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Feist v. Dirr

Absent a waiver of sovereign immunity, the trial court lacked subject matter jurisdiction over the plaintiffs' claims against a university professor in his official capacity.

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Richard and Mary Beth Feist sued Michael A. Dirr, Board of Regents of the University System of Georgia, and Mark Griffith, d/b/a Griffith Propagation Nursery for breach of contract, fraud, conversion, negligent bailment, and deceptive trade practices. Dirr answered and moved for judgment on the pleadings, which the trial court, after notice converted into a motion for summary judgment on grounds of sovereign immunity and the Georgia Tort Claims Act. The trial court granted the motion. Finding no error, we affirm. All of the Feists allegations are in pleadings, and their appellate brief cites to the record of pleadings and not evidence in the trial court supporting such allegations on each essential element of each claim.

In July of 1994, Dirr was employed as a Professor of Horticulture at the University of Georgia, visited the Feists’ nursery in Burlington, Kentucky, and inspected the Feists’ dwarf Iteas and Forthergilla major plants, which the Feists had developed. Feist allowed Dirr to take cuttings from selected plants and to conduct tests to determine the plants’ uniform reproducibility, distinctive characteristics, and the performance of the plants in the Southeast; these tests were to be done at the University of Georgia in Dirr’s woody plant trials. Dirr grew a large number of plants from the cuttings and reported his findings to Feist. Dirr published an article about these new dwarf Iteas which stated that these plants could be patented and that millions of such plants could be sold.

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