STATE OF GEORGIA v. FEDERAL DEFENDER PROGRAM, INC. ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: December 20, 2022
S22A1099. STATE OF GEORGIA et al. v. FEDERAL DEFENDER
PROGRAM, INC. et al.
MCMILLIAN, Justice.
After an order was issued setting the execution of Virgil Delano
Presnell, Jr., the Federal Defender Program, Inc., (“Federal
Defender”) 1 filed a breach of contract action against the State of
Georgia and Christopher M. Carr in his official capacity as Attorney
General (collectively, the “State”) alleging that the State breached a
contract governing the resumption of the execution of death
sentences in Georgia after the COVID-19 pandemic. The State
1 The Federal Defender is a domestic nonprofit corporation whose
Capital Habeas Unit represents death row inmates in post-conviction
proceedings in the federal courts and in clemency proceedings before the State
Board of Pardons and Paroles. Presnell later joined the lawsuit; we refer to the
Federal Defender and Presnell collectively as “Appellees.”
contends that the trial court erred in denying its motion to dismiss
based on sovereign immunity and in granting the Appellees’
emergency motion for a temporary restraining order and an
interlocutory injunction. 2 As explained below, we conclude that an
e-mail exchange between a deputy attorney general and certain
capital defense attorneys, including an attorney employed by the
Federal Defender, constituted a written contract sufficient to waive
sovereign immunity in this matter, and we in turn conclude that the
trial court did not abuse its discretion in weighing the equities in
granting the Appellees’ motion for injunctive relief. Accordingly, we
affirm.
1. Background. “The grant or denial of an interlocutory
injunction rests in the sound discretion of the trial court. . . .
However, where there is no conflict in the evidence, the judge’s
discretion in granting or denying the interlocutory injunction
becomes circumscribed by the applicable rules of law.” Shiva Mgmt.,
2 The Court thanks the Southern Center for Human Rights for its amicus
curiae brief.
2
LLC v. Walker, 283 Ga. 338, 340 (658 SE2d 762) (2008) (citation and
punctuation omitted). In this case, the relevant facts as developed
at the evidentiary hearing on the State’s motion to dismiss on
sovereign immunity grounds and the Appellees’ motion for
interlocutory injunction are uncontested and show the following.
On May 14, 2020, then-Chief Justice Harold Melton created the
Judicial COVID-19 Task Force (“Task Force”) to advise the Judicial
Council of Georgia and this Court regarding the implementation of
measures to address the challenges facing the courts and affected
parties as a result of the COVID-19 pandemic. The Task Force
created several sub-committees, including the Criminal Committee
(“Sub-Committee”), whose purpose was to focus on issues related to
COVID-19’s effect on the criminal justice system in Georgia. In the
Fall of 2020, in response to an invitation from the Task Force, the
Georgia Association of Criminal Defense Lawyers (“GACDL”)
prepared draft legislation to address the capital defense bar’s
concerns about how the restrictions necessitated by COVID-19 had
resulted in a backlog of execution-eligible inmates. This backlog not
3
only hindered capital defense counsel’s ability to prioritize clemency
investigations for the growing number of inmates eligible for
execution but also impaired counsel’s ability to meet with their
clients and conduct investigations in order to prepare for clemency
proceedings and adequately represent their clients.
On February 4, 2021, Anna Arceneaux, the Executive Director
of the Georgia Appellate Practice & Educational Resource Center
(“Georgia Resource Center”), and Sabrina Graham, a Senior
Assistant Attorney General and the Chief of the Capital Litigation
Section of the Attorney General’s Criminal Justice Division, each
addressed the Sub-Committee during its meeting at which the
GACDL’s proposed legislation was discussed. In response, Sub-
Committee members asked that, instead of pursuing legislation,
Arceneaux and Graham work together to reach an agreement
regarding the orderly management of the cases of execution-eligible
inmates. Arceneaux and Graham agreed to do so and to report back
to the Sub-Committee. On February 10, 2021, Arceneaux, together
with Jill Benton, the Supervising Attorney for the Federal
4
Defender’s Capital Habeas Unit, and David DeBruin, 3 a private
attorney who represents death row inmate Billy Raulerson, met via
video conference with Graham and Beth Burton, the Deputy
Attorney General of the Criminal Justice Division, to discuss the
terms of an agreement that they could present to the Task Force.
Two days later, Arceneaux sent an e-mail to Burton and Graham
with a proposed “Memorandum of Understanding” (“MOU”) that
was based on the parties’ discussions at that video conference. After
discussing the proposed MOU with Arceneaux multiple times
during the next two months, Graham called Arceneaux on April 14,
2021, to tell her that she would be receiving an e-mail from Burton
memorializing the terms of the agreement.
Shortly after Graham’s call, Arceneaux received an e-mail from
Burton that began with the following:
Anna, instead of a formal MOU, we will agree, and this
email serves as the agreement, that:
3 The group of attorneys involved in the negotiations included counsel for
all of the inmates who became execution-eligible during the time period
covered by the “Order Declaring Statewide Judicial Emergency,” which was
issued by then-Chief Justice Melton on March 14, 2020, and which, after 15
extensions, expired on June 30, 2021.
5
Our office will not pursue an execution warrant from the
District Attorney in the below defined cases before: 1) the
final COVID19 judicial emergency order entered by the
Chief Justice of the Supreme Court of Georgia expires; 2)
the Georgia Department of Corrections lifts its
suspension of legal visitation, and normal visitation
resumes; and [3)] a vaccination against COVID19 is
readily available to all members of the public.
Burton’s e-mail further stated that the “agreement applie[d] only to
death-sentenced prisoners whose petition for rehearing or rehearing
en banc was denied by the Eleventh Circuit while the State of
Georgia remained under judicial emergency order” and that, with
one named exception, 4 the Attorney General’s office agreed “not [to]
4 The named exception was Billy Raulerson. According to the record,
during the time period in which the COVID-19 judicial emergency order was
in effect, the United States Supreme Court denied ten Georgia death row
inmates’ petitions for certiorari from the denial of their federal habeas
petitions; therefore, the appeals of these ten inmates were exhausted, and the
inmates became execution-eligible. However, the Agreement “applie[d] only to
death-sentenced prisoners whose petition for rehearing or rehearing en banc
was denied by the Eleventh Circuit while the State of Georgia remained under
judicial order,” and two of the ten inmates who became execution-eligible
during the judicial emergency, Raulerson and Michael Nance, were not in this
group, because their petitions for rehearing en banc in the Eleventh Circuit
were denied before the judicial emergency order went into effect. Nevertheless,
the Agreement included special terms specific to Raulerson and Nance
regarding when the Attorney General’s office would seek execution orders in
their cases.
The provision regarding Nance’s case is not relevant to this appeal. With
6
pursue an execution warrant of any prisoner . . . before a total of at
least six months after the time the above-three conditions [we]re
met.” Burton’s e-mail concluded by stating that the agreement was
“made with the understanding that the District Attorney
maintain[ed] the sole authority to obtain an execution warrant.”
Arceneaux replied to the e-mail, adding Benton and DeBruin
as addressees, and she informed Burton and Graham that she had
let the GACDL know about the agreement so that the GACDL could
share it with the Task Force at the meeting taking place that
afternoon. In the same e-mail thread, both Benton and DeBruin
responded seeking a similar clarification regarding the agreement,
and Graham replied that they had the correct understanding with
respect to the timing of the execution orders, stating: “Yes, we
regard to Raulerson, the Agreement provided that, after the three conditions
were met, “and no earlier than August 1, 2021, [the Attorney General’s] office
intend[ed] to request an execution warrant for [Raulerson and would] provide
Raulerson’s counsel with notice of at least three months after the three-above
conditions [we]re met before pursuing an execution warrant.” The record
shows that, when the Attorney General’s office started the process of
reinitiating executions, the office worked first toward obtaining an execution
order for Raulerson but then changed course and sought an execution order for
Presnell due to Raulerson’s counsel’s “previously noticed plans to be out of the
country” from May 11 to May 22, 2022.
7
confirm that’s the agreement.” (This April 14, 2021 e-mail exchange
is hereinafter referred to as “the Agreement.”).
Over a year later, on April 27, 2022, the Superior Court of Cobb
County entered an order for the execution of Presnell, setting a
window for that execution of noon on May 17 to noon on May 24,
2022, and the Department of Corrections (“DOC”) scheduled the
execution for May 17 at 7:00 p.m. See OCGA § 17-10-40
(establishing the procedure for scheduling executions). In response,
on May 9, 2022, the Federal Defender filed on its own behalf a
complaint against the State alleging a breach of the Agreement and
seeking a temporary restraining order and an interlocutory
injunction in order to halt Presnell’s scheduled execution and to
foreclose the scheduling of executions for the other inmates covered
by the Agreement. On May 13, 2022, Presnell, represented by the
Federal Defender, filed a motion to intervene as a plaintiff, which
the trial court orally granted at a hearing on May 16, 2022.
At the hearing, the Appellees conceded that the first condition
– the expiration of the final COVID-19 judicial emergency order –
8
had been satisfied, but they contended that the second and third
conditions had not yet been satisfied. As to the second condition, the
Appellees asserted that the DOC still maintained a “Modified
Visitation” policy that placed numerous restrictions on both normal
visitation and legal visitation and that differed materially from the
DOC’s pre-pandemic visitation policies. The Appellees contended
that these restrictions seriously impaired the ability of capital
defenders, including lawyers at the Federal Defender, to effectively
represent their clients in clemency and other pre-execution
proceedings. As to the third condition, the Appellees argued that
the condition regarding the availability of a COVID-19 vaccine had
not been satisfied, because children under the age of five years were
not eligible to receive the vaccination at that time. As a result, (1)
the DOC prohibited visitors under the age of five years from entering
state prisons, and execution-eligible inmates were prevented from
visiting affected family members, and (2) capital defenders with
children in this age group were hindered in representing their
clients for fear of transmitting the virus to their children. Finally,
9
the Appellees contended that the State breached the Agreement by
giving the Federal Defender, as counsel for Presnell, only two days’
notice of its intent to pursue an execution order in his case, instead
of waiting until six months after the three conditions had been met
before seeking such an order. 5
Accordingly, the Appellees urged the trial court to enter a
temporary restraining order and an interlocutory injunction
prohibiting the State, along with anyone acting in active
participation or concert with it, from pursuing an execution order for
eligible prisoners who are subject to the Agreement and from taking
any action in furtherance of any previously issued execution order
that is subject to the Agreement, including the order issued with
respect to Presnell, until six months after (1) the DOC returned to
“normal visitation” and (2) a COVID-19 vaccine became readily
available to “all members of the public.” The State, in turn, urged
the trial court to dismiss the complaint based on sovereign immunity
5 At the hearing, while the Appellees presented testimony and other
evidence to support their contentions, the State elected not to present any
witnesses or to cross-examine any of the Appellees’ witnesses.
10
and argued that, in any event, a consideration of the relevant factors
did not support a temporary restraining order or an interlocutory
injunction.
At the hearing on May 16, 2022, the trial court orally denied
the State’s motion to dismiss based on sovereign immunity, after
concluding that the Agreement constituted a valid written contract,
and orally granted the Appellees’ motion for a temporary restraining
order and an interlocutory injunction. The trial court entered
written orders the following day, May 17, 2022. The temporary
restraining order issued by the trial court was to be in effect for only
30 days, and it therefore is no longer at issue in this appeal. The
trial court’s interlocutory injunction “applies until a final judgment
in th[e] case or six months have passed after (1) the [DOC] lifts all
COVID-19 restrictions on visitation and restores normal visitation
procedures and [after] (2) a Covid-19 vaccine is available to all
members of the public.” As a result of the trial court’s grant of
injunctive relief, Presnell’s execution was effectively stayed. This
11
appeal followed.6
2. This Court’s Jurisdiction. Although no party has questioned
our jurisdiction in this appeal, “it is our duty to inquire into our
jurisdiction ‘in any case in which there may be a doubt about the
existence of such jurisdiction.’” Brock v. Hardman, 303 Ga. 729, 729
(1) (814 SE2d 736) (2018) (citation omitted). For the reasons that
follow, we conclude that we do have jurisdiction in this case.
