Fulton County, Georgia v. Soco Contracting Company, Inc.

FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J., and SELF, J.

November 15, 2017

In the Court of Appeals of Georgia
A17A1001. FULTON COUNTY, GEORGIA v. SOCO
CONTRACTING COMPANY, INC.

RAY, Presiding Judge.

In 2013, Fulton County (the “County”) and SOCO Construction Company, Inc.

(“SOCO”) executed a written contract for the construction of a cultural center. The

contract was approved by the Fulton County Board of Commissioners. As a result of

several delays, including those caused by change orders, inclement weather, and the

shutdown of the federal government, the scope of the work and time line was altered.

SOCO filed the instant complaint against the County for, inter alia, breach of

contract and bad faith performance of the contract. SOCO also sought attorney fees

and injunctive relief. SOCO and the County filed cross-motions for summary

judgment on all claims. The trial court granted summary judgment in favor of SOCO
and against the County.1 In the same order, the trial court also denied the County’s

motion for reconsideration of its denial of the County’s motion to withdraw

admissions.

We vacate the trial court’s denial of the County’s motion for summary

judgment, which asserted that any claims arising from unwritten change orders are

barred under the doctrine of sovereign immunity, and remand the case for further

consideration. Further, we affirm in part and reverse in part the trial court’s order

denying the County’s motion for reconsideration of its motion to withdraw

admissions. Finally, we vacate and remand the trial court’s ruling on attorney fees.

To prevail at summary judgment, the moving party must demonstrate
that there is no genuine issue of material fact and that the undisputed
facts, viewed in the light most favorable to the nonmoving party,
warrant judgment as a matter of law. . . . We conduct a de novo review
a trial court’s grant of summary judgment.

(Citations and punctuation omitted.) Bright v. Sandstone Hospitality, LLC, 327 Ga.

App. 157, 157-158 (755 SE2d 899) (2014).

1
The Association of County Commissioners of Georgia has filed an amicus
curiae brief in this case.

2
 In May 2013, the County and SOCO executed a written contract for the

construction of the Aviation Community Cultural Center near the Fulton County

Airport. The contract specified that the work should be completed within 287 days

from the County’s issuance of the notice to proceed or the day the work began,

whichever came first, with that period to be increased by change order due to changes

in the scope of work, or upon the occurrence of other delays or events not the fault

of the contractor. Section 00700-87A of the “General Conditions” portion of the

contract provides that

[a] Change Order is a written order to the Contractor signed to show the
approval and authorization of the County, issued after execution of the
Contract, authorizing a change in the Work and/or an adjustment in the
Contract Sum or the Contract Time. Change Orders shall be written
using forms designated by the County with Contractor providing
supporting documentation as required by the Construction Manager. The
Contract Sum and the Contract Time may be changed only by approved
Change Order pursuant to Fulton County Procedure 800-6. . . . A
Change Order signed by the Contractor indicates the Contractor’s
agreement therewith, including the adjustment in either or both of the
Contract Sum or the Contract Time.

3
(Emphasis supplied.) It also provides that “[t]he County, without invalidating the

Contract, may order changes in the Work within the general scope of the Contract as

defined herein.”

Fulton County Policy and Procedure 800-6 (“Fulton Procedure 800-6”), titled

“Procedures for Handling Change Orders,” provides that “except as otherwise

provided . . . , change orders shall be effected only through a written, bilateral

agreement (Modification) between the County, acting through its Board of

Commissioners, and the contractor.” Procedure 800-6 allows for the authorization of

change orders when needed, inter alia, to correct deficiencies in design or

construction documents provided by architects or engineers, to remedy concealed

conditions, abnormal inclement weather, and owner-requested changes within the

scope of the contract. It further provides that the proper “Change Order Procedure”

requires the “[a]greement between County and contractor for change [to be] clearly

defined in a Written Modification,” signed by the Contractor and approved by the

Board of Commissioners. Section G (2) of Procedure 800-6, captioned “Extraordinary

Circumstances,” provides that the “County Manager is authorized to approve change

orders regardless of the amount when due to extraordinary circumstances, work must

be implemented before the Board of Commissioners can act.” Such extraordinary

4
circumstances include a “[l]oss of substantial resources due to delay, including delay

to critical path schedule.”

