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                               http://www.gaappeals.us/rules


                                                                    March 30, 2016




In the Court of Appeals of Georgia
 A15A2256. TRICOLI v. WATTS et al.

      ANDREWS, Presiding Judge.

      Anthony Tricoli served as President of Georgia Perimeter College (GPC) for

six years until he was blamed for a $16 million budget shortfall and resigned. He

subsequently sued numerous individuals affiliated with GPC, the Board of Regents

of the University System of Georgia, Board of Regents members, and the Georgia

Attorney General for fraud, breach of contract, and violations of the Georgia

Racketeer Influenced and Corrupt Organizations Act (RICO). The trial court granted

the defendants’ motion to dismiss, and this appeal followed.

      On appeal, Tricoli contends the trial court erred by: (1) finding there was no

enforceable written employment contract between Tricoli and the Board of Regents;

(2) concluding that the Georgia Tort Claims Act (GTCA), OCGA § 50-21-20 et seq.,
barred his RICO claims; (3) rejecting his claims for fraud, extortion, and intentional

infliction of emotional distress; (4) failing to consider his claims under the Open

Records Act; (5) ignoring his abusive litigation claim; and (6) ignoring his motion for

preliminary injunction. We find the trial court thoroughly addressed all the issues in

this case and correctly concluded that Tricoli’s claims failed under the Georgia Tort

Claims Act (GTCA) and the doctrine of sovereign immunity.

      1. Initially, we note that the standard of review applicable in this appeal is the

one for review of a decision on a motion for summary judgment. Although the appeal

is from the grant of a motion to dismiss, Tricoli’s submission of documentary

evidence in response to the motion to dismiss constituted, in effect, a request to

convert the motion into one for summary judgment and waived the notice requirement

for such a conversion. See Gaddis v. Chatsworth Health Care Center, 282 Ga. App.

615, 617 (639 SE2d 399) (2006); Bd. of Regents of the Univ. System of Ga. v. Barnes,

322 Ga. App. 47, 49 (1) (743 SE2d 609) (2013). (Exhibits attached to the pleadings

would not operate to convert a motion to dismiss into a motion for summary

judgment, Gaddis, supra, but because a motion to dismiss is not a pleading under

OCGA § 9-11-7 (a), any documents submitted in conjunction with such a motion are

outside the pleadings.)

                                          2
      Where a defendant, who would not bear the burden of proof at trial, moves for

summary judgment and shows an absence of evidence to support any essential

element of the plaintiff’s case, “the nonmoving party cannot rest on its pleadings, but

rather must point to specific evidence giving rise to a triable issue.” Cowart v.

Widener, 287 Ga. 622, 623 (1) (697 SE2d 779) (2010). But when we review a grant

or denial of summary judgment, we must construe the evidence in the light most

favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County,

276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

      2. “[T]he defense of sovereign immunity is waived as to any action ex

contractu for the breach of any written contract entered into by the state or its

departments and agencies.” (Punctuation and footnote omitted.) Bd. of Regents of the

Univ. System of Ga. v. Barnes, 322 Ga. App. 47, 49 (2) (743 SE2d 609) (2013).

Tricoli contends the trial court erred in concluding there was no valid written

employment contract that effectuated a waiver of sovereign immunity.

      However, in moving to dismiss the action, the defendants originally showed

the absence of a written contract of employment, which was critical to Tricoli’s

ability to show a waiver of sovereign immunity. The trial court held a hearing on the

motion on September 22, 2014. Subsequently, on October 10, 2014, Tricoli submitted

                                          3
an August 7, 2006 letter from the Chancellor of the Board of Regents offering him

the GPC presidency, which he claimed constituted a written employment contract.

That letter stated:

      It is my pleasure to offer you an appointment to the presidency of
      Georgia Perimeter College, subject to the policy and terms of the Board
      of Regents and the approval of the Board of Regents of the University
      System of Georgia at its regular meeting on August 9, 2006. The
      appointment would be effective on October 1, 2006. The total
      annualized compensation for the position is $190,000, . . . To accept the
      position, please return this letter with your signature.


      The defendants objected to the consideration of that letter on the grounds

Tricoli had not properly notified them of the submission, and also on the grounds the

letter did not constitute a valid contract of employment. On November 21, 2014,

“[a]fter consideration of the evidence, counsel’s argument, and applicable statutory

and case law,” the trial court granted the motion to dismiss.

      Assuming arguendo the letter created a contract of employment under this

Court’s ruling in Bd. of Regents of the Univ. System of Ga. v. Doe, 278 Ga. App. 878,

881 (1) (630 SE2d 85) (2006), it still didn’t save Tricoli’s breach of contract claim.