Since 2017, the Georgia Code has provided that the Court of
Appeals rather than this Court has appellate jurisdiction in “[a]ll
equity cases, except those cases concerning proceedings in which a
6 On May 17, 2022, the State filed in this Court an “Emergency Appeal,
and in the Alternative, Emergency Application for Discretionary Appeal,”
which was docketed as Case No. S22W1021. The State did not seek a
supersedeas from the trial court or from this Court, however, and the
temporary restraining order and interlocutory injunction remained in place
while the execution order in Presnell’s case expired. See OCGA § 9-11-62 (a);
Brown v. Spann, 271 Ga. 495, 496 (520 SE2d 909) (1999) (“[T]he filing of a
notice of appeal in injunction cases does not serve as a supersedeas.”). On May
23, 2022, this Court received and docketed the record in the matter, which
included a notice of appeal that the State had filed on May 17, 2022, stating
that it was appealing from the judgment denying its motion to dismiss and
granting a temporary restraining order and an interlocutory injunction. On
June 7, 2022, this Court struck Case No. S22W1021 from its docket and re-
docketed the notice of appeal previously docketed under that case number as a
direct appeal under Case No. S22A1099.
12
sentence of death was imposed or could be imposed and those cases
concerning the execution of a sentence of death[,]” which are
reserved to this Court. OCGA § 15-3-3.1 (a) (2) (enacted by Ga. L.
2016, p. 883, § 6-1 (c)). In this case, the State claims that the trial
court abused its discretion in granting the Appellees’ request for an
interlocutory injunction concerning the timing for seeking orders for
the execution of specified death sentences from the superior courts
of the counties where those sentences were originally imposed. See
OCGA § 17-10-40 (a) (providing the procedure for execution orders).
Therefore, this case is both a case “concerning proceedings in which
a sentence of death was imposed” and a case “concerning the
execution of a sentence of death.” OCGA § 15-3-3.1 (a) (2). See
Brock, 303 Ga. at 730-31 (1) (considering identical exception
language in OCGA § 15-3-3.1 (a) (4) to hold that “a mandamus
petition brought by a prisoner convicted of murder claiming a right
to free records of his murder case for the purpose of challenging that
conviction is a case ‘concerning [the] proceedings’ in which a
sentence of death could have been imposed” and, therefore, that this
13
Court has jurisdiction in such cases).
As to whether this action is an equity case for the purpose of
determining jurisdiction on appeal as opposed to a breach of contract
case, that question “depends upon the issue raised on appeal, not
upon how the case is styled nor upon the kinds of relief which may
be sought by the complaint.” Beauchamp v. Knight, 261 Ga. 608,
609 (2) (409 SE2d 208) (1991) (emphasis in original), disapproved on
other grounds by Gilliam v. State, 312 Ga. 60, 63-64 (860 SE2d 543)
(2021). In other words, “‘equity cases’ are those in which a
substantive issue on appeal involves the legality or propriety of
equitable relief sought in the superior court – whether that relief
was granted or denied.” Id. However, “[c]ases in which the grant or
denial of such relief was merely ancillary to underlying issues of law,
or would have been a matter of routine once the underlying issues
of law were resolved, are not ‘equity cases.’” Id. See also Saxton v.
Coastal Dialysis & Med. Clinic, Inc., 267 Ga. 177, 179 (476 SE2d
587) (1996) (explaining that the case was “not an ‘equity’ case” for
purposes of determining general appellate jurisdiction, because the
14
grant of equitable relief in the form of an injunction “was merely
ancillary to the underlying legal issue of whether the trial court
properly construed [the appellant]’s non-competition covenant”). In
short, for a matter to come within the framework of an equity case,
“the lower court must have rendered a judgment based upon
equitable principles, and that decision must be the primary issue on
appeal.” Warren v. Bd. of Regents of the Univ. System of Ga., 272
Ga. 142, 145 (527 SE2d 563) (2000). This is just such a case.
Here, the primary issue on appeal is the trial court’s decision
regarding the Appellees’ request for an interlocutory injunction. As
the discussion below in Division 4 shows, the trial court balanced
the relative equities and determined that an interlocutory
injunction should issue “to preserve or restore the status quo and
keep the parties from injuring one another until the court has had a
chance to try the case.” Bishop v. Patton, 288 Ga. 600, 604 (3) (a)
(706 SE2d 634) (2011), disapproved on other grounds by SRB
Investment Svcs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1,
5 (3) n.7 (709 SE2d 267) (2011). See Lee v. Environmental Pest &
15
Termite Control, Inc., 271 Ga. 371, 373 (2) (516 SE2d 76) (1999) (“A
trial court may issue an interlocutory injunction to maintain the
status quo until the final hearing if, by balancing the relative
equities of the parties, it would appear that the equities favor the
party seeking the injunction.”). Although the underlying action here
is one of breach of contract, the trial court did not reach the final
merits of that claim, which is merely ancillary to the main issue in
this appeal. See City of Waycross v. Pierce County Bd. of Commrs.,
300 Ga. 109, 112 (1) (793 SE2d 389) (2016) (stressing that a trial
court’s finding of a substantial likelihood of success on the merits is
not the determining factor in balancing the relative equities of the
parties and that it also is not the same as a showing of ultimate
success on the merits); Byelick v. Michel Herbelin USA, Inc., 275 Ga.
505, 506-07 (2) (570 SE2d 307) (2002) (“The purpose of an
interlocutory injunction is preliminary and preparatory; it looks to
a future final hearing, and while contemplating what the result of
that hearing may be, it does not settle what it shall be.” (emphasis
in original; citation and punctuation omitted)).
16
Because the trial court determined that under the facts an
interlocutory injunction was warranted pending a final disposition
of the case, the resolution of this appeal turns on the propriety of a
discretionary ruling entered in equity. See City of Waycross, 300 Ga.
at 111 (1) (“[T]he trial court must make a judgment call regarding
the equities presented, and the court is vested with broad discretion
in making that decision.” (citation and punctuation omitted)).
Jurisdiction is properly in this Court under OCGA § 15-3-3.1 (a) (2)
because equitable principles were at the core of the trial court’s
determination as to whether to grant the Appellees’ motion for an
interlocutory injunction, that interlocutory injunction is the primary
issue on appeal, and the appeal concerns a case in which a death
sentence was imposed and the execution of a death sentence. 7 See
7 The State also appeals the trial court’s judgment denying its motion to
dismiss based on sovereign immunity. We have held that a trial court’s order
on sovereign immunity is interlocutory in nature, and in order to invoke this
Court’s jurisdiction, an appeal of such an order ordinarily “must be pursued
through the interlocutory procedures of OCGA § 5-6-34 (b).” Rivera v.
Washington, 298 Ga. 770, 777 (784 SE2d 775) (2016). See Duke v. State, 306
Ga. 171, 172 (1) (829 SE2d 348) (2019) (explaining that an appellate court’s
jurisdiction to consider an appeal depends on whether the appeal is taken in
substantial compliance with the applicable rules of appellate procedure).
17
WXIA-TV v. State of Ga., 303 Ga. 428, 432 (1) n.5 (811 SE2d 378(2018) (“We also have jurisdiction of appeals from injunctions
‘concerning proceedings in [murder cases].’” (quoting OCGA § 15-3-
3.1 (a) (2); insertion in original)). Cf. Pittman v. Harbin Clinic
Professional Assn., 263 Ga. 66, 66-67 (428 SE2d 328) (1993) (holding
that an appeal did not sound in equity, because the trial court’s
orders regarding injunctive relief “were secondary to the principal
issue of the construction of the contracts – an issue of law”).
3. Sovereign Immunity. Having determined that we properly
have jurisdiction in this appeal, we must first address whether the
trial court erred in ruling that the April 14, 2021 e-mail exchange
between the Attorney General’s office and the Federal Defender
However, the State was not required to follow OCGA § 5-6-34 (b) here, because
orders granting or refusing applications for interlocutory injunctions are
directly appealable under OCGA § 5-6-34 (a) (4). Therefore, given the State’s
right to directly appeal the granting of the application for interlocutory
injunction, it was entitled under OCGA § 5-6-34 (d) to also seek appellate
review of the trial court’s denial of its motion to dismiss on sovereign immunity
grounds. See Grogan v. City of Dawsonville, 305 Ga. 79, 84 (2) (823 SE2d 763)
(2019) (“Construing this provision, we have held that, where an order would
require a discretionary application to be appealed, such an application is
unnecessary when the order is appealed with another order that may be
appealed by a notice of appeal.”).
18
constituted a written contract sufficient to waive sovereign
immunity. See Polo Golf & Country Club Homeowners Assn., Inc. v.
Cunard, 306 Ga. 788, 790 (1) (a) (833 SE2d 505) (2019) (“Sovereign
immunity is a threshold determination that must be ruled upon
prior to the case moving forward on the more substantive matters.”
(emphasis in original)); McConnell v. Dept. of Labor, 302 Ga. 18, 19
(805 SE2d 79) (2017) (“[T]he applicability of sovereign immunity is
a threshold determination, and, if it does apply, a court lacks
jurisdiction over the case and, concomitantly, lacks authority to
decide the merits of a claim that is barred.” (footnote omitted)).
The Georgia Constitution provides that “sovereign immunity
extends to the state and all of its departments and agencies” and
that the State’s sovereign immunity can only be waived by a
constitutional provision or an act of the General Assembly that
specifically provides for such a waiver and the extent thereof. Ga.
Const. of 1983, Art. I, Sec. II, Par. IX (e). See Ga. Dept. of Natural
Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 602
(2) (755 SE2d 184) (2014) (adopting “a bright line rule that only the
19
Constitution itself or a specific waiver by the General Assembly can
abrogate sovereign immunity” based on “the only natural and
reasonable reading of Paragraph IX regarding waivers and
sovereign immunity”). Here, the Appellees brought their lawsuit
against the State and the Attorney General in his official capacity;
therefore, sovereign immunity would bar the Appellees’ action
unless it came within some exception. See OCGA § 45-15-1
(providing for “an Attorney General of the state”); OCGA § 45-15-30
(“There is created a Department of Law with the Attorney General
at the head thereof. . . .”). One of the exceptions to the defense of
sovereign immunity is for “any action ex contractu for the breach of
any written contract . . . entered into by the state or its departments
and agencies.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c). See
also OCGA § 50-21-1 (a) (“The defense of sovereign immunity is
waived as to any action ex contractu for the breach of any written
contract . . . entered into by the state, departments and agencies of
the state, and state authorities.”).
“[B]ecause sovereign immunity is jurisdictional, it requires the
20
plaintiff to prove any waiver thereto and is properly raised [as a
defense] under OCGA § 9-11-12 (b) (1).” Spann v. Davis, 312 Ga.
843, 850 (2) n.11 (866 SE2d 371) (2021) (emphasis in original). To
meet this burden, the plaintiff must show “that the contract sought
to be enforced is in writing and contains all of the terms necessary
to constitute a valid contract.” Ga. Dept. of Community Health v.
Data Inquiry, LLC, 313 Ga. App. 683, 685 (1) (722 SE2d 403) (2012).
In considering a motion to dismiss for lack of subject matter
jurisdiction on sovereign immunity grounds under OCGA § 9-11-12
(b) (1), a trial court is not confined to the allegations of the complaint
but is authorized to “hear the matter on affidavits presented by the
respective parties, [or to] direct that the matter be heard wholly or
partly on oral testimony or depositions.” OCGA § 9-11-43 (b). See
Rivera v. Washington, 298 Ga. 770, 778 (784 SE2d 775) (2016)
(explaining that a trial court may receive evidence and make
relevant factual findings to decide the threshold issue of whether a
defendant’s entitlement to sovereign immunity deprives the court of
subject matter jurisdiction).
