DeKalb County v. PMS Construction Co.

151 Ga. App. 63 | Ga. Ct. App. | 1979

Deen, Chief Judge.

On certiorari to the Supreme Court this case was affirmed in part and reversed in part. Our former decision was then vacated in toto. The present opinion is published to conform to the decision of the Supreme Court in 243 Ga. 870 (1979).

1. Divisions 2, 3, and 5 of our opinion in this case, published in 148 Ga. App. 413 (251 SE2d 334) (1978), are herewith adhered to and republished by reference, as is the statement of facts in that case.

2. DeKalb County is not under the circumstances here entitled to a defense based on sovereign immunity if this defendant has breached a written contract entered upon its minutes, and if the contract is one authorized by statute, as the pleadings indicate it to be. This is a matter of proof at trial and not a matter of pleading. If the contract is now on the minutes PMS need only show this at trial. If the contract exists but has not yet been entered on the minutes, PMS is entitled to amend its complaint to seek mandamus for entry of the contract on the minutes.

Argued September 13, 1978 Decided September 4, 1979. George P. Dillard, Gail C. Flake, for appellants. (Case No. 56555) Joseph Szczecko, William L. Bost, Jr., Chuck Watson, Robert H. Stringer, J. Larry Palmer, Donald A. Weissman, for appellees. William L. Bost, Jr., Charles H. Ivey, Donald A. Weissman, for appellants. (Case No. 56556) Joseph Szczecko, George P. Dillard, Chuck Watson, Robert H. Stringer, J. Larry Palmer, for appellees. Robert H. Stringer, for appellant. (Case No. 56557). Joseph Szczecko, William L. Bost, Jr., Chuck Watson, J. Larry Palmer, Donald A. Weissman, George P. Dillard, Gail C. Flake, for appellees.

3. The pleadings set out a cause of action by PMS against DeKalb County for damages as restitution for breach of an express contract, the damages being the provable value of work performed and materials provided in such amount as to restore the injured party to the pre-contract status quo. Both the amount of damages and the existence of such a contract remain jury issues.

Judgments reversed.

Smith and Banke, JJ., concur.