The letter, which only specifies a salary and a starting date subject to the approval and

policies of the Board of Regents, hardly supports a breach of contract claim. “An

                                           4
employment contract containing no definite term of employment is terminable at the

will of either party, and will not support a cause of action against the employer for

wrongful termination.” Burton v. John Thurmond Constr. Co., 201 Ga. App. 10 (410

SE2d 137) (1991).

      Tricoli contends his alleged written contract was subject to the Board of

Regent’s written policies and that the relevant policy, as provided by the Board in its

answer to a request for admission, supplied sufficient terms to supplement the letter

and form an enforceable employment contract. The text of that policy statement relied

upon by Tricoli stated as follows:

      If the Board declines to re-appoint a president, it shall notify the
      president, through the Chancellor, of such decision immediately
      following the Board’s regularly scheduled April [later amended to May]
      meeting. A decision by the Board not to re-appoint a president is not
      subject to appeal.


The quoted policy does not provide a definite term for the contract, a promise of

employment, a specific deadline for providing the notice, or a provision that Tricoli’s

employment would be automatically extended for a year or some other period in the

event the Board failed to provide notice of re-appointment within a certain time. As




                                          5
such, the policy in no way converts the August 2006 letter into an employment

contract that is not terminable at will.

      Further, Tricoli himself terminated any employment contract he may have had

when he resigned his position as president of GPC. There was no demonstrable

breach of contract by any of the defendants, and Tricoli’s contention that the

defendants forced him to resign asserted a tort, not a contract breach. Lastly, the

Board of Regents’ failure to renew Tricoli’s contract or offer him a contract for a

different position provided no basis for avoiding the application of sovereign

immunity. See, e.g., Liberty County School Dist. v. Halliburton, 328 Ga. App. 422

(762 SE2d 138) (2014).

      As Tricoli failed to show an enforceable employment contract, there was no

waiver of sovereign immunity on the basis of a written contract.

      3. All of Tricoli’s tort claims were barred by the Georgia Tort Claims Act.

OCGA § 50-21-25 (a) provides that the GTCA “constitutes the exclusive remedy for

any tort committed by a state officer or employee . . . while acting within the scope

of his or her official duties or employment. . . .” OCGA § 50-21-23 waives sovereign

immunity for torts of state officers and employees, but that waiver is subject to the

exceptions set forth in OCGA § 50-21-24. Virtually all of the tortious conduct Tricoli

                                           6
complains of falls within those listed exceptions, and so his claims based on that

conduct are barred.

      4. Tricoli also asserted a claim under the Georgia RICO Act, OCGA § 16-14-1

et seq., based on the same conduct that predicated his tort claims. It is an imaginative

theory of recovery to assert against the State itself, but that is about all it is -

imagination. The Georgia RICO Act does not express any waiver of sovereign

immunity. As noted above, OCGA § 50-21-25 (a) clearly states that the GTCA is the

exclusive remedy for any torts committed by state officers and employees. Because

the GTCA is the exclusive remedy, the Georgia RICO Act cannot be invoked as an

alternate remedy or waiver of sovereign immunity for tortious conduct of state

officers and employees.

      Colon v. Fulton County, 294 Ga. 93, 95 (1) (751 SE2d 307) (2013), relied upon

by Tricoli, does not support finding otherwise. Colon only involved the Georgia

whistleblower statute, OCGA § 45-1-4, which more clearly contained a waiver of

sovereign immunity, and did not involve any other statute that was designated as the

exclusive remedy where sovereign immunity is at issue.

      In conclusion, because Tricoli failed to establish a written enforceable

employment contract that would avoid sovereign immunity, and because Tricoli’s tort

                                           7
claims were exclusively governed and barred by the GTCA, the trial court properly

granted the defendants’ motion.

      Judgment affirmed. Barnes, P. J., Ellington, P. J., Dillard, McFadden, and

Branch, JJ., concur. Miller, P. J., dissents.




                                          8
 A15A2256. TRICOLI v. WATTS et al.

      MILLER, Presiding Judge, dissenting.

      I respectfully dissent from the majority’s conclusion that the trial court properly

granted the defendants’ motion to dismiss because the trial court did not convert the

motion to dismiss into a motion for summary judgment, and the Georgia Tort Claims

Act is not the exclusive remedy where the RICO statute created a separate waiver of

sovereign immunity.

      1. The majority concludes that the trial court converted the motion to dismiss

into a motion for summary judgment. The trial court, however, could not do so

without providing Tricoli with notice. Bonner v. Fox, 204 Ga. App. 666, 667 (420

SE2d 1992). Instead, the trial court granted the defendant’s motion to dismiss, and

this Court should review the trial court’s order consistent with that standard of

review.1

      2. The issue of whether the Georgia RICO statute provides a waiver of

immunity is a question of statutory interpretation and a matter of first impression.



