Terell Douglas v. Georgia Department of Juvenile Justice

• Court: Court of Appeals of Georgia
• Decided: February 28, 2019
• Docket: A18A2127
• Status: Published

Opinion

FOURTH DIVISION DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

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

February 28, 2019

In the Court of Appeals of Georgia A18A2127. DOUGLAS et al. v. GEORGIA DEPARTMENT OF DO-078 JUVENILE JUSTICE.

DOYLE, Presiding Judge.

Terell Douglas and Rosie Greene, parents of T. R. D., appeal from the

dismissal of their personal injury suit against the Georgia Department of Juvenile

Justice (“the Department”) seeking damages arising from injuries sustained by T. R.

D. while he was detained at a youth detention facility operated by the Department.

The parents contend that the trial court erred by (1) concluding that the parents failed

to establish a waiver of sovereign immunity because their ante litem notice was

deficient under the Georgia Tort Claims Act1 (“GTCA”), (2) ruling on the

Department’s motion to dismiss without allowing discovery, and (3) concluding that

1 OCGA § 50-21-20 et seq. the Department was not barred from asserting its immunity based on laches.

Discerning no error, we affirm.

“We review de novo a trial court’s ruling on a motion to dismiss based on

sovereign immunity grounds, which is a matter of law. Factual findings are sustained

if there is evidence supporting them, and the burden of proof is on the party seeking

the waiver of immunity.”2

The record shows that the parents sued the Department, seeking damages for

alleged negligence based on an injury to T. R. D. while he was a minor in custody at

the Bill E. Ireland Youth Development Campus (“the Detention Facility”) in 2009.

The complaint alleged that on September 25, 2009, T. R. D. was injured when a

Department employee “negligently closed an automatic steel door in a manner that

caused [T. R. D.’s] finger to be traumatically amputated.” The complaint also stated

that as a result of the injury, T. R. D. required surgery, and the parents incurred

expenses and missed work facilitating his medical care. It is undisputed that the

Department paid T. R. D.’s immediate medical bills.

2 (Punctuation omitted.) Dorn v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 329 Ga. App. 384, 385 (765 SE2d 385) (2014).

2 Within one month of the injury, the parents provided an ante litem notice to the

Department, the Department of Administrative Services, and the Detention Facility.

That notice described the injury and identified the parents’ claims for negligence,

among other claims. With respect to the amount of loss claimed, the notice did not

specify any amount, instead stating as follows:

As a result of [the] traumatic amputation, [T. R. D.] required surgery. [T. R. D.] is still receiving treatment for his injury, and he is still experiencing pain today. . . Rosie Greene has on numerous occasions had to transport [her son] . . . for medical treatment [causing her to miss work]. Because of these trips . . . Rosie Green would have additional claims for monetary loss and mileage. Please advise if this ante litem notice is not sufficient to apprise you of the claims which Rosie Green has individually and as mother of [T. R. D.] against the entities that you represent for which she is seeking relief and damages.

In December 2009, the Department completed its investigation of the

allegations and disputed liability, contending that “[t]his injury was caused when [T.

R. D.] put his hand at the top of the door to prevent it from closing.” Accordingly, the

Department made an offer to settle the dispute for $1,000. The parents did not accept

the offer and instead demanded $20,000; after the parties were unable to agree on a

settlement amount, the parents filed the instant suit in January 2015.

3 In February 2015, the Department answered the complaint, denying liability,

and moved to dismiss the suit, arguing that the parents’ ante litem notice failed to

include the amount of loss claimed as required by the GTCA. The next month, the

parents filed a motion to defer a ruling on the Department’s motion to dismiss until

the parents could conduct discovery. Following a hearing at which all parties

appeared, the trial court denied the parents’ motion to defer a ruling and granted the

Department’s motion to dismiss based on the parents’ deficient ante litem notice. The

parents now appeal.

1. The parents contend that the trial court erred by dismissing their claim

because, they argue, their ante litem notice satisfied the requirements of the GTCA.

We disagree.

The GTCA provides for a limited waiver of the State’s sovereign immunity.3 In order to effectuate this waiver, certain prerequisites must be met. The GTCA requires a party with a potential tort claim against the State to provide the State with notice of the claim prior to filing suit thereon. [Among other things, t]he notice must identify, to the extent of

3 See OCGA §§ 50-21-21 (a) (“[T]he state shall only be liable in tort actions within the limitations of this article and in accordance with the fair and uniform principles established in this article.”); 50-21-23 (b) (“The state waives its sovereign immunity only to the extent and in the manner provided in this article. . . .”).

4 the claimant’s knowledge and belief and as may be practicable under the circumstances, . . . the nature and amount of the loss suffered. . . .

[The] ante litem requirements ensure that the State receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit. . . If the ante litem notice requirements are not met, then the State does not waive sovereign immunity, and therefore, the trial court lacks subject matter jurisdiction.4

Last, while courts should not apply a “hyper-technical construction” to the GTCA,

“strict compliance with [the] ante litem notice requirements is necessary, and

substantial compliance is insufficient.”5

Here, it is undisputed that the parents’ ante litem notice did not state the

amount of loss suffered, merely describing the injury to [T. R. D.] and stating that his

mother “would have additional claims for monetary loss and mileage.” As argued by

the Department and stated by the trial court in its order, this is not sufficient. For

example, in Board of Regents of the University System of Georgia v. Myers,6 the

4 (Citations and punctuation omitted; emphasis supplied.) Bd. of Regents of the Univ. Sys. of Ga. v. Myers, 295 Ga. 843, 844-845 (764 SE2d 543) (2014). 5 (Punctuation omitted.) Id. at 845-846. 6 Id.

