RTT ASSOCIATES, INC.
GEORGIA DEPARTMENT OF LABOR
Cert. applied for.
Sovereign immunity. Fulton Superior Court. Before Judge Glanville.
Balch & Bingham, Christopher S. Anulewicz, Joshua M. Moore, for appellant.
Samuel S. Olens, Attorney General, Elizabeth A. Harris, Assistant Attorney General, for appellee.
ELLINGTON, Presiding Judge. McFadden, J., concurs. Dillard, J., concurs in judgment only as to Division 1 and concurs fully in Division 2.
Ellington, Presiding Judge.
RTT Associates, Inc. brought this action in the Superior Court of Fulton County against the Georgia Department of Labor for breach
of contract and breach of the implied covenants of good faith and fair dealing. After a hearing, the trial court determined that RTT failed to show that the State had waived sovereign immunity and granted the Department's motion for summary judgment on that basis. RTT challenges that ruling on appeal, along with the denial of its motion for judgment on the pleadings. For the reasons explained below, we affirm the trial court's denial of RTT's motion for judgment on the pleadings and reverse the grant of summary judgment in the Department's favor.
1. RTT contends that its claims constitute an action ex contractu for the breach of a written contract and, therefore, that the trial court erred in ruling that the State is entitled to sovereign immunity. It is undisputed that the parties entered into a written contract for RTT to develop a software program for the Department and that the Department refused to pay RTT the full contract price. In its complaint, RTT alleged, inter alia, that the Department breached the contract by refusing to compensate RTT for work performed under the contract and by purporting to terminate the contract for cause without giving RTT an opportunity to cure its default. In granting the Department's motion for summary judgment on the basis of sovereign immunity, the trial court noted that the parties' written contract [333 Ga.App. 174] provided that it would terminate on a specified date, which had passed. The trial court held that, as a result, RTT could only maintain an action for breach of that written contract by producing a written extension or amendment that contained all of the terms required to constitute a valid contract, including consideration for extending or amending the contract and the parties' mutual assent to any such changes. The trial court determined that RTT had failed to establish any written extension or amendment and ruled that RTT's claim was therefore not one for breach of a written contract for which the State had waived its sovereign immunity. RTT contends that, at a minimum, a material question of fact exists regarding whether the parties agreed to extend the written contract and that the trial court therefore erred in finding as a matter of law that the Department is immune from suit. We agree.
On the subject of sovereign immunity, the Georgia Constitution of 1983 provides that " sovereign immunity extends to the State and all of its departments and agencies[,]" except as otherwise provided in Art. I, § II, Par. IX or unless the General Assembly in an Act " specifically provides that sovereign immunity is thereby waived and the extent of such waiver." Ga. Const. 1983, Art. I, § II, Par. IX (e). " [S]overeign immunity of a State agency is not an affirmative defense, going to the merits of the case; instead it raises the issue of the trial court's subject matter jurisdiction to try the case." (Punctuation and footnotes omitted.) Dept. of Transp. v. Kovalcik, 328 Ga.App. 185, 189-190 (1) (b) (761 S.E.2d 584) (2014). " Jurisdiction [to afford the relief sought] either exists or does not exist without regard to the merits of the case." (Citations and punctuation omitted.) Dept. of Transp. v. Dupree, 256 Ga.App. 668, 671 (1) (570 S.E.2d 1) (2002). Further, because " immunity from suit is a privilege that is subject to waiver by the State," rather than " an affirmative defense that must be established by the party seeking its protection," the claimant, as the party seeking to benefit from the waiver, has the burden of establishing the waiver. (Punctuation and footnotes omitted.) Tift County School Dist. v. Martinez, 331 Ga.App. 423, 425-426 (1) (771 S.E.2d 117) (2015).
When a court either has or lacks subject matter jurisdiction, regardless of any conflict in the facts that go to the merits of the case, the trial court should determine whether it has jurisdiction to afford the relief sought as a threshold issue at the outset. Dept. of Transp. v. Dupree, 256 Ga.App. at 671-672 (1). Sometimes, however, the determination of subject matter jurisdiction and waiver of sovereign immunity is so factually intertwined with determination of the [333 Ga.App. 175] merits of the case that the trial court may defer final determination of such issues until after the presentation of all the evidence at trial. Id. at 672 (1) (a).
We review de novo a trial court's ruling on the issue of whether it lacks subject matter jurisdiction ...