21
In this case, the Appellees claim that the State waived its
sovereign immunity by entering into the Agreement as
memorialized in the e-mail exchange between Arceneaux, Burton,
Graham, and others. The trial court held a hearing during which it
received additional evidence from the Appellees, 8 which the court
relied on in its order denying the motion to dismiss based on
sovereign immunity. Furthermore, on appeal the State does not
enumerate as error any ruling by the trial court regarding the
nature of the evidence upon which the trial court based its
jurisdictional determination. Therefore, “[w]hether sovereign
immunity has been waived under the undisputed facts of this case
is a question of law, and this Court’s review is de novo.” Ga. Dept.
of Labor v. RTT Assoc., Inc., 299 Ga. 78, 81 (1) (786 SE2d 840) (2016).
See also Center for a Sustainable Coast, 294 Ga. at 596 (2). For the
reasons set forth below, we conclude as a matter of law that the
Appellees’ action ex contractu was not barred by sovereign
8As noted above, the State did not seek to introduce any evidence or live
testimony at the hearing, and it also refused the opportunity to cross-examine
the Appellees’ witnesses.
22
immunity and reject the State’s arguments that (1) as a matter of
general principles of contract, e-mails cannot create a written
contract sufficient to waive sovereign immunity; (2) the Georgia
Uniform Electronic Transactions Act (“GUETA”), see OCGA § 10-12-
1 et seq., does not apply to the Agreement; (3) the Agreement did not
include a written signature; (4) the Agreement failed to specify
parties who are able to contract because Burton did not have the
authority to contract on behalf of the Attorney General’s office and
the Federal Defender was not a party to the Agreement; (5) the
Agreement is not supported by adequate consideration; and (6) the
terms of the Agreement are too vague to be enforceable.
(a) The State first contends that the trial court erred in
denying its motion to dismiss because “no Georgia appellate court
has ever held that mere e-mails create a written contract sufficient
to waive sovereign immunity” and an exchange of e-mails involving
state employees therefore cannot ever form a written contract for
sovereign immunity purposes. See RTT Assoc., 299 Ga. 78; Bd. of
Regents of the Univ. System of Ga. v. Winter, 331 Ga. App. 528 (771
23
SE2d 201) (2015), overruled on other grounds by Rivera, 298 Ga. at
778 n.7; Data Inquiry, 313 Ga. App. 683.
While it is true that no appellate court in this State has
explicitly held that e-mails may constitute a written contract for
purposes of waiving sovereign immunity, none of the cases that the
State relies upon holds that e-mails cannot ever form a written
contract sufficient to waive sovereign immunity. RTT Associates
involved a written contract between a vendor and a state agency.
See 299 Ga. at 78. After the contract expired, the parties continued
to communicate and work together on the project until the parties
became dissatisfied and the vendor sued for breach of contract. See
id. at 79. This Court held that the parties’ course of conduct could
not extend the terms of the written contract and waive sovereign
immunity. See id. at 82-83. However, it is not clear whether any e-
mail correspondence was actually a part of the record in RTT
Associates, and we note that our opinion in the case did not refer to
or make any determination regarding any e-mails between the
parties.
24
Data Inquiry is also inapposite. In that case, a vendor
performed work for a state agency pursuant to a services agreement,
even though the agreement was still being negotiated and the
agreement expressly provided that it would not be effective until
executed by both parties and the state agency paid a retainer. See
Data Inquiry, 313 Ga. App. at 683-84. In suing for breach of
contract, the vendor submitted the proposed contract between the
parties and e-mails, which “showed that the protective order [that
was required by the terms of the proposed agreement] was still in
the drafting stages and that the [parties] were still negotiating its
terms.” Id. at 685. No one in Data Inquiry contended, as in this
case, that the e-mail correspondence constituted the final written
contract between the parties, and the Court of Appeals never
considered that issue.
Lastly, the State points to Winter. In that case, the Court of
Appeals rejected Winter’s argument that he accepted an offer of
employment via e-mail, stating only that “[t]here [wa]s no evidence
whatsoever of a written employment agreement dated at or about
25
the time that Winter contends he accepted employment.” Winter,
331 Ga. App. at 532 (2) (a). A review of the facts in Winter shows
that, even assuming that the parties’ e-mails constituted an offer
and acceptance, it is unclear whether the e-mail exchange at issue
contained all of the other necessary terms of the contract. See id. at
528-29; Moreno v. Strickland, 255 Ga. App. 850, 852 (1) (567 SE2d
90) (2002) (“A definite offer and complete acceptance, for
consideration, create a binding contract.”). Moreover, in a footnote,
the Court of Appeals also rejected “Winter’s argument that pursuant
to the former Georgia Electronic Records and Signature[s] Act (Ga.
L. 1997, p. 1052, § 1) his emails constituted signed writings
sufficient to establish a written agreement for purposes of waiving
sovereign immunity” because Winter had not shown that he had
ever provided an electronic signature or that the Board of Regents
had agreed to be bound by electronic signatures. 9 Winter, 331 Ga.
App. at 532 (2) (a) n.6.
9 The Georgia Electronic Records and Signatures Act was replaced by the
GUETA in 2009. See OCGA § 10-12-1 et seq. (as amended by Ga. L. 2009, p.
698, § 1).
26
In short, the State has not cited a single case, nor are we aware
of one, in which our appellate courts have adopted a per se rule that
e-mails cannot create a written contract sufficient to waive
sovereign immunity. To the contrary, the great weight of authority
has indicated that, as a general matter, e-mails may constitute
written contracts. See, e.g., LNV Corp. v. Studle, 322 Ga. App. 19,
22-23 (2), (2) (a) (743 SE2d 578) (2013) (holding that an e-mail
exchange between the parties’ attorneys constituted a written
contract where counsel for one party “unambiguously” set forth the
terms of a settlement offer and counsel for the other party
“unequivocally” accepted the offer); Johnson v. DeKalb County, 314
Ga. App. 790, 793-94 (1) (726 SE2d 102) (2012) (holding that an e-
mail exchange between counsel for the parties constituted an
enforceable written contract where the county renewed its offer in
an e-mail to the appellants, “the essential elements of the agreement
were clear,” and appellants’ counsel “unequivocally accepted” the
county’s offer). Accord Lytle v. King’s Constr. Co., No. 1:14-cv-288-
GGB, 2015 U.S. Dist. LEXIS 188427, at *7-8 (IV) (N.D. Ga. July 30,
27
2015) (“Georgia courts have held that a contract (specifically a
settlement agreement) may be formed over e-mail.” (citing LNV
Corp., 322 Ga. App. 19)). Accordingly, we see no reason under
general principles of contract law why a contract cannot be
memorialized in an e-mail for purposes of determining whether the
State has waived its sovereign immunity.
(b) The State also contends that the trial court erred in
applying OCGA § 10-12-7 of the GUETA 10 to support that the e-mail
exchange forming the Agreement constituted a valid written
contract for sovereign immunity purposes because the Appellees
presented no evidence that the Attorney General or the Department
of Law had “agreed to send, accept, or rely upon electronic
signatures or authorized his subordinates to do so in this instance
10 OCGA § 10-12-7 (a) provides that “[a] record or signature shall not be
denied legal effect or enforceability solely because it is in electronic form.” In
addition, that statute goes on to state that “[a] contract shall not be denied
legal effect or enforceability solely because an electronic record was used in its
formation,” OCGA § 10-12-7 (b), and that “[i]f a law requires a record to be in
writing, an electronic record shall satisfy the law,” OCGA § 10-12-7 (c). An e-
mail satisfies the definition of an “[e]lectronic record.” See OCGA § 10-12-2 (7)
(“‘Electronic record’ means a record created, generated, sent, communicated,
received, or stored by electronic means.”).
28
or in any e-mail communication.” See OCGA § 10-12-18 (a)
(providing that each state agency “shall determine whether, and the
extent to which, it will send and accept electronic records and
electronic signatures to and from other persons and otherwise
create, generate, communicate, store, process, use, and rely upon
electronic records and electronic signatures”); OCGA § 10-12-18 (c)
(providing that, apart from an exception not relevant here, the
GUETA shall not require a state agency “to use or permit the use of
electronic records or electronic signatures”).
To determine whether the GUETA applies, we begin by
examining the text, structure, and history of the GUETA. As we
have explained,
[i]n interpreting statutes, we 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 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. Moreover, all statutes
29
relating to the same subject matter are to be construed
together, and harmonized wherever possible.
Langley v. State, 313 Ga. 141, 143 (2) (868 SE2d 759) (2022)
(citations and punctuation omitted). In addition, “[w]hen we
consider the meaning of a statutory provision, we do not read it in
isolation, but rather, we read it in the context of the other statutory
provisions of which it is a part.” Hartley v. Agnes Scott College, 295
Ga. 458, 462 (2) (b) (759 SE2d 857) (2014) (citation and punctuation
omitted).
OCGA § 10-12-3 (a) provides that “[e]xcept as otherwise
provided in subsection (b) of this Code section,[11] this chapter shall
apply to electronic records and electronic signatures relating to a
transaction.” In turn, a “[t]ransaction” is defined as “an action or
set of actions occurring between two or more persons relating to the
conduct of business, commercial, or governmental affairs.” OCGA §
10-12-2 (16). And “[p]erson means an individual, corporation,
business trust, estate, trust, partnership, limited liability company,
11 The State does not claim that any of the exceptions under subsection
(b) applies here.
30
association, joint venture, governmental agency, public corporation,
or any other legal or commercial entity.” OCGA § 10-12-2 (12).
“Governmental agency” is further defined as “an executive,
legislative, or judicial agency, department, board, commission,
authority, institution, or instrumentality of the federal government
or of a state or of a county, municipality, or other political
subdivision of a state.” OCGA § 10-12-2 (9). However, the GUETA
is applicable “only to transactions between parties each of which has
agreed to conduct transactions by electronic means.” OCGA § 10-
12-5 (b). “Whether the parties agree to conduct a transaction by
electronic means is determined from the context and surrounding
circumstances, including the parties’ conduct.” Id.
Here, it is clear under the plain language of the GUETA that
the Agreement constitutes a “transaction” under the Act and that
the State and the Appellees are considered “persons” involved in
that “transaction.” Therefore, the key question is whether the
parties agreed to conduct the transaction by electronic means under
OCGA § 10-12-5 (b). Although the trial court did not expressly rule
31
on this issue, it implicitly found the GUETA to be applicable by
applying OCGA § 10-12-7 to find that the e-mail exchange forming
the Agreement constituted a valid written contract for sovereign
immunity purposes. Moreover, in denying the State’s motion to
dismiss, the trial court found that “the parties intended to be bound
by the Agreement”; that the e-mail “was the result of months of
negotiations between the Attorney General’s Office and the parties
by way of Anna Arceneuax”; that the Attorney General was aware
of the negotiations; that the e-mail was “initiated by Deputy
Attorney General Beth Burton”; that the e-mail states, “Anna,
instead of a formal MOU, we will agree, and this email serves as the
agreement that . . .”; and that Graham subsequently confirmed the
Agreement by e-mail reply. In addition, the trial court found that
the State “presented no evidence to refute [Appellees’] contention
that Graham and Burton had authority to negotiate and bind.”
These findings are sufficient to support the trial court’s implicit
conclusion that the State consented to conducting the transaction by
electronic means. See OCGA § 10-12-5 (b).
32
Furthermore, despite the State’s contentions, nothing in OCGA
§ 10-12-18 (a) or (c) excepts the State from the GUETA under these
circumstances. Although subsection (a) mandates that “each
governmental agency in this state shall determine whether, and the
extent to which, it will send and accept electronic records and
electronic signatures[,]” it does not require that this determination
be made in any particular form and does not preclude the State from
determining to enter into the Agreement by e-mail. And there was
no evidence presented that the State had made a determination not
to enter into the Agreement by e-mail. Likewise, subsection (c) only
makes clear that a governmental agency is not required to use
electronic records or electronic signatures but does not prohibit the
State from choosing to do so.
Moreover, construing OCGA § 10-12-18 (a) and (c) as the State
urges us to do would allow governmental agencies to invoke OCGA
§ 10-12-18 to invalidate an electronic transaction despite the fact
that “the context and surrounding circumstances, including the
parties’ conduct,” demonstrated that the parties had agreed to
33
conduct the transaction electronically, thereby rendering OCGA §
10-12-5 (b) meaningless with respect to governmental agencies. See
Scott v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014) (“[A] statute
is to be construed to give sensible and intelligent effect to all its
provisions and to refrain from any interpretation which renders any
part of the statute meaningless.” (citation and punctuation
omitted)).
