Brandenburg v. City of Vidalia

• Decision Date: 03 November 2022
• Docket Number: A22A1027
• Parties: BRANDENBURG v. CITY OF VIDALIA et al.
• Court: Georgia Court of Appeals

366 Ga.App. 51

880 S.E.2d 625

BRANDENBURG

v.CITY OF VIDALIA et al.

A22A1027

Court of Appeals of Georgia.

November 3, 2022

Kathryn Hughes Pinckney, Brent J. Savage, Savage & Turner, Savannah, for Appellant.

Johnathan Tyler Krawcheck, Gary J. Toman, Anna Idelevich, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta; Paul H. Threlkeld, David Bobo Mullens III, Oliver Maner, Savannah, for Appellee.

Hodges, Judge.

This wrongful death action arises from the murder of Christina Brooke Joiner by Tyrone Burns, Jr. at the R. J. Pope Traditional Menswear clothing store in Vidalia. Cathy Brandenburg, as Joiner's mother, as her estate's representative, and as guardian of Joiner's minor son (collectively, "Brandenburg"), sued the City of Vidalia (the "City") and the Central Florida Behavioral Health Network, Inc. ("CFBHN"), asserting that Vidalia police officers failed to properly investigate Burns’ "status as a Florida violent probationer" during their encounters with Burns in the weeks leading up to the murder and that CFBHN failed to properly manage supervision of Burns’ pretrial release on pending criminal charges in Florida. CFBHN moved to dismiss Brandenburg's complaint for lack of personal jurisdiction, while the City moved for summary judgment based, in part, upon Brandenburg's failure to provide it with a sufficient ante litem notice. Following three hearings, the Superior Court of Toombs County granted both motions. Brandenburg appeals, arguing that the trial court erred in concluding that: (1) Brandenburg's ante litem notice to the City was insufficient because it did not "include the specific amount of monetary damages being sought" from the City ( OCGA § 36-33-5 (e) ); (2) Brandenburg's claims against the City were barred by the "public duty doctrine"; and (3) CFBHN was not subject to personal jurisdiction in Georgia. For the following reasons, we affirm.

Our standard of review for motions for summary judgment is well settled:

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) City of St. Marys v. Reed , 346 Ga. App. 508, 508-509, 816 S.E.2d 471 (2018). Similarly, in appeals on motions to dismiss,

we review the grant of any motion to dismiss de novo, and a motion to dismiss should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof. We construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff's favor.

(Citation and punctuation omitted.) Manzanares v. City of Brookhaven , 352 Ga. App. 293, 834 S.E.2d 358 (2019) ; see also Intercontinental Svcs. of Delaware v. Kent , 343 Ga. App. 567, 568, 807 S.E.2d 485 (2017) ("where, as here, a motion is resolved based solely upon written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard, and we resolve all disputed issues of fact in favor of the party asserting the existence of personal jurisdiction") (citation punctuation and footnote omitted).

So viewed, the record reveals that Burns, a Florida resident, was arrested for two December 2016 incidents involving armed robbery and assaults against women in Florida. However, on April 18, 2018, the Circuit Court of Manatee County, Florida, adjudged Burns, who suffered from schizophrenia

, mentally incompetent to stand trial for the crimes and placed Burns on "conditional release." Under the terms of the conditional release, Burns was to "enroll in mental health treatment and competency training administered through Centerstone [of Florida] or a program designated by Centerstone" and "take psychotropic medication as prescribed by his attending psychiatrist." The conditional release required Burns to live with his father in Lakeland, Florida, and provided that "[a]ny change in address will be approved by [Burns’] case manager/forensic specialist [with Centerstone] and the court shall be immediately notified." The conditional release also prohibited Burns from possessing or using firearms.

