Smith v. City of Roswell
| Decision Date | 18 October 2021 |
| Docket Number | A21A0789, A21A0790 |
| Citation | 864 S.E.2d 175,361 Ga.App. 853 |
| Parties | SMITH et al. v. CITY OF ROSWELL et al. Smith et al. v. City of Roswell. |
| Court | Georgia Court of Appeals |
Terry Dale Jackson, Woodstock, for Appellant in A21A0789.
Sun S. Choy, Wesley Calvin Jackson, Atlanta, Patrick Joseph Hannon, Peter Andrew Lampros, Hilliard Vonzell Castilla, Atlanta, Matthew Joseph Hurst, Detriss Thomas, Jonesboro, Patrick Joseph O'Connor, Patrise M. Perkins-Hooker, Denval Anthony Stewart, Atlanta, Joey Lynn Logan-Pugh, Emily Clare Hirst, Jacquelyn Dessaure Smith, Matthew Glenn Moffett, Atlanta, Marie Wilcox, Marietta, Jordan Catherine Raymond, Jennifer Lauren Nichols, Atlanta, Maren Rebecca Cave, Charles McCall Medlin, Winfield Lennard Pollidore, Atlanta, for Appellee in A21A0789.
Patrick Joseph Hannon, Peter Andrew Lampros, for Appellant in A21A0790.
Sun S. Choy, Wesley Calvin Jackson, Hilliard Vonzell Castilla, Atlanta, Matthew Joseph Hurst, Decatur, Terry Dale Jackson, Woodstock, Jennifer Lauren Nichols, Maren Rebecca Cave, Atlanta, Detriss Thomas, Jonesboro, Patrick Joseph O'Connor, Patrise M. Perkins-Hooker, Denval Anthony Stewart, Atlanta, Joey Lynn Logan-Pugh, Emily Clare Hirst, Jacquelyn Dessaure Smith, Matthew Glenn Moffett, Marie Wilcox, Charles McCall Medlin, Winfield Lennard Pollidore, Atlanta, for Appellee in A21A0790.
These consolidated appeals arise from two lawsuits following a fatal vehicle collision. Steve Smith and his daughter, Sydney Smith,1 died after their vehicle, which Steve was driving while under the influence, left the road and collided with two mailboxes owned by Alvin and Judith Nash, and Shannon and Ted Steward. Steve's wife and Sydney's mother, Micah Smith, filed a lawsuit individually, and as the administrator of Sydney's estate, against Ann Herrera, the administrator of Steve's estate, the City of Roswell, the Nashes, the Stewards, and other defendants. Thereafter, Herrera, as Steve's administrator, filed a cross-claim against the other defendants for Steve's estate's claims.
Samantha Smith, Micah and Steve's other daughter, filed Steve's wrongful death lawsuit against the City, the Nashes, the Stewards, and other defendants in the other underlying action. In both actions, the plaintiffs allege that the mailboxes proximately caused Sydney and Steve's deaths, and that the City of Roswell negligently failed to remove the Stewards’ and Nashes’ mailboxes. Further, the appellants contend that the City's failure to remove the mailboxes was ministerial in nature.
The cases are before us following multiple motions to dismiss and a motion to consolidate.
In Case No. A21A0789, the Stewards and Nashes filed motions to dismiss, arguing that Samantha lacked standing to bring Steve's wrongful death lawsuit. The trial court agreed, found that Samantha was not the real party in interest and concluded that Micah, as the surviving spouse, must bring Steve's wrongful death lawsuit. In both appeals, the trial court granted the City of Roswell's motion to dismiss, finding that the plaintiffs failed to prove waiver of the City's sovereign immunity. Samantha also filed a motion to consolidate the underlying cases, which the trial court denied.
In both appeals, the appellants claim that the trial court erred by dismissing the City. Additionally, in Case No. A21A0789 Samantha and Herrera claim that the trial court erred by refusing to order consolidation, and by refusing to allow Samantha to proceed as the plaintiff in her father's wrongful death lawsuit.
1. Samantha filed a motion to consolidate Steve's wrongful death and estate claims. The trial court declared the motion moot in light of a ruling in the companion case which allowed Micah to be substituted in place of Samantha. The court also denied the Nashes’ and Stewards’ motions to dismiss, ordering that Micah be joined as the proper party plaintiff in Steve's wrongful death action and Samantha would then be dismissed. Unfortunately, after the parties filed their appellate briefs, Micah passed away.
