed those claims. 

3. (a) The appellants sought a writ of mandamus based upon 

the Chief Appraiser’s and the Board members’ (collectively “Board 

members”) alleged “gross abuse of discretion” in the issuance of the 

Exemption Decision as well as in the alleged failure to reconsider 

the Exemption Decision in light of the SLM Agreement.10

Specifically, the appellants contended that none of the agreements 

that StadCo had entered into, including the SLM Agreement, “were 

ever investigated, evaluated, analyzed, or reviewed as to whether 

 9 As discussed above, in assessing whether a claim should be dismissed, 

a court may consider exhibits attached to and incorporated in the complaint 

and answer, and to the extent there are inconsistences between the allegations 

in the complaint and exhibits attached to the complaint, the exhibits control.

Thus, the trial court properly relied upon the Board’s Exemption Decision, the 

two MOUs, and the SLM Agreement, as all of these documents were either 

quoted verbatim in the fourth amended petition, were attached to and 

incorporated into that petition, or both. The Court of Appeals’ decision in the 

earlier appeal also recognized that these same documents were attached to 

previous versions of the petition and that the trial court could consider them 

on a motion to dismiss. See Love, 348 Ga. App. at 310-312.

10 The mandamus claim was also brought against the Board. Mandamus, 

however, is by definition a claim against officials in their official capacities, see

OCGA § 9-6-20, which is why sovereign immunity did not preclude the 

appellants’ claim for mandamus relief against the Chief Appraiser and the 

Board members. See Southern LNG, Inc. v. MacGinnitie, 290 Ga. 204 (719 

SE2d 473) (2011). 
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they altered or changed the ad valorem tax status or exempt status 

of StadCo’s real property interest” in the stadium. The appellants 

also asserted that the Board members had “failed and refused to 

perform a diligent investigation” into whether “the SLM Agreement 

has materially altered the relationship between the GWCCA and 

StadCo, from an ad valorem property tax standpoint.” 

OCGA § 9-6-20 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[.]

Mandamus is “an extraordinary remedy to compel a public officer to 

perform a required duty when there is no other adequate legal 

remedy.” (Citation and punctuation omitted.) R. A. F. v. Robinson, 

286 Ga. 644, 646 (1) (690 SE2d 372) (2010). “The writ of mandamus 

is properly issued 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.” (Citation and punctuation omitted.) 
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Ga. Assn. of Professional Process Servers v. Jackson, 302 Ga. 309, 

312 (2) (806 SE2d 550) (2017). Further,

[f]or mandamus to issue, the law must not only authorize 

the act to be done, but must require its performance. 

Where performance is required by law, a clear legal right 

to relief will exist either where the official or agency fails 

entirely to act or where, in taking such required action, 

the official or agency commits a gross abuse of discretion. 

(Citation and punctuation omitted.) Id. at 312-313 (2). See also 

OCGA § 9-6-21 (a) (“Mandamus shall not lie as . . . to a public officer 

who has an absolute discretion to act or not to act unless there is a 

gross abuse of such discretion. However, mandamus shall not be 

confined to the enforcement of mere ministerial duties.”). A gross 

abuse of discretion occurs where an official performs a discretionary 

duty in a manner that is arbitrary, capricious, and unreasonable. 

See Massey v. Georgia Board of Pardons & Paroles, 275 Ga. 127, 128 

(2) (562 SE2d 172) (2002).

The trial court determined that the appellants’ mandamus 

claim had, in part, been resolved in the appellees’ favor when the 

Court of Appeals affirmed the previous order dismissing the 
25

appellants’ original mandamus claim. The Court of Appeals held 

that the trial court did not err in dismissing the mandamus claim as 

it had been framed in the previous petition because, although the 

Board members had a clear legal duty under OCGA § 48-5-299 (a) 

to investigate diligently and to inquire into the taxability of StadCo’s 

interest, “there was not a total failure by the [Board members] to 

investigate and reach a decision, and mandamus relief would not be 

an appropriate mechanism to compel the [Board members] to 

conduct its investigation in a particular manner under OCGA § 48-

5-299 (a).” Love, 348 Ga. App. at 319 (2). Thus, that the Board 

members had exercised their discretion in investigating and 

deciding whether StadCo’s interest was tax exempt became the law 

of the case.11 What remained of the mandamus claim for the trial 

court to resolve was whether the Board members had exercised that 

 11 See Welbon v. State, 304 Ga. 729, 729-730 (1) (822 SE2d 277) (2018) 

(“Under the ‘law of the case’ doctrine, which is applicable to rulings made by 

appellate courts in both civil and criminal cases, any ruling by the Supreme 

Court or the Court of Appeals in a case shall be binding in all subsequent 

proceedings in that case in the lower court and in the Supreme Court or the 

Court of Appeals as the case may be. OCGA § 9-11-60 (h).” (citations and 

punctuations omitted)).
26

discretion in a manner that was unreasonable, arbitrary, and 

capricious.

