                               SECOND DIVISION
                                 MILLER, P. J.,
                              BROWN and GOSS, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      March 5, 2019




In the Court of Appeals of Georgia
 A18A2079. STEPHENS et al. v. COAN.                                           GS-076

      GOSS, Judge.

      While at home during business hours, James Stephens inadvertently placed a

cell phone call to Michael Coan, his supervisor at the Georgia Subsequent Injury

Trust Fund (“the Fund”). Coan answered the call, moved to another room to get better

reception, and listened in for 13 minutes on a conversation Stephens was having with

his wife Gina. After Coan confronted Stephens as to statements Stephens had made

during the call, Stephens resigned from the Fund and, with his wife, brought this suit

against Coan for eavesdropping, invasion of privacy, and negligence. The trial court

granted the State’s motion to dismiss the suit on the grounds that as a state officer or

employee working within the scope of his employment at the time of the call, Coan

was entitled to official immunity under the Georgia Tort Claims Act (GTCA), and
that the Stephenses had failed to comply with the ante litem requirements of the Act.

On appeal from this judgment, the Stephenses argue that the trial court erred in its

finding that Coan’s eavesdropping occurred within the scope of his employment and

in failing to consider Gina Stephens’s claims as distinct from her husband’s. We find

no error and affirm.

       Entitlement to official immunity under the GTCA “is not an affirmative

defense, going to the merits of the case, but raises the issue of the trial court’s subject

matter jurisdiction to try the case[.]” Dept. of Transp. v. Dupree, 256 Ga. App. 668,

671 (1) (570 SE2d 1) (2002) (citations omitted), cited with approval in Considine v.

Murphy, 297 Ga. 164, 167 (1), n. 2 (773 SE2d 176) (2015); see also OCGA § 9-11-12

(b) (1) (authorizing a motion to dismiss for lack of subject matter jurisdiction).

       We review de novo a trial court’s [ruling on] a motion to dismiss based
       on [official] immunity grounds, which is a matter of law. However,
       factual findings by the trial court in support of its legal decision are
       sustained if there is [any] evidence authorizing them, and the burden of
       proof is on the party seeking the waiver of immunity.


(Citations and footnotes omitted.) Dept. of Human Resources v. Johnson, 264 Ga.

App. 730, 731 (592 SE2d 124) (2003); see also Bonner v. Peterson, 301 Ga. App.

443, 443 (687 SE2d 676) (2009) (reviewing a trial court’s findings as to its subject-

                                            2
matter jurisdiction concerning a state-employed physician’s entitlement to official

immunity “under the any evidence rule”) (citation omitted).

      So viewed, the record shows that in January 2016, Coan was the chief

executive officer of the Fund, with job duties including hiring, firing, and

management of its employees. Coan had hired Stephens two years earlier and was

Stephens’s supervisor. On January 19, 2016, Coan had attended a business meeting

and returned home to finish his telework day. Starting at 2:43 p. m., Coan and

Stephens engaged in a work-related telephone conversation that lasted until

approximately 3:34 p. m.

      Within two minutes of the end of the first call, Coan received a second call

from Stephens, which Coan answered. Noting that the cell phone reception was poor,

Coan told Stephens that he would go into his house for better reception. On achieving

better reception and reporting so to Stephens, Coan realized that Stephens appeared

to be talking to someone else, who Coan presumed was Stephens’s wife Gina, about

Coan and his job performance. During this second call, Coan did not hear Stephens

and Gina discuss any other matters, and Coan did not hear Gina express anything but

words of understanding such as “uh-huh” and “yes.” After approximately 12 minutes,

Stephens noted that his phone was connected to Coan’s phone and terminated the call.

                                         3
From what Coan heard Stephens say during this second call, it was clear to Coan that

the two men “could no longer have an effective working relationship[.]” Between

3:49 p. m. and 5:32 p. m., Coan conducted calls with Fund board members and

employees on the subject of what action to take concerning Stephens. On the

following day, Coan confronted Stephens, who resigned.

