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
October 26, 2018
In the Court of Appeals of Georgia
A18A1220. GEORGIA DEPARTMENT OF PUBLIC SAFETY v. DO-043
RAGSDALE.
DOYLE, Presiding Judge.
The appeal arises from a personal injury action filed by Matthew Ragsdale
against the Georgia Department of Public Safety (“the State”) and other defendants
after Ragsdale was injured in a motor vehicle accident that occurred when Ross
Singleton fled from law enforcement on October 30, 2014.1 The State moved to
dismiss the claims against it based on Ragsdale’s failure to serve the State with a
proper ante litem notice prior to October 30, 2015. The trial court denied the motion
“for the reasons provided in [Ragsdale’s] brief in opposition” to the motion — that
OCGA § 9-3-99 tolled the period for presenting ante litem notice — and thereafter,
1
Ragsdale’s claims against Butts County and Singleton are not a part of this
appeal.
this Court granted the State’s application for interlocutory appeal. For the reasons that
follow, we affirm.
We review the [denial] of any motion to dismiss de novo,
[recalling that] a motion to dismiss should not be granted unless the
allegations of the complaint disclose with certainty that the claimant
would not be entitled to relief under any state of provable facts asserted
in support thereof. We construe the pleadings in the light most favorable
to the plaintiff with any doubts resolved in the plaintiff’s favor.2
The limited and undisputed facts necessary to decide this appeal are that
Ragsdale was injured by a fleeing criminal on October 30, 2014. Ragsdale sent an
ante litem notice to the Department of Administrative Services (“DOAS”) on
December 3, 2014; however, it is undisputed at this point that the notice provided on
that date failed to include all the information required by OCGA § 50-21-26 (5).
Ragsdale filed suit, but dismissed this initial filing based on the deficiency of his first
ante litem notice. Thereafter, in March 2017, Ragsdale sent a second ante litem notice
to DOAS. Ragsdale then renewed the action, and the State filed its motion to dismiss
the appeal, contending that the March 2017 ante litem notice was untimely. In
2
(Punctuation and citations omitted.) Harrell v. City of Griffin, 345 Ga. App.
635 (816 SE2d 738) (2018).
2
response, Ragsdale argued that because he was the victim of Singleton’s crime, the
time for filing the ante litem notice had been tolled “from the date of the commission
of the alleged crime or the act giving rise to such action in tort until the prosecution
of such crime or act has become final or otherwise terminated” pursuant to OCGA §
9-3-99. The trial court agreed and denied the motion to dismiss in a single-sentence
order, citing Ragsdale’s arguments in response to the motion to dismiss. The State
appeals this order.
Normally, “[n]o person . . . having a tort claim against the [S]tate under [the
Georgia Tort Claims Act (“GTCA”)] shall bring any action against the [S]tate upon
such claim without first giving notice of the claim . . . in writing within 12 months of
the date the loss was discovered or should have been discovered . . . .”3 OCGA § 9-3-
99 states, however, that
[t]he running of the period of limitations with respect to any cause of
action in tort that may be brought by the victim of an alleged crime
which arises out of the facts and circumstances relating to the
commission of such alleged crime committed in this [S]tate shall be
tolled from the date of the commission of the alleged crime or the act
giving rise to such action in tort until the prosecution of such crime or
act has become final or otherwise terminated, provided that such time
3
OCGA § 50-21-26 (a) (1).
3
does not exceed six years, except as otherwise provided in Code Section
9-3-33.1.
The trial court denied the motion to dismiss, agreeing that OCGA § 9-3-99
tolled the ante litem notice time requirement, in part based on this Court’s recent
decision in Harrison v. McAfee.4 In Harrison, this Court re-examined previous cases
to determine whether (in addition to tolling victims’ claims against criminal actors)
OCGA § 9-3-99 tolled the limitation period for tort claims to be brought by crime
victims against any non-criminal actors whose negligence may have caused the injury
that the victim received during the criminal conduct.5 This Court determined that the
plain language of OCGA § 9-3-99 applies to the statute of limitation for tort claims
alleged against non-criminal actors in addition to tort claims against criminal actors,
and this Court overruled prior precedent holding otherwise.6
4
338 Ga. App. 393 (788 SE2d 872) (2016).
5
See id. at 395-402 (2).
6
See id. at 397-399 (2) (b) & 402-403 (3). In Stopanio v. Leon’s Fence &
Guardrail, LLC, 346 Ga. App. 18, 20-22 (1) (815 SE2d 232) (2018), this Court
remanded the case back to the trial court to reevaluate its dismissal of a case for
failure to timely file an ante litem notice in light of Harrison, which was decided after
the trial court initially dismissed this case.
4
One of the cases overruled by Harrison,7 was Columbia County v. Blanton,8
which addressed whether the plaintiff’s tort claims against a county were barred by
his failure to file a timely ante litem notice or if the time for filing the notice was
tolled by, inter alia, OCGA § 9-3-99.9 Relying on Valades v. Uslu,10 another case
explicitly overruled by Harrison,11 the Court in Blanton held that “[b]ecause the
county defendants were not criminal defendants in a prior prosecution, OCGA §
9-3-99 d[id] not toll the time for filing the ante litem notice against them in the instant
suit.”12 Thus, Blanton’s conclusion was based on the prohibition of applying the
tolling provision to non-criminal joint tortfeasors rather than a determination of
whether OCGA § 9-3-99 could toll an ante litem notice provision.
