FOURTH DIVISION
DILLARD, P. J.,
RAY and SELF, 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
April 21, 2017
In the Court of Appeals of Georgia
A17A0363. WILLIAMS v. WILCOX STATE PRISON, et al.
DILLARD, Presiding Judge.
Betty Williams appeals the trial court’s dismissal of her negligence action
against Wilcox State Prison and the Georgia Department of Corrections (collectively
the “GDOC”),1 arguing that the court erred in finding that her ante-litem notice failed
to comply with the Georgia Tort Claims Act’s (“GTCA”)2 requirements that it apprise
the GDOC of the alleged acts or omissions that caused her loss and of the nature of
the loss she allegedly suffered. Although Williams concedes that she failed to comply
with the GTCA’s requirement that she attach a certificate to her complaint, certifying
1
Although Wilcox State Prison is listed as a separate defendant/appellee, it is
undisputed that the prison is not a separate entity from the GDOC, and in her
appellate brief, Williams addresses the GDOC as the sole appellee.
2
See OCGA § 50-21-1, et seq.
that she mailed a copy of the complaint to the Attorney General in a specified manner,
she nevertheless maintains that she should have been allowed to amend her complaint
to include the certificate. For the reasons set forth infra, we affirm.
The record shows that on May 11, 2015, Williams filed a complaint for
damages against the GDOC, alleging that, while visiting Wilcox State Prison, she
“tripped and fell over uneven floor [in] the visitor’s bathroom,” which resulted in
severe bodily injury. The complaint further alleged that the GDOC “did not act
reasonably in inspecting or maintaining the ground so as to prevent or correct the
dangerous and hazardous condition of the ground” and that Williams’s injuries were
proximately caused by its negligence. The GDOC answered, denying the allegations
and asserting numerous defenses, including that, in violation of OCGA § 50-21-26
(a) (4), Williams failed to attach as exhibits to her complaint a pre-suit notice of the
claim she presented to the Risk Management Division of the Department of
Administrative Services and a receipt evincing delivery of the notice. In addition, the
GDOC asserted that Williams failed to attach to her complaint a certificate that
OCGA § 50-21-35’s requirement of notice to the Attorney General had been satisfied.
On June 26, 2015, the GDOC filed a motion to dismiss Williams’s complaint,
arguing that the trial court lacked subject-matter jurisdiction over the case because
2
it had not waived its sovereign immunity to her tort claims, and that she failed to
demonstrate strict compliance with the GTCA’s ante-litem and notice-of-service
provisions.3 Shortly thereafter, Williams amended her complaint to include as exhibits
two ante-litem notices dated September 11, 2013, that were sent to Wilcox State
Prison and the GDOC, as well as the certified mail receipt for each notice. The GDOC
then supplemented its motion to dismiss Williams’s complaint, arguing that, although
Williams had attached purported ante-litem notices to her amended complaint, those
notices were deficient and failed to strictly comply with OCGA § 50-21-26. In doing
so, the GDOC reiterated that Williams had still not provided a certificate showing that
notice of her suit had been provided to the Attorney General as required by OCGA
§ 50-21-35. Following Williams’s response to the GDOC’s motion to dismiss her
complaint and other responsive pleadings by the parties, the trial court ultimately
granted the GDOC’s motion and dismissed the complaint. This appeal by Williams
follows.
3
The GDOC also challenged Williams’s choice of venue, but contended that
transferring the case to another court would be futile due to the lack of subject-matter
jurisdiction by any court.
3
We begin by noting that this Court reviews de novo a “trial court’s ruling on
a motion to dismiss based on sovereign immunity grounds, which is a matter of law.”4
Further, the trial court’s factual findings will be sustained if “there is evidence
supporting them, and the burden of proof is on the party seeking the waiver of
immunity.”5 With these guiding principles in mind, we will now address Willliams’s
specific claims of error.
1. Williams argues that the trial court erred in dismissing her complaint based
on its findings that her ante-litem notices failed to provide the GDOC with sufficient
notice of the acts or omissions that caused her alleged loss or of the nature of that
loss. We disagree.
As we have explained, the GTCA is “a limited waiver of the State’s sovereign
immunity, crafted, as is constitutionally authorized, by our Legislature, and not
subject to modification or abrogation by our courts,”6 and requires “a party with a
4
Dorn v. Ga. Dep’t of Behavioral Health & Developmental Disabilities, 329
Ga. App. 384, 385 (765 SE2d 385) (2014) (punctuation omitted).
5
Id. (punctuation omitted).
6
Id. (punctuation omitted); accord Cummings v. Ga. Dep’t of Juvenile Justice,
282 Ga. 822, 824 (653 SE2d 729) (2007); Ga. Dep’t of Transp. v. Griggs, 322 Ga.
App. 519, 520-21 (745 SE2d 749) (2013).