      On January 5, 2018, Stephens and Gina filed this action against Coan for illegal

eavesdropping, invasion of privacy, and negligence. The State filed a motion to

dismiss on Coan’s behalf, arguing that Coan was acting within the scope of his

official duties or employment at the time of the call at issue such that he was entitled

to immunity under the GTCA and that Stephens had failed to comply with the Act’s

procedural prerequisites. The State attached to the motion affidavits, which were later

supplemented, from Coan as well as the Board member to whom Coan had spoken

on the day in question. Stephens moved to strike the portions of the State’s pleadings

referencing the contents of the phone call at issue.

      The trial court denied the motion to strike and granted the motion to dismiss,

concluding that because Coan was acting in his official capacity when he committed

the acts giving rise to the Stephenses’ action, the GTCA provided the exclusive

remedy for the Stephenses; that Coan was entitled to official immunity thereunder;

                                           4
and that plaintiffs had failed to comply with the ante litem requirements of the Act.

This appeal followed.

      1. The Stephenses assert that the trial court erred when it concluded that Coan

was acting within the scope of his employment when he listened in on the

Stephenses’ conversation such that he was entitled to official immunity. We disagree.

      As the Supreme Court of Georgia has noted, the original version of the GTCA

defined the “State” as denoting “all state governmental entities, regardless of their

nomenclature,” including “the State of Georgia and any of its offices, agencies,

authorities, departments, commissions, boards, divisions, instrumentalities, and

institutions,” but not including “counties, municipalities, school districts, other units

of local government, hospital authorities, or housing and other local authorities.”

(Citation and punctuation omitted.) Kyle v. Ga. Lottery Corp., 290 Ga. 87, 90 (1) (718

SE2d 801) (2011). “By its express terms, the act clarifies that the ‘State’ includes

state authorities and instrumentalities, but not local governmental entities, for

purposes of waiving sovereign immunity.” (Citation omitted.) Id.

      The Stephenses do not dispute that the Fund is a state instrumentality to which

the GTCA applies or that Coan was the administrator of that state instrumentality on

the afternoon in question.

                                           5
      The exemption from tort liability provided by the GTCA applies to
      actions against state employees in their official and individual
      capacities[;] merely styling a suit against a public officer as one brought
      against him personally does not deprive him of any immunity to which
      he might otherwise be entitled for his official acts under the GTCA.


(Citation and punctuation omitted.) Ferrell v. Young, 323 Ga. App. 338, 343 (2) (746

SE2d 167) (2013).1 We are therefore obligated to consider whether as a state officer

or employee,2 Coan is entitled to official immunity for answering and/or continuing

to listen to Stephens’s call.

      The GTCA “constitutes the exclusive remedy for any tort committed by a state

officer or employee. A state officer or employee who commits a tort while acting

within the scope of his or her official duties or employment is not subject to lawsuit

or liability therefor.” (Emphasis supplied.) OCGA § 50-21-25 (a). And OCGA § 50-

21-21 (b) expresses “the public policy of this state” that “state officers and employees

shall not be subject to lawsuit or liability arising from the performance or

nonperformance of their official duties or functions.” State officers and employees



      1
         Our decision in Ferrell is physical precedent only as to its Division 1 only.
Id. at 344.
      2
          See OCGA § 50-21-22 (7) (defining state officers and employees).

                                           6
are therefore “immune from tort suits seeking to impose individual liability on them

for any tort committed by them within the scope of state employment, including torts

based on intentional wrongful conduct or actions taken with malice and intent to

injure.” (Citations omitted; emphasis supplied.) Gowen Oil Co. v. Streat, 324 Ga.

