FIRST DIVISION BARNES, P. J., MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
June 24, 2019
In the Court of Appeals of Georgia A19A0776. RAY v. FULTON COUNTY et al.
BROWN, Judge.
Alexander Ray appeals from the trial court’s order dismissing his personal
injury action asserting claims against the following persons in their individual
capacities: Theodore Jackson, Sheriff of Fulton County, Jimmy Carter, Chief Deputy
of the Fulton County Sheriff’s Office, Jimmy Butts, Colonel Chief of Staff of the
Fulton County Sheriff’s Office, and Mildred Jackson,1 a Fulton County Sheriff’s
1 The record before us contains no evidence that Mildred Jackson was served with the complaint, and only defendants Fulton County, Theodore Jackson, Jimmy Carter, and Jimmy Butts filed an answer and moved to dismiss the complaint. The trial court’s order, however, stated that it “GRANTS Defendants[‘] Motion to Dismiss as to all Defendants.” (Emphasis supplied.) Office employee.2 On appeal, he asserts that the trial court erred in (1) failing to find
that the deadline for serving an ante-litem notice was not tolled by a pending criminal
prosecution; (2) concluding that official immunity bars recovery as a matter of law;
and (3) finding that his injuries were not foreseeable as a matter of law. For the
reasons explained below, we agree and reverse.
1. With regard to Ray’s enumeration of error regarding the tolling of the ante-
litem notice provision, we find that it is moot. The trial court dismissed only the
claims against Fulton County and Jackson, in his official capacity as Sheriff of Fulton
County, based upon the expiration of the time period within which to file an ante-
litem notice. But as we already have pointed out, this was not the sole basis for the
trial court’s dismissal of Fulton County and the claim against Jackson in his official
capacity. It also did so based upon Ray’s concession that they were entitled to
sovereign immunity. Because Ray does not assert any error with regard to this portion
of the trial court’s order, the asserted error3 with regard to the ante-litem issue is
2 While Ray also asserted a claim against Jackson in his official capacity as Sheriff of Fulton County, as well as Fulton County, he agreed to the trial court’s dismissal of this portion of his complaint based upon sovereign immunity. 3 Ray sought permission from this Court to file a motion to supplement this enumeration of error to also assert that the ante-litem provision does not apply to defendants sued in their individual capacities. As the trial court’s order clearly
2 moot. See Med. Center of Central Ga.v. City of Macon, 326 Ga. App. 603, 607 (1)
(757 SE2d 207) (2014) (“Grounds that are not attacked as erroneous will not be
considered on appeal and are presumed to be binding and correct.”) (Citations and
punctuation omitted).
2. In related enumerations of error, Ray contends that the trial court should
have allowed discovery to proceed before ruling that the individual defendants were
entitled to official immunity as a matter of law because their alleged acts were
discretionary. We agree.
A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.
(Citation and punctuation omitted.) Austin v. Clark, 294 Ga. 773, 775 (755 SE2d 796)
(2014). “We review de novo a trial court’s ruling on a motion to dismiss. [Cit.]” U-
Haul Co. of Arizona v. Rutland, 348 Ga. App. 738, 740 (824 SE2d 644) (2019).
contains no such ruling, we deny this motion.
3 Official immunity “provides that while a public officer or employee may be
personally liable for his negligent ministerial acts, he may not be held liable for his
discretionary acts unless such acts are wilful, wanton, or outside the scope of his
authority.” (Citations and punctuation omitted.) Austin, 294 Ga. at 774.
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
(Citation and punctuation omitted.) Id. The determination of the “pivotal distinction
between a discretionary and a ministerial duty is highly fact-specific,” and a
plaintiff’s failure to point to “specific and clear procedures” required to be performed
is not fatal at the motion to dismiss stage of a case. Austin, 294 Ga. at 774, 775. This
is because “factual evidence which may or may not be developed during discovery
. . . can be considered on a subsequent motion for summary judgment.” Id. at 775.
In this case, the complaint alleges that Ray was injured when a former sheriff’s
deputy, Michael Carroll, who had indisputably retired in lieu of dismissal two years
before, shot him while working as an armed security guard in an apartment complex,
4 resulting in Ray’s paralysis from the waist down. Ray’s claim against the individual
defendants is based upon a theory that they were involved in providing him with a
letter stating that he merely retired, rather than retired in lieu of dismissal. He asserts
that the letter created the false impression that Carroll honorably retired from the
Fulton County Sheriff’s Office and that it was foreseeable to the defendants that he
would use the letter “to secure future employment as a peace officer — and even as
an armed peace officer.” (Emphasis supplied.) Ray’s complaint alleges that if the
Fulton County Sheriff’s Office had not “covered up” his true employment history, he
would not have been hired by the apartment complex and shot Ray “without
reasonable provocation.” As a result of the shooting, Carroll faced criminal charges
for aggravated assault and possession of a firearm in the commission of a felony. At
the time of the trial court’s ruling on the motion to dismiss, these charges were
apparently still pending.
