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IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA
MICHAEL WILSON, INDIVIDUALLY, )
AND AS PARENT AND LEGAL )
GUARDIAN OF JADE-SIMONE )
WILSON, A MINOR CHILD, )
)
Plaintiffs, )
)
v. ) CIVIL ACTION FILE NO.
) 23-C-01777-S5
GEORGE BYROO, AND FULTON )
COUNTY, )
)
Defendants. )
FULTON COUNTY AND GEORGE BYROO’S
SPECIAL APPEARANCE MOTION TO DISMISS
COME NOW Fulton County and George Byroo, by and through undersigned counsel, and
specially appear to move this Honorable Court to dismiss this case.
I. INTRODUCTION AND OVERVIEW.
This is a vehicle collision case. On March 17, 2023, Plaintiff Michael Wilson, and Plaintiff
Jade-Simone Wilson, his minor daughter (collectively “Plaintiffs”), initiated this litigation in
Gwinnett County against Fulton County and George Byroo. The Complaint alleges venue is proper
“as to the Defendants pursuant to OCGA § 50-21-28 [i.e., The Georgia Tort Claims Act], as the
injury and loss to Plaintiff [sic] occurred in GWINNETT County, Georgia.” Compl. at ¶ 7. This
allegation of venue in Plaintiffs’ Complaint conflicts with the law of Georgia.
Plaintiffs claim proper venue under The Georgia Tort Claims Act (the “GTCA”). However,
there is no proper venue in Georgia to sue Defendants under the GTCA because the GTCA is not
applicable to counties or individuals. Furthermore, neither Defendant resides in Gwinnett County.
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Because venue is not proper in this Court, Plaintiffs’ Complaint should be dismissed, or in the
alternative, transferred, to Fulton County Superior Court.
II. PROPER VENUE IS A NECESSARY PRECONDITION TO SUIT.
Generally, venue is proper in a civil lawsuit only if filed where a defendant resides. The
Georgia Constitution provides, subject to some exceptions, that civil cases “shall be tried in the
county where the defendant resides.” See Ga. Const., Art. VI, Sec. II, Par. VI. A proper complaint
must “contain facts upon which the court’s venue depends.” See OCGA § 9-11-8(a)(2). “A trial
court without venue lacks authority to issue an order or judgment, and any such order or judgment
is void.” Koo Pil Chung v. Hair Trend USA, Inc., 322 Ga. App. 429, 432 (2013).
III. VENUE IS NOT PROPER UNDER THE GTCA BECAUSE THE GTCA IS NOT
APPLICABLE TO DEFENDANTS SO THE COMPLAINT SHOULD BE
DISMISSED.
Plaintiffs have failed to meet their burden in establishing proper venue here or in any court
in Georgia. Therefore, Plaintiffs’ Complaint should be dismissed. The statute Plaintiffs cite in
support of their claim of proper venue is the GTCA. That statute’s venue provision notes that it is
waiving sovereign immunity only for “tort actions against the state.” OCGA § 50-21-28 (emphasis
added). The GTCA has a definitions section. That section defines “state” to explicitly exclude
“counties.” OCGA § 50-21-22(5). “The Constitution allows for a waiver of sovereign immunity
through the Georgia Tort Claims Act, but this waiver does not apply to counties.” DeKalb State
Ct. Prob. Dep’t v. Currid, 287 Ga. App. 649, 651 (2007). Thus, Plaintiffs have no valid claim of
venue against Defendant Fulton County based on The Georgia Tort Claims Act. Therefore,
Plaintiffs’ claims against Fulton County should be dismissed. Plaintiffs have failed to meet their
burden. Ramos, 366 Ga. App. at 218.
2
Plaintiffs’ claims against Byroo should be dismissed because Byroo, too, is not considered
a “state” under the GTCA. Plaintiffs allege that, at the time of this incident, Byroo was a human
employed by a county. Thus, Plaintiffs’ Complaint, which alleges proper venue against Byroo
based on the GTCA, does not present a valid claim of venue anywhere in Georgia.
Furthermore, venue is not proper in Gwinnett County because neither defendant resides in
Gwinnett County. Pursuant to the Uniform Superior Court Rules and the Uniform Transfer Rules,
a motion to dismiss for improper venue is treated as a motion to transfer the action to another court.
Uniform Superior Court Rule 19.1(A) and Uniform Transfer Rule T-4. Venue in civil cases shall
be tried in the county where the defendant resides. Ga. Const. Art. VI, Sec. II, Para. VI.