App. 370, 370 (750 SE2d 708) (2013), citing Ridley v. Johns, 274 Ga. 241 (552 SE2d

853) (2001). “This broad immunity from individual liability implements the

legislative intent expressed in the GTCA that state officers and employees be free to

act within the scope of their state employment without fear of lawsuits and loss of

personal assets[.]” Gowen Oil, 324 Ga. App. at 370. “Where the state employee acts

in the prosecution and within the scope of his official duties, intentional wrongful

conduct comes within and remains within the scope of employment.” (Footnote and

punctuation omitted.) Ford v. Caffrey, 293 Ga. App. 269, 273 (2) (666 SE2d 623)

(2008).

      Thus in Ridley, supra, our Supreme Court held that a trial court had properly

granted summary judgment as to an employee’s action against a supervisor for 13

months of harassment, as follows:

      The statute is plain in its language as to the scope of its coverage and the
      extent of the immunity granted thereby: “This article constitutes the


                                           7
      exclusive remedy for any tort committed by a state officer or employee.
      A state officer or employee who commits a tort while acting within the
      scope of his or her official duties or employment is not subject to lawsuit
      or liability therefor.” OCGA § 50-21-25 (a). The only qualifying factor
      listed in the statute is that the tort was committed while the officer or
      employee was acting within the scope of his or her official duties or
      employment. Since there is no exemption in the statute for acts
      motivated by malice or an intent to injure, the presence of such
      motivation has no effect on the immunity granted by the statute.


(Footnote omitted; emphasis supplied.) Ridley, 274 Ga. at 242. The Supreme Court

reversed this Court, which had concluded that “malice or intent to injure could strip

a state officer or employee of the immunity granted by the State Tort Claims Act for

torts committed within the scope of his or her official duties or employment,” and

ordered the trial court’s grant of summary judgment to the employer reinstated. Id.

      Here, the Stephenses’ claims are predicated on Coan’s alleged violation of

OCGA § 16-11-62, which provides as follows in relevant part:

      It shall be unlawful for:

      (1) Any person in a clandestine manner intentionally to overhear,
      transmit, or record or attempt to overhear, transmit, or record the private
      conversation of another which shall originate in any private place;




                                          8
      (2) Any person, through the use of any device, without the consent of all
      persons observed, to observe, photograph, or record the activities of
      another which occur in any private place and out of public view; [or]


      ...

      (7) Any person to commit any other acts of a nature similar to those set
      out in paragraphs (1) through (6) of this Code section which invade the
      privacy of another.


A violation of OCGA § 16-11-62 is a “felony” punishable “by imprisonment for not

less than one nor more than five years or a fine not to exceed $10,000.00, or both.”

OCGA § 16-11-69. See also Benedict v. State Farm Bank, FSB, 309 Ga. App. 133,

135 (1) (a) (709 SE2d 314) (2011) (noting that since the first recognition of a right

to privacy in 1905, Georgia appellate courts “have identified four kinds of invasion

of privacy for which a right of action exists, and among these is an intrusion upon the

seclusion or solitude of a plaintiff or into his private affairs.”) (citation omitted).

      Even assuming for purposes of this appeal that Coan violated OCGA § 16-11-

62 in that he “in a clandestine manner intentionally” overheard Stephens’s

conversation with his wife in their home, OCGA § 16-11-62 (1), or that this act of

eavesdropping amounted to a tortious invasion of privacy, the evidence before the

trial court showed that Coan did so in the course of answering a call from his

                                            9
employee during business hours on a day when both men were known by all

concerned to be teleworking. This evidence authorized the factual conclusion, which

we cannot disturb on appeal, that Coan engaged in the behavior complained of while

acting within the scope of his official duties. See James v. Ga. Dept. of Pub. Safety,

337 Ga. App. 864, 864-865 (789 SE2d 236) (2016) (affirming a trial court’s factual

findings as to the application of immunity because an appellate court properly

considers whether a trial court had any evidence to support such findings, and

because the trial court had such evidence before it); Ford, 293 Ga. App. at 273 (2)

(defendant state director’s libelous statements made in a memorandum concerning

plaintiff employee’s transfer were “made within the scope of [the defendant

director’s] official duties”). Further, the trial court’s factual conclusion that Coan was

acting within the scope of his official duties requires the legal conclusion that, even

if Coan answered or continued to listen to Stephens’s call with malicious or injurious

intent, he was entitled to official immunity therefor. Ridley, 274 Ga. at 242, n.1

