Lundy v. Hancock Cnty.

• Docket Number: A23A0301,A23A0423
• Decision Date: 23 June 2023
• Parties: LUNDY et al. v. HANCOCK COUNTY et al. LUNDY et al. v. HANCOCK COUNTY et al.
• Court: Georgia Court of Appeals

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LUNDY et al. v. HANCOCK COUNTY et al.

LUNDY et al. v. HANCOCK COUNTY et al.

Nos. A23A0301, A23A0423

Court of Appeals of Georgia, Fifth Division

June 23, 2023

MCFADDEN, P. J., BROWN and MARKLE, JJ.

MCFADDEN, Presiding Judge.

Eric Walker committed suicide while being held at the Hancock County jail. Cijii Lundy, as Walker's surviving spouse and as administratrix of his estate (collectively "Lundy"), filed a complaint asserting claims of negligence against Hancock County, Hancock County Sheriff's Office, Sheriff Terrell Primus, Captain Pat Williams, Jail Administrator Steve Mayweather, Sergeant Marlin Primus, Deputy John Nelson, and Jail Officers Gregory Phillips, Joel Kemp, and Jacqueline Foster. Hancock County and the sheriff's office moved for judgment on the pleadings based on sovereign immunity and the individual defendants moved for summary judgment based on, among other things, official immunity. After a hearing on the motions, at which Lundy conceded that the sheriff's office was not a legal entity capable of being sued,^[1] the trial court granted both motions in separate orders, finding that the claims against Hancock County were barred by sovereign immunity and that the claims against the individual defendants in their individual capacities were barred by official immunity.

Lundy has filed two related appeals challenging the trial court's rulings. In Case No. A23A0301, we affirm the grant of judgment on the pleadings because Hancock County's sovereign immunity has not been waived. In Case No. A23A0423, we reverse the grant of summary judgment to jail officers Phillips and Kemp because there are genuine issues of material fact as to whether they negligently failed to perform the ministerial task of checking on Walker every 15 minutes. But we affirm the grant of summary judgment to the other individual defendants because Lundy has failed to point to evidence showing that they performed a discretionary act maliciously or a ministerial act negligently.

Case No. A23A0301.

1. Standard for judgment on the pleadings.

Lundy claims that the trial court applied the wrong legal standard in ruling on the motion for judgment on the pleadings. But she has not identified any incorrect standard the court purportedly applied, nor has she cited evidence in the record supporting her claim or otherwise showing that the court applied the wrong standard. And contrary to her claim, a review of the trial court's order reveals that the court cited OCGA § 9-11-12 (c), the code section governing motions for judgment on the pleadings, and stated that the motion was being considered under the standards detailed in Rolling Pin Kitchen Emporium v. Kaas, 241 Ga.App. 577 (527 S.E.2d 248) (1999). As that case correctly provides:

In deciding a motion for judgment on the pleadings, the issue is whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. In deciding whether the movant is entitled to judgment as a matter of law, all well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false. But this applies to factual allegations. The trial court need not adopt a party's legal conclusions based on these facts. OCGA § 9-11-12 (c).

Id. at 578 (2) (citations, punctuation, and emphasis omitted).

Given that the trial court's order references the correct standards and that Lundy has failed to point to any "affirmative evidence of an error, we will not rely on speculation.... Instead, we will rely on the presumption in favor of the regularity and legality of all proceedings in the trial court." Nix v. State, 354 Ga.App. 47, 58 (8) (839 S.E.2d 687) (2020) (citation and punctuation omitted).

2. Matters outside the pleadings.

Lundy enumerates that to the extent the trial court considered matters outside the pleadings and treated the motion as one for summary judgment, she was denied due process and an opportunity to be heard. But once again, she has failed to support her enumeration with any reference to the record and she has not identified any particular matter outside the pleadings that the trial court purportedly considered in ruling on the motion. Accordingly, "[t]his enumeration presents nothing for review[.]" Anderson v. Barrow County, 256 Ga.App. 160, 163 (2) (568 S.E.2d 68) (2002). See Court of Appeals Rule 25 (d) (1) (i) ("Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of a specific reference, the Court will not search for and may not consider that enumeration.").

3. Sovereign immunity.

Lundy contends that the trial court erred in granting the motion for judgment on the pleadings because Hancock County waived its sovereign immunity. We disagree.