Attached to the complaint are documents showing that on March 30, 2011,
defendant Carter recommended that Carroll be dismissed; that on April 7, 2011,
Carroll sent an interoffice memorandum to defendant Mildred Jackson, stating, “I am
retiring from my position at the Fulton County Sheriff’s [D]ept. My last day on duty
will be April 12, 2011. Your assistance in updating my personnel file to reflect my
5 retirement date is appreciated”; that the bottom of the memorandum contains the
initials of defendants Carter and Butts and what appears to be the initials of defendant
Theodore Jackson beside the handwritten word “Approved”; that on April 8, 2011,
Theodore Jackson delivered a letter to Carroll stating, “I have received your
retirement letter dated April 7, 2011, and I have decided to accept your retirement in
lieu of dismissal. Your retirement was approved and will be effective on Tuesday,
April 12, 2011.” (emphasis in original); that on April 12, 2011, Theodore Jackson
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FIRST DIVISION BARNES, P. J., MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
June 24, 2019
In the Court of Appeals of Georgia A19A0776. RAY v. FULTON COUNTY et al.
BROWN, Judge.
Alexander Ray appeals from the trial court’s order dismissing his personal
injury action asserting claims against the following persons in their individual
capacities: Theodore Jackson, Sheriff of Fulton County, Jimmy Carter, Chief Deputy
of the Fulton County Sheriff’s Office, Jimmy Butts, Colonel Chief of Staff of the
Fulton County Sheriff’s Office, and Mildred Jackson,1 a Fulton County Sheriff’s
1 The record before us contains no evidence that Mildred Jackson was served with the complaint, and only defendants Fulton County, Theodore Jackson, Jimmy Carter, and Jimmy Butts filed an answer and moved to dismiss the complaint. The trial court’s order, however, stated that it “GRANTS Defendants[‘] Motion to Dismiss as to all Defendants.” (Emphasis supplied.) Office employee.2 On appeal, he asserts that the trial court erred in (1) failing to find
that the deadline for serving an ante-litem notice was not tolled by a pending criminal
prosecution; (2) concluding that official immunity bars recovery as a matter of law;
and (3) finding that his injuries were not foreseeable as a matter of law. For the
reasons explained below, we agree and reverse.
1. With regard to Ray’s enumeration of error regarding the tolling of the ante-
litem notice provision, we find that it is moot. The trial court dismissed only the
claims against Fulton County and Jackson, in his official capacity as Sheriff of Fulton
County, based upon the expiration of the time period within which to file an ante-
litem notice. But as we already have pointed out, this was not the sole basis for the
trial court’s dismissal of Fulton County and the claim against Jackson in his official
capacity. It also did so based upon Ray’s concession that they were entitled to
sovereign immunity. Because Ray does not assert any error with regard to this portion
of the trial court’s order, the asserted error3 with regard to the ante-litem issue is
2 While Ray also asserted a claim against Jackson in his official capacity as Sheriff of Fulton County, as well as Fulton County, he agreed to the trial court’s dismissal of this portion of his complaint based upon sovereign immunity. 3 Ray sought permission from this Court to file a motion to supplement this enumeration of error to also assert that the ante-litem provision does not apply to defendants sued in their individual capacities. As the trial court’s order clearly
2 moot. See Med. Center of Central Ga.v. City of Macon, 326 Ga. App. 603, 607 (1)
(757 SE2d 207) (2014) (“Grounds that are not attacked as erroneous will not be
considered on appeal and are presumed to be binding and correct.”) (Citations and
punctuation omitted).
2. In related enumerations of error, Ray contends that the trial court should
have allowed discovery to proceed before ruling that the individual defendants were
entitled to official immunity as a matter of law because their alleged acts were
discretionary. We agree.
A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.
(Citation and punctuation omitted.) Austin v. Clark, 294 Ga. 773, 775 (755 SE2d 796)
(2014). “We review de novo a trial court’s ruling on a motion to dismiss. [Cit.]” U-
Haul Co. of Arizona v. Rutland, 348 Ga. App. 738, 740 (824 SE2d 644) (2019).
contains no such ruling, we deny this motion.
3 Official immunity “provides that while a public officer or employee may be
personally liable for his negligent ministerial acts, he may not be held liable for his
discretionary acts unless such acts are wilful, wanton, or outside the scope of his
authority.” (Citations and punctuation omitted.) Austin, 294 Ga. at 774.
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
(Citation and punctuation omitted.) Id. The determination of the “pivotal distinction
between a discretionary and a ministerial duty is highly fact-specific,” and a
plaintiff’s failure to point to “specific and clear procedures” required to be performed
is not fatal at the motion to dismiss stage of a case. Austin, 294 Ga. at 774, 775. This
is because “factual evidence which may or may not be developed during discovery
. . . can be considered on a subsequent motion for summary judgment.” Id. at 775.
