COLQUITT COUNTY v. MCCALLEY (2026)

Colquitt County appeals from the trial court's verdict and order granting summary judgment to its former county attorney, William McCalley, on his claims for breach of contract and violations of the Georgia Impairment Clause and 42 USC § 1983 arising from the County's refusal to pay his pension benefits upon his retirement. On appeal, the County challenges the trial court's determination of the existence of a contract between the parties that granted McCalley a vested contractual right and entitled him to a verdict in his favor. For the reasons that follow, we affirm the trial court's judgment.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” Stroud v. Hall County, 339 Ga. App. 37, 38, 793 S.E.2d 104 (2016). And, where, as here, parties file cross-motions for summary judgment, “each party must show there is no genuine issue of material fact and that each, respectively, is entitled to summary judgment as a matter of law; either party, to prevail by summary judgment, must bear its burden of proof.” White v. Gens, 348 Ga. App. 145, 146(1), 820 S.E.2d 254 (2018) (quotation marks omitted).

So viewed, the record shows that, in 1983, McCalley was appointed by the County Board of Commissioners (“the Board”) to the position of county attorney, and was reappointed on a yearly basis for 24 years until he retired in 2006. His appointment was recorded in the meeting minutes, but was otherwise not memorialized in a formal employment contract. He received a salary for his mandated appearances at bi-monthly Board meetings, and was otherwise paid by the hour for his services. He received a yearly Form 1099 from the County for his federal taxes.

In 2000, Colquitt County offered McCalley the opportunity to participate in its pension plan as part of his compensation package. As reflected in the July 17, 2000 meeting minutes, the Board unanimously passed a resolution to amend the retirement plan by including the county attorney as an eligible participant. In 2005, the County passed a resolution to amend the plan and executed an updated adoption agreement with the Association County Commissioners of Georgia (“ACCG”), the plan administrator. The adoption agreement revised the definition of an eligible employee to include the county attorney.

Beginning in 2001, McCalley received annual retirement benefit statements from the administrator's servicing agent, indicating that he was fully vested in the pension plan. In December 2017, McCalley began drawing his pension benefit upon receiving a letter and certificate indicating that he was a vested participant and the amount of his monthly payment.

However, in September 2019, the County ceased the payments, claiming that he had been mistakenly added to the plan because he was a “1099 contractor,” and was therefore ineligible. By that point, McCalley had received $19,027.02 in retirement payments.

McCalley sued the County seeking to recover the full amount of the unpaid pension based on his life expectancy, and bringing claims for breach of contract and for violations of the Impairment Clause of the Georgia Constitution, and 42 USC § 1983, among others. The County counterclaimed for money had and received, seeking to recover the amount it had allegedly mistakenly paid to McCalley. The parties filed cross-motions for summary judgment. Following a hearing, the trial court granted summary judgment in favor of McCalley on his breach of contract and constitutional claims, as well as the County's counterclaim for money had and received. The trial court entered a verdict awarding McCalley a total of $288,017.20 for past retirement benefits plus interest, future retirement benefits, and compensatory damages, in addition to attorney fees pursuant to 42 USC § 1988 in the amount of $148,261.17. This appeal followed.

1. The County first contends the trial court erred in granting summary judgment to McCalley on his claim for breach of contract because the contract is not in writing, and there is no waiver of sovereign immunity to an implied contract. We disagree because this theory of contract law does not apply to the Board's approval of McCalley's inclusion in the pension plan.

Whether a governmental entity is immune to suit is a threshold issue; and the burden to establish a waiver of sovereign immunity is borne by the party bringing the action. McCobb v. Clayton County, 309 Ga. App. 217, 217–18(1)(a), 710 S.E.2d 207 (2011). Typically, “[i]n order to avoid the bar of sovereign immunity and maintain an action against a county for breach of contract, a plaintiff must show that the contract sought to be enforced is in writing. An implied contract will not support a waiver of immunity under the provisions of the Georgia Constitution.” Browning v. Rabun County Bd. of Comm'rs, 347 Ga. App. 719, 721–22, 820 S.E.2d 737 (2018) (citation modified). See also Ga. Const. of 1983, Art. I, Sec. 2, Par. IX(c) (“The state's defense of sovereign immunity is hereby waived as to any action ex contractu for the breach of any written contract.”);¹ OCGA § 36–10–1.