SOCO began work on the cultural center on May 29, 2013. However, SOCO

did not achieve substantial completion of the project until May 29, 2014, beyond the

time anticipated in the contract. SOCO contends that the construction of the cultural

center was delayed due to, inter alia, adverse weather conditions, delays caused by

the County’s design for the cultural center, the County’s unwillingness to make

timely decisions on changes, and the impact that the federal government’s shut down

had on obtaining certain permits. As a result of these issues, the County ordered

changes to SOCO’s scope of work, and the County’s program manager listed more

than 30 change orders in its September 5, 2014, change order evaluation log.

However, SOCO does not provide citations to the record, nor can we find any,

indicating that the change orders were executed through bilateral, written agreements.

SOCO admits that the County never issued a change order extending the contract

time, despite these delays. Further, the County did not release its Certificate of

Substantial Completion until February 17, 2015, and withheld release of certain

retainage fees until January 21, 2015.

5
 SOCO then filed suit against the County for breach of contract and bad faith.

It also sought attorney fees and injunctive relief. The County answered. On June 30,

2015, SOCO sent its first Request for Admissions to the County by hand-delivery.

The County did not respond until on August 3, 2015, 33 days later. Because the

County’s response to the Requests for Admissions was served to SOCO more than

30 days after service of the request, the Requests for Admissions were deemed

admitted pursuant to OCGA § 9-11-36 (a) (2). See Adewumi v. Amelia Grove/Ashland

Park Homeowners Assoc., Inc., 337 Ga. App. 275, 277 (2) (787 SE2d 761) (2016).

On April 26, 2016, the County filed a motion to withdraw the Requests for

Admissions. The County attached an affidavit of Tommy Walton, a paralegal with the

Fulton County Attorney’s Office, who averred that the responses to the Request for

Admissions were late due to an administrative error. The County also alleged that it

mistakenly admitted SOCO’s Request for Admission #37 that it was liable for “all

damages alleged by SOCO in its Complaint.” The trial court denied the motion to

withdraw. The trial court also denied the County’s petition for interlocutory review,

and the County filed its motion for reconsideration of the trial court’s denial of the

motion to withdraw admissions.

6
 On June 27, 2016, the County moved for summary judgment on the grounds

that the trial court lacked subject matter jurisdiction because of sovereign immunity.

In its final order, the trial court, inter alia, denied the motion for reconsideration and

denied the County’s motion for summary judgment. The County appeals from that

order.

1. The County argues that the trial court erred in denying its motion for

summary judgment because the trial court lacked subject matter jurisdiction due to

the applicability of sovereign immunity. The County argues that although the State

has waived sovereign immunity for the breach of any written contract, it did not

waive immunity for causes of action arising from modifications to the written contract

that failed to follow the written change order policy outlined in the contract. For the

following reasons, we vacate the trial court’s ruling on this issue and remand the case

for further consideration.

In Georgia, the doctrine of sovereign immunity has constitutional status and

may be waived only by an act of the General Assembly or by the Constitution itself.

Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 472 (2) (759 SE2d 804) (2014). The

Georgia Constitution addresses the waiver of the State’s immunity of liability for

breach of contract as follows:

7
 (c) The [S]tate’s defense of sovereign immunity is hereby waived as to
any action ex contractu for the breach of any written contract now
existing or hereafter entered into by the [S]tate or its departments and
agencies. . . .

(e) Except as specifically provided in this Paragraph, sovereign
immunity extends to the [S]tate and all of its departments and agencies.
The sovereign immunity of the [S]tate and its departments and agencies
can only be waived by an Act of the General Assembly which
specifically provides that sovereign immunity is thereby waived and the
extent of such waiver.

Ga. Const., Art. I, Sec. II, Par. IX (c) and (e). “The sweep of sovereign immunity

under the Georgia Constitution is broad, [and its] plain and unambiguous text . . .

shows that only the General Assembly has the authority to waive the State’s

sovereign immunity.” (Citation omitted.) Olvera v. Univ. Sys. of Ga.’s Bd. of Regents,

298 Ga. 425, 426 (782 SE2d 436) (2016).

“[S]overeign immunity is a threshold issue that the trial court [is] required to

address before reaching the merits of any other argument.” (Footnote omitted.)

Albertson v. City of Jesup, 312 Ga.App. 246, 248 (1) (718 SE2d 4) (2011). It is

axiomatic that “[t]he party seeking to benefit from the waiver of sovereign immunity

bears the burden of proving such waiver.” (Citations omitted.) Bd. of Regents of the

8
Univ. Sys. of Ga. v. Doe, 278 Ga.App. 878, 881(1) (630 SE2d 85) (2006). “Whether

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.” (Citation omitted.) Ga. Dept. of

Labor v. RTT Assocs., Inc., 299 Ga. 78, 81 (1) (786 SE2d 840) (2016).

