                             THIRD DIVISION
                            MCFADDEN, C. J.,
                        DOYLE, P. J., and HODGES, J.

                   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.
                              https://www.gaappeals.us/rules

                   DEADLINES ARE NO LONGER TOLLED IN THIS
                   COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                   THE TIMES SET BY OUR COURT RULES.


                                                                     June 23, 2020



In the Court of Appeals of Georgia
 A20A0164. GARRETT et al. v. DEPARTMENT OF HUMAN DO-006
     SERVICES et al.

      DOYLE, Presiding Judge.

      This case arises from the death of Jan Renee Garrett, who walked into traffic

on Interstate 285 and was struck by a tractor trailer. Representatives of Garrett’s

estate and her beneficiaries (“the Plaintiffs”) filed suit against the Georgia

Department of Human Services (“DHS”) and Teri D. Fields, in her individual and

official capacity, alleging that their failures as permanent guardian and guardian ad

litem (“GAL”) of Garrett resulted in her death. The trial court dismissed the claims

against DHS and Fields,1 and the Plaintiffs appeal, arguing that the trial court erred

      1
        The Plaintiffs initially included several John Doe defendants in their
complaint, and after discovery, they substituted Angela Tompkins, in her individual
and official capacity, as a defendant, alleging that she was appointed guardian of
Garrett as a representative of DHS. The record before this Court does not
by (1) failing to consider their motion to reopen and compel discovery and denying

their motion for sanctions; (2) granting DHS’s motion to dismiss; (3) granting

Fields’s motion to dismiss; and (4) granting Fields’s request for damages. For the

reasons that follow, we affirm in part, vacate in part, and remand for further

proceedings consistent with this opinion.

      The record shows that Garrett was diagnosed with paranoid schizophrenia,

failed to take her medication, acted out toward family and strangers, and frequently

left her home at odd hours, leading her family members to file a petition with the

probate court for appointment of a guardian and a conservator for her on February 5,

2013. On February 25, 2013, the probate court ordered a social worker to evaluate

Garrett, which evaluation occurred on March 14, 2013.2 Garrett refused to meet with

the social worker, but one son spoke with the social worker, reporting that Garrett

slept all day and would leave for most of the night, would not reliably bathe or keep

food in the house, refused to take her medication, would beg for cigarettes or money

around the community, physically attacked her son and tried to attack her grandson,

and the son believed she was a threat to herself and others. Based on this information,


demonstrate that the trial court dismissed the claims against Tompkins.
      2
          See OCGA § 29-4-11 (d) (1).

                                          2
the social workers reported that Garrett lacked “sufficient capacity to make or

communicate significant responsible decisions concerning her health and safety.”3

      On March 20, 2013, the probate court entered an order finding that there was

probable cause to support a finding that Garrett was in need of a guardian under

OCGA § 29-4-1, and it appointed Fields to serve as GAL to Garrett for the remainder

of the proceedings.4 Fields reviewed the records and met with Garrett, and she

recommended that the court appoint a guardian for Garrett.

      At a show cause/status conference hearing on April 8, the court appointed a

conservator, but it found that the guardianship petition was incomplete, stating that

the Plaintiffs “must file an amendment for the court to make a determination

regarding a guardian.”5 Additionally, the probate court requested that DHS make an

investigation and file a report within 30 days and for Fields and the appointed

conservator to also file reports within 30 days. On April 15, 2013, prior to entry of

the final order on guardianship, Tompkins, as a representative of DHS, executed a

guardian’s oath as to Garrett.


      3
          See OCGA § 29-4-11 (d) (4).
      4
          See OCGA § 29-4-11 (c) (4).
      5
          See OCGA § 29-4-10.

                                         3
      On May 10, 2013, the probate court issued its final order and letters of

guardianship, finding that Garrett was in need of a guardian because she lacked

sufficient capacity to make responsible decisions concerning her health and safety.

The court appointed Tompkins (as representative of DHS) as Garrett’s guardian6 and

ordered DHS to investigate and file a report with the court within 30 days of the

order. At approximately 10:30 p.m. on May 15, 2013, Garrett wandered onto

Interstate 285, where she was struck and killed by a tractor trailer.