However, it has long been the law in Georgia that a county's appointment of a county attorney, including the terms of his employment, arises from the commissioners’ implicit legislative authority to carry out the business of the county — and not as a matter of contract. Walker v. Stephens, 175 Ga. 405, 411, 165 S.E. 99 (1932) (“We can see no reason why the county might not appoint a qualified practitioner of the law as county attorney, and yet leave the matter of compensation for services to be determined from time to time according to their actual worth in view of the circumstances. In such a case, the relation between the county and the attorney would not rest upon contract, but would arise from the appointment of the attorney as a public officer.”) (citation modified); Templeman v. Jeffries, 172 Ga. 895, 902(2), 159 S.E. 248 (1931) (“The relation between the county and the county attorney does not rest upon contract, but arises from appointment authorized by a legislative enactment. The power and authority to appoint a county attorney comes from the Legislature and the people.”); Ga. Const. of 1983, Art. IX, Sec. 1, Par. I (“Each county shall be a body corporate and politic with such governing authority and with such powers and limitations as are provided in this Constitution and as provided by law.”); OCGA § 36-1-3 (“Every county is a body corporate, with power to sue or be sued in any court.”). Accordingly, a contract is not required when a county fixes the compensation of its county attorney. See Walker, 175 Ga. at 411(1), 165 S.E. 99 (In the absence of a written contract for payment of county attorney's services, “[t]he board of commissioners was the proper tribunal to pass upon the correctness of the account. ․ The courts cannot override the conclusion of the county commissioners in fixing the value of the attorney's services.”).

Moreover, we have recognized that sovereign immunity does not bar a public employee's claim to earned compensation:

[T]here is a definite contractual relation between every employee and employer whether the employee is a public officer or not. And the payment of salary to government employees is a perfunctory administrative duty not included under the category of government functions and not barred by any statutory immunity. Moreover, to bar government employees from recovering pay for services they performed by allowing their government employer to claim immunity would violate the prohibition against the impairment of a contract which is found in both the State and Federal Constitutions.

Fulton County v. Lord, 323 Ga. App. 384, 389–90(1), 746 S.E.2d 188 (2013) (citation modified). See also Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595, 596–97(2), 417 S.E.2d 163 (1992) (“It is the accepted law of this state that an additional compensation plan offered by an employer and impliedly accepted by an employee, by remaining in employment, constitutes a contract between them, whether the plan is public or private, and whether or not the employee contributes to the plan.”(citation modified)). As such, the County's argument that it is entitled to sovereign immunity based on an implied contract theory is unavailing.²

2. The County claims that the trial court erred in concluding that it had entered into an enforceable contract to include McCalley in its pension plan for lifetime benefits because there was no written contract as required by OCGA § 36-10-1. This issue is controlled adversely to the County by Walker and Templeman.

OCGA § 36-10-1 provides that “[a]ll contracts entered into by the county governing authority with other persons in behalf of the county shall be in writing and entered on its minutes.” Nevertheless, in Walker, our Supreme Court expressly held that, due to the fact that a county attorney is appointed under the legislative power granted to the county commissioners, the matter of his compensation is not subject to OCGA § 36-10-1. 175 Ga. at 411–12(1), 165 S.E. 99 (citing former OCGA § 36-10-1, which is substantially similar to the current version). See also Templeman, 172 Ga. at 902(2), 159 S.E. 248 (“Under the power to appoint the attorney and fix his salary, the office being created by necessary implication from the statute creating the board of county commissioners, the transaction does not constitute a contract between the county and the attorney within the meaning of [former OCGA § 36-10-1].”). Therefore, this Code section does not preclude McCalley's breach of contract claim.³

3. The County next argues that the trial court erred in granting McCalley summary judgment on his breach of contract claim because the trial court misconstrued the plan documents, which excluded independent contractors, such as McCalley. Again, we disagree.

The construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact. Trial courts must follow a three-step process for resolving issues of contract construction: The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction; if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. On appeal, we review the trial court's construction of a contract de novo.

Krogh v. Pargar, LLC, 277 Ga. App. 35, 37–38(2), 625 S.E.2d 435 (2005); OCGA §§ 13–2–1; 13–2–2. As we have explained, “[t]he cardinal rule of contract construction is to ascertain the intention of the parties. Where the intent of the parties is clear and unambiguous, the court will look to the contract alone to determine the parties’ intent.” Jones v. Destiny Indus., 226 Ga. App. 6, 6(2), 485 S.E.2d 225 (1997) (citation modified); OCGA § 13–2–3.

To begin, under Georgia law, a participant in a county employee retirement plan has “obtained a vested contractual right in the plan in consideration for his performance of services” for the county, regardless of whether he has contributed to the plan. Malcolm v. Newton County, 244 Ga. App. 464, 467(1), 535 S.E.2d 824 (2000). See also City of Athens v. McGahee, 178 Ga. App. 76, 77–78(1), 341 S.E.2d 855 (1986) (“Long before the rule was recognized generally by the courts of the several states, it was the law of this state that a statute or ordinance establishing a retirement plan for government employees becomes a part of an employee's contract of employment if the employee contributes at any time any amount toward the benefits he is to receive, and if the employee performs services while the law is in effect.”) (quotation marks omitted).