4
potential tort claim against the State to provide the State with notice of the claim prior
to filing suit thereon.”7 Indeed, the ante-litem notice requirements “serve the purpose
of ensuring that the [S]tate receives adequate notice of the claim to facilitate
settlement before the filing of a lawsuit.”8 Importantly, a claimant must “strictly
comply with the notice provisions as a prerequisite to filing suit under the GTCA, and
substantial compliance is not sufficient.”9 As we have previously explained,
“substantial compliance is not strict compliance. Strict compliance is exactly what it
sounds like: strict.”10 That said, we have repeatedly emphasized that the rule of strict
7
Dorn, 329 Ga. App. at 385 (punctuation omitted); accord Bd. of Regents of
Univ. Sys. of Ga. v. Myers, 295 Ga. 843, 845 (764 SE2d 543) (2014); Cummings, 282
Ga. at 823; see generally OCGA § 50-21-26 (setting forth the GTCA’s notice
requirements).
8
Dorn, 329 Ga. App. at 385 (punctuation omitted); accord Myers, 295 Ga. at
845; Cummings, 282 Ga. at 824; Williams v. Ga. Dep’t of Human Res., 272 Ga. 624,
625 (532 SE2d 401) (2000).
9
Dorn, 329 Ga. App. at 385; accord Myers, 295 Ga. at 845; Cummings, 282
Ga. at 824; Griggs, 322 Ga. App. at 520; see DeFloria v. Walker, 317 Ga. App. 578,
580 (732 SE2d 121) (2012) (“[I]t is well established that strict compliance with the
notice provisions is a prerequisite to filing suit under the [GTCA], and substantial
compliance therewith is insufficient. Strict compliance is necessary because the
[GTCA] represents a limited waiver of the state’s sovereign immunity, crafted, as is
constitutionally authorized, by our Legislature, and not subject to modification or
abrogation by our courts.” (punctuation and footnote omitted)).
10
DeFloria, 317 Ga. App. at 582.
5
compliance “does not demand a hyper-technical construction that would not
measurably advance the purpose of the GTCA’s notice provisions [as reflected by the
plain meaning of the relevant statutory text].”11 Nevertheless, if the ante-litem notice
requirements are not met, then the State does not waive sovereign immunity and the
trial court lacks subject-matter jurisdiction over the case.12
OCGA § 50-21-26 provides, inter alia, that no person who has a tort claim
against the State may bring an action against the State on that claim without first
giving notice, which
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 state
government entity, the act or omissions of which are asserted as the
basis of the claim.13
11
Dorn, 329 Ga. App. at 385 (punctuation omitted); accord Myers, 295 Ga. at
845; Cummings, 282 Ga. at 824; Ga. Dep’t of Transp. v. King, No. A16A2132, 2017
WL 993183, at *2 (Ga. App.).
12
Dorn, 329 Ga. App. at 385; accord Myers, 295 Ga. at 845; King, 2017 WL
993183, at *2.
13
OCGA § 50-21-26 (a) (2).
6
As to the content of that notice, OCGA § 50-21-26 (a) (5) provides that
[a] notice of claim under this Code section shall state, to the extent of
the claimant’s knowledge and belief and as may be practicable under the
circumstances, the following: (A) The name of the state government
entity, the acts or omissions of which are asserted as the basis of the
claim; (B) The time of the transaction or occurrence out of which the
loss arose; (C) The place of the transaction or occurrence; (D) The
nature of the loss suffered; (E) The amount of the loss claimed; and (F)
The acts or omissions which caused the loss.14
In granting the GDOC’s motion to dismiss the complaint, the trial court found
that Williams’s ante-litem notice failed to strictly comply with OCGA § 50-21-26 (a)
(5)’s requirements that it identify the acts or omissions which caused her alleged loss
and the nature of that loss. The trial court’s findings are supported by the record.
The identical ante-litem notices attached to Williams’s amended complaint
contend that, on or about June 30, 2013, Williams was injured while visiting an
inmate at Wilcox State Prison. Specifically, the notices state that, “[w]hile in the
bathroom, [ ] Williams encountered a hazard, water on the floor[,]” and that
“[w]ithout warning, or notice, [she] slipped, fell, and was injured.” The notices
further assert that Williams’s negligence claims are based on the GDOC’s failure to
14
OCGA § 50-21-26 (a) (5) (A)-(F) (emphasis supplied).
7
properly warn her of the water hazard and its failure to maintain a safe environment.
But Williams’s complaint was based on an entirely different set of factual allegations.
