GEORGIA DEPARTMENT OF HUMAN SERVICES et al.
MUFF et al.
P. J., COOMER and MARKLE, JJ.
Muff filed a complaint against the Georgia Department of
Human Services, the Georgia Department of Family and Children
Services (collectively, the "Department"), and
others, alleging that her minor son had been abused by his
paternal grandparents and other relatives, resulting in his
death, and that the Department had failed to investigate the
abuse and failed to protect him. The Department moved to
dismiss the suit for lack of subject matter jurisdiction on
sovereign immunity grounds. The trial court denied the
motion, and we granted the Department's application for
interlocutory appeal. On appeal, the Department argues, among
other things, that the trial court erred in denying its
motion to dismiss because Muff's initial complaint did
not include the required ante litem notice exhibits, and she
was late in amending her pleadings to add those exhibits. We
agree and reverse the trial court's denial of the
Department's motion to dismiss.
review de novo a trial court's ruling on a motion to
dismiss based on sovereign immunity grounds, which is a
matter of law. Factual findings are sustained if there is
evidence supporting them, and the burden of proof is on the
party seeking the waiver of immunity." Driscoll v.
Bd. of Regents of the Univ. System of Ga., 326 Ga.App.
315, 315 (757 S.E.2d 138) (2014) (footnote and punctuation
2016, Muff filed suit against the Department, the Dougherty
County School System, three employees of the Dougherty County
School System, and several paternal relatives. Muff's
complaint alleged that her son, who lived with his
grandparents, suffered abuse from his relatives, and that
teachers at his school failed to report the abuse to the
police or the Georgia Department of Family and Children
Services. Muff further alleged that the Department failed to
investigate her son's abuse and failed to protect him.
The initial complaint contained no ante litem notice
Department filed a motion to dismiss, arguing, among other
things, that Muff failed to attach ante litem notice exhibits
to the complaint as required by OCGA § 50-21-26.
According to the certificate of service for the motion to
dismiss, the Department served the motion by placing it in
the mail to Muff's counsel on June 3, 2016. The
Department's motion was filed on June 6, 2016.
11, 2016, Muff filed an amended complaint and attached the
ante litem notice as an exhibit. After a hearing, the trial
court denied the Department's motion to dismiss. The
trial court granted a certificate of immediate review and the
Department filed an application for interlocutory review,
which we granted. This appeal followed.
Department contends that the trial court erred in calculating
the 30-day cure period under OCGA § 50-21-26. We agree.
Legislature enacted the Georgia Tort Claims Act, OCGA §
50-21-20 et seq., in order to balance strict application of
the doctrine of sovereign immunity against the need for
limited exposure of the State treasury to tort
liability." Shelnutt v. Ga. Dept. of Transp.,
272 Ga.App. 109, 109 (611 S.E.2d 762) (2005) (citation and
punctuation omitted). The Georgia Tort Claims Act provides a
limited waiver of sovereign immunity in certain cases where a
claimant complies with the requirements of the Act. OCGA
§ 50-21-21 (a). These requirements include the ante
litem notice provisions of OCGA § 50-21-26. "Strict
compliance with the provisions of OCGA § 50-21-26 is
required." Shelnutt, 272 Ga.App. at 110
(citation omitted). OCGA § 50-21-26 (4) provides:
Any complaint filed pursuant to this article must have a copy
of the notice of claim presented to the Department of
Administrative Services together with the certified mail or
statutory overnight delivery receipt or receipt for other
delivery attached as exhibits. If failure to attach such
exhibits to the complaint is not cured within 30 days after
the state raises such issue by motion, then the complaint
shall be dismissed without prejudice[.]
complaint did not include the required ante litem notice
exhibits. The Department raised the absence of these exhibits
in its motion to dismiss. The Department's motion was
served on Muff's counsel by mail on June 3, 2016, and was
filed on June 6, 2016. Muff then had a 30-day cure period to
amend her pleadings to attach the required exhibits. See OCGA
§ 50-21-26 (a) (4).
§ 9-11-6 (e) provides as follows:
(e) Additional time after service by mail or e-mail. Whenever
a party has the right or is required to do some act or take
some proceedings within a prescribed period after the service
of a notice or other paper, other than process, upon him or
her, and the notice or paper is served upon the party by mail
or e-mail, three days shall be added to the prescribed
order denying the Department's motion to dismiss, the
trial court found that Muff was entitled to three extra days
to amend the complaint because the Department had served the
motion to dismiss by mail. The trial court calculated 33 days
from June 6, 2016, which was the filing date (but not the
date of service, which was June 3, 2016). The 33rd day from
June 6, 2016 was Saturday, July 9, 2016. Thus, the ...