Accordingly, we reject the State’s argument that OCGA § 10-
12-18 (a) and (c) required the Appellees to show that the Attorney
General or the Department of Law had expressly adopted the
GUETA in order for its provisions to apply. Instead, we conclude
that, because the term “transaction” in the GUETA is defined to
include actions between two or more persons relating to the conduct
of “governmental affairs,” OCGA § 10-12-2 (16), and the term
“person” is defined to include a “governmental agency,” OCGA § 10-
12-2 (12), when a governmental agency such as the Department of
Law is engaged in a transaction within the scope of the GUETA, see
OCGA § 10-12-3, its provisions will apply, if “the context and
34
surrounding circumstances, including the parties’ conduct,”
demonstrate that the parties “agreed to conduct [the particular]
transaction[ at issue] by electronic means,” OCGA § 10-12-5 (b). And
because the evidence supports the trial court’s implicit conclusion
that the State determined to conduct the transaction by electronic
means, the trial court did not err in applying the GUETA to the facts
of this case.
(c) Having concluded that the parties agreed to conduct the
transaction at issue by electronic means, we must next determine
whether the April 14 e-mail exchange actually constitutes a written
contract between the parties that waives sovereign immunity. “To
constitute a valid contract, there must be parties able to contract, a
consideration moving to the contract, the assent of the parties to the
terms of the contract, and a subject matter upon which the contract
can operate.” OCGA § 13-3-1. Unless all of these essential terms
are in writing, there is no enforceable written contract for sovereign
immunity purposes. See Bd. of Regents of the Univ. System of Ga. v.
Tyson, 261 Ga. 368, 369-70 (1) (404 SE2d 557) (1991) (holding that,
35
where the essential term of consideration was not contained in the
contract but instead had to be implied from the parties’ conduct,
there was no written contract for sovereign immunity purposes).
Moreover, because “[g]eneral rules of contract law that might
otherwise support a claim for breach of contract damages between
private parties . . . will not support a claim against the state or one
of its agencies if the contract is not in writing so as to trigger the
waiver of sovereign immunity,” a party may not recover for breach
of contract against the State based on an implied contract, on a
theory of quantum meruit, or on the parties’ course of conduct. RTT
Assoc., 299 Ga. at 82-83 (2). Relying on this principle of law, the
State contends that the e-mail exchange constituting the Agreement
was insufficient to waive sovereign immunity because it did not
contain all of the necessary elements of a contract. We disagree.
As an initial matter, the State contends that only a signed
written contract is sufficient to waive sovereign immunity.
Pretermitting whether the State is correct that a written contract
must be signed in order to waive sovereign immunity, we reject the
36
contention that the trial court erred in finding that the Agreement
“was signed with [Burton’s] electronic signature.” 12
In subdivision (b) above, we concluded that the GUETA applies
to this transaction, and that Act specifies that, “[i]f a law requires a
signature, an electronic signature shall satisfy the law.” OCGA §
12 The Appellees correctly point out that the plain language of both the
constitutional and the statutory provisions waiving sovereign immunity for
breach of contract claims requires only that a contract be written, and not that
it be signed, in order to waive sovereign immunity. See Ga. Const. of 1983, Art.
I, Sec. II, Par. IX (c); OCGA § 50-21-1 (a). Yet, despite the fact that no specific
signature requirement appears in the constitutional or statutory provisions in
Georgia law governing the waiver of sovereign immunity for ex contractu
claims, see Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c); OCGA § 50-21-1 (a),
this Court, without any analysis or explanation, imported such a requirement
into a sovereign immunity case directly from a case that concerned the Statute
of Frauds. See Tyson, 261 Ga. at 369 (1) (adopting a rule permitting the
formation of a contract from multiple, signed, contemporaneous documents,
relying on Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (1) (314 SE2d 874) (1984),
a Statute of Frauds case where signatures were clearly required). See also
RTT Assoc., 299 Ga. at 87 (3) (citing Tyson, 261 Ga. at 369 (1)). The Court of
Appeals has followed suit numerous times. See, e.g., Winter, 331 Ga. App. at
533-34 (2) (b) (i), 534 (2) (b) (ii) (citing Tyson, 261 Ga. at 369 (1), and Baker,
252 Ga. at 460 (1)); Bd. of Regents of Univ. System of Ga. v. Ruff, 315 Ga. App.
452, 456-57 (2) (726 SE2d 451) (2012) (quoting Bd. of Regents of the Univ.
System of Ga. v. Doe, 278 Ga. App. 878, 881 (1) (a) (630 SE2d 85) (2006), which
relied on Tyson, 261 Ga. at 369-70 (1), and Baker, 252 Ga. at 459 (1)), overruled
on other grounds by Rivera, 298 Ga. at 778 n.7; Data Inquiry, 313 Ga. App. at
686-87 (1) (b) (citing Tyson, 261 Ga. at 369-70 (1)). However, because we
conclude that the trial court did not err in finding that the Agreement
contained Burton’s electronic signature, we need not consider whether Tyson
and its progeny correctly required a signed writing in order to waive sovereign
immunity.
37
10-12-7 (d). An “[e]lectronic signature” is defined as “an electronic
sound, symbol, or process attached to or logically associated with a
record and executed or adopted by a person with the intent to sign
the record.” OCGA § 10-12-2 (8). This Court has not considered how
these rules apply to e-mails. However, while the National
Conference of Commissioners on Uniform State Laws (“NCCUSL”)
commentary to the UETA cannot change the plain meaning of our
relevant statutes, we find that commentary instructive on this
issue. 13 The comment to § 2 explains that “[t]he idea of a signature
13 The General Assembly replaced the Georgia Electronic Records and
Signatures Act with the GUETA effective July 1, 2009, by adopting in its
entirety and essentially verbatim the UETA. See Ga. L. 2009, p. 698, § 1;
OCGA § 10-12-4. “The UETA was originally drafted by NCCUSL in 1999.” 2
James S. Rankin, Jr., Kaplan’s Nadler: Ga. Corp. Law, LP & LLC § 15:16 n.2
(Oct. 2022 update). Therefore, we see the NCCUSL commentary to the UETA,
which is available at the Uniform Law Commission’s website at
https://higherlogicdownload.s3-external-1.amazonaws.com/UNIFORMLAWS/UETA_
Final%20Act_1999.pdf?AWSAccessKeyId=AKIAVRDO7IEREB57R7MT&Expire
s=1670428064&Signature=LMmys4%2Fctn70VhNz7Og44Hddvps%3D, as
useful in construing the GUETA. See State v. Almanza, 304 Ga. 553, 559 (3)
n.6 (820 SE2d 1) (2018) (noting that “although Advisory Committee Notes [to
the Federal Rules of Evidence] are not binding precedent and cannot change
the plain meaning of the law or rules, they are highly persuasive (unlike
ordinary legislative history)”); Bishop, 288 Ga. at 606-07 (3) (b) (quoting the
official commentary and citing the prefatory note to the Uniform Fraudulent
Transfer Act (“UFTA”) promulgated by the NCCUSL, on which the Georgia
UFTA was modeled, in addressing an issue involving the Georgia UFTA).
38
is broad and not specifically defined” and that “[n]o specific
technology need be used in order to create a valid signature.” UETA
§ 2, cmt. at 8. The commentary also points out that the Act’s
definition only requires (1) “that the signer execute or adopt the
sound, symbol, or process with the intent to sign the record” and (2)
“that the symbol must in some way be linked to, or connected with,
the electronic record being signed.” Id. at 9. Accordingly, “the
critical element is the intention to execute or adopt the sound or
symbol or process for the purpose of signing the related record.” Id.
In particular, “the mere inclusion of one’s name as a part of an e-
mail message” may suffice if the other essential elements in the
definition are met. Id. at 10. “Whether any particular record is
‘signed’ is a question of fact[, and p]roof of that fact must be made
under other applicable law.” Id. at 8.
The evidence shows that Burton’s e-mail containing the terms
of the Agreement included her manually-typed name at the bottom
of the e-mail and that she was identified as its sender by her name
and e-mail address at the top of the e-mail. In the body of the e-
39
mail, Burton clearly identified the Agreement as the replacement
for the previously negotiated MOU and as what the Attorney
General’s office considered to be the final agreement between the
parties. Burton’s manually-typed name constitutes an “electronic
symbol,” and, because Burton included the terms of the Agreement
in the body of her e-mail, her manually-typed name followed directly
after the terms of the Agreement, which both evidences her intent
to sign the Agreement and clearly connects her signature with the
Agreement.
Similarly, the trial court’s finding that “[s]aid email was
ratified by Sabrina Graham” is supported by evidence showing that
Graham confirmed the Agreement in an e-mail that identified
Graham as its sender by her name and e-mail address at the top of
the e-mail, that contained her manually-typed name at the
conclusion of the e-mail, and that was in the same e-mail exchange
as Burton’s e-mail containing the terms of the Agreement.
Accordingly, after applying the plain meaning of OCGA § 10-12-7 (d)
and § 10-12-2 (8) to these facts, we conclude that the requirements
40
for an electronic signature under the GUETA have been met with
regard to both Burton and Graham. 14 See Intl. Casings Group, Inc.
v. Premium Standard Farms, Inc., 358 FSupp2d 863, 873 (II) (A) (2)
(b) (W.D. Mo. 2005) (holding that the names of the parties’
representatives at the header of the e-mails or typed at the bottom
of the e-mails, combined with evidence that the named individuals
pushed the “send” button to deliver the e-mails, were sufficient to
constitute an “electronic signature” under Missouri’s UETA);
Waddle v. Elrod, 367 SW3d 217, 228-29 (Tenn. 2012) (holding that
the typed name of the attorney representing the party to be charged
appearing at the end of an e-mail confirming the terms of a
settlement agreement constituted an “electronic signature” under
Tennessee’s UETA).
(d) The State also contends that the Agreement failed to
14 To the extent that the State is arguing that a written contract
otherwise sufficient to waive sovereign immunity must include the signatures
of all of the parties to the contract, we note that Benton was involved in the e-
mail exchange concerning the Agreement and provided her electronic
signature showing her assent to the terms of the Agreement on behalf of the
Federal Defender. Thus, we conclude that representatives of both the State
and the Federal Defender signed the Agreement with their electronic
signatures.
41
specify parties who are able to contract because (1) Burton did not
have the authority to contract and (2) the Federal Defender was not
a party to the Agreement. We disagree as to both.
In ruling on the issue of whether Burton had the authority to
contract, the trial court considered the following undisputed
evidence. Burton is a Deputy Attorney General, i.e., “a senior
administrator at the Attorney General’s Office.” In her role as
Deputy Attorney General, she not only participated with Senior
Assistant Attorney General Graham on the State’s behalf in
months-long negotiations regarding the subject of the Agreement
but, in fact, she “spearhead[ed]” those negotiations. No other
persons from the Attorney General’s office, including the Attorney
General himself, participated directly in those negotiations. On
March 11, 2021, Graham e-mailed Arceneaux that she was awaiting
“input” from the Attorney General, evidencing his awareness of the
negotiations and the terms of the Agreement. In the same e-mail,
Graham wrote that she was “still working on the DAs” and added
that, “[s]o far the DAs ha[d] agreed to the timeline proposal,”
42
thereby indicating that she had the authority to consult with and
negotiate for the affected district attorneys – the very parties that
the State now claims are the only persons who are able to obtain an
execution order. On March 16, 2021, Graham told Arceneaux in an
e-mail regarding the proposed MOU that she had “[t]ouched base
with the Deputy AG” and that “he w[ould] be getting back with
[them] soon.”
It appears from the record that, after the initial meeting on
February 10, 2021, Graham and Arceneaux conducted most or all of
the negotiations to finalize an agreement between the parties.
