Jordan Jones and Goulding, Inc. (“JJ&G”), a professional engineering firm, designed an automobile shredding facility for Newell Recycling of Atlanta, Inc. (Newell). JJ&G’s work was done pursuant to a “Draft Scope of Work” document and letters that it sent to Newell in August 1997, and pursuant to an agreement to prepare a concrete work platform that would control drainage around the shredding facility. After work had been completed on the project and the shredding facility became operational, in or around May 2000, the concrete platform around the facility began to fail.
Over four years later, in August 2004, Newell sued JJ&G for breach of contract and professional malpractice. On August 4, 2005, JJ&G moved for summary judgment, arguing that the complaint was barred by the four-year statute of limitation applicable to actions “upon any implied promise or undertaking” contained in OCGA § 9-3-25 (“[a]ll actions .. . upon any implied promise or undertaking shall be brought within four years after the right of action accrues”). On September 5, 2008, the trial court denied the motion, holding that, at the very least, an issue of fact existed as to the existence of a written contract, and that, therefore, the six-year statute of limitation of OCGA § 9-3-24 applicable to written contracts applied. See id. (“All actions upon simple contracts in writing shall be brought within six years after the same become due and payable”). The Court of Appeals reversed, holding that, even if one
assum[es,] arguendo[,] that JJ&G’s August 1997 letters to Newell, together with the Draft Scope of Work, [were] sufficient to constitute an enforceable, written contract between the parties, Newell’s claim [was] nevertheless barred by the applicable [four-year] statute of limitation [contained in OCGA § 9-3-25].
This Court granted certiorari to address whether the Court of Appeals erred in holding that a professional malpractice claim premised on a written contract is governed by the four-year statute of limitation in OCGA § 9-3-25, rather than the six-year statute of limitation in OCGA § 9-3-24. For the reasons that follow, we reverse.
As this Court made clear in
Seaboard Air-Line R. Co. v. Averett,
By its plain terms, the four-year statute of limitation contained in OCGA § 9-3-25 does not apply where a contract is evidenced by a sufficient writing. The statute only applies where no sufficiently written contract exists and a cause of action can therefore be based solely on the breach of an express oral or implied promise. See OCGA § 9-3-25 (“All actions . . . for the breach of any contract not under the hand of the party sought to be charged, or upon any implied promise or undertaking shall be brought within four years after the right of action accrues”). Thus, again, based on the Court of Appeals “assuming arguendo that [the relevant documents at
issue here were] sufficient to constitute an enforceable, written contract between the parties”
(Jordan Jones & Goulding, Inc.,
supra,
In determining which statute of limitation applies, the threshold inquiry is to determine whether a written agreement actually exists between the parties such that any implied duties sued upon would have grown directly out of the existence of the written contract itself. See, e.g.,
Bd. of Regents of the University System of Ga. v. Tyson,
refers to . . . liabilities resting in or growing out of written contracts, not remotely or ultimately, but immediately; that is, tosuch contracts, obligations, or liabilities as arise from instruments of writing, executed by the parties who are sought to be charged, in favor of those who seek to enforce the contracts, obligations, or liabilities.
Thomas v. Pacific Beach Co.,
Judgment reversed.