Since none of the defendants reside in Gwinnett County, venue is improper in Gwinnett
County and should be transferred to the Superior Court of Fulton County. In the alternative, venue
should be transferred to Fulton County Superior Court pursuant to O.C.G.A. § 9-10-31.1. Under
Georgia’s forum non conveniens statute, when a court finds that in the interest of justice and for
the convenience of the parties and witnesses, an action would be more properly heard in a different
county, the venue shall be transferred to the appropriate county. The seven factors enumerated in
the statute favor transfer to Fulton County. Ease of access to sources of proof, the availability and
cost of process as well as unnecessary expense to the defendants with no resulting benefit to
plaintiffs and the existence of a local interest all favor transfer to Fulton County.
IV. UNDER GEORGIA LAW, GEORGIA COUNTIES HAVE SOVEREIGN
IMMUNITY UNLESS EXPLICITLY WAIVED.
In this case, Plaintiffs allege that Fulton County is liable based upon a theory of
imputed/vicarious liability (Count II) and negligent hiring, training, and retention of Byroo (Count
III). In Georgia, a county is not liable for any cause of action unless a statute explicitly allows a
waiver of the county’s sovereign immunity. “Under our Constitution, Georgia counties enjoy
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sovereign immunity, and can be sued only if they have waived their immunity.” Strength v. Lovett,
311 Ga. App. 35, 38 (2011) (internal citation omitted). 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.” Bd. of Commrs. of Glynn County v. Johnson, 311 Ga. App.
867, 870 (2011) (quotation marks omitted and alteration accepted); see also OCGA § 36-1-4 (“A
county is not liable to suit for any cause of action unless made so by statute.”). “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 pursuant to OCGA
§ 9-11-12(b)(1) for lack of subject-matter jurisdiction.” Ramos v. Owens, 366 Ga. App. 216, 218
(2022) (internal quotation marks and citation omitted).
Plaintiffs’ Complaint is devoid of any reference to waiver of sovereign immunity, statutory
or otherwise. The Complaint is devoid of any recitation of authority that waives the County’s
sovereign immunity for imputed/vicarious liability or negligent hiring, training or retention.
Therefore, sovereign immunity bars Plaintiffs’ claims against Fulton County.
V. DEFENDANT BYROO IS NOT A PROPER PARTY TO THIS SUIT.
There is an additional, independent reason why Plaintiffs’ claims against Byroo should be
dismissed. Plaintiffs claim that Byroo “[a]t all times material . . . was an employee and/or agent of
Defendant, FULTON COUNTY, and at all times material was working within the course and
scope of that employment and/or agency with FULTON COUNTY.” Compl. ¶ 18. Thus, Plaintiffs
allege that Byroo was a local government officer or employee. However, the law states: “Any local
government officer or employee who commits a tort involving the use of a covered motor vehicle
while in the performance of his or her official duties is not subject to lawsuit or liability therefor.”
OCGA § 36-92-3. The law goes even further, stating proper plaintiffs “shall not name the local
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government officer or employee individually.” OCGA § 36-92-3(b). Yet here, Plaintiffs do just
that, claiming Byroo was acting as a local government officer and naming him personally.
Plaintiffs’ Complaint fails to allege there is a proper venue in Georgia for a suit against Byroo, and
the Complaint should be dismissed against him.
VI. CONCLUSION.
Based on the foregoing, Fulton County and George Byroo respectfully request that this
Court grant their Special Appearance Motion to Dismiss Plaintiffs’ Complaint in its entirety, or in
the alternative transfer this case to Fulton County, and stay discovery until the Motion to Dismiss
has been ruled on. A proposed order for this Court’s consideration is attached.
Respectfully submitted this 21st day of April, 2023.
OFFICE OF THE FULTON COUNTY
ATTORNEY
Kaye Woodard Burwell
Georgia Bar No. 775060
Deputy County Counsel
Kaye.Burwell@fultoncountyga.gov
Shalanda M. J. Miller
Georgia Bar No. 122544
Deputy County Counsel
Shalanda.Miller@fultoncountyga.gov
/s/ Richard Caplan
Richard Caplan
Georgia Bar No. 597634
Senior Assistant County Counsel
Richard.Caplan@fultoncountyga.gov
/s/ Sandy Milord
Sandy Milord
Georgia Bar No. 622391
Senior Assistant County Counsel
Sandy.Milord@fultoncountyga.gov
Attorneys for Fulton County & George Byroo
5
141 Pryor Street, SW
Suite 4038
Atlanta, Georgia 30303
(404) 612-0263 (office)
(404) 730-6324 (facsimile)
6
IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA
MICHAEL WILSON, INDIVIDUALLY, )
AND AS PARENT AND LEGAL )
GUARDIAN OF JADE-SIMONE )
WILSON, A MINOR CHILD, )
)
Plaintiffs, )
)
v. ) CIVIL ACTION FILE NO.
