Board of Regents of the Univ. Sys. v. Doe, A05A1892.

• Decision Date: 29 March 2006
• Docket Number: No. A05A1892.,A05A1892.
• Parties: BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. DOE.
• Court: Georgia Court of Appeals

278 Ga. App. 878

Page 85

630 S.E.2d 85

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. DOE.

No. A05A1892.

Court of Appeals of Georgia.

March 29, 2006.

Reconsideration Denied April 14, 2006.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Bryan K. Webb, Senior Assistant Attorney General, Ralph W. Ellis, Assistant Attorney General, for appellant.

Balch & Bingham, T. Joshua Archer, Atlanta, Michael J. Bowers, Warren N. Sams III, for appellee.

ELLINGTON, Judge.

The Board of Regents of the University System of Georgia appeals from the trial court's grant of partial summary judgment to John Doe in this suit for breach of an employment contract. The Board contends the trial court erred in finding that there was a valid, written contract between Doe and the Board and that, because of the existence of such contract, the state's sovereign immunity was waived. The Board also challenges the trial court's finding that it breached its contract with Doe. For the following reasons, we affirm the court's finding that there was a valid, written contract between Doe and the Board but reverse the court's grant of summary judgment on the issue of whether the Board breached such contract.

"To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law." (Citations omitted.) WirelessMD v. Healthcare.com Corp., 271 Ga.App. 461, 462, 610 S.E.2d 352 (2005). Our review of the grant or denial of summary judgment is de novo. Id.

So viewed, the record shows the following relevant facts. The Board of Regents ("Board") is a state agency that governs and manages the University System of Georgia and its member institutions, including the Georgia Institute of Technology ("Georgia Tech"). Georgia Tech is not a separate or distinct legal entity from the Board and, therefore, cannot sue or be sued in its own capacity.¹ When an administration or faculty position becomes available at Georgia Tech, university administrators are authorized to search for and interview potential candidates, decide which candidate will be offered the position, present the offer, and negotiate the terms of employment with the candidate on behalf of the Board. When hiring professors or certain administrative personnel, such as provost, vice president, and dean, Georgia Tech then forwards its recommendation for the appointment to the University System's Chancellor for approval by the Board, pursuant to the Board's policy manual.

In 1997, the Board authorized Georgia Tech to conduct a search for a new dean of the university's DuPree School of Management. The search committee ultimately submitted the names of Doe and two other candidates to Georgia Tech President Wayne Clough and Provost Michael Thomas. In September 1997, following several meetings with Doe, Clough and Thomas decided to offer the position to Doe. At the time, Doe was employed by the business school of another university in the Atlanta area. According to an Atlanta Journal Constitution article on September 27, 1997, both Clough and Thomas confirmed that Georgia Tech had named Doe as the new management school dean. On October 6, 1997, Thomas sent a letter to Doe which referred to their previous negotiations about the "opportunity that [Georgia Tech officials] would like [him] to fill," and Thomas proposed specific terms of employment, including salary and fringe benefits. Thomas' letter also solicited from Doe a "formal letter of acceptance" of the offer of employment. The letter included the following statement: "You should understand that the details outlined below are all tentative pending approval of the Board of Regents of the University System of Georgia, however, we anticipate no problem in their approving your appointment." Thomas wrote that, once he received Doe's acceptance letter, he would "secure the approval [of the appointment by] the Board of Regents." Thomas later testified that he had already "offered the position" to Doe prior to sending the October 6 letter, although he characterized the letter itself as the "formal" offer of employment. On October 30, 1997, Doe sent a letter to Thomas accepting the position and the terms of employment offered by Georgia Tech. Notably, the Board has admitted that Doe and Georgia Tech administrators reached an agreement that Doe would become a full professor with tenure and would serve as the Dean of the DuPree School of Management beginning January 1, 1998, but contends such agreement was contingent upon the Board's approval.

