BARNES, P. J., MERCIER and BROWN, JJ.
Ray appeals from the trial court's order dismissing his
personal injury action asserting claims against the following
persons in their individual capacities: Theodore Jackson,
Sheriff of Fulton County, Jimmy Carter, Chief Deputy of the
Fulton County Sheriff's Office, Jimmy Butts, Colonel
Chief of Staff of the Fulton County Sheriff's Office, and
Mildred Jackson,  a Fulton County Sheriff's Office
employee. On appeal, he asserts that the trial court
erred in (1) failing to find that the deadline for serving an
ante-litem notice was not tolled by a pending criminal
prosecution; (2) concluding that official immunity bars
recovery as a matter of law; and (3) finding that his
injuries were not foreseeable as a matter of law. For the
reasons explained below, we agree and reverse.
regard to Ray's enumeration of error regarding the
tolling of the ante-litem notice provision, we find that it
is moot. The trial court dismissed only the claims against
Fulton County and Jackson, in his official capacity as
Sheriff of Fulton County, based upon the expiration of the
time period within which to file an ante-litem notice. But as
we already have pointed out, this was not the sole basis for
the trial court's dismissal of Fulton County and the
claim against Jackson in his official capacity. It also did
so based upon Ray's concession that they were entitled to
sovereign immunity. Because Ray does not assert any error
with regard to this portion of the trial court's order,
the asserted error with regard to the ante-litem issue is
moot. See Med. Center of Central Ga.v. City of
Macon, 326 Ga.App. 603, 607 (1) (757 S.E.2d 207) (2014)
("Grounds that are not attacked as erroneous will not be
considered on appeal and are presumed to be binding and
correct.") (Citations and punctuation omitted).
related enumerations of error, Ray contends that the trial
court should have allowed discovery to proceed before ruling
that the individual defendants were entitled to official
immunity as a matter of law because their alleged acts were
discretionary. We agree.
A motion to dismiss for failure to state a claim should not
be granted unless it appears to a certainty that the
plaintiff would be entitled to no relief under any state of
facts which could be proved in support of his claim. If,
within the framework of the complaint, evidence may be
introduced which will sustain a grant of relief to the
plaintiff, the complaint is sufficient.
(Citation and punctuation omitted.) Austin v. Clark,
294 Ga. 773, 775 (755 S.E.2d 796) (2014). "We review de
novo a trial court's ruling on a motion to dismiss.
[Cit.]" U-Haul Co. of Arizona v. Rutland, 348
Ga.App. 738, 740 (824 S.E.2d 644) (2019).
immunity "provides that while a public officer or
employee may be personally liable for his negligent
ministerial acts, he may not be held liable for his
discretionary acts unless such acts are wilful, wanton, or
outside the scope of his authority." (Citations and
punctuation omitted.) Austin, 294 Ga. at 774.
A ministerial act is commonly one that is simple, absolute,
and definite, arising under conditions admitted or proved to
exist, and requiring merely the execution of a specific duty.
A discretionary act, however, calls for the exercise of
personal deliberation and judgment, which in turn entails
examining the facts, reaching reasoned conclusions, and
acting on them in a way not specifically directed.
(Citation and punctuation omitted.) Id. The
determination of the "pivotal distinction between a
discretionary and a ministerial duty is highly
fact-specific," and a plaintiff's failure to point
to "specific and clear procedures" required to be
performed is not fatal at the motion to dismiss stage of a
case. Austin, 294 Ga. at 774, 775. This is because
"factual evidence which may or may not be developed
during discovery . . . can be considered on a subsequent
motion for summary judgment." Id. at 775.
case, the complaint alleges that Ray was injured when a
former sheriff's deputy, Michael Carroll, who had
indisputably retired in lieu of dismissal two years before,
shot him while working as an armed security guard in an
apartment complex, resulting in Ray's paralysis from the
waist down. Ray's claim against the individual defendants
is based upon a theory that they were involved in providing
him with a letter stating that he merely retired, rather than
retired in lieu of dismissal. He asserts that the letter
created the false impression that Carroll honorably retired
from the Fulton County Sheriff's Office and that it was
foreseeable to the defendants that he would use the letter
"to secure future employment as a peace officer - and
even as an armed peace officer." (Emphasis
supplied.) Ray's complaint alleges that if the Fulton
County Sheriff's Office had not "covered up"
his true employment history, he would not have been hired by
the apartment complex and shot Ray "without reasonable
provocation." As a result of the shooting, Carroll faced
criminal charges for aggravated assault and possession of a
firearm in the commission of a felony. At the time of the
trial court's ruling on the motion to dismiss, these
charges were apparently still pending.
to the complaint are documents showing that on March 30,
2011, defendant Carter recommended that Carroll be dismissed;
that on April 7, 2011, Carroll sent an interoffice memorandum
to defendant Mildred Jackson, stating, "I am retiring
from my position at the Fulton County Sheriff's [D]ept.
My last day on duty will be April 12, 2011. Your assistance
in updating my personnel file to reflect my retirement date
is appreciated"; that the bottom of the memorandum
contains the initials of defendants Carter and Butts and what
appears to be the initials of defendant Theodore Jackson
beside the handwritten word "Approved"; that on
April 8, 2011, Theodore Jackson delivered a letter to Carroll
stating, "I have received your retirement letter dated
April 7, 2011, and I have decided to accept your retirement
in lieu of dismissal. Your retirement was approved
and will be effective on Tuesday, April 12,
2011." (emphasis in original); that on April
12, 2011, Theodore Jackson completed a "Georgia Peace
Officer Standards and Training Council Change of Status
Form" stating that Carroll had "separated" and
the type of separation was "resignation in lieu of
dismissal" with the additional statement that
"retirement accepted in lieu of dismissal" under a
box titled "Reason for Disciplinary Action"; and
that on the same day, April 12, 2011, defendant Mildred
Jackson signed a letter on Fulton County Sheriff's Office
letterhead addressed "To Whom It May Concern,"
stating, "This is to certify that effective April 12,
2011[, ] Deputy Sheriff Michael Carroll retired from the
Fulton County Sheriff's Office."
years later, Carroll applied for a job with the apartment
complex where he later shot Ray. He listed 25 years of
experience with the Fulton County Sheriff's office and
stated that his reason for leaving was "best time an
(sic) opportunity to leave." The complaint alleges that
the two-year-old letter from the Fulton County Sheriff's
Office stating only that he had retired was part of his
application for the job with the apartment complex.
upon the facts alleged in Ray's complaint, we cannot say
"that the allegations of the complaint disclose with
certainty that [Ray] would not be entitled to relief under
any state of provable facts asserted in
support." (Emphasis in original.) Austin, 294
Ga. at 775. Discovery could conceivably reveal clear and
specific procedures that were violated by the defendants in
their individual capacities when the April 12, 2011 "To
Whom It May Concern" letter was created and presumably
provided to Carroll for his use in obtaining future
employment. Accordingly, their ...