In his suit рursuant to the Georgia Tort Claims Act (GTCA) for damages suffered while in the custody of the Georgia Department of Corrections, assigned to the Coweta County Correctional Institute, David Lamar Camp appeals from the trial court’s grant of the county defеndants’ 1 motion to open default and grant of the Georgia Department of Correction’s motion to dismiss. 2
Camp alleged that, on August 27, 2002, while participating on a mandatory work detail at the Coweta County Fairgrounds, he was required to climb scaffolding next to a building under construction. He fell, landed on rocks, and was seriously injured.
On the date of the injury, the county and its employees were insured by St. Paul Insurance Company. On May 19, 2003, Mitchell Powell, county attorney for Coweta County, received a copy of Camp’s cоmplaint from the sheriff. The county commissioners were not personally served. Instead, copies of the complaint were served upon the county administrator. On May 19, 2003, Powell’s employee sent a copy of the complaint to Smith Lanier, the insurance broker for the county. On May 20, 2003, Lanier’s employee Folts sent a copy of the complaint to St. Paul Insurance Company for handling and assignment of defense counsel. In January 2003, Folts had forwarded to St. Paul a copy of Camp’s ante litem letter, which was assigned a claim number and adjuster by St. Paul. Folts called St. Paul’s Claims Service Center and was told that the complaint sent on May 20 had been received.
If a claim is denied by St. Paul, a written denial letter is sent to the county attorney, the county, and Lanier, thе insurance broker. *350 That did not occur in Camp’s case. The county became aware that no answer had been filed on its behalf when Powell, the county attorney, received a copy of Camp’s motion for default judgment, filed on July 28, 2003. On July 31, 2003, an answer and motion to open default were filed on behalf of the county defendants.
By order of October 7, 2003, the trial court granted the county defendants’ motion to open default 3 and denied Camp’s request for a certificate of immediate review. In March 2004, the DOC filed its motion to dismiss for failure to comply with the ante litem and service of process requirements of OCGA §§ 50-21-25, 50-21-26, and 50-21-35. By order of April 28, 2004, the trial court granted this motion, finding that Camp did not satisfy these statutory requirements and found subject matter jurisdiction missing as to the state defendаnts.
1. The county defendants have raised the issue of whether this Court has jurisdiction over the appeal regarding the opening of default. Even if not raised by a party, “[i]t is the duty of this Court on its own motion to inquire into its jurisdiction.” (Citation and punctuation omitted.)
Yeazel v. Burger King Corp.,
The trial court’s April 28, 2004 order regarding the claims against the state defendants stated that the court granted the motion to dismiss of DOC and that
[i]t is hereby ORDERED, ADJUDGED and DECREED thаt the claims against the Defendants Phillips State Prison, Michelle Martin, Georgia Department of Corrections, and the State of Georgia are DISMISSED. In addition, the Court finds that the instant matters satisfy the criteria for entry of a final judgment as prescribed in O.C.G.A. § 9-11-54 (b), in that there arе multiple parties and there is no just reason for delaying entry of a final judgment as to the adjudication of the claims against Defendants Phillips State Prison, Michelle Martin, Georgia Department of Corrections, and the State of Georgia. Accordingly,pursuantto O.C.G.A. § 9-11-54(b), the Court hereby expressly directs that FINAL JUDGMENT IS *351 HEREBY ENTERED ... in favor of [these defendants].
(Emphasis supplied.)
Camp argues that his appeal of the order opening default is also made appealable by this order. We do not agree. OCGA § 5-6-34 (a) (1) provides that “[a]ll final judgments, that is to say, where the case is no longer pending in the court below, . . .” are directly appealable. OCGA§ 5-6-34 (b), which Camp invokedbelow, allows appeal from an order not otherwise directly appealable upon issuance of a certificate of immediate review. The triаl court declined to grant a certificate and the case against the county defendants remains pending below.
Under these circumstances, the order opening default does not fall within the provisions of OCGA § 5-6-34 (d) which states that
[wjhere an appeаl is taken under any provision of subsection (a), (b), or (c) [applicable to criminal cases only] of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings bеlow shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.
While Camp’s appeal as to the DOC is reviewable pursuant to OCGA § 9-11-54, his case remains pending below against the county defendants and the order opеning default is not yet appealable, absent the certificate of immediate review.
Financial Investment Group v. Cornelison,
Therefore, this Court is without jurisdiction to consider Camp’s appeal of the grant of the county defendants’ motion to open default and this appeal is dismissеd as to those defendants.
2. Camp also argues that the trial court erred in dismissing the complaint against the DOC for failure to comply with OCGA § 50-21-35.
That section provides that
[i]n all civil actions brought against the state under this article, to perfect service of process ... [a] copy of the complaint, showing the date of filing, shall also bе mailed to *352 the Attorney General at his or her usual office address, by certified mail or statutory overnight delivery, return receipt requested and there shall be attached to the complaint a certificate that this requirement has been met.
(Emphasis supplied.)
As refleсted by the complaint and the summons attached to it, no copy was mailed to the Attorney General immediately following the complaint’s filing. Nor was the certificate indicating that this had been done filed with the complaint. It was not until April 7, 2004, 11 months after the filing of thе complaint on May 14, 2003, that a copy of the complaint, amended to include the certificate of compliance required by OCGA § 50-21-35, was mailed to the Attorney General. The state defendants had raised the lack of service on the Attorney Gеneral as a defense in June 2003, and in the motion to dismiss on this ground filed on March 16, 2004.