      The Plaintiffs filed suit, alleging that DHS, Fields, and John Doe defendants

had breached duties of care that they owed to Garrett as the result of appointment as

her guardian and/or GAL. DHS answered and moved to dismiss/for judgment on the

pleadings,7 on the basis of lack of waiver of sovereign immunity and failure to state

a claim for relief. Fields also moved for dismissal of the claims against her, arguing



      6
        The order removed from Garrett all powers under OCGA § 29-4-21 (power
to contract marriage; make, modify, or terminate other contracts; consent to medical
treatment; establish a dwelling place; change domiciles; revoke a revocable trust; or
bring or defend any legal action); however, the court did not grant DHS any
additional powers listed in OCGA § 29-4-23.
      7
        DHS initially removed the case to federal court based on claims the Plaintiff’s
raised under 28 USC § 1983, and that court granted DHS’s and Tompkins’ motion for
judgment on the pleadings as to the § 1983 claims, remanding the case to superior
court for adjudication of the state law claims.

                                          4
that the plaintiffs initially misidentified her as a DHS employee and since then had

made no showing of how she breached her duty to Garrett as a GAL, and she moved

for attorney fees for abusive litigation, attaching an invoice for fees.

      The Plaintiffs amended their complaint, alleging a negligence claim against

Fields for breaching her duty as GAL and alleging negligence claims against DHS

and Tompkins as appointed guardians. DHS renewed its motion to dismiss, and Fields

requested a hearing on her motion to dismiss/motion for summary judgment.

      After the hearing, the trial court granted Fields’s motions to dismiss without

explanation, and it dismissed the claims against DHS based on sovereign immunity.

The court found that although the Georgia Tort Claims Act (“GTCA”) applied

generally, the Plaintiffs’ claims were barred in this instance by either the discretionary

function exception or the inspection exception to the GTCA. The trial court also

denied the Plaintiffs’ motion to compel or reopen discovery or for sanctions. This

appeal followed.

      1. The Plaintiffs argue that the trial court erred by granting DHS’s motion to

dismiss on the basis that their claims were barred by sovereign immunity. They

contend that questions of fact exist as to whether DHS’s duty to protect Garrett arose



                                            5
when Tompkins took the oath of guardianship on April 8, 2013, relying on a DHS

internal document that states DHS “was appointed Guardian on April 08, 2013.”

              The 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia
      Constitution of 1983 recognized that sovereign immunity was extended
      to the state and all of its departments and agencies; that such 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, and that the General Assembly may waive the
      state’s sovereign immunity from suit by enacting a State Tort Claims
      Act. Thereafter, the General Assembly enacted the [GTCA,]8 which
      provided for a limited waiver of the state’s sovereign immunity and set
      forth exceptions to such waiver.[9] As a department of the state, the
      [DHS] is subject to the waiver and the exceptions set forth in the
      [GTCA].


              Section 50-21-24 of the [GTCA] enumerates 13 exceptions to the
      waiver of sovereign immunity[. Applicable here are] exceptions (2) and
      (8) of [OCGA] § 50-21-24. Exception (2) provides that the state shall
      have no liability for losses resulting from: the exercise or performance
      of or the failure to exercise or perform a discretionary function or duty
      on the part of a state officer or employee, whether or not the discretion
      involved is abused. Under OCGA § 50-21-22 (2), discretionary function
      or duty means a function or duty requiring a state officer or employee to

      8
          OCGA § 50-21-20 et seq.
      9
          OCGA §§ 50-21-23; 50-21-24.

                                         6
      exercise his or her policy judgment in choosing among alternate courses
      of action based upon a consideration of social, political, or economic
      factors. Exception (8) provides that the state shall have no liability for
      losses resulting from: inspection powers or functions, including failure
      to make an inspection or making an inadequate or negligent inspection
      of any property other than property owned by the state to determine
      whether the property complies with or violates any law, regulation,
      code, or ordinance or contains a hazard to health or safety.10


      The Plaintiffs contend that the trial court erred by finding that their claims

against DHS were barred by sovereign immunity because there are questions as to

whether DHS’s duty to Garrett began when Tompkins took the guardianship oath —

April 15, 2013 — or when the DHS document stated that it became guardian — April

8, 2013. We find no error by the trial court, however, because the final order for

guardianship was not issued and DHS was not appointed guardian until May10, 2013.

Even if the delay between the hearing, the administration of the oath, and the

appointment was merely based on issues with the application, Garrett had not been




      10
         (Citations and punctuation omitted.) Bruton v. Ga. Dept. of Human
Resources, 235 Ga. App. 291, 293-294 (509 SE2d 363) (1998). See also Ga. Const.
of 1983, Art. I, Sec. II, Par. IX (a), (e).

                                          7
adjudicated a ward prior to entry of the probate court’s final order.11 Thus, DHS could

not have acted prior to that date.