CFBHN is a Florida publicly-funded non-profit corporation with its principal place of business located in Florida; as such, CFBHN is not registered to do business in Georgia, does not have a registered agent for service of process in Georgia, does not provide services in Georgia, and has no contracts with any Georgia service providers. Pursuant to a contract with the Florida Department of Children and Families, CFBHN managed the day-to-day "operational delivery of behavioral health services" of individuals on conditional release and planned, coordinated, and subcontracted "for the delivery of community mental health and substance abuse services through a network of direct service providers, facilities, and organizations under contract with CFBHN" which was intended to "affect the safety, health, and well-being of the people of the State of Florida." Accordingly, CFBHN contracted with Centerstone of Florida to manage individuals’ mental health care, including Burns, in a 14-county area of central Florida. Between his April 2018 conditional release and November 16, 2018, Burns only met with a Centerstone representative once.

On September 5, 2018, Burns traveled by bus to Vidalia to visit Teresa Byas, a former girlfriend with whom he shared a child. During his time in Vidalia, Vidalia police responded to three separate incidents involving Burns, including reports of criminal trespass for punching a passing motorist's vehicle, domestic violence against Byas, and terroristic threats against Byas. Although police spoke with Burns after the first report and detained him for three days, he was released and was never detained following the second and third reports. From the time he arrived in Vidalia, Burns had not taken any prescribed medication as required by his conditional release, although he had asked for assistance in changing prescriptions to no avail.¹

On November 16, 2018, Burns entered the R. J. Pope clothing store, where the victim — Joiner — worked. After looking through the store for a few moments, Burns produced a firearm, approached Joiner, and demanded money. Joiner emptied the cash register, and Burns forced her to the back of the store, where he shot her twice as she pled for her life; Burns then fled the store. Shortly thereafter, a customer discovered Joiner's body and sought help from a neighboring business. Police located and arrested Burns the following day, and he ultimately entered a guilty plea to charges of felony murder and aggravated assault.

On April 16, 2019, Brandenburg served the mayor and city council of the City with an ante litem notice detailing her claims against the City. Brandenburg asserted that, despite receiving "serious complaints" concerning Burns’ conduct "on numerous occasions" prior to Joiner's murder, the City "never took any action to arrest him" and that the failure to "apprehend and incarcerate ... Burns resulted in" Joiner's murder. The notice further stated that

[t]he claim for the damages made on behalf of [Joiner's son] will be for an amount sufficient to compensate him for the full value of the life of his mother. Additional damages may include a claim made by [Joiner's estate] for the mental pain and suffering [she] sustained ... prior to her death, funeral and other expenses resulting from her death, and attorney's fees and expenses. The claim for these damages is not less than $10,000,000.00. (Emphasis supplied.)

Brandenburg originally sued the City,² Centerstone, Burns, and Burns’ father for claims related to Joiner's death.³ During the course of the litigation, Brandenburg dismissed Centerstone with prejudice following a settlement agreement and successfully added CFBHN as a party defendant. In a motion for summary judgment, the City raised numerous arguments; relevant to the grounds in this appeal, the City argued that Brandenburg's ante litem notice was insufficient because her claim of "not less than $10,000,000.00" was "too indefinite to constitute a binding offer of settlement...." While the City's motion remained pending, CFBHN filed a motion to dismiss pursuant to OCGA § 9-11-12 (b) (2) asserting that the trial court lacked personal jurisdiction over it since it is a Florida corporation, headquartered in Florida, and neither conducts business nor derives revenue from Georgia. Following three separate hearings, the trial court granted judgment to the City and dismissed Brandenburg's complaint against CFBHN. This appeal followed.

1. In her first enumeration of error, Brandenburg contends that the trial court erred in granting the City's motion for summary judgment due to the insufficiency of her ante litem notice. Specifically, Brandenburg argues that her claim for an amount "not less than $10,000,000.00" substantially complies with Georgia's requirements for ante litem notices. See OCGA § 36-33-5. We disagree.

As we have recently noted,

[p]ursuant to OCGA § 36-33-5 (b), a person who seeks to assert a claim against a municipal corporation for money damages must, within six months of the event on which the claim is based, "present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury." To that end, OCGA § 36-33-5 (e) provides that [t]he description of the extent of the injury required in subse

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