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: September 30, 2025

S25A0635. STATE OF GEORGIA v. DOVETEL COMMUNICATION, LLC, et al.

PINSON, Justice.

The Georgia Department of Transportation revised one of its rules that regulates the installation, relocation, and management of utilities on public rights of way. After the rule went into effect, the Department asked a group of broadband internet providers to revise their contracts with the Department to account for the rule change, which, among other things, changed the fee schedule for rights-of- way permits that had been specified in those contracts. The provid- ers declined and instead sued the State, seeking a declaratory judg- ment that, among other things, their contracts with the Department were enforceable and not terminable at will by the Department. The State asked the trial court to dismiss the providers’ action, because, among other reasons, it was barred by sovereign immunity. But the trial court determined that sovereign immunity was waived under Article I, Section II, Paragraph V(b) of the Constitution of Georgia, and it granted the providers declaratory and injunctive relief.

We agree with the trial court that sovereign immunity is waived under Paragraph V for the providers’ action for declaratory relief. As that provision requires, the providers have sought “declar- atory relief” in the form of declaratory judgments that their con- tracts are enforceable and may not be terminated at will by the De- partment. And they seek that relief from acts of the Department which, in their view, impaired the obligation of their contracts in violation of the United States and Georgia Constitutions. Thus, in the language of Paragraph V, “[s]overeign immunity is … waived for” this “action[] in the superior court seeking declaratory relief from acts of … a[] … department … of this state … in violation of … the Constitution of this state [and] the Constitution of the United States.” Id. But, unlike the trial court, we conclude that the rights-of-way contracts at issue here are terminable at will. More than a century ago, this Court held that if a contract calls for continuous perfor- mance but does not set a definite duration for the contract, and “no time is fixed by law or usage,” the contract may be terminated at will by either party with notice. Electric R. Co. v. Tenn. C., I. & R. Co., 98 Ga. 189, 192 (1896). The contracts here do not specify a def- inite duration by time (with either a fixed period or a fixed end date), and the event they specify for when the contracts will no longer be in effect — the parties entering a new agreement — effectively leaves the duration of the contracts (both when and whether it could end) subject to one party’s complete discretion. The result is that these particular contracts are contracts of indefinite duration, ter- minable at will by either party.

For these reasons, which are set out in more detail below, the trial court’s determination that sovereign immunity is waived for this declaratory judgment action is affirmed, but the court’s judg- ment granting declaratory and injunctive relief is vacated, and the

case is remanded for further proceedings consistent with this deci- sion.

1. Background The telecommunications companies in this case provide broad- band internet services across Georgia. To do so, these providers need to build, maintain, and operate wires, cables, and equipment along public rights of way. Their permission to do those things is granted under right-of-way permits and related contracts that each provider has entered into with the Georgia Department of Transportation.

These contracts also establish annual permit fees, prescribe rules for how the providers’ work would be completed, and define the De- partment’s rights and responsibilities related to the providers’ work.

And each contract explains that it “shall govern over any other rules or policies that may conflict herewith and shall remain in full force and effect until [the Department] and [the provider] enter into a sub- sequent agreement regarding the [contract’s] subject matter.”

In 2021, the Department amended its own rule that regulates the installation, relocation, and management of utilities on public rights of way. See Ga. Comp. R. & Regs. r. 672-11-.04 (adopted Feb. 24, 1986; amended Sept. 13, 2021; amended Nov. 11, 2021). The new rule provided for higher annual permit fees, but it also gave the option for the Department to continue existing contracts with pro- viders or enter into new ones. Id. After the revised rule went into effect, the Department notified the providers a number of times that it wanted them to enter into new right-of-way contracts by September of 2023. The providers re- fused to agree to the terms of the new contracts. The Department then sent another notice informing them that “effective November 1, 2023, any communication utility provider that has not executed or made arrangements to execute a new … agreement” would be re- quired to “adhere to” the requirements of the new rules rather than the old contracts.

The day before the Department’s November 1 deadline, the providers sued the State in superior court. In that action, the pro- viders sought declaratory judgments that (1) the “duration clause” in their contracts is a “valid and enforceable contractual provision”; (2) their contracts are “perpetual[,] vesting [the providers] with a right that cannot be unilaterally terminated by [the Department]”; and (3) their contracts “are a perpetual easement.” As the litigation proceeded, the providers contended (among other things) that the contracts are enforceable and are not terminable at the will of either party, because the duration clause of their contracts specifies a suf- ficiently definite duration and that the Department’s actions have impaired the obligation of their contracts in violation of the United States and Georgia Constitutions. See US Const. art. I, § 10, cl. 1; Ga. Const. of 1983 Art. I, Sec. I, Par. X.

