Ga. Lottery Corp. v. Patel

• Decision Date: 22 November 2019
• Docket Number: A19A2278
• Parties: GEORGIA LOTTERY CORPORATION v. PATEL.
• Court: Georgia Court of Appeals

353 Ga.App. 320

836 S.E.2d 634

GEORGIA LOTTERY CORPORATION

v.PATEL.

A19A2278

Court of Appeals of Georgia.

November 22, 2019

Julie Adams Jacobs, William Wright Banks Jr., Christopher Michael Carr, Atlanta, Logan B. Winkles, for Appellant.

Jared Matthew Lina, James Arthur Goldstein, Atlanta, for Appellee.

McMillian, Presiding Judge.

This case presents an issue of first impression: has the State waived its sovereign immunity in actions for injunctive relief under Georgia’s Uniform Deceptive Trade Practices Act ("UDTPA"), OCGA § 10-1-370 et seq. ? Because the UDTPA does not expressly or clearly waive the State’s sovereign immunity, nor provide for the extent of any such waiver, we reverse the trial court’s denial of Georgia Lottery Corporation’s ("GLC") motion to dismiss.

This case is one of several appeals that have recently come before this Court after GLC refused to pay a $5,000,000 lottery prize allegedly won on a scratch off ticket purchased by plaintiff/appellee Sonalben Patel, which she gave to her mother, Ramilaben Patel,¹ for her birthday.² In Ga. Lottery Corp. v. Patel , 349 Ga. App. 529, 826 S.E.2d 385 (2019) (physical precedent only),³ two judges on this Court found that the scratch off ticket constituted an express written contract between Ramilaben and GLC, thereby waiving GLC’s sovereign immunity on her breach of contract claim.⁴ Id. at 533-34, 826 S.E.2d 385.

While that suit was pending,⁵ Patel filed a separate complaint seeking injunctive relief against GLC under the UDTPA and Georgia’s Fair Business Practices Act, OCGA § 10-1-390 et seq ("FBPA"). Specifically, the complaint requested that GLC be enjoined from selling lottery tickets in Georgia until GLC "expressly and clearly warns consumers" that

a) "The Georgia Lottery Corporation does not have the statutory authority to enter into written contracts with the consumers of tickets."

b) "In no way does a scratch off lottery ticket sold by the Georgia Lottery Corporation satisfy the criteria for a written contract."

GLC moved to dismiss on grounds of sovereign immunity, and the trial court granted the motion on Patel’s claim under the FBPA. However, the trial court denied GLC’s motion to dismiss Patel’s claim under the UDTPA, finding that the legislature had "effectively waived" GLC’s sovereign immunity for claims under the UDTPA by including "government or government subdivision or agency" within the definition of "person" under the Act, and further provided the extent of the waiver by specifying injunctive relief as a remedy for a violation of the Act. The trial court issued a certificate of immediate review from its order, and GLC filed an application for interlocutory review, which we granted. As more fully set forth below, we now reverse.

The question presented by this appeal is a question of law and, accordingly, our review is de novo. Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc. , 294 Ga. 593, 603 (2), 755 S.E.2d 184 (2014) (review of question of law in sovereign immunity case de novo); James v. Ga. Dept. of Pub. Safety , 337 Ga. App. 864, 865 (1), 789 S.E.2d 236 (2016) (same).

Our Supreme Court has previously determined that GLC is an instrumentality of the State and is, therefore, entitled to the protection of sovereign immunity. Kyle v. Ga. Lottery Corp. , 290 Ga. 87, 89-90 (1), 718 S.E.2d 801 (2011). Under Article I, Section II, Paragraph IX (e) of the Georgia Constitution, the State’s sovereign immunity "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." Although no special or magic words must be used by the legislature when enacting a statutory waiver of sovereign immunity, implied waivers are not favored, and it must be clear from the statute that immunity is waived and the extent of such waiver. Colon v. Fulton County , 294 Ga. 93, 95 (1), 751 S.E.2d 307 (2013), overruled in part on other grounds by Rivera v. Washington , 298 Ga. 770, 778, n.7, 784 S.E.2d 775 (2016). Thus, where the plain language of a statute does not provide for a specific waiver of sovereign immunity and the extent of the waiver, the courts do not have the power to imply a waiver. Sustainable Coast , 294 Ga. at 603 (2), 755 S.E.2d 184. And "statutes providing for a waiver of sovereign immunity are in derogation of the common law and thus are to be strictly construed against a finding of waiver." (Citation and punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. One Sixty Over Ninety, LLC , 351 Ga. App. 133, 138 (1), 830 S.E.2d 503 (2019).