) 23-C-01777-S5
GEORGE BYROO, AND FULTON )
COUNTY, )
)
Defendants. )
CERTIFICATE OF SERVICE
This is to certify that I have this day filed the foregoing FULTON COUNTY AND
GEORGE BYROO’S SPECIAL APPEARANCE MOTION TO DISMISS through the
Odyssey eFileGA system, which will automatically send an e-mail notification to the Court and
Plaintiffs’ counsel.
This 21st day of April, 2023.
/s/ Richard Caplan
Richard Caplan
Georgia Bar No. 597634
Senior Assistant County Counsel
Richard.caplan@fultoncountyga.gov
OFFICE OF THE FULTON COUNTY ATTORNEY
141 Pryor Street, SW
Suite 4038
Atlanta, Georgia 30303
(404) 612-0263 (office)
(404) 730-6324 (facsimile)
7
IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA
MICHAEL WILSON, INDIVIDUALLY, )
AND AS PARENT AND LEGAL )
GUARDIAN OF JADE-SIMONE )
WILSON, A MINOR CHILD, )
)
Plaintiffs, )
)
v. ) CIVIL ACTION FILE NO.
) 23-C-01777-S5
GEORGE BYROO, AND FULTON )
COUNTY, )
)
Defendants. )
[PROPOSED] ORDER GRANTING MOTION TO DISMISS
This action is before the Court on Fulton County and George Byroo’s Special Appearance
Motion to Dismiss Plaintiffs’ Complaint. For good cause shown, Fulton County and George
Byroo’s Motion is hereby GRANTED.
It is hereby ORDERED that the claims of Plaintiffs, in this case, are DISMISSED
WITHOUT PREJUDICE.
SO ORDERED, this _____ day of _________________, 2023.
______________________________
Judge
Superior Court of Gwinnett County
Per Uniform Superior Court Rule 36.4, this proposed order was prepared by:
Richard Caplan
Georgia Bar No. 597634
Richard.caplan@fultoncountyga.gov
OFFICE OF THE FULTON COUNTY ATTORNEY
141 Pryor Street, SW, Suite 4038
Atlanta, Georgia 30303
(404) 612-0263 (office)
(404) 730-6324 (facsimile)
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Preview
IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA MICHAEL WILSON, INDIVIDUALLY, ) AND AS PARENT AND LEGAL ) GUARDIAN OF JADE-SIMONE ) WILSON, A MINOR CHILD, ) ) Plaintiffs, ) ) v. ) CIVIL ACTION FILE NO. ) 23-C-01777-S5 GEORGE BYROO, AND FULTON ) COUNTY, ) ) Defendants. ) FULTON COUNTY AND GEORGE BYROO’S SPECIAL APPEARANCE MOTION TO DISMISS COME NOW Fulton County and George Byroo, by and through undersigned counsel, and specially appear to move this Honorable Court to dismiss this case. I. INTRODUCTION AND OVERVIEW. This is a vehicle collision case. On March 17, 2023, Plaintiff Michael Wilson, and Plaintiff Jade-Simone Wilson, his minor daughter (collectively “Plaintiffs”), initiated this litigation in Gwinnett County against Fulton County and George Byroo. The Complaint alleges venue is proper “as to the Defendants pursuant to OCGA § 50-21-28 [i.e., The Georgia Tort Claims Act], as the injury and loss to Plaintiff [sic] occurred in GWINNETT County, Georgia.” Compl. at ¶ 7. This allegation of venue in Plaintiffs’ Complaint conflicts with the law of Georgia. Plaintiffs claim proper venue under The Georgia Tort Claims Act (the “GTCA”). However, there is no proper venue in Georgia to sue Defendants under the GTCA because the GTCA is not applicable to counties or individuals. Furthermore, neither Defendant resides in Gwinnett County. 1 Because venue is not proper in this Court, Plaintiffs’ Complaint should be dismissed, or in the alternative, transferred, to Fulton County Superior Court. II. PROPER VENUE IS A NECESSARY PRECONDITION TO SUIT. Generally, venue is proper in a civil lawsuit only if filed where a defendant resides. The Georgia Constitution provides, subject to some exceptions, that civil cases “shall be tried in the county where the defendant resides.” See Ga. Const., Art. VI, Sec. II, Par. VI. A proper complaint must “contain facts upon which the court’s venue depends.” See OCGA § 9-11-8(a)(2). “A trial court without venue lacks authority to issue an order or judgment, and any such order or judgment is void.” Koo Pil Chung v. Hair Trend USA, Inc., 322 Ga. App. 429, 432 (2013). III. VENUE IS NOT PROPER UNDER THE GTCA BECAUSE THE GTCA IS NOT APPLICABLE TO DEFENDANTS SO THE COMPLAINT SHOULD BE DISMISSED. Plaintiffs have failed to meet their burden