However, on April 14, 2021, which was approximately a month after
Graham had indicated that she was awaiting responses from the
Attorney General and the Deputy Attorney General, Graham called
Arceneaux to say that Burton, Graham’s supervisor, would be
sending an e-mail memorializing the terms of the agreement,
thereby indicating that the necessary authority to enter into the
forthcoming agreement had been obtained. Soon thereafter, Burton
did in fact send an e-mail to Arceneaux in which she unambiguously
43
stated that “th[e] email” contained the terms to which the Attorney
General’s office “w[ould] agree” and that, “instead of a formal MOU
[which Graham and Arceneaux had been negotiating], . . . th[e]
email serve[d] as the agreement.”
At the hearing and in its order denying the State’s motion to
dismiss, the trial court described the foregoing evidence and then
pointed out that the State had identified no statutory restriction on
Graham’s or Burton’s general authority to negotiate and contract on
behalf of the Attorney General’s office and had presented no
evidence or case law suggesting that either Graham or Burton was
not acting as an agent or designee of the Attorney General and the
Attorney General’s office in this particular matter. Accordingly, the
trial court ruled that Burton and Graham had the authority to
negotiate the Agreement and that Burton had the authority to
contract on behalf of the State.
The State asserts that the trial court’s ruling was error,
arguing that, under OCGA § 45-15-3 (2), the Attorney General has
the duty “to prepare all contracts and writings in relation to any
44
matter in which the state is interested” and that, under OCGA § 45-
15-30, the Attorney General is the head of the Department of Law
and as such “define[s] the duties and responsibilities of any attorney
or other employee of the said department.” Therefore, the State
contends, only the Attorney General is authorized to contract on
behalf of the State or the Department of Law unless that authority
is expressly delegated. See City of Baldwin v. Woodard & Curran,
Inc., 293 Ga. 19, 28 (2) (c) (743 SE2d 381) (2013) (“[T]he power of
public officials in Georgia is limited by the laws that prescribe their
authority.”). Accordingly, the State argues, because the Appellees
did not present affirmative evidence that the Attorney General or
the State of Georgia explicitly authorized Burton to enter into a
contract on their behalf – such as evidence of a written policy in
which the Attorney General expressly delegated the authority to
contract to deputy attorneys general collectively or to Burton
specifically – the trial court erred in finding that Burton had such
authority.
However, OCGA § 45-15-3 generally describes the duties of the
45
Attorney General’s office. It is axiomatic that the Attorney General
is not legally required to personally carry out every one of the duties
listed in that statute but that he or she may appoint appropriate
staff to assist him or her in doing so. See, e.g., Outdoor Advertising
Assn. of Ga., Inc. v. Garden Club of Ga., Inc., 272 Ga. 146, 149-50 (2)
(a) (527 SE2d 856) (2000) (stating that the evidence showed that,
when the litigation involved was filed, the office of the Attorney
General entered an appearance as counsel for the Department of
Transportation and that “[t]hen[-]Deputy Attorney General George
P. Shingler had primary responsibility for the case,” that “Shingler
never discussed the case with [the Attorney General],” that “[the
Attorney General] made no court appearances in connection with
the litigation,” and that the Attorney General “was not personally
and substantially involved in the deliberative processes regarding
those matters”). Indeed, OCGA § 45-15-30, cited by the State for the
proposition that the Attorney General is the head of the Department
of Law, created the “Department of Law with the Attorney General
at the head thereof and with such numbers of deputy attorneys
46
general, assistant attorneys general, special assistant attorneys
general, other attorneys, paraprofessional personnel, and other
employees or independent contractors as the Attorney General shall
deem necessary to carry out the functions of the Attorney General
and the Department of Law.” (emphasis supplied).
As relevant here, OCGA § 45-15-30 also authorizes the
Attorney General “to determine the title and to change the title of
any attorney . . . of the Department of Law . . . in order to define the
duties and responsibilities of any attorney” of the department. In
that regard, the Appellees presented evidence at the hearing that
shows the following. Burton serves as the Deputy Attorney General
of the Criminal Justice Division, which makes her “the highest-
ranking state criminal lawyer in Georgia.” According to the
organizational chart of the Attorney General, she serves directly
under the Chief Deputy Attorney General, who serves directly under
the Attorney General. In her role as Deputy Attorney General of the
Criminal Justice Division, Burton oversees the Capital Litigation
Section, the Post-Conviction Litigation Section, and the Public
47
Safety Section. The Criminal Justice Division represents the State
of Georgia in all capital felony appeals in both state and federal
courts. The division also provides general legal representation to
the various public safety and law enforcement agencies in the State,
including but not limited to the DOC and the State Board of Pardons
and Paroles – both agencies that had an interest in or were affected
by the Agreement.
Graham is Assistant Attorney General and the Section Chief
of the Capital Litigation Section. She reports to Deputy Attorney
General Burton. Furthermore, according to the record, either
Burton or Graham, as Deputy Attorney General and Assistant
Attorney General respectively, is listed as counsel for the
respondent in the federal habeas proceedings in every case affected
by the Agreement. The record also supports a conclusion that in
their specific positions on the Attorney General’s staff and in their
capacity as counsel in the cases involved, Burton and Graham were
authorized to act on behalf of the Attorney General. See Riding v.
Ellis, 297 Ga. App. 740, 741 (678 SE2d 178) (2009) (stating that the
48
defendants, a professor and other personnel at a state university,
“were represented in the federal action by appellee Ralph Ellis, in
his capacity as an assistant attorney general with the Attorney
General’s Office” and that Ellis negotiated a settlement agreement
with the plaintiff, a former student).
The State also cites OCGA § 45-6-5 for the proposition that a
state agency’s employees cannot bind the State absent an express
power to do so, but that statute merely provides that “[p]owers of all
public officers are defined by law and all persons must take notice
thereof.” As explained above, the duties and responsibilities of the
Attorney General include, “[w]hen he deems it advisable,
prepar[ing] all contracts and writings in relation to any matter in
which the state is interested.” OCGA § 45-15-3 (2). The subject
matter of the Agreement – the orderly management of execution-
eligible capital cases following the COVID-19 pandemic – is clearly
a matter in which the State is interested, and, accordingly, the
Attorney General acting through appropriate staff had the power to
contract in this matter.
49
Finally, the State relies on three cases to support their
contention. However, we conclude that those cases are inapposite,
as each involved a city official’s authority, or lack thereof, to enter
into binding contracts on behalf of the city based on mandatory
provisions of the law, such as municipal ordinances and city
charters. See Woodard & Curran, 293 Ga. at 29 (2) (d) (holding that
a purported municipal contract between the city and a service
provider was ultra vires and void because it was signed by the
mayor, who had no unilateral authority under the city charter to
approve contracts that would bind the city); H.G. Brown Family Ltd.
Partnership v. City of Villa Rica, 278 Ga. 819, 820-21 (1) (607 SE2d
883) (2005) (holding that the city’s contract to purchase property was
“ultra vires, null and void” because the city did not comply with the
requirements in its charter); City of Atlanta v. Black, 265 Ga. 425,
425-26 (457 SE2d 551) (1995) (holding that a restriction in a
municipal ordinance that required the city attorneys to obtain the
city council’s approval prior to settling claims in excess of $500
circumscribed the city attorneys’ apparent authority to bind the city
50
to a settlement agreement for payment of $37,500 where the
plaintiffs took no steps to ascertain whether the city attorneys had
obtained the necessary approval and the city attorneys did not
represent that they had).
In contrast in this case, the State fails to point to any law,
regulation, or policy expressly circumscribing Burton’s or Graham’s
authority to negotiate and bind the Attorney General and the State
to the Agreement, nor has the State taken the position that Burton
or Graham were not actually given the authority by the Attorney
General to enter into the Agreement, arguing only that the
Appellees have failed to produce evidence of any such designation of
authority. Moreover, at the hearing on the State’s dismissal motion,
counsel for the Attorney General’s office stated that she did not
contend that Graham or Burton went “rogue,” and the trial court
stated that “certainly it d[id] not appear to the [c]ourt . . . , even by
the State’s own argument, that Ms. Burton or Ms. Graham we[nt]
rogue.”
Accordingly, in the absence of proof of a limitation on Burton’s
51
or Graham’s authority to represent the State, we conclude that the
undisputed evidence in this case supports the trial court’s ruling
that the Attorney General was aware of the Agreement, that Burton
and Graham had the authority to negotiate its terms, and that
Burton had the authority to contract on behalf of the Attorney
General and the State in this instance. See DeKalb County v. DRS
Investments, Inc., 260 Ga. App. 225, 227 (1) (581 SE2d 573) (2003)
(holding that a senior assistant county attorney had authority to
bind the county to a consent order with an outdoor advertising
business, where neither a relevant ordinance delineating the county
attorney’s role nor the business’s inquiry of the county attorney
yielded any express limitation upon the county attorney’s settlement
authority); City of Columbus v. Barngrover, 250 Ga. App. 589, 598
(5) (b) (552 SE2d 536) (2001) (holding that, in the absence of a
specific limitation on the city attorney’s authority, the trial court did
not err in charging the jury that the city was bound by the conduct
of the city attorney).
As for the other parties to the Agreement, the State cursorily
52
argues that, because Burton’s initial e-mail stating what the
Attorney General’s office agreed to was sent only to Arceneaux, an
attorney for the Georgia Resource Center, and not to the Federal
Defender or any of its attorneys, the Appellees are not identified as
parties to the Agreement. See RTT Assoc., 299 Ga. at 82 (2).
Even though Burton sent the initial e-mail laying out the terms
of the Agreement to Arceneaux, the record supports the trial court’s
finding that the parties understood Arceneaux to be negotiating on
behalf of the Georgia Resource Center, the Federal Defender, and
DeBruin, who had all participated in previous negotiations with the
Attorney General’s office regarding the subject matter of the
Agreement and who together represented all of the inmates affected
by the Agreement. Accordingly, upon receiving Burton’s initial e-
mail and before responding, Arceneaux added to the e-mail thread
DeBruin, a private attorney representing one of the inmates affected
by the Agreement, and Benton, who represented the Federal
Defender, an entity representing several of the inmates affected by
the Agreement. Moreover, when Benton sought clarification of the
53
Agreement’s terms, Graham affirmed the Agreement in a response
to her, Arceneaux, and DeBruin. Accordingly, all are expressly
identified in writing in the e-mail exchange that forms the
Agreement. 15 Thus, we reject the State’s contention that the e-mail
exchange did not identify the Appellees as parties to the Agreement.
(e) The State also argues that the Agreement is not a valid
contract because it is not supported by consideration.
“It is axiomatic that a contract without consideration is
invalid.” Thomas Mote Trucking, Inc. v. PCL Civil Constructors,
Inc., 246 Ga. App. 306, 310 (3) (540 SE2d 261) (2000). See OCGA §
15 On appeal, the State does not specifically argue that Presnell is not a
party to the Agreement, nor does the State dispute the trial court’s ruling that,
because Presnell’s petition for rehearing en banc was denied by the Eleventh
Circuit during the time that the statewide judicial emergency order was in
effect, Presnell is a third-party beneficiary of the Agreement. See OCGA § 9-
2-20 (b) (“The beneficiary of a contract made between other parties for his
benefit may maintain an action against the promisor on the contract.”); Dillon
v. Reid, 312 Ga. App. 34, 40 (4) (717 SE2d 542) (2011) (stating that the third-
party beneficiary need not be specifically named in a contract as long as the
contracting parties’ intention to benefit the third party is shown on the face of
the contract). See also Youngblood v. Gwinnett Rockdale Newton Community
Svc. Bd., 273 Ga. 715, 718 (4) (545 SE2d 875) (2001) (holding that, to the extent
the written agreements between a state agency and a third party constituted
written contracts conferring a benefit upon the appellant as an intended
beneficiary, the state agency’s sovereign immunity was waived).
54
13-3-40 (a) (“A consideration is essential to a contract which the law
will enforce.”). Furthermore, “consideration must be stated in the
contract or at least be ascertainable from the contract.” Newell
Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc., 317 Ga.
