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Stephens v. Coan

Court of Appeals of Georgia, Second Division

March 5, 2019

STEPHENS et al.
v.
COAN.

          MILLER, P. J., BROWN and GOSS, JJ.

          GOSS, JUDGE.

         While at home during business hours, James Stephens inadvertently placed a cell phone call to Michael Coan, his supervisor at the Georgia Subsequent Injury Trust Fund ("the Fund"). Coan answered the call, moved to another room to get better reception, and listened in for 13 minutes on a conversation Stephens was having with his wife Gina. After Coan confronted Stephens as to statements Stephens had made during the call, Stephens resigned from the Fund and, with his wife, brought this suit against Coan for eavesdropping, invasion of privacy, and negligence. The trial court granted the State's motion to dismiss the suit on the grounds that as a state officer or employee working within the scope of his employment at the time of the call, Coan was entitled to official immunity under the Georgia Tort Claims Act (GTCA), and that the Stephenses had failed to comply with the ante litem requirements of the Act. On appeal from this judgment, the Stephenses argue that the trial court erred in its finding that Coan's eavesdropping occurred within the scope of his employment and in failing to consider Gina Stephens's claims as distinct from her husband's. We find no error and affirm.

         Entitlement to official immunity under the GTCA "is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court's subject matter jurisdiction to try the case[.]" Dept. of Transp. v. Dupree, 256 Ga.App. 668, 671 (1) (570 S.E.2d 1) (2002) (citations omitted), cited with approval in Considine v. Murphy, 297 Ga. 164, 167 (1), n. 2 (773 S.E.2d 176) (2015); see also OCGA § 9-11-12 (b) (1) (authorizing a motion to dismiss for lack of subject matter jurisdiction).

We review de novo a trial court's [ruling on] a motion to dismiss based on [official] immunity grounds, which is a matter of law. However, factual findings by the trial court in support of its legal decision are sustained if there is [any] evidence authorizing them, and the burden of proof is on the party seeking the waiver of immunity.

(Citations and footnotes omitted.) Dept. of Human Resources v. Johnson, 264 Ga.App. 730, 731 (592 S.E.2d 124) (2003); see also Bonner v. Peterson, 301 Ga.App. 443, 443 (687 S.E.2d 676) (2009) (reviewing a trial court's findings as to its subject- matter jurisdiction concerning a state-employed physician's entitlement to official immunity "under the any evidence rule") (citation omitted).

         So viewed, the record shows that in January 2016, Coan was the chief executive officer of the Fund, with job duties including hiring, firing, and management of its employees. Coan had hired Stephens two years earlier and was Stephens's supervisor. On January 19, 2016, Coan had attended a business meeting and returned home to finish his telework day. Starting at 2:43 p. m., Coan and Stephens engaged in a work-related telephone conversation that lasted until approximately 3:34 p. m.

         Within two minutes of the end of the first call, Coan received a second call from Stephens, which Coan answered. Noting that the cell phone reception was poor, Coan told Stephens that he would go into his house for better reception. On achieving better reception and reporting so to Stephens, Coan realized that Stephens appeared to be talking to someone else, who Coan presumed was Stephens's wife Gina, about Coan and his job performance. During this second call, Coan did not hear Stephens and Gina discuss any other matters, and Coan did not hear Gina express anything but words of understanding such as "uh-huh" and "yes." After approximately 12 minutes, Stephens noted that his phone was connected to Coan's phone and terminated the call. From what Coan heard Stephens say during this second call, it was clear to Coan that the two men "could no longer have an effective working relationship[.]" Between 3:49 p. m. and 5:32 p. m., Coan conducted calls with Fund board members and employees on the subject of what action to take concerning Stephens. On the following day, Coan confronted Stephens, who resigned.

         On January 5, 2018, Stephens and Gina filed this action against Coan for illegal eavesdropping, invasion of privacy, and negligence. The State filed a motion to dismiss on Coan's behalf, arguing that Coan was acting within the scope of his official duties or employment at the time of the call at issue such that he was entitled to immunity under the GTCA and that Stephens had failed to comply with the Act's procedural prerequisites. The State attached to the motion affidavits, which were later supplemented, from Coan as well as the Board member to whom Coan had spoken on the day in question. Stephens moved to strike the portions of the State's pleadings referencing the contents of the phone call at issue.

         The trial court denied the motion to strike and granted the motion to dismiss, concluding that because Coan was acting in his official capacity when he committed the acts giving rise to the Stephenses' action, the GTCA provided the exclusive remedy for the Stephenses; that Coan was entitled to official immunity thereunder; and that plaintiffs had failed to comply with the ante litem requirements of the Act. This appeal followed.

         1. The Stephenses assert that the trial court erred when it concluded that Coan was acting within the scope of his employment when he listened in on the Stephenses' conversation such that he was entitled to official immunity. We disagree.

         As the Supreme Court of Georgia has noted, the original version of the GTCA defined the "State" as denoting "all state governmental entities, regardless of their nomenclature," including "the State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions," but not including "counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities." (Citation and punctuation omitted.) Kyle v. Ga. Lottery Corp., 290 Ga. 87, 90 (1) (718 S.E.2d 801) (2011). "By its express terms, the act clarifies that the 'State' includes state authorities and instrumentalities, but not local governmental entities, for purposes of waiving sovereign immunity." (Citation omitted.) Id.

         The Stephenses do not dispute that the Fund is a state instrumentality to which the GTCA applies or that Coan was the administrator of that state instrumentality on the afternoon in question.

The exemption from tort liability provided by the GTCA applies to actions against state employees in their official and individual capacities[;] merely styling a suit against a public officer as one brought against him personally does not deprive him of any immunity to which ...

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