Turning to the documents at issue here, the minutes of the Board's July 17, 2000 meeting reflect that the Board unanimously approved updates to the County's defined benefit plan, specifying that “[e]ligible participants are full time employees, county commissioners, and elected officials. The county attorney and tax assessor board are also included.”⁴ This promise was binding. See Walker, 175 Ga. at 411–12, 165 S.E. 99 (county attorney entitled to salary approved at regular meeting of the commissioners; in the absence of proof that the amount was excessive and thus an abuse of discretion,⁵ “[t]he courts cannot override the conclusion of the county commissioners in fixing the value of the attorney's services”). See also Templeman, 172 Ga. at 902(2), 159 S.E. 248 (“Legislature leaves to the commissioners the authority to designate the attorney and to fix his salary.”).

Additionally, in 2005, the County executed an amendment to the plan adoption agreement, expressly adding the county attorney to the definition of “employee” under the plan, “and designating such position as included.”(Emphasis in original). This language formally amending the agreement between the County and ACCG is clear and unambiguous. And it demonstrates the Board's intention to grant McCalley, who was the appointed county attorney at the time, with the retirement benefit. See Jones, 226 Ga. App. at 6(2), 485 S.E.2d 225; OCGA § 13–2–3.

Nevertheless, the County argues that a term in the plan documents negates this intention. Specifically, the County points to the plan's definition of the term “compensation,” which means “the total amount of all payments, direct or indirect, made by the Employer to an Employee for services rendered to the Employer ․ for purposes of tax withholding at the source (as reported to the Employee on form W-2 for such year).” Because McCalley did not receive a W-2 form, but instead reported his earnings to the IRS on a W-9 form, the County posits that the Board could not have intended to include McCalley in the plan.

But this discrepancy merely shows that the County was mistaken as to the effect of its agreement to include McCalley in the plan.⁶ See Ga. Glass & Metal v. Arco Chem. Co., 201 Ga. App. 15, 16, 410 S.E.2d 142 (1991). And it is well settled in Georgia that “[u]nilateral mistake is not a defense to contractual liability.” Id. See also ESI Cos. v. Fulton County, 271 Ga. App. 181, 184(1)(b), 609 S.E.2d 126 (2004) (“The rule is well settled that a simple mistake by a party as to the legal effect of an agreement which he executes, or as to the legal result of an act which he performs, is no ground for either defensive or affirmative relief.” (quotation marks omitted)); Fore v. Parnell-Martin Cos., 192 Ga. App. 851, 852(1), 386 S.E.2d 723 (1989) (“It is the duty of contracting parties to inform themselves with reference to the subject matter about which they desire to contract; if they fail to do so and a mistake is made owing to their own ignorance and failure to inform themselves, then any injury results from their own conduct.” (citation modified)). And, “[i]f the intention of the parties as of the time of executing the agreement is clear, it should be enforced, even though the parties disagree as to its meaning as of the time of the litigation.” Krogh, 277 Ga. App. at 38, 625 S.E.2d 435 (quotation marks omitted; emphasis in original).

Here, as shown above, the Board clearly intended to include McCalley in the retirement plan; and the County clearly intended to grant him the benefit by amending its adoption agreement with ACCG. Consequently, the trial court did not err in granting summary judgment to McCalley on his breach of contract claim.

4. The County next argues that the trial court erred in granting summary judgment to McCalley on his constitutional claims because there was no contractual relationship between them and, thus, McCalley did not have a vested right in his retirement benefit. We discern no error.

(a) With regard to the claim under the Impairment Clause of the Georgia Constitution,⁷ “[b]reach of contract claims and unconstitutional impairment of contract claims are subject to the same analysis.” Rounds v. Hall County, 367 Ga. App. 219, 230(5), 885 S.E.2d 256 (2023); Borders v. City of Atlanta, 298 Ga. 188, 191, 779 S.E.2d 279 (2015) (“[A]llegations of violation of the Impairment Clause have historically been treated as raising breach of contract issues.”). As we have affirmed the trial court's grant of summary judgment to McCalley on his breach of contract claim, we affirm the trial court's grant of summary judgment on his claim under the Impairment Clause. Rounds, 367 Ga. App. at 230(5), 885 S.E.2d 256.

