Ga. Lottery Corp. v. Vasaya

• Decision Date: 31 October 2019
• Docket Number: A19A1625
• Parties: GEORGIA LOTTERY CORPORATION v. VASAYA.
• Court: Georgia Court of Appeals

353 Ga.App. 52

836 S.E.2d 107

GEORGIA LOTTERY CORPORATION

v.VASAYA.

A19A1625

Court of Appeals of Georgia.

October 31, 2019

Christopher M. Carr, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Senior Assistant Attorney General, Alkesh B. Patel, David V. Carson, Assistant Attorneys General, for appellant. Wimberly Lawson Steckel Schneider & Stine, James L. Hughes, Paul Oliver, for appellee.

Coomer, Judge.

Sannah Vasaya sued the Georgia Lottery Corporation (the "GLC"), alleging that it had wrongfully refused to issue prize money to her after she won a Georgia Lottery instant game, "$7,500 a Week for Life." Vasaya moved for summary judgment on the ground that the GLC had breached its contract with her by failing to pay the award. The trial court granted Vasaya’s motion for summary judgment and later awarded Vasaya attorney fees and expenses. The trial court entered its final order and judgment on December 26, 2018. The GLC appeals, arguing that the trial court erred when it found that a lottery ticket is a written contract sufficient to waive sovereign immunity; by granting Vasaya’s motion for summary judgment as (a) questions of material fact exist and (b) a grant of attorney fees is a question for a jury and cannot be made at the summary judgment stage; and by awarding prejudgment interest. For the following reasons, we affirm in part and reverse in part.

"[A]t the summary judgment stage, courts are required to construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences." Smith v. Tenet Health System Spalding, Inc. , 327 Ga. App. 878, 879 (1), 761 S.E.2d 409 (2014) (citation and punctuation omitted). Viewed in the light most favorable to the GLC, the record shows that on January 29, 2016, Vasaya presented a winning scratch-off lottery ticket, "$7,500 a Week for Life," to the GLC’s Duluth district office. The same day, the GLC sent Vasaya a letter telling her that she was "a winner of the Georgia Lottery’s $7,500 a Week for Life instant game." While Vasaya was at the GLC’s Duluth office on January 29, 2016, Darrin Flanagan, the GLC’s prize validation Manager, called her from the GLC’s headquarters in Atlanta to confirm that she was the bona fide purchaser of the ticket. At a later deposition, Flanagan testified that he became concerned that Vasaya was not the purchaser of the ticket because of the time it took her to answer some of his questions. Flanagan testified that she would repeat his question out loud and get a response back, and that she gave him a round-about answer to his question about whether any of her family members owns a retail location that sells lottery tickets. Flanagan testified that a rightful owner would know immediately when and where she purchased the ticket. He also testified that after talking to Vasaya, he found out her father owns a retail location that sells lottery tickets.

The GLC then conducted an investigation of Vasaya’s prize claim. The investigator in charge of Vasaya’s claim, Tim Frost, contacted the owner of the store where the ticket at issue was sold. In a memorandum dated February 25, 2016, Frost stated that the store owner told him that his wife, Malika Lalani, had been working at the store the morning of January 29, 2016, when the ticket was purchased. The store owner also told Frost that his landlord’s wife and daughter had been in the store when the ticket was purchased. The next morning, Frost interviewed Lalani. Lalani told him that the landlord’s daughter, Vasaya, had purchased an instant ticket and had asked Lalani to scan the ticket. When she scanned the ticket, there was a message to submit the ticket to the GLC. Frost then interviewed Vasaya, who confirmed that her father is a lottery retailer and owns a location in Jonesboro, Georgia. In his memorandum, Frost stated that Vasaya gave a very similar statement to that of Lalani and that "[b]ased upon all facts gathered during the investigation, there was nothing to support that anyone other than ... Vasaya was the person who purchased the instant ticket in question." Frost added that she "was honest about her father owning a retail location."

On April 5, 2016, Flanagan e-mailed the following message to Joseph Kim, senior vice president and General Counsel for the GLC :

On January 29, 2016 I called the Duluth district office to speak with Sannah Vasaya about the $7,500 a Week for Life ticket she claimed that afternoon. When I asked her a question, she did not provide an answer right away but instead talk to someone else, in another language, and then provide an answer. After I was done speaking with her, I reviewed the video of her in our Duluth lobby, during our conversation and noticed that she had been talking to someone on her cell phone.