In the instant case, the County argues that although it did have a written

contract with SOCO, it did not waive its defense of sovereign immunity as to any

claims arising from modifications to that contract that did not follow the protocol for

written change orders as outlined in the contract and in Fulton Procedure 800-6. The

County cites to RTT Assocs. Inc., supra at 82-83 (2), for the assertion that the limited

waiver of sovereign immunity for actions ex contractu applies only to written

agreements, and may not be extended by oral directives or course of conduct.

In RTT Assocs., Inc., supra, the Department of Labor (“DOL”) executed a

written contract with a software vendor, RTT, that by its terms expired on June 30,

2012. The written contract also specified that amendments must be made in writing

and fully executed by both parties. Id. at 78-79. The DOL executed two internal

project change request documents extending the scope and time line of the project.

However, the change requests were not executed by RTT, and no written amendment

to the contract was executed by either party to extend the expiration of the contract

9
or modify other contract terms. Id. at 79. After the DOL refused to compensate RTT

for work performed after the contract expired, RTT claimed that the contract had been

extended by certain internal writings of the department and by the parties’ course of

conduct. Id. at 79. Our Supreme Court held that “even if . . . DOL and RTT waived,

through their course of conduct, the provision that the contract could be amended

only in writing and similarly waived or extended the required completion date, this

conduct could not have waived DOL’s sovereign immunity.” Id. at 82 (2). The Court

explained that although

private parties . . . may be able to modify and extend written contracts
by manifesting their intent to do so even without a written agreement,
the enforceability of a contract against the [S]tate is governed by the
Constitution and by statute. . . . General rules of contract law that might
otherwise support a claim for breach of contract damages between
private parties, however, will not support a claim against the [S]tate or
one of its agencies if the contract is not in writing so as to trigger the
waiver of sovereign immunity.

(Citations omitted.) Id. at 82 (2).

Unlike the written contract in RTT Assocs., Inc., supra, the written contract in

the instant case provides a procedure for obtaining a written Change Order to amend

the contract, and that procedure provides a method by which parties can bypass the

10
necessity for a written Change Order approved by the Board of Commissioners in the

event “extraordinary circumstances” warrant it. The trial court, in its motion denying

the County’s motion for summary judgment, found that the parties complied with

Fulton Procedure 800-6 G (2) because the changed work ordered by County

administrators were necessary to avoid delay to the “critical path schedule of the

work[,]” and thus constituted “extraordinary circumstances” which invoked an

exception to the written change order requirement under Fulton Procedure 800-6 G

(2), as incorporated into the parties’ contract.

However, Fulton Procedure 800-6 G (2), captioned “Extraordinary

Circumstances[,]” provides a specific procedure that must be followed in order to

bypass the contractual requirement that any changes be made by a written Change

Order. Specifically, Fulton Procedure 800-6 G (2) provides that “[t]he County

Manager is authorized to approve change orders regardless of the amount when due

to extraordinary circumstances, work must be implemented before the Board of

Commissioners can act.” These extraordinary circumstances include, inter alia, when

immediate action must be taken to protect the County’s interest due to a threat of

“[l]oss of substantial resources due to delay, including delay to critical path

schedule.”

11
 Fulton Procedure 800-6 G (2) (d) provides that “[a]t a minimum, the following

procedures must be observed” in the event such an extraordinary circumstance

warranted it:

(i) The contractor shall execute a written contract Modification that
clearly describes the work to be done and its cost. If costs cannot be
fully detailed due to the exigencies of the situation, the Modification
must set out a maximum cost and state that the cost will be definitized
in a final change order.

(ii) The department head shall obtain the approval of the Purchasing
Agent prior to submitting the change order to the County Manager.

(iii) The work may proceed upon approval of the County Manager. The
department head shall prepare all other documentation normally required
for a change order, including completion of the Sign-Off sheet.

(iv) No later than sixty (60) days following approval of the change
order, the County Manager shall place the change order on the consent
agenda.

(v) In cases of change orders without definitized costs under Subsection
(i) above, the department head shall commence processing a final
change order as soon as circumstances permit.