(b) “[T]he Fourteenth Amendment to the Constitution of the United States protects each person against governmental deprivation of property rights without cause or compensation, and that any action under color of state law which has this effect affords a cause of action under 42 U.S.C.A. § 1983.” McGahee, 178 Ga. App. at 79(2), 341 S.E.2d 855 (quotation marks omitted). To state a claim under 42 USC § 1983, McCalley “must show a deprivation of a federal right by a person acting under color of state law.”⁸ Brown v. Dorsey, 276 Ga. App. 851, 853, 625 S.E.2d 16 (2005) (quotation marks omitted). Thus, he is required to show that he has a vested right in the retirement plan.⁹ McGahee, 178 Ga. App. at 79(2), 341 S.E.2d 855.

As shown above, McCalley had a vested contractual right to the retirement benefit. See Malcolm, 244 Ga. App. at 467(1), 535 S.E.2d 824 (“The amended County pension plan constituted adjusted compensation for services rendered ․, and the performance of services as Sheriff was consideration ․ which gave him a vested right in receiving pension benefits.”); McGahee, 178 Ga. App. at 79(2), 341 S.E.2d 855 (“A person receiving benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process.” (citation modified)). The trial court's grant of summary judgment to McCalley on this claim was thus correct.

5. Finally, the County argues that the trial court erred by awarding attorney fees to McCally pursuant to 42 USC § 1988.¹⁰ As the County's argument is based solely on its position that the trial court's ruling on the section 1983 claim was erroneous, but which we have affirmed, this enumeration of error is unavailing.

Judgment affirmed.

FOOTNOTES

1.   The sovereign immunity of the State extends to its counties. McBrayer v. Scarbrough, 317 Ga. 387, 391(2)(a), 893 S.E.2d 660 (2023); Ga. Const. of 1983, Art. I, Sec. 2, Par. IX(e).

2.   The cases the County relies on to support its sovereign immunity argument are distinguishable on the facts. See Browning, 347 Ga. App. at 719, 722–23, 820 S.E.2d 737 (2018) (county immune to spouse's breach of contract claim where decedent employee did not sign application for voluntary life insurance plan); Drumm v. George, 345 Ga. App. 760, 761, 763, 814 S.E.2d 575 (2018) (city immune to breach of contract claim where police chief prematurely announced to officers they would receive promotions and pay raises, but city manager refused to authorize the cost); Boyd v. Neal, 350 Ga. App. 274, 277–79 (1), 828 S.E.2d 650 (2019) (state agency immune to breach of contract claim based on changes to the state healthcare plan where plan documents and applicable statutes did not require performance of certain measures prior to changing plan benefits). Notably, none of these cases involved a benefit promised to an appointed county attorney, nor the recovery of a vested benefit. See Walker, 175 Ga. at 411(1), 165 S.E. 99; Metzger, 203 Ga. App. at 596–97(2), 417 S.E.2d 163.

3.   We are not persuaded by the County's argument that the scope of Templeman and Walker, as related to the facts of this case, was later limited by Graham v. Beacham, 189 Ga. 304, 5 S.E.2d 775 (1939). Graham expressly distinguished its holding from that of Walker. 189 Ga. at 306, 5 S.E.2d 775 (concluding county sheriff deputy's mandamus petition for payment of salary was subject to dismissal due to the absence of a written contract, and noting that the right to salary was not “in pursuance of law,” as it was in Walker).

4.   OCGA § 36-1-11.1(a) grants authority to counties to provide retirement or pension plans, among other employment benefits, to county officers and their personnel.

5.   The County does not enumerate as error that the Board abused its discretion by granting an excessive benefit.

6.   The County contends that McCalley's inclusion in the plan has severe tax ramifications for the plan as a whole. But, as the trial court noted in its order, the County conceded at the hearing that there were other options for funding the retirement benefit.

7.   The Impairment Clause of the Georgia Constitution provides, in pertinent part: “No ․ retroactive law, or laws impairing the obligation of contract ․ shall be passed.” Ga. Const. of 1983, Art. I, Sec. 1, Par. X. The Impairment Clause “precludes the application of an amendatory statute or ordinance in the calculation of the employee's retirement benefits if the effect of the amendment is to reduce rather than increase the benefits payable.” Withers v. Register, 246 Ga. 158, 159(1), 269 S.E.2d 431 (1980).

8.   Counties are considered “a person” for purposes of 42 USC § 1983. Brown v. Dorsey, 276 Ga. App. 851, 853, n.9, 625 S.E.2d 16 (2005).

9.   A plaintiff stating a claim under 42 USC § 1983 must also show that a state actor caused the deprivation, which is not in dispute here. McGahee, 178 Ga. App. at 79(2), 341 S.E.2d 855.

10.   42 USC § 1988(b) authorizes courts to award reasonable attorney fees to prevailing parties in actions under 42 USC § 1983.

Markle, Judge.

Barnes, P. J., and Hodges, J., concur.