In this case, the complaint alleges that Ray was injured when a former sheriff’s
deputy, Michael Carroll, who had indisputably retired in lieu of dismissal two years
before, shot him while working as an armed security guard in an apartment complex,
4 resulting in Ray’s paralysis from the waist down. Ray’s claim against the individual
defendants is based upon a theory that they were involved in providing him with a
letter stating that he merely retired, rather than retired in lieu of dismissal. He asserts
that the letter created the false impression that Carroll honorably retired from the
Fulton County Sheriff’s Office and that it was foreseeable to the defendants that he
would use the letter “to secure future employment as a peace officer — and even as
an armed peace officer.” (Emphasis supplied.) Ray’s complaint alleges that if the
Fulton County Sheriff’s Office had not “covered up” his true employment history, he
would not have been hired by the apartment complex and shot Ray “without
reasonable provocation.” As a result of the shooting, Carroll faced criminal charges
for aggravated assault and possession of a firearm in the commission of a felony. At
the time of the trial court’s ruling on the motion to dismiss, these charges were
apparently still pending.
Attached to the complaint are documents showing that on March 30, 2011,
defendant Carter recommended that Carroll be dismissed; that on April 7, 2011,
Carroll sent an interoffice memorandum to defendant Mildred Jackson, stating, “I am
retiring from my position at the Fulton County Sheriff’s [D]ept. My last day on duty
will be April 12, 2011. Your assistance in updating my personnel file to reflect my
5 retirement date is appreciated”; that the bottom of the memorandum contains the
initials of defendants Carter and Butts and what appears to be the initials of defendant
Theodore Jackson beside the handwritten word “Approved”; that on April 8, 2011,
Theodore Jackson delivered a letter to Carroll stating, “I have received your
retirement letter dated April 7, 2011, and I have decided to accept your retirement in
lieu of dismissal. Your retirement was approved and will be effective on Tuesday,
April 12, 2011.” (emphasis in original); that on April 12, 2011, Theodore Jackson
completed a “Georgia Peace Officer Standards and Training Council4 Change of
Status Form” stating that Carroll had “separated” and the type of separation was
“resignation in lieu of dismissal” with the additional statement that “retirement
accepted in lieu of dismissal” under a box titled “Reason for Disciplinary Action”;
and that on the same day, April 12, 2011, defendant Mildred Jackson signed a letter
on Fulton County Sheriff’s Office letterhead addressed “To Whom It May Concern,”
stating, “This is to certify that effective April 12, 2011[,] Deputy Sheriff Michael
Carroll retired from the Fulton County Sheriff’s Office.”
4 This entity is often referred to as the POST Council.
6 Two years later, Carroll applied for a job with the apartment complex where
he later shot Ray. He listed 25 years of experience with the Fulton County Sheriff’s
office and stated that his reason for leaving was “best time an (sic) opportunity to
leave.” The complaint alleges that the two-year-old letter from the Fulton County
Sheriff’s Office stating only that he had retired was part of his application for the job
with the apartment complex.
Based upon the facts alleged in Ray’s complaint, we cannot say “that the
allegations of the complaint disclose with certainty that [Ray] would not be entitled
to relief under any state of provable facts asserted in support.” (Emphasis in original.)
Austin, 294 Ga. at 775. Discovery could conceivably reveal clear and specific
procedures that were violated by the defendants in their individual capacities when
the April 12, 2011 “To Whom It May Concern” letter was created and presumably
provided to Carroll for his use in obtaining future employment. Accordingly, their
acts could potentially be construed as ministerial, and the trial court erred by granting
the motion to dismiss based upon official immunity.
3. In his remaining enumeration of error, Ray contends that the trial court erred
by granting the motion to dismiss based upon its conclusion that his injuries could not
have been foreseen by the defendants as a matter of law. We agree.
7 [W]ith reference to foreseeability of injury, the correct rule is that in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.
(Citations omitted.) Love v. Morehouse College, 287 Ga. App. 743, 745 (652 SE2d
624) (2007). Ray’s complaint alleges numerous disciplinary incidents that could
conceivably put the individual defendants on notice that Carroll would use the April
12, 2011 letter to find work as a security guard and harm someone. In Govea v. City
of Norcross, 271 Ga. App. 36 (608 SE2d 677) (2004), this Court reversed the grant
of summary judgment to a city that reported to the POST Council that a police officer
“‘voluntarily resigned’” as opposed to “‘resigned in lieu of termination.’” Id. at 39,
44 (3). Based upon our determination that the city “could have foreseen that [the
officer] would obtain future employment as a police officer” and cause harm to
another through negligent performance of his duties in future employment as a police
officer, we concluded that a jury question existed with regard to proximate cause. Id.
at 44-46 (3).
8 Here, without additional discovery regarding Carroll’s numerous disciplinary
incidents and the defendants’ knowledge, we cannot say “that the allegations of the
complaint disclose with certainty that [Ray] would not be entitled to relief under any
state of provable facts asserted in support.” (Emphasis in original.) Austin, 294 Ga.
at 775. See also Love, 287 Ga. App. at 746 (reversing trial court’s dismissal of claim
against college where student injured by another student in a dorm). We therefore
reverse this portion of the trial court’s motion to dismiss order as well.
Judgment reversed. Barnes, P. J., and Mercier, J., concur.