The trial court concluded that the facts asserted in the 

pleadings and exhibits to the fourth amended petition showed that 

the Board members performed their duty to investigate diligently 

and to inquire into whether StadCo’s interest was subject to ad 

valorem taxation. They considered arguments and documentary 

evidence presented during the Board’s August 22, 2013 hearing, 

including the MOUs. The Exemption Decision was expressly based 

on evidence presented to the Board at the hearing. And although the 

evidence before the Board “may not have been overwhelming,” as 

the trial court observed, the evidentiary concerns expressed by the 

appellants were “neither remarkable nor a sufficient basis to find 

that the [Board members had] acted arbitrarily or capriciously in 

determining that StadCo enjoyed a non-taxable usufruct interest.”12

 12 The appellants complained that the Board members did not recall 

many of the details of the August 22, 2013 hearing or of the documents they 

reviewed. They expressed concern that corporate interests may have 

participated in or influenced the Board’s Exemption Decision.
27

Further, when the Board members made the Exemption Decision, 

they did so “with the caveat that any substantial changes in the final 

agreement reached by the parties could lead the Board to reconsider 

its decision.” The trial court then considered the SLM Agreement, 

as it was authorized to do, and determined that the agreement “did 

not expand or extend, either temporally or in any other materially 

relevant manner, StadCo’s interest in GWCCA’s property.”13 Thus, 

there was nothing in the SLM Agreement that would have triggered 

the Board members’ duty to reevaluate the tax exempt status of 

StadCo’s interest in the stadium. The trial court concluded:

Thus a writ directing [the Board] to review subsequent 

agreements that merely fleshed out operational details 

(and did not materially change essential terms) of the [...

MOU and Tri-Party MOU that the Board] originally 

assessed to transfer only a usufruct interest would be 

pointless. Moreover, it would be prescribing the method 

[the Board] is to use in conducting (and extending) its 

investigations, which, as previously stated, [this court] is 

not free to do. 

 13 Contrary to the appellants’ argument, the trial court did not weigh the 

evidence. Rather, it determined as a matter of law that the SLM Agreement 

did not alter the material terms of the MOUs. “The construction of a contract 

is a question of law for the court.” OCGA § 13-2-1. The appellants have not 

demonstrated that the trial court’s legal conclusion that the SLM Agreement 

did not materially change the essential terms of the MOUs was erroneous. 
28

Thus, the allegations of the fourth amended petition disclosed

with certainty that the appellants would not be entitled to relief 

under any state of provable facts asserted in support of their 

mandamus claim. Nor could they introduce evidence within the 

framework of the complaint sufficient to warrant a writ of 

mandamus. Consequently, the trial court did not err in dismissing 

the appellants’ mandamus claim. See R. A. F., 286 Ga. at 646 (1)

(The trial court correctly found that the petition for mandamus is 

subject to dismissal because appellants failed to state a claim for 

mandamus relief.).

(b) The appellants sought to enjoin the Board members in their 

individual capacities from continuing to implement the Exemption 

Decision. The trial court correctly concluded that the appellants’ 

claim for injunctive relief failed because, as explained in Division 3 

(a), supra, the fourth amended petition and exhibits showed that the 

Board members’ Exemption Decision was founded on evidence that 

StadCo’s interest constituted a usufruct; they did not exercise their 
29

discretion in an unreasonable, arbitrary, or capricious manner that 

would constitute a gross abuse of duty; and the SLM agreement did 

not materially change the nature of StadCo’s interest in the 

stadium. Consequently, the appellants failed to show any legal basis 

for injunctive relief. See Ianicelli v. McNeely, 272 Ga. 234, 236 (2) 

(527 SE2d 189) (2000) (The trial court properly dismissed 

appellant’s claim for injunctive relief because the acts he sought to 

enjoin did not establish a violation of public duty as a matter of 

law.).14

(c) The appellants brought a claim against the Board members

in their individual capacities for a judgment declaring that the SLM 

Agreement conveyed a taxable estate for years as opposed to a nontaxable usufruct. The trial court explained that the appellants’ claim 

for a declaratory judgment was subject to dismissal because, even if 

 14 The trial court also noted that a permanent injunction was not 

authorized in this case because the fourth amended petition and exhibits did 

not demonstrate that this was a clear and urgent case to prevent a party from 

being damaged and left without an adequate remedy at law, citing Smith v. 

DeKalb County, 288 Ga. App. 574, 576 (2) (654 SE2d 469) (2007). Given our 

holding above, we need not address the trial court’s alternative ground for 

dismissing the appellants’ claim for injunctive relief.
30

the Board members’ Exemption Decision (or failure to reconsider 

that decision) was arbitrary, capricious, or simply wrong in light of 

the SLM Agreement, the appellants did not face any uncertainty 

because of the Exemption Decision or the SLM Agreement. This 

ruling was correct.15

The Declaratory Judgment Act is designed to settle and 

afford relief from uncertainty and insecurity with respect 

to rights, status, and other legal relations, see OCGA § 9-

4-1, and the object of the declaratory judgment is to 

permit determination of a controversy before obligations 

are repudiated or rights are violated. The proper scope of 

declaratory judgment is to adjudge those rights among 

parties upon which their future conduct depends. Such 

relief is authorized when there are circumstances 

showing a necessity for a determination of the dispute to 

guide and protect the plaintiff from uncertainty and 

insecurity with regard to the propriety of some future act 

or conduct, which is properly incident to his alleged rights 

and which if taken without direction might reasonably 

jeopardize his interest.