We turn first to the text of the statute. As an initial matter, the UDTPA does not contain an express waiver of sovereign immunity. The words "waive" and "sovereign immunity" do not appear anywhere in the text of the statute, and the statute does not contain any other language that expressly denotes a waiver. Compare OCGA § 50-21-23 (a) (Georgia Tort Claims Act) ("The state waives its sovereign immunity ..."). Patel asserts that by including "government, or governmental subdivision or agency," within the definition of "person" under the UDTPA, the legislature intended the State to be subject to the Act. See OCGA § 10-1-371 (5).⁶ Patel then argues that OCGA § 10-1-373 (a) sets out the extent of the waiver – injunctive relief – by providing "[a] person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable." OCGA § 10-1-373 (a).

The question then is whether including "government [or] governmental subdivision or agency" in the definition of "person" is clear enough to denote a waiver, whether express or implied. We have previously answered this question in the negative in the context of two other similar statutes. In Bd. of Regents of the Univ. System of Ga. v. One Sixty Over Ninety, LLC , this Court found that virtually identical language in the Georgia Trade Secrets Act of 1990, OCGA § 10-1-760,⁷ does not, without more, effectuate a waiver of the state’s sovereign immunity. 351 Ga. App. at 137-38 (1), 830 S.E.2d 503. Similarly, in Tricoli v. Watts , 336 Ga. App. 837, 840 (4), 783 S.E.2d 475 (2016), a majority of this Court found that the Georgia RICO Act, OCGA § 16-14-1 et seq., "does not express any waiver of sovereign immunity[ ]" simply because the phrase "governmental entities" is included in the definition of "enterprise" for claims brought under the Act.

Patel argues that these cases are distinguishable because unlike the Trade Secrets Act or Georgia RICO Act, the UDTPA does provide for more than just including the government within the definition of "person" under the Act. The UDTPA also expressly provides that "[a] person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it ," OCGA § 10-1-373 (a), which Patel argues refers back to the definition of person. However, even assuming that "it" refers to "person," as defined in OCGA § 10-1-371 (5), that still leaves the pivotal question of whether including the government as an entity covered by the definition of "person" and a separate statutory provision allowing such persons to obtain an injunction (apparently against other such persons) is a clear waiver of the State’s sovereign immunity. So we must once again turn to the text and structure of the UDTPA

To begin with, we note that OCGA § 10-1-371 (5) does not specifically create an injunction remedy against the State that would otherwise be barred by sovereign immunity, nor does it require that sovereign immunity be waived in order for it to have meaning. In contrast, our Supreme Court has found it to be compelling that the Whistleblower Act specifically created a cause of action against the government with potential monetary damages and emphasized that for the Whistleblower Act "to have any meaning at all here it can only be interpreted as creating a waiver of sovereign immunity." Cf. Colon , 294 Ga. at 96, 751 S.E.2d 307. That is not the case here. Even if the State’s sovereign immunity is not waived under the UDTPA, the State and non governmental entities can continue to assert claims for injunction against non governmental entities.

And although not cited by either party, we find it significant that the UDTPA expressly does not apply to "[c]onduct in compliance with the orders or rules of a statute administered by a federal, state, or local governmental agency." OCGA § 10-1-374 (a) (1). "GLC was created by the General Assembly in 1992 under the authority of the Georgia Lottery for Education Act, OCGA § 50-27-1 et seq., for the purpose of marketing and selling lottery tickets to benefit state educational purposes." K...