12
 In the instant case, SOCO argues that the County ordered more than 30

modifications to the existing budget and time line under the Contract. SOCO’s

appellate brief provided no citations to the voluminous record that it complied with

these provisions. However, for the first time on Motion for Reconsideration, SOCO

provides citations to the record to change orders that it submitted to the County.2

However, SOCO still provides no citations to the record indicating that the remaining

subsections of Procedure 800-6 G (2) (d) were complied with. Although it appears

that Freddie Robinson, the Project Manager assigned to the community center project,

made handwritten notations on these proposed change orders, there is no evidence

that the approval of the Purchasing Agent was obtained prior to submitting the change

orders to the County Manager or that the County Manager approved the work as

required by Procedure 800-6 G (2) (d) (iii). Further, it does not appear that the trial

court considered whether each subsection of the “extraordinary circumstances”

procedure set forth in Procedure 800-6 G (2) (d) was complied with.

Although SOCO’s appellate brief relied upon Requests for Admissions deemed

admitted by the County’s failure to timely respond to them, such evidence cannot be

2
This opinion has been substituted for the original opinion issued by this
Court.

13
the basis of our decision on sovereign immunity. As our Supreme Court noted in RTT

Assocs., supra, sovereign immunity cannot be waived by the County’s actions outside

of the written contract, and this “rule would apply to any admissions made by [the

County] that the contract had been extended, when the evidence shows any

agreements to extend did not meet the written contract requirement set forth in the

applicable statute and constitutional provision relating to the waiver of sovereign

immunity.” Id. at 87 (3). The constitutional provision “expressly reserving the power

to waive sovereign immunity to the legislature does not allow for exceptions to be

created by the courts.” (Citation and punctuation omitted.) Id. Accordingly, this Court

cannot create an exception to the rules regarding the waiver of sovereign immunity

based upon any reliance that SOCO may have placed on the County’s request for

changes, upon the parties’ course of conduct, or upon facts deemed admitted pursuant

to OCGA § 9-11-36 (a).

Accordingly, we vacate the trial court’s denial of the County’s motion for

summary judgment on all of SOCO’s claims arising from modifications of the May

2013 contract and remand the case for further consideration of whether the parties

strictly complied with Fulton Procedure 800-6 G (2) (d).

14
 2. The County argues that the trial court erred in denying its motion to

withdraw admissions and in denying its motion for reconsideration of that denial. The

County argues that the trial court misapplied OCGA § 9-11-36 (b) and that the trial

court should not have deemed certain requests for admissions admitted, as they are

based on inappropriate legal conclusions. For the following reasons, we affirm in part

and reverse in part.3

Under Georgia law,

[a] party’s failure to timely respond to requests for admission
conclusively establishes as a matter of law each of the matters addressed
in the requests. This is true even if the requested admissions require
opinions or conclusions of law, so long as the legal conclusions relate
to the facts of the case. The language in OCGA § 9-11-36 (a) is clear,
unambiguous, and unequivocal and means just what it says. One must
comply strictly and literally with the terms of the statute upon the peril
of having his response construed to be an admission. Thus, matters
deemed admitted under this statute become solemn admissions in judicio
and are conclusive as a matter of law on the matters stated and cannot
be contradicted by other evidence unless the admissions are withdrawn
or amended on formal motion.

3
As found in Division 1 herein, we have concluded that the admissions do not
act as a waiver on sovereign immunity for claims related to the alleged modifications.
Our analysis herein relates to admissions related to the original written contract.

15
(Citation omitted.) Adewumi, supra at 277 (2).

The trial court is vested with broad discretion to permit withdrawal, and “the

trial court’s ruling on this issue may be reversed only upon a showing of abuse of

discretion.” (Citation omitted.) Parham v. Weldon, 333 Ga. App. 744, 746 (1) (776

SE2d 826) (2015).

(a) The County argues that the trial court abused its discretion by “grossly

misapplying” OCGA § 9-11-36 (b)’s two-part test.

There is a two-pronged test to be employed when considering a motion to

withdraw admissions. A court may grant a motion to withdraw when “[1] the

presentation of the merits of the action will be subserved thereby and [2] the party

who obtained the admission fails to satisfy the court that withdrawal or amendment

will prejudice him in maintaining his action or defense on the merits.” OCGA § 9-11-

36 (b). Accord Parham, supra at 746 (1). “If the movant satisfies the court on the first

prong, the burden is on the respondent to satisfy the second prong. Both prongs must

be established, pursuant to the standard provided in OCGA § 9-11-36 (b).” (Citation

and punctuation omitted.) Marlowe v. Lott, 212 Ga. App. 679, 681 (2) (442 SE2d

487) (1994). “If the movant fails to make the required showing to satisfy the first

prong of the test, then the trial court is authorized to deny the motion to withdraw the

16
admissions.” (Citations omitted.) Turner v. Mize, 280 Ga. App. 256, 257 (1) (633

SE2d 641) (2006).