In November 1997, Georgia Tech sent a letter to the University System's Senior Vice Chancellor asking the Board of Regents to approve Doe's appointment. Before the Board voted on Doe's appointment, Georgia Tech officials

announced that [Doe] would be the incoming Dean of the DuPree School of Management[,]. . . allowed [Doe] to meet with faculty regarding administrative matters, allowed and encouraged [Doe] to conduct fundraising activities on behalf of Georgia Tech and . . . publicly introduced [Doe] as the new Dean of the DuPree School on several occasions.

Then, on December 2, 1997, an administrator of the university where Doe was still employed contacted Clough about accusations that Doe had vandalized property on that university's campus. Clough and Thomas discussed the allegations and, according to Thomas, the allegations raised concerns about "behavior that was not something that we would like to have in a dean." Based upon the allegations, Clough and Thomas decided that it would be "impossible" for Georgia Tech to pursue Doe's appointment, so they withdrew the recommendation and the Board did not vote on whether to approve the appointment.

In January 2003, Doe sued the Board of Regents (d/b/a Georgia Tech) for breach of contract. Doe later moved for partial summary judgment on the issues of whether there was a written contract between the parties and, if so, whether the Board had breached the employment contract. In granting Doe's motion,² the trial court found that the October 1997 letters between Georgia Tech and Doe contained all of the terms necessary to form a valid, written employment contract. The court noted that the Board had admitted that Georgia Tech officials had the authority to negotiate faculty employment contracts and to extend offers of employment on the Board's behalf. Further, because there was no evidence that the Board had ever rejected a candidate that any of its member institutions had submitted for the Board's ratification, the court stated that it appeared the Board's vote would have been merely "perfunctory."³ The court also concluded that, to the extent a Board vote was a condition of the contract, "it was a condition of performance rather than a condition of contract formation, as all terms had been negotiated and nothing was subject to future negotiations." The court added that the Board owed Doe "a duty to use its best efforts to fulfill the remaining condition of the contract by recommending [Doe] for approval by the appointed regents and by conducting a vote on [Doe's] employment. [H]owever, [the Board] frustrated the occurrence of this condition and thereby breached the contract." The court also found that, because there was a valid, written contract between the parties as a matter of law, the doctrine of sovereign immunity did not bar Doe's breach of contract suit.

1. On appeal, the Board challenges the trial court's finding that there was a valid, written contract between Georgia Tech and Doe that bound the Board and waived the Board's sovereign immunity as to Doe's breach of contract claim. The issue of whether there was a written contract is critical in this case, because the Georgia Constitution provides that the state's sovereign immunity is waived in suits based upon written contracts. See Ga. Const.1983, Art. I, Sec. II, Par. IX (c) ("The state's defense of sovereign immunity is hereby 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."); see also OCGA § 20-3-36 (sovereign immunity applies to the Board of Regents). The party seeking to benefit from the waiver of sovereign immunity bears the burden of proving such waiver. Sherin v. Dept. of Human Resources, 229 Ga.App. 621, 625(4), 494 S.E.2d 518 (1997); Merk v. DeKalb County, 226 Ga.App. 191, 486 S.E.2d 66 (1997) (plaintiff must show that contract at issue was in writing in order to demonstrate a waiver of sovereign immunity).

(a) The Board argues that there was no formal written employment contract between Georgia Tech and Doe, but simply an "informal offer" of employment that was explicitly conditioned upon the Board's approval of the appointment. A contract may be formed, however, when the parties exchange mutually interdependent promises. Jackson Elec. Membership Corp. v. Ga. Power Co., 257 Ga. 772, 774(1), 364 S.E.2d 556 (1988). Further, a valid written contract may be formed when there are multiple signed, contemporaneous agreements between the parties which demonstrate their intent to enter into a binding contract and the individual documents, considered together, include all of the necessary terms of a contract. Baker v. Jellibeans, Inc., 252 Ga. 458, 459(1), 314 S.E.2d 874 (1984).

In this case, the undisputed evidence shows that Georgia Tech officials reached an employment agreement with Doe that included a specific salary, benefits, starting date, and all other necessary terms of employment. Georgia Tech officials and Doe then clearly manifested their intent to be bound by their agreement, even though the Board had not yet approved the appointment, when Doe actively worked on behalf of the university as the "Dean Designee" of the school of management and Georgia...