(supervisor was entitled to official immunity because the employee did not dispute

that his harassment of employee took place within the scope of the supervisor’s

employment); Ferrell, 323 Ga. App. at 343-344 (2) (state police officer was immune

from claims concerning his sexual assault on plaintiff in the wake of plaintiff’s arrest

                                           10
because the assault was committed while the officer was acting within the scope of

his employment); see also Bonner, 301 Ga. App. at 451-452 (2) (b) (affirming trial

court’s finding that a state-employed resident physician was entitled to official

immunity as to her treatment of a patient).

       Finally, we fail to see any distinction, as the Stephenses ask us to, between the

claims of James and Gina Stephens. The only relevant question, to which an answer

is mandated by the GTCA, is whether Coan was acting within the scope of his official

duties at the time of the call at issue. Because we must defer to the trial court’s factual

determination on this matter, and because the legal conclusion premised on that

determination was correct as a matter of law, we affirm the trial court’s grant of the

State’s motion to dismiss the Stephenses’s suit on the ground that Coan was entitled

to official immunity. Compare Huff v. Spaw, 794 F.3d 543 (6th Cir. 2015)

(considering a claim for invasion of privacy under 18 U. S. C. § 2520 (a), which

authorizes a private right of action for money damages, arising from an administrative

assistant’s listening in on a supervisor’s conversations).




                                            11
      2. Although the Stephenses have waived the issue on appeal,3 it is undisputed

that they have not complied with the ante litem requirements of the GTCA. The

Stephenses’ failure to give the State proper notice of their claims is also fatal to their

claims.

      OCGA § 50-21-26 (a) provides:

      No 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 as follows:


      (1) Notice of a claim shall be given in writing within 12 months of the
      date the loss was discovered or should have been discovered[.]


And OCGA § 50-21-35 provides:

      In all civil actions brought against the state under this article, to perfect
      service of process the plaintiff must both: (1) cause process to be served
      upon the chief executive officer of the state government entity involved
      at his or her usual office address; and (2) cause process to be served



      3
         In their initial brief, the Stephenses admit that the trial court granted Coan’s
motion to dismiss on the ground that they had failed to comply with the GTCA, but
they neither enumerate this holding as error nor point to any evidence that they
complied with the Act’s ante litem requirements. In fact, they admit on the first page
of their brief that they have “stated no claim against the State and sought no damages
from the State, including any related to the termination of [Stephens’s] employment.”

                                           12
      upon the director of the Risk Management Division of the Department
      of Administrative Services at his or her usual office address. . . .


It is undisputed that the Stephenses did not serve any notice of their claim with the

proper state officials within 12 months of James Stephens’s resignation and before

filing their complaint against Coan individually. It is also undisputed that the

Stephenses never served their complaint on any officer at the Fund or on the director

of the Risk Management Division of the Department of Administrative Services.

Because the Stephenses did not comply with these ante litem requirements of the

GTCA, the trial court properly dismissed their complaint. See Callaham v. Ga. Ports

Authority, 337 Ga. App. 120, 122-123 (786 SE2d 505) (2016) (affirming dismissal

of plaintiff’s action when plaintiff did not personally deliver or mail a copy of an ante

litem notice to the Ports Authority; plaintiff’s letter sent to the Authority’s insurance

adjuster was insufficient under OCGA § 50-21-26 (a) (2)); Gibbons v. McBride, 124

F.Supp.3d 1342, 1360-1361 (S. D. Ga. 2015) (plaintiff’s failure to serve the director

of the Risk Management Division rendered the action “void” such that the statute of

limitation on that action was not tolled).

      For all these reasons, the trial court did not err when it granted the State’s

motion to dismiss the Stephenses’ complaint.

                                             13
Judgment affirmed. Miller, P. J., and Brown, J., concur.




                                 14