App. 464, 466 (731 SE2d 361) (2012) (citations and punctuation
omitted). However, all that the law requires “is that the contract
furnish a key by which the consideration may be ascertained.” Id.(citation and punctuation omitted). “To constitute consideration, a
performance or a return promise must be bargained for by the
parties to a contract.” OCGA § 13-3-42 (a). “A performance or return
promise is bargained for if it is sought by the promisor in exchange
for his promise and is given by the promisee in exchange for that
promise.” OCGA § 13-3-42 (b).
“[S]light consideration is sufficient to sustain a contract,
and . . . , where there is consideration to support the contract, courts
do not inquire into the adequacy of contract consideration.” ALR
Oglethorpe, LLC v. Fidelity Nat. Title Ins. Co., 361 Ga. App. 776, 781
(2) (b) (863 SE2d 568) (2021) (citations and punctuation omitted).
55
“It is not essential that the person to whom the consideration moves
should be benefited, provided the person from whom it moves is in a
legal sense injured.” Wolfe v. Breman, 69 Ga. App. 813, 817 (26 SE2d
633) (1943). “[F]orbearance to exercise a legal right” is sufficient
consideration to support a contract, “the alteration in position being
regarded as a detriment that forms a consideration independent of
the actual value of the right forborne.” Id. See 3 Williston on
Contracts § 7:45 (4th ed. May 2022 update) (“[F]orbearance to do
something which one is legally entitled to do, of almost any
character, will be sufficient. . . .”).
Viewing the e-mail exchange constituting the Agreement with
those principles in mind, we conclude that the consideration can be
ascertained from the first line of Burton’s e-mail stating that the
Agreement was to be in lieu of “a formal MOU,”16 which the parties
16In the trial court and at oral argument, the State argued that, by using
this language, Burton rejected a formal MOU because she did not want to enter
into a contract and that “there’s a difference between an agreement and a
contract.” At oral argument, the State also argued for the first time that
Burton’s e-mail was a “position statement” rather than a contract. However,
we reject the State’s contentions. “Under Georgia common law, ‘agreement’
56
had been pursuing through negotiations at the request of the Task
Force Sub-Committee to try to reach an agreement instead of
proposing legislation, and can be further ascertained by Arceneaux’s
response to Burton that, upon receipt of Burton’s e-mail containing
the terms of the Agreement, she “let GACDL know [that day] so they
could hopefully share with the task force at [that day’s] meeting.”
This exchange shows that, in return for the Attorney General’s
promise to pursue execution orders for the inmates covered by the
Agreement only under the Agreement’s terms, the Federal Defender
relinquished its right to continue to seek a formal MOU with the
Attorney General or to pursue with the GACDL’s help other,
perhaps-more-favorable means of resolution through the Task
Force, such as legislation. Such forbearance is valid consideration.
See OCGA § 13-3-42 (c) (2) (providing that consideration may consist
and ‘contract’ are synonymous.” John K. Larkins, Jr. & Hon. John K. Larkins
III, Ga. Contracts Law and Litigation § 1:2 n.3 (2d ed. Sept. 2022 update)
(citing Douglass v. W.L. Williams Art Co., 143 Ga. 846, 847 (85 SE2d 993)
(1915) (“There is no difference between a ‘contract’ and an ‘agreement.’”)).
Moreover, “[a]s a code of the common law, the Code contains [the following]
definition of a contract: ‘A contract is an agreement between two or more
parties for the doing or not doing of some specified thing.’” Id. at § 1:2 (quoting
OCGA § 13-1-1 (emphasis supplied)).
57
of forbearance); Antoskow & Assoc., LLC v. Gregory, 278 Ga. App.
468, 471 (629 SE2d 1) (2005) (“Any benefit accruing to him who
makes the promise, or any loss, trouble, or disadvantage undergone
by, or charge imposed upon, him to whom it is made, is sufficient
consideration to sustain a contract.” (citation and punctuation
omitted)).
(f) On appeal, the State argues for the first time that the
Agreement is unenforceable because it is vague, pointing to the
provision that it “will remain in effect only through August 1, 2022,
or one year from the date on which the above-three conditions are
met, whichever is later.” The Appellees contend that the State
waived this argument by not raising it in the trial court.
Because “[f]airness to the trial court and to the parties
demands that legal issues be asserted in the trial court, . . . absent
special circumstances, an appellate court need not consider
arguments raised for the first time on appeal.” Pfeiffer v. Ga. Dept.
of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (footnotes
omitted). However, such “special circumstances” include sovereign
58
immunity claims. See id. at 829 (2) n.10. That is because “sovereign
immunity of a State agency is not an affirmative defense, going to
the merits of the case; instead, it raises the issue of the trial court’s
subject matter jurisdiction to try the case.” Dept. of Transp. v.
Kovalcik, 328 Ga. App. 185, 189-90 (1) (b) (761 SE2d 584) (2014)
(citation and punctuation omitted). See Spann, 312 Ga. at 850 (2)
(“[W]e have held that Georgia courts have no subject matter
jurisdiction when sovereign immunity applies.”). A “court’s lack of
subject-matter jurisdiction cannot be waived and may be raised at
any time either in the trial court, in a collateral attack on a
judgment, or in an appeal.” Abushmais v. Erby, 282 Ga. 619, 622 (3)
(652 SE2d 549) (2007) (citation and punctuation omitted). See
OCGA § 9-11-12 (h) (3) (“Whenever it appears, by suggestion of the
parties or otherwise, that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.”). Moreover, the State
asserted its immunity as a general matter in its motion to dismiss
and argued its immunity at the hearing. Therefore, we will address
its newly raised vagueness argument made in support of its overall
59
sovereign immunity claim.
The State argues that the Agreement is vague because it does
not provide “a specific termination date” and that, therefore, “if the
conditions are never met, then the [Agreement] could conceivably
enjoin executions in Georgia forever.”17 It is true that
“indefiniteness in subject matter so extreme as not to present
anything upon which the contract may operate in a definite manner
renders the contract void.” Burns v. Dees, 252 Ga. App. 598, 602 (1)
(a) (557 SE2d 32) (2001) (citation and punctuation omitted).
However, a contract is enforceable if “it is expressed in language
sufficiently plain and explicit to convey what the parties agreed
upon.” Laymac v. Kushner, 349 Ga. App. 727, 733 (2) (824 SE2d 768)
(2019) (citation and punctuation omitted). A contract “will be
sufficiently definite and certain if it contains matter which will
17 The State overstates its case. The trial court’s interlocutory injunction
only enjoins the “State of Georgia and Christopher M. Carr, in his official
capacity as Attorney General of the State of Georgia, and anyone acting in
active participation or concert with them, . . . from pursuing any execution
warrant for death-eligible prisoners, other than Billy Raulerson, whose
petitions for rehearing before the Eleventh Circuit were denied during the
statewide judicial emergency.” (emphasis supplied).
60
enable the courts, under proper rules of construction, to ascertain
the terms and conditions on which the parties intended to bind
themselves.” Davidson Mineral Properties, Inc. v. Baird, 260 Ga. 75,
79 (7) (390 SE2d 33) (1990) (citation omitted).
Here, the Agreement’s duration is sufficiently definite and
ascertainable from its language about the time for performance and
the conditions under which it will terminate. Accordingly, it is not
void for vagueness. See Alexis, Inc. v. Werbell, 209 Ga. 665, 670-71
(1) (f) (75 SE2d 168) (1953) (holding that a contract providing that it
would be binding so long as the corporation existed was enforceable);
Mori Lee, LLC v. Just Scott Designs, Inc., 325 Ga. App. 625, 630 (2)
(754 SE2d 616) (2014) (holding that an agreement providing that it
“would continue for as long as both parties conducted business” was
not rendered void by “this indefinite duration”); Triple Eagle Assoc.,
Inc. v. PBK, Inc., 307 Ga. App. 17, 22-23 (2) (a) (704 SE2d 189) (2010)
(holding that “the phrase ‘suitable period of time’” did not render a
settlement agreement unenforceable).
(g) For all of the reasons set forth at length above in this
61
division, we conclude that the April 14 e-mail exchange constituting
the Agreement formed a valid written contract between the parties
and that the trial court, therefore, properly denied the State’s
motion to dismiss on sovereign immunity grounds.
4. The Interlocutory Injunction. The State contends that the
trial court abused its discretion by issuing an interlocutory
injunction. “The purpose of an interlocutory injunction is to
preserve the status quo, as well as balance the conveniences of the
parties, pending final resolution of the litigation.” Veterans
Parkway Developers, LLC v. RMW Dev. Fund II, LLC, 300 Ga. 99,
102 (793 SE2d 398) (2016). We have previously explained:
An interlocutory injunction is an extraordinary remedy,
and the power to grant it must be “prudently and
cautiously exercised.” However, to be effective, the
decision to grant an interlocutory injunction must often
be made under time constraints that do not allow for the
careful deliberation and reflection that accompany a full
trial on the merits. Thus, the trial court must make a
judgment call regarding the equities presented, and the
court is vested with broad discretion in making that
decision. See OCGA § 9-5-8 (“The granting and
continuing of injunctions shall always rest in the sound
discretion of the judge. . . .”). The grant or denial of an
interlocutory injunction will not be reversed on appeal
62
unless the trial court made an error of law that
contributed to the decision, there was no evidence on an
element essential to relief, or the court manifestly abused
its discretion.
City of Waycross, 300 Ga. at 110-11 (1) (citations omitted).
In deciding whether to impose an interlocutory injunction, a
trial court should consider whether the following factors exist:
(1) there is a substantial threat that the moving party will
suffer irreparable injury if the injunction is not granted;
(2) the threatened injury to the moving party outweighs
the threatened harm that the injunction may do to the
party being enjoined; (3) there is a substantial likelihood
that the moving party will prevail on the merits of her
claims at trial; and (4) granting the interlocutory
injunction will not disserve the public interest.
City of Waycross, 300 Ga. at 111 (1) (citation omitted). Because the
test for granting an interlocutory injunction is a balancing test, the
movant need not prove all four factors to obtain injunctive relief. See
id. In this case, however, after balancing the equities, the trial court
determined that all four factors weighed in favor of granting the
interlocutory injunction. For the reasons discussed below, we see no
abuse of discretion in the trial court’s decision to do so.
(a) We have held that the first factor concerning the threat of
63
irreparable injury to the moving party “is the most important one,
given that the main purpose of an interlocutory injunction is to
preserve the status quo temporarily to allow the parties and the
court time to try the case in an orderly manner.” Western Sky
Financial, LLC v. State of Ga., 300 Ga. 340, 354 (2) (b) (793 SE2d
357) (2016) (citation and punctuation omitted). In considering this
factor, the trial court pointed to evidence showing that COVID-19-
related visitation restrictions had impaired the Federal Defender’s
ability to conduct adequate clemency investigations and the
evidence showing that such investigations are a substantial
undertaking requiring the collection of considerable evidence and
the preparation of numerous witnesses to testify at the proceedings.
The uncontested evidence also showed that, because of the lack of
notice, Presnell’s clemency hearing included no live testimony,
including no expert testimony, unlike past clemency proceedings in
death penalty cases. The trial court found unconvincing the State’s
argument that the Federal Defender had years to prepare for
Presnell’s clemency hearing because the evidence showed that
64
suitable preparation for clemency proceedings must take place in
proximity to the hearing, as the type of evidence that is persuasive
in a clemency hearing is evidence of an inmate’s relatively recent
prison behavior and current physical and mental condition.
Specifically with respect to Presnell, the trial court observed that,
without an injunction, he would lose his ability to protect his rights
under the Agreement because he would be executed as scheduled.
Accordingly, the trial court ruled that the Appellees would “suffer
irreparable injury if they were permanently denied the bargained-
for time and notice to prepare a clemency investigation.”
In addition, the trial court rejected the State’s argument that
irreparable harm does not exist because Presnell’s clemency hearing
has already taken place and the Federal Defender was able to
represent Presnell, pointing to evidence that, when executions have
been stayed in the past and new execution orders have later been
issued in death row inmates’ cases, the inmates have received
second clemency hearings. Specifically, the evidence showed that,
during the approximately eight years preceding Presnell’s clemency
65
hearing, the Board of Pardons and Paroles has held clemency
hearings for every one of the twenty-two individual execution orders
that were issued, regardless of whether the individual had
previously had a clemency hearing.
