Department of Transportation v. Jones.

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, 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

May 15, 2018

In the Court of Appeals of Georgia
A18A0096. DEPARTMENT OF TRANSPORTATION v. JONES.

RAY, Judge.

After Barrett Jones was injured in a single-car accident on State Route 42 in

Monroe County on December 24, 2014, he sued the Georgia Department of

Transportation (“GDOT”). He claimed, inter alia, that GDOT’s improper maintenance

of the roadway led to an accumulation of water which caused his truck to hydroplane

into a tree, severely injuring him. GDOT moved to dismiss the suit for lack of subject

matter jurisdiction and on sovereign immunity grounds, arguing that Barrett had

failed to comply with the ante litem notice requirements of the Georgia Tort Claims

Act (“GTCA”). The trial court denied the motion, and we granted GDOT’s

application for interlocutory appeal. Finding error, we reverse.
 “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.” (Punctuation and footnote omitted.) Driscoll v. Bd. of

Regents of the Univ. Sys. of Ga., 326 Ga. App. 315, 316 (757 SE2d 138) (2014).

Accord Cowart v. Ga. Dept. of Human Svcs., 340 Ga. App. 183, 183 (796 SE2d 903)

(2017).

“The Legislature enacted the Georgia Tort Claims Act, OCGA § 50-21-20 et

seq., in order to balance strict application of the doctrine of sovereign immunity

against the need for limited exposure of the State treasury to tort liability.” (Citation

omitted.) Shelnutt v. Ga. Dept. of Transp., 272 Ga. App. 109, 109 (611 SE2d 762)

(2005). The GTCA provides a limited waiver of sovereign immunity in certain cases

where a claimant complies with the GTCA’s requirements. OCGA § 50-21-21 (a).

These requirements include strict compliance with the ante litem notice provisions

of OCGA § 50-21-26, which provide, in pertinent part, that

(a) No person, firm, or corporation having a tort claim against the state
under this article shall bring any action against the [S]tate upon such
claim without first giving notice of the claim as follows: (1) Notice of
a claim shall be given in writing within 12 months of the date the loss

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 was discovered or should have been discovered[.] . . . ; (2) Notice of a
claim shall be given in writing and shall be mailed by certified mail or
statutory overnight delivery, return receipt requested, or delivered
personally to and a receipt obtained from the Risk Management
Division of the Department of Administrative Services. In addition, a
copy shall be delivered personally to or mailed by first-class mail to the
[S]tate government entity, the act or omissions of which are asserted as
the basis of the claim. Each [S]tate government entity may designate an
office or officer within that [S]tate government entity to whom a notice
of claim is to be delivered or mailed; (3) No action against the [S]tate
under this article shall be commenced and the courts shall have no
jurisdiction thereof unless and until a written notice of claim has been
timely presented to the [S]tate as provided in this subsection; (4) Any
complaint filed pursuant to this article must have a copy of the notice of
claim presented to the Department of Administrative Services together
with the certified mail or statutory overnight delivery receipt or receipt
for other delivery attached as exhibits. If failure to attach such exhibits
to the complaint is not cured within 30 days after the [S]tate raises such
issue by motion, then the complaint shall be dismissed without
prejudice[.]

(Emphasis supplied.) “Strict compliance with the provisions of OCGA § 50-21-26 is

required.” (Citation omitted.) Shelnutt, supra at 110.

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 On appeal, GDOT argues that the trial court erred in denying its motion to

dismiss because Jones did not establish that he delivered the ante litem notice in strict

compliance with the statute, thereby mandating dismissal of the suit. We agree.

When Jones filed his complaint on October 24, 2016, he attached as an exhibit

a September 1, 2015, letter from his counsel to addressed the Risk Management

Division of the Department of Administrative Services, which he argues provided ante

litem notice (hereinafter the “ante litem letter”). Typed across the top of the ante litem

letter are the words “Certified Mail – Return Receipt Requested.” Jones also attached

a certified mail receipt, showing payment for sending the ante litem letter to the Risk

Management Division. He additionally attached a copy of the certified mail return

receipt “green card” that shows a document was delivered to a recipient. However,

this green card was addressed to the Commissioner of GDOT, rather than to the Risk

Management Division of DOAS. Jones did not present any certified mail return

receipt showing that the ante litem letter actually was delivered to and received by the

Risk Management Division of DOAS.1

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Jones contends that he could not do so because he “did not receive a Certified
Mail ‘green card’ reflecting delivery to DOAS.” See OCGA § 50-21-26 (a) (2), (4)
(notice of claim shall be given in writing and sent by, inter alia, certified mail, return
receipt requested, with receipt evidencing delivery to the Risk Management Division
of DOAS attached to complaint).