"As provided in Georgia's constitution, sovereign immunity extends to the counties, and a county's sovereign immunity can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." McCobb v. Clayton County, 309 Ga.App. 217 (1) (a) (710 S.E.2d 207) (2011) (citations and punctuation omitted). "Whether a county has waived sovereign immunity is a threshold issue and not a mere defense to liability. A waiver of sovereign immunity must be established by the party seeking to benefit from that waiver, and when a litigant fails to bear this burden, the trial court must dismiss the complaint . . . for lack of subject-matter jurisdiction." Ramos v. Owens, 366 Ga.App. 216, 217-218 (881 S.E.2d 464) (2022) (citations and punctuation omitted). Accord Fulton County School Dist. v. Jenkins, 347 Ga.App. 448, 450 (820 S.E.2d 75) (2018) (waiver of sovereign immunity must be established by the party seeking to benefit from such waiver). "Hence, the burden was on [Lundy] to show that [there has been a] waiver of [the] county's sovereign immunity." Marshall v. McIntosh County, 327 Ga.App. 416, 417 (1) (759 S.E.2d 269) (2014).

(a) OCGA §§ 42-4-4 and 42-5-2 (medical aid to inmates).

Lundy first argues that Hancock County's sovereign immunity was waived by OCGA §§ 42-4-4 and 42-5-2, concerning the provision of medical aid to inmates. But "[t]he plain language of [those code sections] does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and therefore, no waiver can be implied or shown." Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 603 (2) (755 S.E.2d 184) (2014). See Marshall, supra ("Sovereign immunity can only be waived pursuant to a legislative act which specifically provides that sovereign immunity is waived and describes the extent of such waiver.") (citation and punctuation omitted); Fulton County School Dist., supra at 450 (implied waivers of sovereign immunity are not favored).

Indeed, this court has held that neither of the code sections cited by Lundy waives sovereign immunity. "While OCGA § 42-5-2 (a) imposes upon the county the duty and cost of medical care for inmates in its custody, it does not waive sovereign immunity of the county or its agents or employees." Graham v. Cobb County, 316 Ga.App. 738, 742 (1) (b) (i) (730 S.E.2d 439) (2012). Accord Gish v. Thomas, 302 Ga.App. 854, 862-863 (4) (691 S.E.2d 900) (2010) (OCGA § 42-5-2 does not waive sovereign immunity). Likewise, while "OCGA § 42-4-4 (a) (2) . . . places certain duties on a sheriff to provide an inmate with medical care, that statute also fails to include language waiving [sovereign] immunity[.]" Tattnall County v. Armstrong, 333 Ga.App. 46, 52 (1) (775 S.E.2d 573) (2015), overruled in part on other grounds, Rivera v. Washington, 298 Ga. 770, 778 n. 7 (784 S.E.2d 775) (2016).

We note that Lundy's reliance on Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga.App. 530, 532 (3) (428 S.E.2d 374) (1993) is misplaced since that case, unlike the instant case, involved a medical provider's claims against a county for reimbursement of medical expenses. Under the circumstances of this case, the trial court did not err in concluding that Lundy failed to carry her burden of showing a waiver of sovereign immunity by relying on statutes which do not specify any such waiver or the extent thereof. See Ga. Dept. of Corrections v. James, 312 Ga.App. 190, 193-194 (1) (718 S.E.2d 55) (2011) (no waiver of sovereign immunity by OCGA § 42-2-5 and other code sections because they did not provide for a specific waiver of sovereign immunity or describe the extent of such waiver), overruled in part on other grounds, Rivera, supra.

(b) Insurance.

Lundy claims that Hancock County waived its sovereign immunity by purchasing liability insurance that covers the incident in this case. However, "the defense of sovereign immunity to tort liability cannot be waived by the mere purchase of insurance coverage." Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 S.E.2d 581) (1995). Moreover, Lundy has cited no evidence of the purported insurance policy or anything else in the record from which we could determine its existence or a waiver of sovereign immunity. The only record citation Lundy makes is to the response she filed in the trial court to the defense motion for judgment on the pleadings. "To the extent that [Lundy] is attempting to incorporate by reference . . . additional arguments into [her] appellate brief, that practice is not approved by this [c]ourt, and we decline to look in the record for matters which should have been set forth in the brief." R&G Investments &Holdings v. American Family Ins. Co., 337 Ga.App. 588, 591 (1) (787 S.E.2d 765) (2016) (citation and punctuation omitted). See also Fleming v. Advanced Stores Co., 301 Ga.App. 734, 735...