5 Supreme Court of Georgia ruled that a notice that “did not state any amount of loss

whatsoever,” even in the face of ongoing medical treatment, “failed entirely to

comply” with the GTCA’s ante litem notice requirement.7 In so ruling, the Supreme

Court explained that the GTCA

does not require that a claimant give notice of the “entire loss,” the “complete loss,” or the “total loss.” Instead, the plain language requires notice of the amount of the loss claimed at that time, within the belief and knowledge of the claimant, as may be practicable under the circumstances. . . . [T]he claimant is not relieved from giving some notice to the State even if her knowledge is incomplete or she must rely on her belief [at the time].8

Similarly, in Farmer v. Department of Corrections,9 this Court addressed the

sufficiency of an ante litem notice that stated the amount of loss as follows: “The

damages amount has not yet been determined; however [the plaintiff] will be seeking

full payment of any and all damages to her person, physically, and mentally;” as well

as damages for any future disability.10 In that case, this Court likewise concluded that

7 (Punctuation omitted.) Id. at 846. 8 (Punctuation omitted.) Id. at 846-847, citing OCGA § 50-21-26 (a) (5) (E). 9 346 Ga. App. 387 (816 SE2d 376) (2018). 10 (Punctuation omitted.) Id. at 390 (1).

6 the plaintiff failed to adequately state the amount of loss, so the Court affirmed the

dismissal of her claim, following the Myers precedent.

Given the similar deficiency in the ante litem notice here, which lacks any

stated amount of loss, the trial court correctly concluded that the parents failed to

comply with the GTCA and could not invoke the waiver of sovereign immunity.11

Accordingly, this enumeration fails.

2. The parents next argue that the trial court erred by not delaying its ruling so

that they could engage in discovery to establish the fact that the Department “had all

the necessary information to adjust and facilitate settlement in this case.” As noted

by the trial court, however, this ignores the fact that the ante litem notice requirement

is a threshold question which, in this case, is not intertwined with the facts of the case

such that it cannot be resolved without discovery.12 The parents’ compliance with the

11 See id. See also Ga. Dept. of Transp. v. King, 341 Ga. App. 102, 105-106 (798 SE2d 492) (2017); Silva v. Ga. Dept. of Transp., 337 Ga. App. 116, 117 (2) (787 SE2d 247) (2016) (addressing retroactive application of Myers). 12 See, e.g., Columbus Consolidated Govt. v. Woody, 342 Ga. App. 233, 234 (802 SE2d 717) (2017) (“Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue.”) (punctuation omitted). Compare Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671- 672 (1) (a) (570 SE2d 1) (2002) (“Jurisdiction of a court to afford the relief sought is a matter which should be decided preliminarily, at the outset. Jurisdiction either

7 ante litem notice did not depend on any conduct by the Department; rather it

depended on the conduct of the parents within the statutory time prior to filing suit.

Thus, there was no need for the trial court to allow discovery before ruling on the

Department’s motion to dismiss based on immunity. Likewise, as this Court has held

previously, the Department’s knowledge of the injury and ensuing investigation did

not obviate the parents’ clear statutory burden to establish a waiver of immunity by

complying with the GTCA’s ante litem notice requirement.13

The parents make a related argument that their subsequent $20,000 settlement

demand, made within one year of the injury,14 sufficed to put the Department on

notice of the amount of loss they claimed. Pretermitting whether the parents’ demand

letter amounted to a statement of the amount of loss for purposes of the ante litem

exists or does not exist without regard to the merits of the case. . . Where the determination of subject matter jurisdiction and waiver of sovereign immunity are so factually intertwined with determination of the merits of the case, it is not error for the trial court to defer final determination of such issues until trial, and such deferral would constitute the better practice to avoid the merits of the case.”). 13 See Williams v. Ga. Dept. of Transp., 275 Ga. App. 88, 91 (1) (619 SE2d 763) (2005) (stating that the argument “that the requisite state agencies had actual notice carries no weight, as this fact has previously been held to be irrelevant”). 14 See OCGA § 50-21-26 (a) (1) (“Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered. . . .”) (punctuation omitted).

8 notice, the letter was insufficient because it was not sent to the allegedly negligent

agency — the Department — as required by OCGA § 50-21-26 (a) (2).15 Accordingly,

this enumeration fails.

3. Last, the parents argue that the trial court erred by concluding that the

Department was not barred by the doctrine of laches from asserting immunity. They

point to the fact that their ante litem notice requested the Department to “[p]lease

advise if this ante litem notice is not sufficient to apprise you of the claims . . . against

the entities that you represent. . . .” The parents argue that the Department’s failure

to advise them that their notice was deficient should have operated as a bar to the

Department’s assertion of immunity in the law suit. But the parents cite no law to

support this conclusion, and essentially the same argument has been rejected by this

Court because absent some statutory waiver, “[t]he state may not waive or be

estopped from invoking statutory notice requirements.”16

15 See DeFloria v. Walker, 317 Ga. App. 578, 583 (732 SE2d 121) (2012) (failure to deliver proper notice to the governmental entity alleged to be at fault demonstrated lack of strict compliance with the ante litem notice requirement). 16 Silva, 337 Ga. App. at 119 (4).

9 For these reasons, based on the defective ante litem notice, the trial court

correctly dismissed the parents’ claim based on their failure to demonstrate a waiver

of sovereign immunity under the GTCA.

Judgment affirmed. Dillard, C. J., and Mercier, J., concur.