“In contract actions the time of the breach controls, not the time the actual damages result or are ascertained.” Gamble v. Lovett Sch., 180 Ga.App. 708, 709, 350 S.E.2d 311, 312 (1986) (finding that teacher's breach of contract claim accrued when his school abolished tenure, not when he was later fired). Athens argues that Plaintiffs' claims based on the 2002 ordinance accrued when Athens passed the ordinance in 2002.
In general, a claim for breach of contract accrues at the time of the breach, not at the time that damages are discovered. Gamble v. Lovett School, 180 Ga.App. 708, 710, 350 S.E.2d 311 (1986); R.L. Sanders Roofing Co. v. Miller, 153 Ga.App. 225, 226(1), 264 S.E.2d 731 (1980). [T]he true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result. Actual damage is not essential, but the right of action has its inception upon the breach of duty.
Gamble v. Lovett School, 180 Ga.App. 708, 710, 350 S.E.2d 311 (1986) ; R.L. Sanders Roofing Co. v. Miller, 153 Ga.App. 225, 226(1), 264 S.E.2d 731 (1980). [T]he true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result. Actual damage is not essential, but the right of action has its inception upon the breach of duty.
Further, in City of Lafayette v. Bates, 234 Ga. App. 662, 663 ( 507 SE2d 252) (1998), we determined that the statute of limitation for an action seeking payment of unused sick leave began running when the City changed its employees' sick leave policy, not when the payments came due. In Gamble v. The Lovett School, 180 Ga. App. 708 ( 350 SE2d 311) (1986), a teacher lost his "security in employment" when the school changed its tenure policy, which is when the statute of limitation began running. "[A]n opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said."
Actual damage is not essential, but the right of action has its inception upon the breach of duty.Gamble v. Lovett School, 180 Ga. App. 708, 710 ( 350 S.E.2d 311) (1986). Therefore the breach, if any, in the present case occurred in 1979 when the ordinance granting the benefits was repealed.
Thus, Bates' reliance on Swann v. Board of Trustees c. Benefit System, 257 Ga. 450 ( 360 S.E.2d 395) (1987), to establish that the City Council's ultimate revocation of the unused sick leave policy was an ultra vires act and void, is misplaced. This case is controlled by our decision in Gamble v. The Lovett School, 180 Ga. App. 708 ( 350 S.E.2d 311) (1986). "In contract actions the time of the breach controls, not the time the actual damages result or are ascertained."
ECF 23, ¶ 60. Likewise, the limitations period for a contract claim “begins to run at the time of [the] alleged breach,” Wallace v. Bock, 279 Ga. 744, 747 (2005), and not when damages are suffered or ascertained, Gamble v. Lovett Sch., 180 Ga.App. 708, 709 (1986). Thus, in Gamble, when a schoolteacher's employment contract was changed in 1972 to remove reference to tenure, the schoolteacher's claim for breach of contract premised on a vested right to tenure accrued in 1972, even though the schoolteacher was not actually fired until nearly ten years later.
Therefore, the Court finds Plaintiff's current claim for breach of contract based on the 2019 sidewalk sections had accrued and could have been brought in the State Suit. Gamble v. Lovett Sch., 180 Ga.App. 708, 709, 350 S.E.2d 311, 312 (1986) ("In contract actions the time of the breach controls, not the time the actual damages result or are ascertained."). Perhaps recognizing that its claim is barred if it accrued prior to the Settlement Agreement, Plaintiff argues that its claim based on the 2019 sidewalk sections was not viable at the time of the State Suit. (Doc. 25 at 20-22.)
The $1,000,000.00 obligation would have become payable on May 12, 1994 when the alleged breach occurred, and thus, the statute of limitations ran on May 12, 2000. See Gamble v. Lovett School, 180 Ga. App. 708, 709-10 (1986) (holding that time of breach controls in contract actions for statute of limitations purposes). Small did not attempt to bring a claim for this alleged 1994 breach until November 19, 2002, over two and a half years after the statute of limitations ran.
See e.g., Hensel Phelps Constr. Co. v. Cooper Carry, Inc., 210 F. SupP.3d 192, 197 (D.D.C. 2016); Perez-Encinas v. AmerUs Life Ins. Co., 468 F. SupP.2d 1127, 1134 (N.D. Cal. 2006); AC, Inc. v. Baker, 622 So. 2d 331, 335 (Ala. 1993); Tolbert v. Conn. Gen. Life Ins. Co., 778 A.2d 1, 5 (Conn. 2001); Gamble v. Lovett Sch., 350 S.E.2d 311, 312-13 (Ga. Ct. App. 1986); Hermitage Corp. v. Contractors Adjustment Co., 651 N.E.2d 1132, 1135 (Ill. 1995); Pizel v. Zuspann, 795 P.2d 42, 54 (Kan. 1990); Levin v. C.O.M.B. Co., 441 N.W.2d 801, 803 (Minn. 1989); Johnson v. Crisler, 125 So. 724, 724-25 (Miss.