(a) Samantha and Herrera claimed in their appellate briefs that the trial court erred by refusing to allow Samantha to bring Steve's wrongful death claim when her mother, Micah, declined to file the claim. However, as Steve's surviving spouse Micah passed away, Samantha, as Steve's only living child, is the proper party to bring Steve's wrongful death claim. See OCGA § 51-4-2 (b) (1) (). Therefore, this enumerated error is now moot. See In the Interest of I. S. , 278 Ga. 859, 861, 607 S.E.2d 546 (2005) () (citation and punctuation omitted).
(b) Samantha and Herrera contend that the trial court erred by failing to consolidate Steve's wrongful death and estate claims. We review a trial court's ruling on a motion to consolidate for an abuse of discretion. See Ferguson v. Carver , 257 Ga. App. 849, 850, 572 S.E.2d 700 (2002).
When actions involving a common question of law or fact are pending before the court, if the parties consent, the court may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
OCGA § 9-11-42 (a). "Generally, all parties must consent to the consolidation of separate actions."
Hall v. Hill , ––– Ga. App. –––– (3), 859 S.E.2d 897 (2021). Undisputably, the defendants in the present matter did not consent to consolidation.
The Georgia Supreme Court has carved out a narrow exception and held that absent consent, consolidation may still be ordered "on the defendant's motion, of all claims which derive from personal injuries sustained by a single individual." Stenger v. Grimes , 260 Ga. 838, 839 (1), 400 S.E.2d 318 (1991) (emphasis omitted). The exception was created to avoid subjecting a defendant "to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the two claims made against [the defendant.]" Id. (citation and punctuation omitted). Such is not a danger here. Steve's estate was named as a defendant in Sydney's wrongful death action. Thereafter, Herrera, as the administrator, filed a cross-claim against the City, the Nashes, the Stewards, and other defendants for Steve's estate's claims. While judicial economy may favor consolidation of the two cases, such a scenario does not fall within the narrow Stenger exception. As such, the trial court did not abuse its discretion by denying to order consolidation. 2
Case Nos. A21A0789 and A21A0790
2. In granting the City's motion to dismiss, the trial court found that the plaintiffs failed to state a claim because they could not meet their burden of proof regarding the City's waiver of sovereign immunity. "A motion to dismiss for failure to state a claim should not be granted unless the allegations of the complaint demonstrate to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support thereof." City of Atlanta v. Mitcham , 296 Ga. 576, 577 (1), 769 S.E.2d 320 (2015).
Municipal corporations are protected by sovereign immunity. See Ga. Const. of 1983, Art. IX, Sect. II., Par. IX; OCGA § 36-33-1 (a) (). However, the General Assembly has carved out two applicable exceptions. First, "[a] municipal corporation shall not waive its immunity by the purchase of liability insurance ... unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy." See OCGA § 36-33-1 (a).
Second, a municipal corporation may be held liable for its "neglect to perform or improper or unskillful performance of [the municipal corporation's] ministerial duties[.]" OCGA § 36-33-1 (b). See also Gatto v. City of Statesboro , 353 Ga. App. 178, 181 (1), 834 S.E.2d 623 (2019).
The applicability of sovereign immunity to claims brought against the State is a jurisdictional issue. Indeed sovereign immunity like various other rules of jurisdiction and justiciability is concerned with the extent to which a case properly may come before a court at all. Therefore, the applicability of sovereign immunity is a threshold determination, and, if it does apply, a court lacks jurisdiction over the case and, concomitantly, lacks authority to decide the merits of a claim that is barred.
City of College Park v. Clayton County , 306 Ga. 301, 314 (5), 830 S.E.2d 179 (2019) (citation and punctuation omitted).
"The burden of demonstrating a waiver of sovereign immunity rests upon the party asserting it." Ga. Dept. of Labor v. RTT Assoc. , 299 Ga. 78, 81 (1), 786 S.E.2d 840 (2016). Whether sovereign immunity has been waived under the undisputed facts is a question of law, and we conduct a de novo review. See id.
(a) Both appellants claim that the trial court erred by holding that the City's purchase of insurance did not waive its sovereign immunity. The appellants attached certified copies of the City's insurance policy to their complaints. But the City attached a copy of its insurance policy endorsement to its reply brief in support of its motion to dismiss.3 The endorsement states that the policy provides no coverage for any occurrence ...
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