7
See Harrison, 338 Ga. App. at 402 (3).
8
304 Ga. App. 149 (695 SE2d 674) (2010).
9
The ante litem notice provision at issue in Blanton states that “[a]ll claims
against counties must be presented within 12 months after they accrue or become
payable or the same are barred, provided that minors or other persons laboring under
disabilities shall be allowed 12 months after the removal of the disability to present
their claims.” OCGA § 36-11-1.
10
301 Ga. App. 885 (1) (689 SE2d 338) (2009).
11
338 Ga. App. at 402 (3).
12
Blanton, 304 Ga. App. at 153 (1).
5
The State argues that OCGA § 9-3-99 does not apply to the one-year ante litem
notice requirement contained in OCGA § 50-21-26 (a) because the notice provision
is not a statute of limitation, of which there is a separate two-year provision
applicable in the GTCA pursuant to OCGA § 50-21-27 (c).
In Foster v. Ga. Regional Transp. Auth.,13 the Supreme Court of Georgia
explained that
when we read statutory text, we must presume that the General
Assembly meant what it said and said what it meant, and so, we must
read the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would. According to OCGA
§ 50-21-27 (e), all provisions relating to the tolling of limitations of
actions, as provided elsewhere in this Code, shall apply to causes of
action brought pursuant to the [GTCA]. The statute means just what it
says: statutory tolling provisions apply to claims under the [GTCA] in
the same way, in the same manner, and to the same extent that those
provisions would apply to claims not brought under the [GTCA]. If a
tolling provision otherwise would apply to a particular claim, it applies
notwithstanding that the claim is subject to the [GTCA].
Thus, under Foster, OCGA § 9-3-99 applies to the two-year statute of
limitation for tort claims brought under the GTCA pursuant to OCGA § 50-21-27 (e).
13
(Citations and punctuation omitted.) 297 Ga. 714, 715-716 (777 SE2d 446)
(2015).
6
In Foster, however, the plaintiff timely provided ante litem notice to the State under
OCGA § 50-21-26 (a), so the Supreme Court did not address whether the tolling
provision applied to the time period for providing notice, and the State contends that
OCGA § 50-21-27 (e) applies only to the statute of limitation and not to the ante litem
notice time period.14
Nevertheless, in those cases in which this Court has addressed this issue, we
have determined that limitation period tolling statutes apply to the period for filing
ante litem notice as well as for filing suit.15 This is also true of other ante litem notice
14
See id. at 714.
15
See Howard v. State, 226 Ga. App. 543, 545-547 (2) (487 SE2d 112) (1997)
(holding that a similar tolling provision for periods of infancy or disability apply to
the ante litem notice provision of OCGA § 50-21-26 (a) because it operates as a
statute of limitation). See also Grant v. Faircloth, 252 Ga. App. 795 (556 SE2d 928)
(2001) (holding that under Howard that the trial court correctly dismissed the action
because “plaintiff failed to give the ante litem notice to the [DOAS] within 12 months
of the occurrence as mandated by OCGA § 50-21-26 (a), which bar[red the] action
unless the plaintiff [was] a minor”). In Clark v. Bd. of Regents of the Univ. Sys. of
Ga., 250 Ga. App. 448, 449 (552 SE2d 445) (2001), this Court reviewed a plaintiff’s
claim that the one-year ante litem notice time period was tolled by the alleged
fraudulent concealment under OCGA § 9-3-96 of an individual’s status as a state
employee. This Court, rather than holding that OCGA § 9-3-96 did not apply to the
ante litem notice statute, instead held that the plaintiff failed to provide sufficient
evidence of affirmative concealment or fraud in order for the period to be tolled.
7
provisions applying to municipalities.16 Accordingly, we affirm the trial court’s denial
of the State’s motion to dismiss.
Judgment affirmed. Dillard, C. J., and Mercier, J., concur.
16
See Carter v. Glenn, 243 Ga. App. 544, 548 (2) (533 SE2d 109) (2000)
(holding that the municipal “ante litem notice provision, like a statute of limitation,
may be tolled”), citing Jacobs v. Littleton, 241 Ga. App. 403, 406 (3) (b) (525 SE2d
433) (1999) (holding that a municipal ante litem notice provision was tolled during
infancy and or legal incompetency under OCGA § 9-3-90). See also City of Forsyth
v. Bell, 258 Ga. App. 331, 332 (547 SE2d 331) (2002) (holding that “the statute of
limitation does not begin to run until the victim is warned of the danger, discovers it,
or should in the exercise of ordinary care have otherwise learned of it”); Nicholas v.
Van, 252 Ga. App. 411, 412 (556 SE2d 497) (2001) (explaining that the time
requirement for presenting claims against a city under OCGA § 36-33-5 (b) is a
statute of limitation); Fairburn v. Cook, 188 Ga. App. 58, 63 (5) (372 SE2d 245)
(1988) (holding that OCGA § 36-33-5 is tolled pursuant to OCGA § 9-3-90); Barnum
v. Martin, 135 Ga. App. 712, 715-716 (2) (219 SE2d 341) (1975) (treating ante litem
notice to a city as a statute of limitation that could be tolled during infancy);
Barnesville v. Powell, 124 Ga. App. 132, 132-133 (1) (183 SE2d 55) (1971) (same).
8