in establishing proper venue here or in any court in Georgia. Therefore, Plaintiffs’ Complaint should be dismissed. The statute Plaintiffs cite in support of their claim of proper venue is the GTCA. That statute’s venue provision notes that it is waiving sovereign immunity only for “tort actions against the state.” OCGA § 50-21-28 (emphasis added). The GTCA has a definitions section. That section defines “state” to explicitly exclude “counties.” OCGA § 50-21-22(5). “The Constitution allows for a waiver of sovereign immunity through the Georgia Tort Claims Act, but this waiver does not apply to counties.” DeKalb State Ct. Prob. Dep’t v. Currid, 287 Ga. App. 649, 651 (2007). Thus, Plaintiffs have no valid claim of venue against Defendant Fulton County based on The Georgia Tort Claims Act. Therefore, Plaintiffs’ claims against Fulton County should be dismissed. Plaintiffs have failed to meet their burden. Ramos, 366 Ga. App. at 218. 2 Plaintiffs’ claims against Byroo should be dismissed because Byroo, too, is not considered a “state” under the GTCA. Plaintiffs allege that, at the time of this incident, Byroo was a human employed by a county. Thus, Plaintiffs’ Complaint, which alleges proper venue against Byroo based on the GTCA, does not present a valid claim of venue anywhere in Georgia. Furthermore, venue is not proper in Gwinnett County because neither defendant resides in Gwinnett County. Pursuant to the Uniform Superior Court Rules and the Uniform Transfer Rules, a motion to dismiss for improper venue is treated as a motion to transfer the action to another court. Uniform Superior Court Rule 19.1(A) and Uniform Transfer Rule T-4. Venue in civil cases shall be tried in the county where the defendant resides. Ga. Const. Art. VI, Sec. II, Para. VI. Since none of the defendants reside in Gwinnett County, venue is improper in Gwinnett County and should be transferred to the Superior Court of Fulton County. In the alternative, venue should be transferred to Fulton County Superior Court pursuant to O.C.G.A. § 9-10-31.1. Under Georgia’s forum non conveniens statute, when a court finds that in the interest of justice and for the convenience of the parties and witnesses, an action would be more properly heard in a different county, the venue shall be transferred to the appropriate county. The seven factors enumerated in the statute favor transfer to Fulton County. Ease of access to sources of proof, the availability and cost of process as well as unnecessary expense to the defendants with no resulting benefit to plaintiffs and the existence of a local interest all favor transfer to Fulton County. IV. UNDER GEORGIA LAW, GEORGIA COUNTIES HAVE SOVEREIGN IMMUNITY UNLESS EXPLICITLY WAIVED. In this case, Plaintiffs allege that Fulton County is liable based upon a theory of imputed/vicarious liability (Count II) and negligent hiring, training, and retention of Byroo (Count III). In Georgia, a county is not liable for any cause of action unless a statute explicitly allows a waiver of the county’s sovereign immunity. “Under our Constitution, Georgia counties enjoy 3 sovereign immunity, and can be sued only if they have waived their immunity.” Strength v. Lovett, 311 Ga. App. 35, 38 (2011) (internal citation omitted). 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.” Bd. of Commrs. of Glynn County v. Johnson, 311 Ga. App. 867, 870 (2011) (quotation marks omitted and alteration accepted); see also OCGA § 36-1-4 (“A county is not liable to suit for any cause of action unless made so by statute.”). “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 pursuant to OCGA § 9-11-12(b)(1) for lack of subject-matter jurisdiction.” Ramos v. Owens, 366 Ga. App. 216, 218 (2022) (internal quotation marks and citation omitted). Plaintiffs’ Complaint is devoid of any reference to waiver of sovereign immunity, statutory or otherwise. The Complaint is devoid of any recitation of authority that waives the County’s sovereign immunity for imputed/vicarious liability or negligent hiring, training or