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 GDOT moved to dismiss, arguing that Jones had failed strictly to comply with

the provisions of OCGA § 50-21-26. Jones promptly filed an amended complaint,

attaching as an exhibit a letter from the Risk Management Division of DOAS dated

September 17, 2015, acknowledging receipt of “your correspondence advising us that

you represent [Jones,]” and requesting additional information about Jones. Jones,

citing the statute, argues that this letter “unequivocally confirmed receipt” of his ante

litem notice, and that this letter meets the requirements of OCGA § 50-21-26 (a) (4),

in that the statute provides that the notice of claim presented to the Risk Management

Division of DOAS must be attached to the complaint “together with the certified mail

or statutory overnight delivery receipt or receipt for other delivery[,]” and that the

DOAS letter constitutes “receipt for other delivery.” (Emphasis supplied.)

Jones also later submitted a USPS tracking document, which shows that

something was sent by certified mail to DOAS and was “in transit.” However, this

tracking document does not indicate what was sent and the USPS tracking number

does not appear on the ante litem notice letter. Nor does the tracking notice indicate

that a return receipt was requested. At the hearing on the motion to dismiss, counsel

for DOAS told the trial court that, “I don’t have it in the record today; but I can tell

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the [c]ourt, just from inquiry to DOAS, that the only notice they got was the notice

that was sent to GDOT; and then GDOT forwarded it to DOAS.”

Jones essentially argues that this is an admission in judicio showing that the

letter was “personally delivered” in compliance with OCGA § 50-21-26 (a) (2)’s

provision allowing for personal delivery. Unfortunately for Jones, this argument

cannot succeed. Even were we to consider counsel’s statement an admission in

judicio, the statement would only establish delivery to DOAS, not to the Risk

Management Division. Further, counsel’s statement does not indicate how the letter

was delivered. OCGA § 50-21-26 (a) (2) mandates delivery to, and a receipt from,

“the Risk Management Division of the Department of Administrative Services.”

(Emphasis supplied.) Even were we to consider the Risk Management Division’s

September 17th, letter a “receipt” under the statute, Jones still has failed to meet his

burden of showing compliance with the statute.

Welch v. Ga. Dept. of Transp., 276 Ga. App. 664, 665 (624 SE2d 177) (2005)

is directly on point. In Welch, this Court upheld the dismissal of plaintiff’s complaint

where the ante litem notice was delivered to the DOAS commissioner, rather than to

DOAS’s Risk Management Division. We found that subject matter jurisdiction was

lacking, even though the ante litem notice eventually was “‘delivered personally’ by

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an unknown DOAS employee from the Commissioner’s office to the Risk

Management Division, which subsequently sent the [plaintiffs] a receipt[.] . . . [This

fact] did not obviate the requirement strictly to comply with the ante litem notice

provisions of the Act.” (Footnote omitted.) Id. Accord Shelnutt, supra at 110 (subject

matter jurisdiction lacking where ante litem notice delivered to commissioner of

DOAS rather than to Risk Management Division, even though notice eventually was

received by Risk Management Division).

Jones argues, citing to Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822

(653 SE2d 729) (2007), for the proposition that “the rule of strict compliance does not

demand a hyper-technical construction that would not measurably advance the

purpose of GTCA’s notice provisions. . . . In other words, we have declined to reach

a needlessly harsh result when the result was not mandated by the GTCA.” (Citations

and punctuation omitted.) Id. at 824-825. However, Cummings is distinguishable in

that it turned on a portion of the statute, OCGA § 50-21-26 (a) (5), which is

inapplicable to the instant appeal, and which specifically contemplates that a plaintiff

may have imperfect knowledge of which entity to serve, and where the plaintiff

“complied with the statute in all other respects.” Cummings, supra at 825-826. The

instant case involves portions of the statute which brook no such allowances, and as

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outlined above, Jones’ compliance with those portions of the statute was defective in

several ways. As Welch and Shelnutt make clear, the GTCA mandates that strict

compliance in the instant case. Because Jones “did not strictly comply with the

statutory provisions for sending ante litem notice, the trial court had no subject matter

jurisdiction over the suit. OCGA § 50-21-26 (a) (3).” (Citation omitted.) Shelnutt,

supra at 110. Therefore, GDOT’s motion to dismiss should have been granted, and

we reverse.

Judgment reversed. Rickman, J., concurs. McFadden, P. J., dissents.

* THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF

APPEALS RULE 33.2.

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 A18A0096. DEPARTMENT OF TRANSPORTATION v. JONES.

MCFADDEN, Presiding Judge, dissenting.