      1
        We review de novo a trial court’s decision to grant a motion to dismiss.
Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138)
(2014). In doing so, we construe the pleadings in the light most favorable to the
appellant, and we resolve any doubts in the appellant’s favor. Ewing v. City of
Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007).
       [a] statute draws it[s] meaning, of course, from its text. When we read
      the statutory text, we must presume that the General Assembly meant
      what it said and said what it meant, and so, we must read the statutory
      text in its most natural and reasonable way, as an ordinary speaker of the
      English language would. The common and customary usages of the
      words are important, but so is their context. For context, we may look
      to the other provisions of the same statute, the structure and history of
      the whole statute, and the other law — constitutional, statutory, and
      common law alike — that forms the legal background of the statutory
      provision in question.


(Citations and punctuation omitted.) Tibbles v. Teachers Retirement System of Ga.,

297 Ga. 557, 558 (1) (775 SE2d 527) (2015).

      The RICO Act makes it unlawful for “any person employed by or associated

with any enterprise to conduct or participate in, directly or indirectly, such enterprise

through a pattern of racketeering activity.” OCGA § 16-14-4 (b). The definition of

“enterprise” includes governmental entities. OCGA § 16-14-3 (3). Moreover, the

statute specifically provides that “[a]ny aggrieved person” may initiate a civil action

for treble damages and/or injunctive relief. OCGA § 16-14-6 (b), (c).

      Importantly, nothing requires the Legislature to “use specific ‘magic words’

such as ‘sovereign immunity is hereby waived’ in order to create a specific statutory




                                           2
waiver of sovereign immunity.” Colon v. Fulton County, 294 Ga. 93, 95 (1) (751

SE2d 307) (2013). In drafting the RICO Act, the legislature made its intent clear:

      It is the intent of the General Assembly that [the RICO statute] apply to
      an interrelated pattern of criminal activity motivated by or the effect of
      which is pecuniary gain or economic or physical threat or injury. This
      chapter shall be liberally construed to effectuate the remedial purposes
      embodied in its operative provisions.


OCGA § 16-14-2 (b).

      The RICO statute includes government entities in its definition of enterprise,

and it specifically provides a private individual with a civil remedy for RICO Act

violations. These provisions, when viewed together, create a waiver of sovereign

immunity.2 To read the RICO Act as the trial court and the majority do would result

in a violation of statutory interpretation and led to a nonsensical result. See Colon,

supra, 294 Ga. at 96 (1).




      2
        Moreover, in other contexts, the Georgia Supreme Court has found language
similar to that found in the RICO Act sufficient to waive immunity. See Colon, supra,
294 Ga. App. at 95-96 (1). Specifically, in Colon, the Supreme Court concluded that
the whistleblower statute, OCGA § 45-1-4, waived sovereign immunity with language
that “[a] public employee . . . may institute a civil action[.]” As the Supreme Court
explained, “in order for the statute to have any meaning at all here, it can only be
interpreted as creating a waiver of sovereign immunity.” (Citation omitted.) Id.

                                          3
      The majority argues that the Georgia Tort Claims Act is the exclusive remedy

for Tricoli’s claims and decides the case on this basis. See OCGA § 51-21-25 (a). I

beg to differ, however, with the trial court’s and majority’s conclusion that Tricoli

cannot overcome the bar of sovereign immunity because the language of the RICO

statute itself indicates otherwise. Imaginative3 or not, it is irrelevant whether Tricoli

will prevail ultimately on the merits of his RICO allegations. The only issue before

this Court now is whether he has pled claims that can overcome sovereign immunity

at this stage of the litigation. Tricoli has certainly done so.

      If Tricoli had alleged only isolated instances of tortious conduct, the Georgia

Tort Claims Act would have barred his claims because the General Assembly, in

drafting the RICO Act, did not intend to cover “isolated incidents of misdemeanor

conduct.” OCGA § 16-14-2 (b) (emphasis supplied). Unlike the Georgia Tort Claims

Act, however, the RICO Act is designed to prohibit (1) a pattern of activity, (2)

intended to threaten or cause economic harm, even where that pattern involves

tortious actions. See id. This is exactly what Tricoli has alleged in his RICO claim –

a pattern of tortious and criminal acts designed to threaten him with and inflict

economic harm upon him. This Court cannot overlook a remedy the legislature, in its


      3
          See majority op. at 7 (4).

                                            4
wisdom, saw fit to create. Therefore, I conclude that the Georgia Tort Claims Act is

not the exclusive remedy where, as in this case, the legislature intended for the RICO

Act to provide a separate waiver of sovereign immunity. Accordingly, I dissent from

the majority’s opinion.




                                          5