The State moved to dismiss the lawsuit, and the providers moved for summary judgment. The trial court denied the motion to dismiss and granted summary judgment. As to sovereign immunity, the trial court ruled that sovereign immunity was waived under Ar- ticle I, Section II, Paragraph V(b) of the Georgia Constitution be- cause the providers had sought declaratory relief and alleged that the Department’s steps to implement the new contracts violated the law. On the merits, the trial court concluded that the right-of-way contracts were enforceable and could not be terminated at will by the Department based on the contracts’ duration clauses.

The State appealed to the Court of Appeals, which transferred the appeal to this Court because of this Court’s jurisdiction over questions of constitutional construction. Ga. Const. of 1983 Art. VI, Sec. VI, Par. II(1).

2. Sovereign Immunity We review de novo the trial court’s determination that sover- eign immunity is waived for the providers’ action. 1 See McBrayer v. Scarbrough, 317 Ga. 387, 388 (2023).

Under Article I, Section II, Paragraph V of the Constitution of Georgia, sovereign immunity is waived for certain actions brought against the State and local governments. That provision declares that sovereign immunity is waived for “actions in the superior court

Applying that language here, we have little trouble concluding that the providers have brought an action to which Paragraph V’s waiver of sovereign immunity applies. The providers seek declara- tory relief in the form of declaratory judgments that the duration

clauses of their contracts are “valid and enforceable,” that their con- tracts cannot be terminated unilaterally by the Department, and that the Department has acted in violation of the laws or Constitu- tion of this state or the Constitution of the United States. Among other things, they contend that, by taking the position that the pro- viders must comply with the requirements of a new administrative rule, even if those requirements conflict with the provisions of their current contracts with the Department, and by indicating that the Department would no longer abide by the terms of those current contracts, see Coffee Butler Serv., Inc. v. Sacha, 258 Ga, 192, 193 (1988), the Department has impaired the obligation of their con- tracts in violation of the United States and Georgia Constitutions.2 In short, tracking the language of Paragraph V, the providers’ action

It does not require a declaration that acts of the state are outside the scope of lawful authority or in violation of state law or the Georgia or United States Constitution. In other words, although it must be apparent from the pleadings that a petitioner seeks relief from the kind of unlawful acts that Paragraph V describes, see Kuhlman, 317 Ga. at 235, this provision’s waiver is not contingent on a petitioner

seeking a specific determination that those alleged acts are unlaw- ful. 3

3. Merits The trial court determined that the contracts in this case were “enforceable and not terminable at will” by the Department, relying on their language stating that they “shall remain in force and effect until [the Department] and [the providers] enter into a subsequent agreement regarding the subject matter hereof.” We review de novo the trial court’s construction of the contracts. Unified Gov’t of Ath- ens-Clarke County v. Stiles Apts., 295 Ga. 829, 832 (2014).

Under longstanding Georgia law, if a contract calls for contin- uous performance but does not set a definite duration and “no time is fixed by law or usage,” the contract may be terminated at will by either party with notice. Electric R. Co. v. Tenn. C., I. & R. Co., 98

When an otherwise enforceable contract is for, say, rendering a discrete ser- vice, or delivering goods once, a “reasonable time for performance will be im- plied” in the absence of a term setting such a time. Read v. GHDC, Inc., 254 Ga. 706, 706 (1985) (citing Whitley v. Patrick, 226 Ga. 87 (1970); Brown v. McInvale, 118 Ga. App. 375, 375 (1968); Restatement (Second) of Contracts, § 204 (1979)). contracts with a definite duration from those with an indefinite du- ration in all cases. But based on our precedent and persuasive au- thority from the Court of Appeals, we can say that a term of definite duration may be expressed either by time (a set period for perfor- mance, or an express end date), or by some other specified event that supplies an end date. See, e.g., F & F Copiers, Inc. v. Kroger, Co., 194 Ga. App. 737, 738 (1990) (contract provided for a three-year term); Heritage of Lanier, Inc. v. Akins, 216 Ga. App. 280, 281–82 (1995) (employment contract of definite duration provided that em- ployee would be paid $25,000 per year and that the contract would expire either after eight years or after the employee had been paid the full $200,000 under various contingencies of the contract). On the other hand, precedent establishes that a contract’s duration may be indefinite if the contract offers no conceivable basis for identifying a potential end date. Such indefiniteness could arise because the contract offers no basis at all for determining the end date. See, e.g., Moran v. NAV Serv., 189 Ga. App. 825, 826 (1989). Or a contract may be indefinite because there is no assurance at all that the event that would trigger termination will ever happen — much less that it will happen at any particular time. See, e.g., Barker v. CTC Sales Corp., 199 Ga. App. 742, 743 (1991) (contract providing for em- ployee’s employment until the “insolvency” of the employer was for an indefinite term). That is commonly true of contracts that leave the happening of such a termination event subject to the complete discretion of one party. See, e.g., Ga. Power Co. v. Busbin, 242 Ga. 612, 613 (1978) (contract providing for employee’s employment “un- til his retirement date” was of an indefinite duration). Thus, for ex- ample, an exclusive dealership contract for “as long as [the dealer] stayed committed to [a certain mobile home brand]” was for an “in- definite duration” and therefore terminable at will. Jones, 226 Ga. App. at 8. An agreement to pay for the supply of certain food prod- ucts that ended when the provider decided to no longer provide those products was terminable at will. CAG Food Servs. v. Shaver Foods, LLC, 2019 WL 12762541 at *3 (NDGA 2019) (applying Georgia law).