Indeed, as previously mentioned, Williams’s complaint alleged that she was injured
at the prison when she tripped and fell over uneven flooring in the visitor’s bathroom,
not that she slipped as a result of a water hazard. And unlike her ante-litem notices’
suggestion that her injuries were caused by the GDOC’s failure to keep the bathroom
floor dry or to warn her of a water hazard, the complaint alleged that her injuries were
caused by the GDOC’s failure to (1) warn of uneven ground; (2) place proper warning
signs around the uneven area; (3) inspect the ground so as to discover the hazard; and
(4) otherwise maintain the ground in a safe condition. Therefore, because the ante-
litem notices made no mention of any alleged negligent acts or omissions on the part
of the GDOC with regard to uneven flooring in the bathroom, which was the basis for
her negligence action against it, she failed to strictly comply with the GTCA’s notice
requirement in OCGA § 50-21-26 (a) (5) (F).15
15
See OCGA § 50-21-26 (a) (5) (F) (providing that notices given under OCGA
§ 50-21-26 must include, to the extent of the claimant’s knowledge and belief and as
may be practical under the circumstances, the acts or omissions which caused the
loss). In her appellate brief, Williams summarily asserts, without further elaboration
or citation to supporting legal authority, that she satisfied the notice requirements of
OCGA § 50-21-26 (a) (5) (F) because she apprised the GDOC “of a claim arising out
of an issue in the bathroom.” But to the extent that this argument has even been
8
Further, Williams’s ante-litem notices also failed to specify the nature of the
loss she suffered, as required by OCGA § 50-21-26 (a) (5) (D). In fact, the ante-litem
notices provided no details regarding the type of injuries Williams allegedly suffered.
Instead, these notices state generally that she “sustained serious injuries” as a result
of a slip-and-fall. And although Williams indicated that she had requested her
medical records and expected her damages to exceed $25,000, she provided no
information regarding the injuries for which she received or planned to receive
medical treatment. Thus, because Williams failed to strictly comply with at least two
of OCGA § 50-21-26 (a) (5)’s notice requirements, the trial court correctly found that
it lacked subject-matter jurisdiction over her complaint.16
adequately raised on appeal, we note that Williams’s notification of where her injury
occurred, which is a separate requirement under OCGA § 50-21-26 (a) (5) (C), is not
the same as an identification of the particular acts or omissions of the GDOC that
allegedly caused the injury as required by OCGA § 50-21-26 (a) (5) (F). See Daker
v. State, 300 Ga. 74, 78 (3) n.7 (792 SE2d 382) (2016) (declining to address an
enumeration of error when the appellant provided no cogent legal argument to
support it); Fennelly v. Lyons, 333 Ga. App. 96, 100 (1) (775 SE2d 587) (2015)
(deeming a claim of error abandoned when the appellant failed to provide any cogent
argument or legal authority to support it); Dixon v. Metro. Atlanta Rapid Transit
Auth., 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (same).
16
See Myers, 295 Ga. at 845 (“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.”); Williams, 272 Ga. at 626 (holding that a plaintiff failed
to give adequate notice of a wrongful-death claim when the ante-litem notice
9
2. While Williams concedes that she failed to comply with OCGA § 50-21-35’s
requirement that she provide a certificate showing that she notified the Attorney
General of her negligence action,17 she nevertheless contends that she should have
been permitted to amend her complaint to include the certification.18 But even if
described the loss as “pain, disfigurement, and a reduced life expectancy”); King,
2017 WL 993183, at *4 (holding that an appellant’s anti-litem notice that she
intended to “claim the full amount of damages allowed by law” failed to satisfy the
requirement that she notify the state of the amount of her loss as required by OCGA
§ 50-21-26 (a) (5) (E)); Perdue v. Athens Tech. Coll., 283 Ga. App. 404, 408-09 (641
SE2d 631) (2007) (holding that a case filed under the GTCA was properly dismissed
when the ante-litem notice failed to comply with OCGA § 50-21-26 (a) (5) (E)’s
requirement that it state the amount of the loss); Johnson v. E.A. Mann & Co., 273
Ga. App. 716, 722 (616 SE2d 98) (2005) (holding that the trial court lacked subject-
matter jurisdiction over a claim filed under the GTCA when the ante-litem notice
failed to comply with OCGA § 50-21-26 (a) (5) (A)’s requirement that it state the
entity that the plaintiff intended to hold liable).
17
See OCGA § 50-21-35 (“In all civil actions brought against the state under
this article, to perfect service of process the plaintiff must both: (1) cause process to
be served upon the chief executive officer of the state government entity involved at
his or her usual office address; and (2) cause process to be served upon the director
of the Risk Management Division of the Department of Administrative Services at
his or her usual office address. The time for the state to file an answer shall not begin
to run until process has been served upon all required persons. A copy of the
complaint, showing the date of filing, shall also be mailed to the Attorney General at
his or her usual office address, by certified mail or statutory overnight delivery, return
receipt requested and there shall be attached to the complaint a certificate that this
requirement has been met.” (emphasis supplied)).
18
As noted by the trial court, the State first raised the issue of Williams’s
failure to provide the certificate required by OCGA § 50-21-35 in its answer, which
10
Williams had amended her complaint to include the required certificate, the trial court
still lacks subject-matter jurisdiction over the case for the reasons delineated in
Division 1 supra.
For all these reasons, we affirm the trial court’s dismissal of Williams’s
complaint.
Judgment affirmed. Ray and Self, JJ., concur.
was filed on June 25, 2015. And although more than a year passed between the
State’s answer and the trial court’s dismissal of her case on July 20, 2016, Williams
never sought to amend her complaint to include the certificate.
11