On appeal, the State contends that the trial court erred by
concluding that Presnell could receive a second clemency hearing
based on evidence indicating that other death row inmates had done
so, because the decision of whether to grant an inmate a second
clemency hearing is at the discretion of the State Board of Pardons
and Paroles, as illustrated by the fact that neither the trial court nor
the Appellees have cited any rule or statute showing otherwise.
However, the State misconstrues the trial court’s ruling. In
balancing the equities, the trial court determined that, based on the
evidence, there was a “‘substantial threat’” that the Appellees would
suffer irreparable injury if the injunction were not granted. City of
Waycross, 300 Ga. at 111 (1) (emphasis supplied). Such a
determination did not require the trial court to find that Presnell
was guaranteed a second clemency hearing but only that it is likely
66
that the Board of Pardons and Paroles will grant him one given past
experience. Because the trial court’s determination here had
support in the evidence, there was no abuse of discretion. See
Western Sky Financial, 300 Ga. at 354 (2) (b) (holding that the trial
court did not abuse its discretion in concluding that the threat of
irreparable harm weighed in favor of injunctive relief where there
was evidence supporting the trial court’s determination).
The State also argues that the trial court abused its discretion
in weighing this factor in favor of granting the injunction because
the United States Constitution does not guarantee the right to a
“lengthy” pre-clemency preparation period like the one that the
Appellees sought. See Ohio Adult Parole Auth. v. Woodard, 523 U.S.
272, 289 (118 SCt 1244, 140 LE2d 387) (1998) (Connor, J.,
concurring in part and concurring in the judgment) (recognizing that
“some minimal procedural safeguards apply to clemency
proceedings” (emphasis in original)). Thus, the State contends that
Presnell’s rights were adequately protected, given that the Federal
Defender had over six months to investigate and prepare for his
67
clemency hearing between the exhaustion of Presnell’s appellate
rights in October 2021 when the United States Supreme Court
denied his petition for certiorari in his federal habeas proceedings,
see Presnell v. Ford, ___ U.S. ___ (142 SCt 131, 211 LE2d 45) (2021),
and May 16, 2022, when Presnell’s clemency hearing took place.
However, the State’s argument here only highlights the fact that the
Agreement provided additional bargained-for benefits beyond
minimal federal due process protections. It also fails to take into
account the effect of the COVID-19 restrictions on counsel’s
investigations and preparations.18
As for the Federal Defender, without the interlocutory
injunction it would have lost the notice that it had negotiated in
18 In its reply brief, the State argues that “[a]ny delay in Presnell’s
execution is only a byproduct” of the interlocutory injunction and that,
therefore, the possibility of his earlier execution should not be considered a
grave harm to be remedied by an injunction. However, the State’s circular
argument fails. Presnell’s execution was “delay[ed]” as a result of the
interlocutory injunction in part because the trial court weighed the factor
concerning the threat of irreparable injury to the moving party in favor of
granting injunctive relief based in some measure on its determination that,
without the granting of such relief, Presnell would be executed as scheduled
and, as a result, would suffer grave and irreparable injury in that he would
forever lose his ability to protect his rights as a third-party beneficiary under
the Agreement.
68
order to adequately prepare for the clemency proceedings of all of its
clients affected by the Agreement, including Presnell. Without this
notice, the Federal Defender had no way of knowing when the
Attorney General’s office would resume seeking execution orders or
which of the multiple execution-eligible inmates the Attorney
General’s office would seek an order for first. Consequently, in order
to be adequately prepared, the Federal Defender would need to
prepare all of its execution-eligible clients’ clemency cases
simultaneously. The evidence supports the trial court’s finding that
adequate preparation for clemency proceedings in death penalty
cases requires collecting considerable evidence and preparing
numerous witnesses to testify at a hearing, including in some cases
expert witnesses.
Accordingly, given the facts of this case, where the Appellees
specifically bargained for protection against such potential harm,
where the undisputed evidence supports the trial court’s finding
that there was a substantial threat that the Appellees would suffer
irreparable harm if injunctive relief were not granted, and where
69
monetary damages could not adequately compensate Presnell or the
Federal Defender for the immediate and irreparable harm that they
would suffer without the granting of injunctive relief, the trial court
did not abuse its discretion in ruling that this factor favored the
granting of injunctive relief. See Sherrer v. Hale, 248 Ga. 793, 797
(2) (285 SE2 714) (1982) (holding that an injunction was properly
granted where the appellee did not have “an adequate remedy at law
(money damages)”); English v. Little, 164 Ga. 805, 806 (139 SE 678)
(1927) (“Injunction is an appropriate remedy in a proper case to
prevent acts in violation of contract, producing irreparable injury to
the plaintiff. . . .”).
(b) The trial court ruled that both the factor of threatened
harms and the factor of the public interest weighed in favor of
granting injunctive relief. In ruling that the threatened harm that
the State would suffer if the injunction were granted was not
outweighed by the threatened harm that the Appellees would suffer
if the injunction were not granted, the trial court found that (1) the
Appellees only sought to enforce “the terms of an Agreement [that
70
the State] drafted and agreed to” in order that the Federal Defender
could adequately prepare for its clients’ clemency proceedings and
that (2) an interlocutory injunction would “simply hold [the State] to
[its] Agreement by postponing Mr. Presnell’s execution warrant – it
would not stop him from being executed altogether.”
In considering the factor of potential disservice to the public
interest, the trial court first observed that granting the injunction
was “consistent with the public’s interest in ensuring that reliable
procedures are followed before the State imposes the ultimate
punishment of death on any person,” citing Woodson v. North
Carolina, 428 U.S. 280, 305 (III) (C) (96 SCt 2978, 49 LE2d 944)
(1976) (acknowledging a heightened “need for reliability in the
determination that death is the appropriate punishment in a specific
case”). Next, the trial court noted that our appellate courts have
held that “[e]nforcing agreements generally serves the public
interest ‘by encouraging the right and freedom to contract,’” quoting
Wood v. Wade, 363 Ga. App. 139, 151 (2) (e) (869 SE2d 111) (2022)
(punctuation omitted). See also Nat. Cas. Co. v. Ga. School Bds.
71
Assn.-Risk Mgmt. Fund, 304 Ga. 224, 229 (818 SE2d 250) (2018)
(“[I]t is the paramount public policy of this State that courts will not
lightly interfere with the freedom of parties to contract on any
subject matter, on any terms, unless prohibited by statute or public
policy, and injury to the public interest clearly appears.” (citation
and punctuation omitted)). Finding that “this public interest is
implicated even more when the State is a party to the contract,
because if [the State] cannot be trusted to honor [its] agreements in
these circumstances, it will substantially undermine the public’s
confidence in its government,” the trial court then concluded that
granting an interlocutory injunction would not disserve the public
interest.
The State argues that the trial court abused its discretion in
weighing both of these factors in favor of granting an interlocutory
injunction. See Owens v. Hill, 295 Ga. 302, 313 (4) (c) (758 SE2d
794) (2014) (“‘[T]he State and the victims of crime have an important
interest in the timely enforcement of a sentence.’” (quoting Hill v.
McDonough, 547 U.S. 573, 584 (III) (126 SCt 2096, 165 LE2d 44)
72
(2006)). However, as the trial court concluded, an injunction here
ensures that executions will proceed on the timeline that the State
itself proposed – a timeline that the State presumably thought
served the interests of justice when the State proposed it.
Accordingly, under the circumstances here, we discern no abuse of
discretion in the trial court’s weighing of these factors in favor of the
Appellees’ right to obtain what they bargained for, particularly in
light of the public policy favoring the enforcement of contracts and
considering the threatened harm to the Appellees if injunctive relief
were not granted. See Wood, 363 Ga. App. at 151-52 (2) (e).
(c) The trial court ruled that the Appellees had shown a
substantial likelihood that they would succeed on their claim that
the State had breached the Agreement. The trial court first found
that the second and third conditions to the resumption of executions
contained in the Agreement had not been satisfied based on the
undisputed evidence showing that (1) “normal legal visitation” and
“normal visitation” at Georgia prisons “ha[d] not resumed [in]
that . . . the [DOC] continue[d] to impose significant limitations on
73
visitation” and (2) “children under the age of five still [we]re not
eligible for any COVID-19 vaccine” and, therefore, “the vaccine [wa]s
not available to all members of the public.” The trial court then
described the undisputed evidence showing that, despite the
Agreement, Senior Assistant Attorney General Graham had asked
the Cobb County District Attorney to seek an execution order for
Presnell from the Superior Court of Cobb County where Presnell
was tried and that the Attorney General’s office had worked toward
obtaining an execution order for death row inmate Raulerson before
it began seeking Presnell’s execution order. Based on the foregoing
evidence, the trial court determined that the Appellees had shown a
substantial likelihood that the Attorney General’s office had
breached its promise to not pursue execution orders from the district
attorneys in the cases covered by the Agreement before the
Agreement’s three conditions were satisfied and its promised notice
was provided.
The State argues, however, that even if the e-mail exchange
formed a written contract sufficient to waive sovereign immunity,
74
there was no material breach, because it had substantially complied
with the Agreement before seeking the execution order in Presnell’s
case. See Dennard v. Freeport Minerals Co., 250 Ga. 330, 332 (1)
(297 SE2d 222) (1982) (“Our general rule with respect to compliance
with contract terms is not strict compliance, but substantial
compliance.”); OCGA § 13-4-20 (“Performance, to be effectual, . . .
must be substantially in compliance with the spirit and the letter of
the contract. . . .”). The trial court rejected this argument, finding
that, in order to make its “substantial compliance” argument, the
State “must contort” the plain language of the Agreement, “which
[its] own representatives drafted.”
Looking first to the condition that the Attorney General’s office
would not pursue an execution order from the district attorney in
the defined cases before “the [DOC] lift[ed] its suspension of legal
visitation, and normal visitation resume[d],” the State argues that
this condition had been substantially satisfied because the
undisputed evidence shows that on April 7, 2021, the DOC had lifted
its total suspension of visitation and instituted “modified” visitation
75
procedures and that this modified visitation shows that visitation
had resumed at the time that Presnell’s execution order was issued,
albeit admittedly with restrictions. According to the State, a “new
standard” of visitation now exists with regard to both legal and
normal visitation as a result of the DOC’s need to adapt to the “new
normal” in a post-pandemic society. Thus, the State contends that
at the time that the execution order in Presnell’s case was obtained,
the new standard for legal and normal visitation had been resumed
and that neither logic nor the Agreement’s language requires that
legal or normal visitation return to exactly how it was before the
pandemic.
However, we reject the contention that the resumption of
“modified” or restricted visitation on April 7, 2021, was what the
parties intended regarding the second condition of the Agreement,
given the fact that the parties entered the Agreement a week after
the DOC initiated this visitation policy. Moreover, there is at least
some evidence in the record to support the trial court’s finding that,
at the time that Presnell’s execution order was issued, the DOC’s
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“modified” normal and legal visitation procedures “continue[d] to
impose significant limitations on visitation.”
With respect to the third condition, the Agreement states that
“[the Attorney General’s] office will not pursue an execution warrant
from the District Attorney in the below defined cases before . . . a
vaccination against COVID19 is readily available to all members of
the public.” (emphasis supplied). The State argues that multiple
FDA-approved vaccines have been “widely available” since the
Winter of 2020 and that the trial court’s “extreme interpretation” of
the term “all members of the public” as including children under five
years of age is contrary to the “substantial compliance” rule. 19
19 The State also argues that whether this condition was satisfied should
have no bearing in Presnell’s case, claiming that “[he] is not eligible to be in
the presence of children because of his convictions.” The State does not explain
the basis for this assertion, nor did the State present any evidence below to
support it. Moreover, pretermitting the relevance of the State’s assertion
generally, the Appellees argued in the trial court that the fact that no vaccine
was available to children under age five years not only led the DOC to prohibit
visitors in that age group to the prisons, thereby preventing execution-eligible
inmates from visiting with affected family members, but they also argued and
presented supporting evidence that this age limitation hindered capital
defenders with children in this age group, including Presnell’s counsel, in
representing their clients because of a fear of transmitting the virus to their
children.
