336 Ga. App. 837
Ga. Ct. App.2016Background
- Anthony Tricoli was president of Georgia Perimeter College (GPC) and resigned after being blamed for a $16 million budget shortfall; he sued GPC officials, the Board of Regents, individual Regents, and the Georgia Attorney General alleging fraud, breach of contract, RICO violations, and other torts.
- Defendants moved to dismiss; Tricoli submitted documentary evidence (including an August 7, 2006 letter offering the presidency) in opposition, which the majority treats as converting the motion to one for summary judgment.
- The August 2006 letter offered the presidency, stated salary and start date, and made appointment subject to Board policies and Board approval; Tricoli argued it (plus Board policies) constituted a written contract waiving sovereign immunity.
- The trial court dismissed Tricoli’s claims; the majority affirmed, holding no enforceable written contract existed, tort claims were barred by the Georgia Tort Claims Act (GTCA), and Georgia RICO did not waive sovereign immunity.
- A dissenting opinion argued (1) the motion to dismiss was not converted to summary judgment because Tricoli lacked required notice, and (2) the Georgia RICO statute — which defines governmental entities as "enterprises" and authorizes civil suits by "any aggrieved person" — creates a statutory waiver of sovereign immunity distinct from the GTCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence/Enforceability of written employment contract | Tricoli: August 7, 2006 letter + Board policy created an enforceable contract and waiver of sovereign immunity | Defendants: Letter is conditional/at-will and policy does not supply definite term or protections | Held: No enforceable contract; terms are indefinite/at-will; Tricoli resigned, so no breach; sovereign immunity not waived on contract theory |
| Whether GTCA bars Tricoli's tort claims | Tricoli: tort claims distinct and actionable against officials | Defendants: GTCA is exclusive remedy for torts by state employees; exceptions apply | Held: Tort claims barred by GTCA; sovereign immunity preserved except where GTCA waives it (and exceptions bar his claims) |
| Whether Georgia RICO waives sovereign immunity | Tricoli: RICO allows civil suits by "any aggrieved person" and defines governmental entities as enterprises, so it creates a waiver and a separate remedy beyond GTCA | Defendants: RICO contains no express waiver; GTCA is exclusive remedy for tortious conduct by state actors so RICO cannot be invoked to evade sovereign immunity | Held (majority): RICO does not waive sovereign immunity; GTCA is exclusive remedy. (Dissent: RICO’s text and remedial purpose create a waiver) |
| Procedural: whether motion was converted to summary judgment and applicable standard of review | Tricoli (dissent): trial court granted dismissal, lacked required notice to convert to summary judgment; review should be de novo on motion to dismiss | Defendants (majority): Tricoli submitted documentary evidence opposing dismissal, effectively requested conversion and waived notice; apply summary-judgment review | Held: Majority treated submission as conversion and applied summary-judgment standard; dissent disagreed |
Key Cases Cited
- Bd. of Regents of the Univ. System of Ga. v. Doe, 278 Ga. App. 878 (2006) (addresses when Board communications may form contractual terms)
- Barnes v. Bd. of Regents of the Univ. System of Ga., 322 Ga. App. 47 (2013) (sovereign-immunity waiver for written state contracts; conversion-to-summary-judgment discussion)
- Gaddis v. Chatsworth Health Care Center, 282 Ga. App. 615 (2006) (documents submitted with a motion to dismiss can convert it to summary judgment under certain conditions)
- Cowart v. Widener, 287 Ga. 622 (2010) (summary-judgment burden when defendant shows absence of evidence for essential element)
- Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243 (2003) (evidence construed in favor of nonmovant on summary judgment)
- Burton v. John Thurmond Constr. Co., 201 Ga. App. 10 (1991) (at-will employment where contract contains no definite term)
- Colon v. Fulton County, 294 Ga. 93 (2013) (statutory interpretation recognizing that certain statutory language may imply a waiver of sovereign immunity; analyzed in dissent here)
- Liberty County School Dist. v. Halliburton, 328 Ga. App. 422 (2014) (failure to renew or reappoint does not avoid sovereign immunity)