Because the appellee provided the anti-litem notice required by statute, I

respectfully dissent. The question before us is whether a plaintiff, who sent the

required anti-litem notice by certified mail, return-receipt requested, has any recourse

when the post office delivers the notice to the addressee, but fails to deliver the

completed green return-receipt card to the plaintiff.

The answer to that question turns on the line between strict compliance with

and hyper-technical construction of the notice provisions in the Georgia Tort Claims

Act (“GTCA”). As our Supreme Court has explained, “the rule of strict compliance

does not demand a hyper-technical construction that would not measurably advance
the purpose of the GTCA’s notice provisions.” Cummings v. Ga. Dept. of Juvenile

Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007) (citations omitted).

Under the GTCA, OCGA § 50-21-26 requires anti-litem notice to “the Risk

Management Division of the Department of Administrative Services” by, among

other alternatives, “certified mail . . . return receipt requested,” and requires that the

complaint “must have a copy of . . . the certified mail . . . receipt attached as an

exhibit.” In this case, the appellee undertook to comply with this provision by sending

the notice by certified mail, return receipt requested. But, according to the appellee,

the post office did not send back the green return-receipt card reflecting delivery to

the Risk Management Division.

So appellee attached other documents to the complaint and amended complaint

as evidence that the ante litem notice was properly sent to and received by the Risk

Management Division. As recounted by the majority, these documents included

copies of: the ante litem notice from appellee’s counsel and addressed to the Risk

Management Division, Department of Administrative Services, bearing the phrase

“Certified Mail-Return Receipt Requested;” a certified mail receipt, showing that

appellee paid the post office for certified-mail delivery of that notice to the Risk

Management Division; a green-card return receipt reflecting delivery of an additional

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copy of the notice to the Commissioner of the Georgia Department of Transportation,

as required by OCGA § 50-21-26 (a) (2); and a letter from the Risk Management

Division acknowledging receipt of the ante litem notice.

We must require strict compliance with the anti-litem notice statute, but must

not adopt a hyper-technical construction of it. Cummings, supra. We must enforce

strict compliance in part because only the legislature has the constitutional authority

to waive sovereign immunity. Id.

So that means that we are to enforce the requirements that are in the statute, but

not add to those requirements. The question before us is one the legislature may not

have contemplated and in any case did not choose to expressly address.

To the extent that our charge is to “look diligently for the intention of the

General Assembly, keeping in view at all times the old law, the evil, and the remedy,”

OCGA § 1-3-1 (a), I suppose the General Assembly had the green return-receipt card

in mind. But I doubt that the intent was to exclude substitute receipts where, as here,

the plaintiff has fully complied with the statutory direction, but the postal service

failed of its duty to send back the completed return-receipt card.

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 The phrase “return receipt requested” is arguably a term of art, referring to the

green card. But that phrase is in the portion of the statute directing a plaintiff how to

transmit a notice. OCGA § 50-21-26 (a) (2). The appelle complied with that.

The portion of the statute we are construing today deals with the documentation

to be exhibited with the complaint: “the certified mail or statutory overnight delivery

receipt or receipt for other delivery[.]” O.C.G.A. § 50-21-26 (a) (4). This broader

language is harder to characterize as a term of art. It is true that “the” is the definite

article, but that is not a compelling indication of the intended meeting. And “receipt”

has been defined, by merriam-webster.com/dictionary/receipt, as “a writing

acknowledging the receiving of goods or money.”

The majority holds that we are constrained to reverse by Welch v. Georgia

Dept. of Transp., 276 Ga. App. 664, 664 (624 SE2d 177) (2005). But that case is not

directly on point. It is true that, as here, the plaintiffs in that case pointed to

correspondence “from the Risk Management Division of the DOAS, acknowledging

receipt of the [plaintiffs’] ante litem notice letter.” Id. But that fact was not

dispositive. The plaintiffs’ fatal error in Welch was that they “did not send their ante-

litem notice to the Risk Management Division of DOAS, as the Act requires; instead,

they sent it to the Commissioner of DOAS.” Id. at 665. Here the appellee did send the

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notice to the Risk Management Division, which acknowledged receipt of the notice

in writing.

So I would affirm. The statute does not squarely address the situation where a

green return-receipt card is unavailable, despite the plaintiff’s compliance with the

statute as to transmittal of the demand and despite the post office’s timely delivery

of it. The statute does not expressly prohibit alternative receipts. We should not add

such a prohibition. We should “decline[] to reach a needlessly harsh result [of

dismissal] when that result [is] not mandated by the GTCA.” Cummings, supra at 825

(citations and punctuation omitted).

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