retention. Therefore, sovereign immunity bars Plaintiffs’ claims against Fulton County. V. DEFENDANT BYROO IS NOT A PROPER PARTY TO THIS SUIT. There is an additional, independent reason why Plaintiffs’ claims against Byroo should be dismissed. Plaintiffs claim that Byroo “[a]t all times material . . . was an employee and/or agent of Defendant, FULTON COUNTY, and at all times material was working within the course and scope of that employment and/or agency with FULTON COUNTY.” Compl. ¶ 18. Thus, Plaintiffs allege that Byroo was a local government officer or employee. However, the law states: “Any local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor.” OCGA § 36-92-3. The law goes even further, stating proper plaintiffs “shall not name the local 4 government officer or employee individually.” OCGA § 36-92-3(b). Yet here, Plaintiffs do just that, claiming Byroo was acting as a local government officer and naming him personally. Plaintiffs’ Complaint fails to allege there is a proper venue in Georgia for a suit against Byroo, and the Complaint should be dismissed against him. VI. CONCLUSION. Based on the foregoing, Fulton County and George Byroo respectfully request that this Court grant their Special Appearance Motion to Dismiss Plaintiffs’ Complaint in its entirety, or in the alternative transfer this case to Fulton County, and stay discovery until the Motion to Dismiss has been ruled on. A proposed order for this Court’s consideration is attached. Respectfully submitted this 21st day of April, 2023. OFFICE OF THE FULTON COUNTY ATTORNEY Kaye Woodard Burwell Georgia Bar No. 775060 Deputy County Counsel Kaye.Burwell@fultoncountyga.gov Shalanda M. J. Miller Georgia Bar No. 122544 Deputy County Counsel Shalanda.Miller@fultoncountyga.gov /s/ Richard Caplan Richard Caplan Georgia Bar No. 597634 Senior Assistant County Counsel Richard.Caplan@fultoncountyga.gov /s/ Sandy Milord Sandy Milord Georgia Bar No. 622391 Senior Assistant County Counsel Sandy.Milord@fultoncountyga.gov Attorneys for Fulton County & George Byroo 5 141 Pryor Street, SW Suite 4038 Atlanta, Georgia 30303 (404) 612-0263 (office) (404) 730-6324 (facsimile) 6 IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA MICHAEL WILSON, INDIVIDUALLY, ) AND AS PARENT AND LEGAL ) GUARDIAN OF JADE-SIMONE ) WILSON, A MINOR CHILD, ) ) Plaintiffs, ) ) v. ) CIVIL ACTION FILE NO. ) 23-C-01777-S5 GEORGE BYROO, AND FULTON ) COUNTY, ) ) Defendants. ) CERTIFICATE OF SERVICE This is to certify that I have this day filed the foregoing FULTON COUNTY AND GEORGE BYROO’S SPECIAL APPEARANCE MOTION TO DISMISS through the Odyssey eFileGA system, which will automatically send an e-mail notification to the Court and Plaintiffs’ counsel. This 21st day of April, 2023. /s/ Richard Caplan Richard Caplan Georgia Bar No. 597634 Senior Assistant County Counsel Richard.caplan@fultoncountyga.gov OFFICE OF THE FULTON COUNTY ATTORNEY 141 Pryor Street, SW Suite 4038 Atlanta, Georgia 30303 (404) 612-0263 (office) (404) 730-6324 (facsimile) 7 IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA MICHAEL WILSON, INDIVIDUALLY, ) AND AS PARENT AND LEGAL ) GUARDIAN OF JADE-SIMONE ) WILSON, A MINOR CHILD, ) ) Plaintiffs, ) ) v. ) CIVIL ACTION FILE NO. ) 23-C-01777-S5 GEORGE BYROO, AND FULTON ) COUNTY, ) ) Defendants. ) [PROPOSED] ORDER GRANTING MOTION TO DISMISS This action is before the Court on Fulton County and George Byroo’s Special Appearance Motion to Dismiss Plaintiffs’ Complaint. For good cause shown, Fulton County and George Byroo’s Motion is hereby GRANTED. It is hereby ORDERED that the claims of Plaintiffs, in this case, are DISMISSED WITHOUT PREJUDICE. SO ORDERED, this _____ day of _________________, 2023. ______________________________ Judge Superior Court of Gwinnett County Per Uniform Superior Court Rule 36.4, this proposed order was prepared by: Richard Caplan Georgia Bar No. 597634 Richard.caplan@fultoncountyga.gov OFFICE OF THE FULTON COUNTY ATTORNEY 141 Pryor Street, SW, Suite 4038 Atlanta, Georgia 30303 (404) 612-0263 (office) (404) 730-6324 (facsimile) 8