To prove that the presentation of the merits in this case would be subserved by

the withdrawal, the County needed to establish that

the admitted requests either could have been refuted on trial of the issues
by admissible evidence having a modicum of credibility or that the
admitted requests were incredible on their face; and that the denials
being tendered to the court with the motion to withdraw had not been
offered solely for the purposes of delay.

(Citations omitted.) Fox Run Properties, LLC v. Murray, 288 Ga. App. 568, 570-571

(1) (654 SE2d 676) (2007). “The first prong of the test is not perfunctorily satisfied[,]

and the desire to have a trial, standing alone, is not sufficient to satisfy the test.”

(Citation and punctuation omitted.) Turner, supra at 257 (1).

In support of its motion to withdraw admissions, the County relied upon the

affidavit of Freddie Robinson. The trial court’s order found that the County did not

meet its initial burden of showing that presentations of the merits of the action would

be subserved by withdrawal of the admissions. Specifically, the trial court found that

the affidavit of County construction manager Freddie Robinson
proffered by the County in support of its motion to withdraw its
admissions was insufficient to support their withdrawal, in part, because

17
 it lacked even a modicum of credibility. It contained facially
contradictory statements, material misstatements on basic elements of
the contract, miscounting of performance days, and other statements that
contradict documents in the record and the County’s own answers to
Interrogatories.

(Emphasis supplied.) The trial court further found that the County failed to credibly

refute specific admitted requests.4

The County argues in its brief that its supporting affidavit had a sufficient

modicum of credibility. However, the trial court, after examining the affidavit in

detail, found the issue not to be one of degree of credibility, but rather, of the utter

absence of it. Robinson’s affidavit directly contradicted the County’s responses to

various interrogatories. When asked in Interrogatory 5 why it issued no change orders

and why payment was withheld from SOCO, the County answered that “SOCO has

refused to amicably negotiate proposed field changes to a final reconciled amount.”

In his affidavit, however, Robinson attributes the refusal to issue change orders to

several different reasons, including: SOCO’s improper management and failure to

4
In its motion for reconsideration of the trial court’s denial of the County’s
motion to withdraw admissions, the County filed the affidavit of Felicia Strong-
Whittaker. However, Strong-Whitaker’s affidavit was not filed until after the trial
court denied the County’s motion to withdraw the admissions. The trial court
similarly found Strong-Whittaker’s affidavit to be lacking in credibility.

18
protect the site during bad weather; superintendent burnout; and poor SOCO staffing.

Further, Robinson miscounted performance days to calculate the completion date of

the project, and his affidavit contradicts evidence in the record without explanation.

Robinson averred that the project was only 50 percent complete on March 31, 2014,

but reports by his superiors show that the project was 65 percent complete two weeks

before that date and 80 percent complete two weeks after it. “Based on these

inconsistencies, the trial court was . . . authorized to find that [Robinson] lacked

credibility and that the admissions were not false.” (Footnote omitted.) Fox Run

Properties, LLC, supra at 571 (1) (trial court did not err in denying motion to

withdraw admissions when supporting affidavit was deemed unreliable because it

contradicted interrogatories and contained inconsistent statements).

“Under these circumstances, we cannot conclude that the trial court abused its

discretion in concluding that [the County] did not present credible evidence to refute

the admissions.” (Citations omitted.) Id. Compare Bailey v. Chase Third Century

Leasing Co., Inc., 211 Ga. App. 60, 61-62 (1) (438 SE2d 172) (1993) (trial court

abused its discretion by denying a motion to withdraw admissions in the face of a

sworn affidavit and other admissible evidence that cast doubt on the veracity of the

admissions).

19
 Because the trial court did not err in concluding that the County had not

satisfied its burden in the first prong of this test, we need not address the second

prong. Turner, supra at 257 (1).

(b) The County next argues that the trial court should have withdrawn

Admissions Nos. 23, 36 and 37 on the grounds that they are based on inappropriate

legal conclusions.

(i) We find no error as to Requests for Admissions Nos. 23 and 36. Request for

Admission No. 23 asks the County to admit that SOCO “fully performed its

obligations under the contract[.]” Request for Admission No. 36 asks the County to

admit that “Fulton County acted with bad faith intentionally, with malice, and with

intent to do harm to SOCO in the County’s administration of the Contract.” Requests

for admissions requiring opinions or conclusions of law are specifically permitted,

as long as the legal conclusions relate to the facts of the case. G. H. Bass & Co. v.