And an agreement for “permanent” employment was terminable at will because such agreements “continue indefinitely,” Bentley v. 14 Smith, 3 Ga. App 242, 247 (1907). See also Ely, 132 Ga. App. at 571 (same); Atlanta Dairies Co-Op, 182 Ga. App. at 410 (same); Pickle Logging, Inc., 26 Ga. App. at 400 (same). 5 That brings us to the contracts here. Those contracts set an- nual fees for the providers’ rights-of-way permits, and with respect to duration, they say only that they “shall remain in full force and

The providers resist this conclusion, but the decisions they marshal in support are not helpful to them. Those decisions, includ- ing State of Georgia v. Federal Defender Program, Inc., 315 Ga. 319, 343–44 (2022), Mori Lee, LLC v. Just Scott Designs, Inc., 325 Ga. App. 625, 630 (2014), and Alexis, Inc. v. Werbell, 209 Ga. 665, 670– (1953), did not address claims that the contracts at issue were terminable at will for lack of a definite duration, but rather claims that the contracts were unenforceable because they were too vague.

That difference matters. A contract is not void or unenforceable for lack of a duration term (or any other term, for that matter) unless the “indefiniteness in subject matter” is “so extreme as not to pre- sent anything upon which the contract may operate in a definite manner.” Federal Defender Program, Inc., 315 Ga. at 344 (quotation marks omitted). Indeed, a contract that is silent as to its duration is not likely to be deemed unenforceable on that basis because the law generally supplies default rules for duration when the contract fails to specify one. See Read v. GHDC, Inc., 254 Ga. 706, 706 (1985) (when a real estate sales contract was missing a term for “time for performance,” a “reasonable time for performance” was “implied”); Electric R. Co., 98 Ga. at 192 (“The rule is stated as follows: ‘If a continuous contract fixes no time during which it is to last, and no time is fixed by law or usage, it may be terminated at the will of

either party by notice.’”). In other words, even if a contract is indef- inite in duration, it may still be enforceable as long as it “contains matter which will enable the courts, under proper rules of construc- tion, to ascertain the terms and conditions on which the parties in- tended to bind themselves.” Federal Defender Program, Inc., 315 Ga. at 344 (citation omitted). See also, e.g., Electric R. Co., 98 Ga. 189, 191–92 (explaining that although a contract to buy and sell a given quantity of coal daily for an unspecified period was of indefinite du- ration and thus terminable at will, it was still “legally established” because its terms other than duration were “fully agreed upon,” so the plaintiff could not abandon the agreement without notice to the defendant). So, decisions holding that a contract is not enforceable based on its duration term (or lack thereof) do not bear on how to assess the different question whether a contract, although enforcea- ble, is terminable at will because its duration is indefinite. 6

4. Relief For the reasons set out above, the trial court’s determination that sovereign immunity is waived for the providers’ action seeking declaratory relief is affirmed. And because the trial court erred in concluding that the rights-of-way contracts were not terminable at will, its judgment granting declaratory and injunctive relief is va- cated.7 Finally, because it is not clear from the parties’ briefing

of Appeals applying New York contract law is not binding authority with re- spect to a question of Georgia law in this Court. Indeed, this decision is not even binding on the Court of Appeals, given that it did not garner a majority of the judges on the panel. And as best we can tell, New York law may well be different from Georgia law with respect to the principles of contract law at is- sue here. Id. at 113–14. So GAPIII is not useful authority in this case, and we decline to consider it further.

Judgment affirmed in part and vacated in part, and case remanded. All the Justices concur.