Kim v. Dept. of Transp., A98A2460.
| Decision Date | 25 November 1998 |
| Docket Number | No. A98A2460.,A98A2460. |
| Citation | 510 S.E.2d 50,235 Ga. App. 480 |
| Parties | KIM v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Holland & Knight, Keith J. Reisman, Atlanta, for appellant.
Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Debra A. Golybieski, Assistant Attorney General, for appellee.
Don C. Keenan, amicus curiae.
HAROLD R. BANKE, Senior Appellate Judge.
Jeong Kim appeals the dismissal of his complaint against the Georgia Department of Transportation ("DOT") under the Georgia Tort Claims Act ("GTCA") for failure to comply with the ante-litem notice provisions of the GTCA. Kim contends it was error to dismiss his complaint for that reason because he substantially complied with the ante-litem notice provisions and because he contends the GTCA and its ante-litem notice provisions violate the United States and Georgia Constitutions.
After Kim was injured in an automobile accident, he filed suit against DOT alleging improper design of the highway. DOT filed a special appearance answer to the complaint that, among other defenses, asserted failure to give ante-litem notice as required by the GTCA and lack of jurisdiction. The last page of the pleading contained the notice: "PLEASE ADDRESS ALL COMMUNICATIONS TO: [The name and address of the Assistant Attorney General responsible for the litigation]."
DOT moved to dismiss the complaint because Kim had not complied with the ante-litem notice provisions of OCGA § 50-21-26. The motion relied upon OCGA § 50-21-26(a) which provides that "[n]o person, firm, or corporation having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim." The notice must OCGA § 50-21-26(a)(2). The Code section further provides that "[n]o action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection." OCGA § 50-21-26(a)(3).
Kim's response to DOT's motion asserted that he gave sufficient written notice because his complaint was served upon the commissioner of the DOT within 12 months of the date the loss was discovered and because he sent an ante-litem notice to the assistant attorney general responsible for the case as required by the notation on DOT's special appearance answer. Kim does not allege, however, that he gave notice, either by certified mail, return receipt requested, or personally delivered to the Risk Management Division of the Department of Administrative Services before he filed suit.
The trial court granted DOT's motion to dismiss Kim's complaint without ruling on Kim's constitutional challenges. Although Kim filed his appeal with the Supreme Court of Georgia, the case was transferred to this Court because Kim's constitutional challenges were not distinctly ruled upon by the trial court. Held:
1. As Kim's constitutional challenges to OCGA § 50-21-26 were not distinctly ruled upon by the trial court, those issues are not preserved for appellate review. Atlanta Independent...
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...then be refiled. See generally Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615, 208 S.E.2d 459 (1974); Kim v. Dept. of Transp., 235 Ga.App. 480, 481-482(2), 510 S.E.2d 50 (1998); Hight v. Blankenship, 199 Ga.App. 744, 745, 406 S.E.2d 241 (1991); Taco Bell Corp. v. Calson Corp., 190 Ga.......
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...strictly construed," and we have held that substantial compliance with OCGA § 50-21-26(a)(2) is insufficient. Kim v. Dept. of Transp., 235 Ga.App. 480, 481(2), 510 S.E.2d 50 (1998); see also Howard v. State of Ga., 226 Ga.App. 543-544(1), 487 S.E.2d 112 (1997). But we do not conclude, as th......
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