Camp argues, without any citation of authority to support it, that since the Attorney General was sent the complaint and the certificate was added by amendment within the statute of limitation, this complied with OCGA § 50-21-35. We disagree.
The GTCA, “by its own terms, must be strictly construed.”
Howard v. State of Ga.,
As also noted in Howard, supra, “the General Assembly specifically provided that the tort liability of this State shall only be ‘within the limitations of this article [OCGA § 50-21-20 et seq.] and in accordance with the fair and uniform principles established in this article.’ ” (Citations and рunctuation omitted.)
In Howard, the ante litem notice and the service of process were deficient, making the filing of the complaint a void act because subj ect matter jurisdiction was lacking. As stated in Howard,
[t]he provision for service of process under OCGA § 50-21-35 is as specific as that of the ante litem notice requirements. Service must be made upon: (1) the governmental entity allegedly responsible for plaintiffs injury; (2) the director of the Risk Management Division of the Department of Administrative Services; and (3) the State Attоrney General. Appellant failed to include service of process upon the Attorney *353 General and upon the [governmental entity], OCGA §§ 12-3-311; 50-21-35.
Id. at 545, n. 3.
In construing a statute, the goal is to ascertain its legislative intent and meaning.
Hollowell v. Jove,
Because OCGA § 50-21-35 uses “shall” regarding service on the Attorney General, we conclude that it is susceptible of only “one natural and reasonable construction — shall means shall....”
State v. Villella,
Such a conclusion is also consistent with the fact that the GTCA does provide that failure to attach to the complaint copies of the ante litem notice and proof of delivery may be cured by amendment within 30 days of the state’s raising оf the issue by motion. OCGA § 50-21-26 (a) (4). There is no provision in the GTCA allowing any other amendment.
In determining the intent of the legislature, we apply
the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. The omission of any such reference from the Code subsection must be regarded as deliberate.
(Citations and punctuation omitted.)
Homebuilders Assn. of Ga. v. Morris,
*354
Sufficiency of service of process on the Attorney General was a condition precedent to DOC’s waiver of sovereign immunity and Camp failed to comply with it. See
Dept. of Human Resources v. Nation,
There was no error in the trial court’s dismissal of the suit against DOC.
3. DOC also included in its motion to dismiss the inadequacy of the ante litem notice and the trial court granted the motion on this basis also, which Camp argues was improper.
Pursuant to OCGA§ 50-21-26 (a) (5),
(5) A notice of сlaim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following:
(A) The name of the state government entity, the acts or omissions of which are assertеd as the basis of the claim;
(B) The time of the transaction or occurrence out of which the loss arose;
(C) The place of the transaction or occurrence;
(D) The nature of the loss suffered;
(E) The amount of the loss claimed; and
(F) The acts or omissions which caused the loss.
“Substantial compliance with the ante litem notice requirement is inadequate under the Act. [Cits.]”
Grant v. Faircloth,
On Januаry 6, 2003, Camp alleges that his attorney mailed letters to the Department of Administrative Services, DOC, and Phillips State Prison. The only such letter contained in the record before us, however, is that sent to Phillips State Prison, which states that
[t] his firm represents David Lamar Camр, a prison inmate, who was severely injured when he fell from a scaffold on or about August 27, 2002, at the Coweta County Fairgrounds. Our investigation of this matter is ongoing and all of the relevant facts and circumstances surrounding the incident giving rise to Mr. Camp’s injuries, as well as the full extеnt of the injuries themselves, are not yet known. It appears at *355 this point that Mr. Camp was required to work with inadequate equipment, without standard safety equipment, and in inclement weather, and that these factors combined to cause his sudden fall from the toр of a 20 foot tall scaffold. Mr. Camp’s legs were shattered when he landed in the rocks beneath the scaffold. It is unclear at this point whether Mr. Camp will ever regain the full use of his legs.
(Punctuation omitted.)
Regarding the failure to name the DOC as the state governmental entity sought to be held responsible, Camp’s brief states that his “alleged failure to name the GDOC in the body of the notice is hardly a deficiency. A copy оf the notice was addressed to the GDOC. Clearly a notice addressed to GDOC is sufficient to advise the GDOC that [Camp] considered the GDOC potentially liable for his injury.”
It was incumbent upon Camp to demonstrate error in the record. In addition to the fact that DOC is not named in the body of the letter sent to Phillips State Prison, nothing in the record demonstrates that DOC was mailed such a letter. Statements in briefs cannot be considered because they add no evidence to the record.
In the Interest of C. M.,
On this basis alone, the ante litem notice was insufficient. See
Dempsey v. Bd. of Regents &c. of Ga.,
Judgment affirmed and appeal dismissed in part.
Notes
The county defendants are Coweta County, the Coweta County Correctional Institute, and several employees of the county and institute. Also named as defendants are the State of Georgia, the Georgia Department of Corrections (DOC), Phillips State Prison, and the warden of the prison (state defendants).
Camp consented to the dismissal of Phillips State Prison, its warden, and the State of Georgia, leaving the DOC as the state defendant.
No judgment had been entered on the default.