In a letter dated May 24, 2016, Kim informed Vasaya that he had directed the GLC’s prize validation department to decline to pay the $7,500 a Week for Life ticket that she had submitted on January 29, 2016. In the letter, Kim stated:

For the reasons in this letter, we have determined that you were not the bona fide purchaser of the ticket as you claimed. ... Specifically, when you submitted the ticket on January 29, 2016 at the GLC Duluth office, Mr. Darrin Flanagan with the GLC Prize Validation Department called you from GLC headquarters in Atlanta. ... [I]t became readily apparent that you were not the bona fide purchaser of the ticket because you could not answer basic questions that a bona fide purchaser would know ... such as where or when the ticket was purchased. When you could not answer the questions, Mr. Flanagan noticed that you stayed on the call with Mr. Flanagan and got on a second phone call with some other person (which Mr. Flanagan confirmed by viewing the video feed from the Duluth office to the Atlanta office). Mr. Flanagan was able to both hear you talking to someone else asking for the answers to his questions; and Mr. Flanagan could see you on a second phone asking for the answers to his questions. After receiving the information from the person on the phone, you told Mr. Flanagan that you bought the ticket at the Corner Food Mart in Loganville, GA.... While Mr. Frost had no basis to think you were anything other than the actual purchaser based solely on his interview with you because you were able to tell Mr. Frost where and when the ticket was bought, Mr. Frost acknowledged that he did not know that you were unable to provide the information to Mr. Flanagan without calling someone for the information about where and when the ticket was purchased. Mr. Frost concurs that an actual purchaser of a ticket should not have to call a third party for information about where and when that ticket was purchased.

Vasaya sued the GLC in the Superior Court of Fulton County, alleging that it had wrongfully refused to issue the prize money to her.

During a deposition on September 15, 2017, Flanagan was shown a video of Vasaya and her mother at the GLC’s Duluth office while Vasaya was on the telephone with Flanagan. Flanagan testified that in the video, he did not see Vasaya speaking on her cell phone while she was talking to him. Flanagan explained that in his April 5 e-mail to Kim, he was indicating that Vasaya was talking to a person who was on her cell phone, not that Vasaya was on her cell phone. Flanagan testified that the video shows that while he was on the telephone with Vasaya, her mother was on her cell phone twice, but Flanagan agreed that each time Vasaya’s mother was on her cell phone, she walked away from Vasaya. Flanagan further testified that he only speaks English, and that he did not know whether Vasaya was asking for answers to his questions.

At her deposition, Vasaya testified that she purchased the lottery ticket at issue on January 29, 2016, at the Corner Food Mart in Loganville, Georgia. Lalani, who is Vasaya’s aunt, confirmed at her deposition that Vasaya purchased the winning ticket, scratched it off while in the store, and asked Lalani to scan the ticket.

Following discovery, Vasaya moved for summary judgment on the ground that the GLC had breached its contract with her by failing to pay the award. After holding oral argument, the trial court granted Vasaya’s motion for summary judgment. The trial court later awarded Vasaya attorney fees and expenses. The trial court entered its final order and judgment on December 26, 2018. The GLC timely filed an application for discretionary appeal, which we granted. This appeal followed.

1. The GLC argues that the superior court committed reversible error when it found that a lottery ticket is a written contract sufficient to waive sovereign immunity. We disagree. In Georgia Lottery Corp. v. Patel , 349 Ga. App. 529, 533-534, (826 S.E.2d 385) (2019) (physical precedent only), we held that a breach of contract claim based on the GLC’s denial of a claim for a lottery prize was not barred by sovereign immunity because a lottery ticket is an express written contract. Even though Patel is not binding precedent, our analysis in that case applies here.

"The doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they have waived their immunity from suit." Watts v. City of Dillard , 294 Ga. App. 861, 862 (1), (670 S.E.2d 442) (2008) (citation and punctuation omitted). Sovereign immunity applies to the GLC. In Kyle v. Ga. Lottery Corp. , 290 Ga. 87, 88 1, 718 S.E.2d 801 2011, the Supreme Court of the Georgia held that the GLC was an instrumentality of the State and was therefore protected from suit from sovereign immunity. The Georgia Constitution, however, waives sovereign immunity in breach-of-contract claims based upon written contracts. Layer v. Barrow County , 297 Ga. 871, 871 (1), (778 S.E.2d 156) (2015) ; see Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c). The burden of demonstrating a waiver of sovereign immunity rests with the...