STEPHENS et al.
MILLER, P. J., BROWN and GOSS, JJ.
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.
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
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")
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.
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.
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.
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.
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.
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
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 ...