(Citations and punctuation omitted.) Walker v. Owens, 298 Ga. 516, 

 15 The trial court alternatively and correctly concluded that, 

notwithstanding the SLM Agreement, it could not “reverse” the Board’s 

Exemption Decision because it was improper for it to do so when the Exemption 

Decision was supported by the evidence and there was no basis for concluding 

that the Board members had acted unreasonably, arbitrarily, and capriciously, 

in issuing the Exemption Decision, as explained in Division 3 (a), supra.
31

518-519 (783 SE2d 114) (2016). Because the appellants did not show

they were in a position of uncertainty as to an alleged right, the trial 

court properly dismissed their claim for a declaratory judgment. See 

Baker v. City of Marietta, 271 Ga. 210, 214 (1) (518 SE2d 879) (1999) 

(“Where the party seeking declaratory judgment does not show it is 

in a position of uncertainty as to an alleged right, dismissal of the 

declaratory judgment action is proper; otherwise, the trial court will 

be issuing an advisory opinion, and the Declaratory Judgment Act 

makes no provision for a judgment that would be advisory.” 

(citations and punctuation omitted)). 

(d) The appellants also sought a judgment declaring that 

OCGA § 10-9-10, as amended, was unconstitutional. The appellants 

argued that, prior to its amendment in 1989, OCGA § 10-9-10 

contained a clause that prohibited the GWCCA from extending its 

tax exempt status “to any lessee or other private person or entity.” 

See 1989 Ga. L. p. 1198. The appellants argue that “the removal of 

this clause expanded the class of property holders entitled to the 

GWCCA tax exemption,” and, because the amendment took effect 
32

without a statewide referendum, it was unconstitutional. The 

appellants fail to acknowledge, however, that the trial court 

dismissed this count of the petition on an alternate ground.

The trial court held as follows: 

The most basic reason why [the Petitioners’] challenge 

fails is that that [OCGA § 10-9-10’s] constitutionality has 

no bearing on the Exemption Decision. If [that Code 

section], as amended in 1989, created (illegally) the 

exemption Petitioners argue it did, i.e., an automatic 

exemption for private leaseholders of GWCCA’s property, 

then that exemption would not be dependent on the terms 

of the MOUs entered into between StadCo and GWCCA. 

(Nor would the content and effect of the SLM Agreement 

matter.) Rather, all that [the Board] would have needed 

to determine was that GWCCA was leasing its property 

to StadCo . . . [and] GWCCA’s statutory exemption would 

automatically transfer to the lessee. Here, however, the 

[Board] considered the details of the MOUs, repeatedly 

referenced the MOUs in its Exemption Decision, and even 

noted that its decision was dependent not on [OCGA § 10-

9-10] but on the terms of the MOUs, such that, if those 

terms were materially changed, [the Board’s] exemption 

ruling might also change. Thus, while [the Board] could 

have been a tad clearer in its Exemption Decision by 

stating directly (instead of obliquely) that it found that 

GWCCA was transferring to StadCo a usufruct interest 

in its property, the terms of the Exemption Decision 

imply that conclusion and make sense only under that

conclusion. In other words, [the Board] unanimously 

found that the interest GWCCA conveyed to StadCo 

constituted a usufruct, something that is exempt from 
33

taxation not because of OCGA § 10-9-10 . . . but because a 

usufruct interest is not an estate and so is not taxable. 

...This simple fact makes the constitutionality of [OCGA 

§ 10-9-10] irrelevant and is reason enough to find, as a 

matter of law, that Count III should be dismissed.

We agree with this reasoning. In light of the trial court’s correct 

conclusion that the Board did not rely on an exemption allegedly 

expressed in OCGA § 10-9-10, but rather determined that StadCo’s 

interest was a nontaxable usufruct,16 we need not reach the trial 

court’s alternative ruling on the merits of the appellants’ challenge 

to the constitutionality of the statute.

(e) Finally, the appellants contend that the trial court erred in 

dismissing their claim for a tax refund on the ground that the claim 

was moot. In the fourth amended petition, the appellants asserted a 

new claim against Fulton County and the Fulton County Tax 

Commissioner, pursuant to OCGA § 48-5-380, seeking a refund of 

taxes that Fulton County taxpayers had allegedly illegally paid to 

the county. The trial court, however, did not allow the appellants to 

amend the petition to add Fulton County or the Fulton County Tax 

 16 See footnote 2, supra.
34

Commissioner as parties. In a footnote to the portion of its order 

denying the appellants’ motion to add parties, the trial court stated:

“This ruling arguably has the effect of dismissing Count V, which 

seeks a refund for the class from the County and the Tax 

Commissioner. Without those party Respondents, there is no Count 

V.” The appellants have not challenged this ruling. Consequently, 

we need not address the trial court’s alternative “mootness” 

rationale for dismissing the appellants’ claim for a refund. 

Judgment affirmed. All the Justices concur, except Peterson 

and Bethel, JJ., not participating, and McMillian, J., disqualified.