KELLY et al.
BOARD OF COMMUNITY HEALTH et al.
BARNES, P. J., MILLER, P.J and HODGES, J.
class action arose in response to reductions made in December
2011by the Board of Community Health to the State Health
Benefit Plan (SHBP)'s retiree health insurance subsidy.
After plaintiff retirees brought an action seeking class
certification as well as monetary and injunctive relief, the
trial court granted a motion to dismiss filed by the Board of
Community Health and its individual members
("defendants") on grounds including that
plaintiffs' claims were barred by sovereign immunity. On
appeal, plaintiffs argue that the trial court erred because
the Board's previous resolution granting them a subsidy
amounted to a written contract which could not be revoked
without causing them financial harm and violating their equal
protection rights, and for which mandamus is a proper remedy.
We find no error and affirm.
appeal from the grant of 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." (Footnote
omitted.) Cleveland v. MidFirst Bank, 335 Ga.App.
465, 465 (781 S.E.2d 577) (2016). "If within the
framework of the complaint, evidence may be introduced which
will sustain a grant of relief to the plaintiff, the
complaint is sufficient." (Footnote omitted.)
Id. at 465-466.
we thus view the record in favor of plaintiffs, the relevant
facts are not in dispute. Before December 8, 2011, retirees
were entitled to a so-called "Annuitant Basic Subsidy
Policy" that provided a 75% subsidy for an annuitant
with at least 10 years of service. After a study determined
that the Department of Community Health would not be able to
sustain the subsidy at this level without endangering the
financial health of the SHBP, the Board adopted a resolution
on December 8, 2011, that under its new "Annuitant Years
of Service Subsidy Policy," those retirees "who did
not have five [y]ears of [s]ervice on January 1, 2012,"
would receive a subsidy of 15% for 10 years of service,
increasing with each year of additional service to a maximum
of 75% for 30 years of service. The Board noted that its
announcement of the new policy "does not constitute a
promise or contract of any kind" and that "[a]ny
subsidy policy adopted by the Board may be changed at any
time by Board resolution and does not constitute a contract
or promise of any amount of subsidy." As a result of
this change, plaintiffs, who had the minimum ten years of
service at the time of their retirement but less than five
years of active service as of January 1, 2012, receive a much
lower annuitant subsidy than other retirees with the same
number of years of service. In December 2016 and February
2017, the Commissioner notified SHBP members of these
brought their action for breach of contract and mandamus
relief in December 2017 and later amended the complaint to
include three counts against Board members in their
individual capacities as well as constitutional claims for
equal protection and 42 U.S.C. § 1983. Defendants moved
to dismiss the complaint as amended, which the trial court
granted on the ground that sovereign immunity barred
plaintiffs' claims and that they had failed to state a
claim for mandamus relief. This appeal followed.
Ex contractu waiver of sovereign immunity.
first assert that the trial court erred when it concluded
that they had not established a waiver of sovereign immunity
under the ex contractu provision of the Georgia Constitution.
recent decision in Boyd v. Neal, 350 Ga.App. 274
(828 S.E.2d 650) (2019), we summarized the law governing
claims of contractual waivers of sovereign immunity as
The Georgia Constitution provides broad sovereign immunity
for the State: "Except as specifically provided in this
Paragraph, sovereign immunity extends to the state and all of
its departments and agencies. The sovereign immunity of the
state and its departments and agencies can only be waived by
an Act of the General Assembly which specifically provides
that sovereign immunity is thereby waived and the extent of
such waiver." Ga. Const. of 1983, Art. I, Sec. II, Par.
IX (e). But sovereign immunity is waived in limited
circumstances, and specifically, for contract actions,
sovereign immunity is waived: "as to any action ex
contractu for the breach of any written contract now existing
or hereafter entered into by the state or its departments and
agencies." Ga. Const. Art. I, § II, ¶ IX (c).
See also OCGA § 50-21-1 (a) ("The defense of
sovereign immunity is waived as to any action ex contractu
for the breach of any written contract . . . entered into by
the state, department and agencies of the state, and state
Our Supreme Court has recently explained the relationship
between common law rules of contract and what constitutes a
written contract sufficient to waive sovereign immunity:
"General rules of contract law that might otherwise
support a claim for breach of contract damages between
private parties . . . will not support a claim against the
state or one of its agencies if the contract is not in
writing so as to trigger the waiver of sovereign
immunity." Ga. Dept. of Labor v. RTT Assoc.,
Inc., 299 Ga. 78, 82 (2) (786 S.E.2d 840) (2016). Thus,
a party may not recover for breach of contract against the
State based on an implied contract, on a theory of quantum
meruit, or by the parties' course of conduct even if a
document exists supplying the material terms of the alleged
contract. Id. at 82-83 (2).
Boyd, 350 Ga.App. at 277 (1). Finally, in order to
establish a waiver of sovereign immunity under the ex
contractu provision, a claimant "has the burden of
showing that the contract sought to be enforced is in writing
and contains all of the terms necessary to constitute a valid
contract." (Citations omitted.) Ga. Dept. of
Community Health v. Data Inquiry, LLC, 313
Ga.App. 683, 685 (1) (722 S.E.2d 403) (2012).
regulatory scheme under which the SHBP operates includes Ga.
Comp. R. & Regs. r. 111-4-1-.10,  which provides in relevant
(1) Creation of Benefit Schedule. The Board is
authorized to establish benefit schedules for Options to be
included in a health benefit plan for eligible persons as
defined in Georgia law. Benefit schedules shall ...