Fulton County Bd. of Tax Assessors, 268 Ga. 327, 329 (1) (486 SE2d 810) (1997).

See also State Dept. of Corrections v. Developers Surety & Indemity Co., 291 Ga. 741

(763 SE2d 868) (2016) (affirmed on cert. by State Dept. of Corrections v. Developers

Surety & Indemnity Co., 324 Ga. App. 371 (750 SE2d 697) (2013) (matters deemed

admitted by the Georgia Department of Corrections as a matter of law established that

20
it materially breached its contract with a government contractor for re-roofing certain

buildings). Requests are not objectionable because they seek admission of the

ultimate issue in the case but are only objectionable if they seek admission of purely

abstract principles unrelated to the facts of the case. G. H. Bass & Co., supra at 328

(1). A determination of whether the County acted with bad faith is not such an

abstract proposition of law.

(ii) The County argues that the trial court should have withdrawn Request for

Admission No. 37. We agree.

Request for Admission No. 37 asks the County to admit that “Fulton County

is liable to SOCO for each of the damages pleaded and prayed for in its Complaint.”

The damages prayed for in the Complaint included, inter alia, “pre-judgment interest

of at least $25,866.22” on funds that SOCO claims the County unlawfully withheld,

“damages in excess of $406,732.53” resulting from the “County’s refusal to

administer change orders and compensate SOCO for acceleration of the work”;

“damages in excess of $25,000.00” for the County’s interference with SOCO’s

subcontractors; “327,756.99 for unabsorbable extended home office expense,” and

“$638,876.50 due to profit on federal work lost as a result of Fulton County’s

21
wrongful withholding or retainage and intentional delay of project closeout and the

resultant loss of bonding capacity[.]”

The trial court should have withdrawn Request for Admission No. 37 because

some of the damages sought in the complaint, such as SOCO’s lost profits claim, are

outside the County’s realm of knowledge. “While admissions resulting from a party’s

failure to respond to requests for admission are . . . generally considered conclusive

until withdrawn . . . , a party obviously has not the capacity to admit something which

is patently outside the realm of his knowledge.” (Citations omitted.) Cole v. Smith,

182 Ga. App. 59, 63 (3) (354 SE2d 835) (1987). Accord K-Mart Corp. v. Hackett,

237 Ga. App. 127, 133 (4) (514 SE2d 884) (1999) (trial court did not abuse its

discretion in allowing admission that defendant injured each plaintiff in the amount

of $2,500,000.00 because the answer was outside the knowledge of the defendant).

Further, some of the damages sought in the complaint arose from causes of action

related to the unwritten change orders on which the County claims it is entitled to

sovereign immunity.5

5
We acknowledge that if the trial court finds upon remand that SOCO and the
County had properly acted to approve change orders under the “extraordinary
circumstances” provision, then sovereign immunity would be of no concern here.

22
 3. The County argues that the trial court erred in awarding attorney fees as part

of the summary judgment order. For the following reasons, we vacate and remand the

trial court’s award of attorney fees.

The trial court’s summary judgment order found that the County was liable for

“reasonable attorneys’ fees and litigation costs as SOCO has incurred since this

lawsuit was filed on May 8, 2015[,]” and directed SOCO to submit a statement of

such costs to the Court and to Fulton County within 21 days from the order, and gave

the County 10 days in which to make specific objections to SOCO’s statement of fees.

In Division 1, supra, we vacate and remand the trial court’s denial of the County’s

motion for summary judgment on SOCO’s causes of action arising from the

modifications to the original contract made without written change orders. Because

some of the Code Sections and conduct that the trial court bases its attorney fees

awards upon might be affected by its reconsideration, on remand, regarding the

sovereign immunity issue, we vacate those awards of attorney fees and remand to the

trial court for further consideration in light of this order. See, e. g., Aaron v. Ga. Farm

Bureau Mut. Ins. Co., 297 Ga. App. 403, 408 (c) (677 SE2d 419) (2009) (since

appellant “cannot succeed on his breach of contract . . . claims, he likewise cannot

succeed on a claim for attorney fees”) (footnote omitted).

Judgment affirmed in part, reversed in part, vacated in part, and case

remanded. Dillard, C. J., and Self, J., concur.

23