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However, the Agreement’s plain language, drafted by the State,
places no limitation on the age of who is considered a member of the
public. Furthermore, whatever the availability of a COVID-19
vaccine in the Winter of 2020, that level of availability could not
have been what the parties intended as satisfying the third
condition of the Agreement, given the fact that the parties entered
the Agreement on April 14, 2021, well over three months after that
level of availability had already been attained.
Moreover and most significantly, as the trial court correctly
pointed out, the State’s “substantial compliance” argument ignores
a fundamental part of the Agreement – that the State was to provide
six months’ notice after all three conditions were met before seeking
an execution order. It is well-established that, “if the parties
expressly agree that time shall be important; if they stipulate that a
thing shall be done or not done, at a given time, then time is of the
essence of the contract, and it must be observed.” Sneed v. Wiggins,
3 Ga. 94, 102 (1847) (emphasis in original). See Piedmont Center 15,
LLC v. Aquent, Inc., 286 Ga. App. 673, 676 (649 SE2d 733) (2007)
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(relying on Sneed to conclude that time was of the essence in a
lease’s cancellation provision and that the parties therefore had to
strictly comply with the provision). Cf. Electronic Data Systems
Corp. v. Heinemann, 268 Ga. 755, 757 (4) (493 SE2d 132) (1997)
(stating that “[t]he courts should hesitate to rewrite private
contracts” to toll time limits).
The State does not argue that it substantially complied with
this six-month notice provision, and the undisputed evidence shows
that the Appellees did not receive their bargained-for notice in order
to adequately prepare for Presnell’s clemency proceedings. “One
party may not render a performance or give a consideration which
is materially different, and still substantially comply with those
contract terms generally.” Dennard, 250 Ga. at 333 (1) n.2.
Accordingly, we conclude that the trial court did not abuse its
discretion in rejecting the State’s “substantial compliance”
argument and instead concluding that the Appellees had shown a
substantial likelihood of succeeding on the merits of their breach of
contract claim. Compare id. at 333 (1) (holding that the appellee
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substantially complied with the contract where “[t]he additional
consideration which [the appellant] receive[d] d[id] not materially
alter the consideration for which her predecessor bargained” and she
therefore “suffer[ed] no damage” but rather “gain[ed] a monetary
benefit”) with Lager’s, LLC v. Palace Laundry, Inc., 247 Ga. App.
260, 262 (1) (543 SE2d 773) (2000) (rejecting the appellant’s
argument that it “substantially complied” with the early
termination procedure in the parties’ contract by orally complaining
and later cancelling the contract by letter because the appellant did
not comply with “the contract’s unambiguous notice provision” to
provide the vendor with a written complaint stating the nature of
the deficiencies and an opportunity to cure them).
(d) In addition to the factors ordinarily considered in whether
to grant an interlocutory injunction, the trial court addressed and
rejected three additional arguments that the State raised below as
to why an interlocutory injunction should not be granted, which the
State now argues was error. We disagree as to each.
(i) The State argues that the granting of an interlocutory
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injunction was improper because the relief that the Appellees sought
involved the undoing of a past act, namely, the undoing of the
issuance of Presnell’s execution order. See Lue v. Eady, 297 Ga. 321,
333 (3) (d) (773 SE2d 679) (2015) (“Injunctive relief . . . does not
provide a remedy for acts already completed.”). The trial court
properly rejected this argument, ruling that the interlocutory
injunction “would enjoin only [the State’s] future actions in
furtherance of th[e execution order in Presnell’s case], including
taking further steps to carry out the execution of Mr. Presnell.”
(ii) The State also argues that it is not able to provide the relief
that the Appellees sought. In support, the State correctly points out
that an execution order may only be requested from and granted by
the superior court of the county in which an inmate’s death penalty
case was tried, see OCGA § 17-10-40 (a), and that the district
attorney is the only party authorized to represent the State in all
criminal cases in the superior court, see McLaughlin v. Payne, 295
Ga. 609, 612 (761 SE2d 289) (2014) (“Under our State Constitution,
‘[i]t shall be the duty of the district attorney to represent the state
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in all criminal cases in the superior court of such district attorney’s
circuit. . . .’” (quoting Ga. Const. of 1983, Art. VI, Sec. VIII, Par. I
(d)). Therefore, the State contends that the district attorneys in the
cases of the inmates affected by the Agreement are the only parties
legally able to obtain the execution orders in those cases and that,
because those district attorneys are not parties to this litigation, the
Appellees’ request to enjoin the State from pursuing an act that only
the district attorneys may perform is “absurd.”
Both the law and the evidence presented at the hearing show
that the Attorney General is heavily involved in death penalty cases,
including the execution process. See OCGA § 17-10-33 (providing
that, when a defendant is sentenced to death, a certified copy of the
sentence is sent to the Attorney General); OCGA § 17-10-40 (a)
(providing that a certified copy of an order fixing a new time period
for the execution of a death sentence must be “sent immediately” to
the Attorney General); OCGA § 45-15-3 (5) (providing that the
Attorney General “represent[s] the state in all capital felony actions
before [this] Court); OCGA § 9-14-45 (providing that, if a habeas
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petitioner is being detained under the custody of the DOC, a copy of
the petition must be served on the Attorney General). And, in fact,
the evidence showed that Graham initiated the process for obtaining
the execution order for Presnell by requesting that the district
attorney obtain the order. In addition, the evidence presented below
included the current version of Georgia’s written protocol for lethal
injections, which was adopted on July 17, 2012. The protocol sets
out a detailed procedure for executing a condemned inmate.
According to that protocol, the last step in the “Preparation of the
Condemned” before the actual execution itself begins requires that
“[t]he Attorney General, or the Attorney General’s designee, shall
advise the [DOC] Commissioner as to whether or not to proceed”
with the execution. Ga. Dept. of Corrections, Ga. Diagnostic &
Classification Prison, Lethal Injection Procedures, II (D) (10).
Accordingly, the record supports the trial court’s finding that “the
Attorney General’s office is so ingrained in Georgia’s process of
carrying out executions that the proposed injunction would, as a
practical matter, prevent the issuance of execution warrants for
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prisoners who fall in the scope of the Agreement until the terms of
that Agreement are met.”
(iii) In the last of the three additional arguments, the State
argues that, before the interlocutory injunction issued, district
attorneys were authorized to seek execution orders for execution-
eligible death row inmates and the DOC was authorized to
effectuate such orders. However, the State contends that this is no
longer the case and that, therefore, the interlocutory injunction
interrupted the status quo.
As the trial court correctly stated, the interlocutory injunction
does not prevent a district attorney from acting alone to obtain an
execution order. Instead, as the trial court explained in its order,
the injunction prevents the defendant parties to this action, namely,
the Attorney General and the State of Georgia, which includes “its
subordinate departments and employees,” “from having any
involvement in th[e execution] process or from initiating any
execution contrary to the terms of the Agreement, even if a district
attorney did act by himself or herself to obtain a warrant.”
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Accordingly, the trial court properly determined that the
interlocutory injunction would protect and maintain the status quo
“by returning the parties to their positions before [the State’s
alleged] breach.” See Byelick, 275 Ga. at 506 (1) (holding that the
status quo that warranted protection by an interlocutory injunction
was the position that the parties were in prior to the time that the
plaintiff’s breach of contract claim arose).
(e) Finally, the State argues that the interlocutory injunction
is “impractical and onerous” on the DOC, who cannot comply with
execution orders until it changes its visitation policies, and on
parties who are not even bound by the Agreement, including district
attorneys who might otherwise seek execution orders. However, the
interlocutory injunction issued by the trial court properly restrained
Defendants State of Georgia and Christopher M. Carr, in
his official capacity as Attorney General of the State of
Georgia, and anyone acting in active participation or
concert with them . . . from (1) pursuing any execution
warrant for death-eligible prisoners, other than Billy
Raulerson, whose petitions for rehearing before the
Eleventh Circuit were denied during the statewide
judicial emergency or (2) taking any action in furtherance
of any previously issued execution warrant for any such
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death-eligible prisoners identified above including the
warrant issued with respect to Mr. Virgil Presnell, Jr.
See OCGA § 9-11-65 (d) (providing in pertinent part that an
injunction “is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those
persons in active concert or participation with them” (emphasis
supplied)). Therefore, the interlocutory injunction affects the State
“no more than necessary to preserve the status quo and protect [the
Appellees] from the threatened harm.” Grossi Consulting, LLC v.
Sterling Currency Group, LLC, 290 Ga. 386, 389 (2) (722 SE2d 44)
(2012). And we conclude that “the injunction is not overly broad,
but is tailored to the facts and law of this case.” Bd. of Commrs. of
Spalding County v. Stewart, 284 Ga. 573, 575 (3) (668 SE2d 644)
(2008).
(f) For all of the reasons discussed above, we conclude that the
trial court did not abuse its discretion in granting the Appellees’
motion for an interlocutory injunction. See City of Waycross, 300
Ga. at 111 (1).
86
Judgment affirmed. All the Justices concur, except Peterson,
P. J., and Pinson, J., disqualified, and Warren, J., not participating.
87
BETHEL, J., concurring.
Wisdom, Justice, and Moderation. Those words are engraved
upon the Great Seal of the State of Georgia and are recited when we
pledge allegiance to the flag of the State of Georgia. 20 They
symbolize the three pillars upon which sound government and our
State Constitution rest.
With those principles in mind, I highlight a few facts apparent
from the record in this case which are, of course, included in the
broader recitation of the record found in the opinion of the Court. An
Assistant Attorney General and her supervisor, a Deputy Attorney
General, both clearly and unambiguously agreed to a course of
conduct related to the function of the Department of Law over which
they had supervisory authority. The State now wishes not to follow
that agreed-upon course of conduct. This litigation follows.
The Office of the Attorney General should have mooted this
case before it was filed by simply fulfilling the promises its attorneys
made – even if the State later had reservations about the binding
20 See OCGA §§ 50-3-2 and 50-3-30 (c).
88
effect of the words of its Deputy Attorney General and Assistant
Attorney General. Instead, the State elected to attempt to avoid
honoring the agreement they made.
“Inside every cynical person, there is a disappointed idealist,”
a comedian once said. But his words are, of course, no laughing
matter. Cynicism is an infectious and contagious thing that eats at
the fibers of the fabric which hold together human society.
Government is often an accidental vector of our society’s cynicism.
It really should avoid being an intentional one.
Though it may prove inconvenient, uncomfortable, or
undesirable to the State, when both a Deputy and an Assistant
Attorney General are on record agreeing that the State will do or not
do something, absent a showing that those lawyers were engaged in
an illegal or unethical endeavor21 or that honoring the agreement
will incur an unauthorized cost to the State, everyone should be able
21There has been no suggestion by the State of impropriety of this sort.
Nor has there been a suggestion that the agreement here was entered into
against the wishes or direction of the Attorney General or other person in the
supervisory chain.
89
to count on the State to honor its word. Not because it entered a
contract that waived sovereign immunity. Not because the party
asking the State to do as it said it would was sufficiently copied on
an electronic communication message or was a third-party
beneficiary. Not because the author of a message followed the correct
electronic “pinky swear” that is necessary to transform a statement
into a binding commitment. Rather, the State should keep its
promises because The People of Georgia, who are the very source of
the State’s sovereignty, are owed a government that honors its
commitments.
In a society governed by the rule of law, courts must entertain
lawfully filed cases and vindicate rights of parties, as defined by the
law. And if the law allowed the State to avoid fulfilling the promises
it made here, this Court would be bound to allow that. For the
reasons explained in the opinion of the Court, however, the law
thankfully does not allow that avoidance here. It’s a shame anyone
thought it appropriate to ask.
I am authorized to state that Chief Justice Boggs, Justice
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Ellington, Justice McMillian, Justice LaGrua, and Justice Colvin
join in this concurrence.
91