      Garrett argues that the discretionary act exception does not apply because

DHS’s failure to act to make determinations about Garrett’s situation was not an act

of discretion or was only a day-to-day administrative decision.12 Pretermitting

whether the issues of scheduling within any specific time frame was an administrative

decision, the ultimate determination of whether to take Garrett into custody was a




      11
           See OCGA § 29-4-13.
      12
        See Ga. Dept. of Human Svcs. v. Spruill, 294 Ga. 100, 110-111 (2) (b) (751
SE2d 315) (2013) (holding that investigative decisions made in response to a child
abuse allegation are discretionary functions). Compare Brantley v. Dept. of Human
Resources, 271 Ga. 679, 682-683 (523 SE2d 571) (1999) (holding that day-to-day
childcare decisions on the part of foster child’s guardians were not discretionary
functions).

                                          8
discretionary one, involving issues of policy.13 Accordingly, the trial court did not err

by finding that sovereign immunity barred the claims against DHS.14

       2. The Plaintiffs maintain that the trial court erred by failing to consider their

motion to reopen and compel discovery and by denying their motion for sanctions

based on discovery violations. In support of this enumeration of error, the Plaintiffs

cite to Dodson v. Sykes Indus. Holdings, LLC,15 which vacated a summary judgment

order and remanded for further proceedings because of a pending motion to compel.

The Plaintiffs contend that further discovery could have resolved conflicting

testimony given by DHS regarding when DHS’s duty to protect Garrett began and

whether DHS exercised any discretion. Based on our holding in Division 1, however,

that the guardianship did not begin prior to the entry of the final order and issuance


       13
        See Bruton, 235 Ga. App. at 295 (holding that a decision as to whether an
individual should have been relocated to a different care home was a policy judgment
and therefore a discretionary function). See also Spruill, 294 Ga. at 110-111 (2) (b);
OCGA § 29-4-23 (a) (1) (“[A] guardian may . . . [t]ake custody of the person of the
ward.”) (emphasis supplied); OCGA § 29-4-20 (a) (6) (“In every guardianship, the
ward has the right to . . . [t]he least restrictive form of guardianship assistance, taking
into consideration the ward’s functional limitations, personal needs, and
preferences”).
       14
         Based on this finding we need not address whether this case falls under the
inspection exception to the GTCA.
       15
            324 Ga. App. 871, 876 (1) (752 SE2d 45) (2013).

                                            9
of letters of guardianship by the probate court, the trial court did not err by declining

to address this motion prior to addressing the issue of sovereign immunity.16

      3. The Plaintiffs contend that the trial court erred by granting Fields’s motion

to dismiss their claim against her.17

      In the first complaint, the Plaintiffs alleged that Fields worked for DHS and

asserted a nuisance claim against her and DHS for failure to fulfill their duty to

Garrett under the guardianship code and not as GAL. The Plaintiffs later amended

their complaint, alleging that Fields, as the GAL, had a duty to move for an

emergency guardianship or take other measures to prevent Garrett from harming

herself. In paragraph two of the amended complaint, the Plaintiffs stated that “[u]pon

the time of her appointment as [Garrett’s GAL] until the time a permanent guardian

for [Garrett] was appointed, Defendant Fields was responsible for monitoring and

supervising [Garrett] and had an affirmative obligation to ensure her health, safety,

and well-being.” Plaintiffs, however, also admit that DHS was appointed permanent

      16
       See, e.g., Gallagher v. Fiderion Group, LLC, 300 Ga. App. 434, 437 (2) (685
SE2d 387) (2009).
      17
         To the extent that the Plaintiffs claim that the federal court order remanding
the case to state court resulted in any determination on Fields’s motion to dismiss the
state law claims, the Plaintiffs have misread the order, which stated that the federal
court declined to exercise supplemental jurisdiction over the state law claims.

                                           10
guardian of Garrett prior to her death, and it is undisputed that the letters of

guardianship were issued to DHS.

      Pretermitting whether the Plaintiffs’ own pleadings are facially self-defeating,

we discern no legal duty that Fields could have breached under these facts. Former

OCGA § 29-9-2 (a), limits a GAL’representation of a proposed ward to “proceedings

relating to guardianship or conservatorship of that individual.” “The [GAL’s] duty is

to protect the [proposed] ward’s rights”18 during such a proceeding, and neither this

Code section nor Fields’s appointment as guardian ad litem created a duty on the part

of Fields to at all times actively prevent Garrett from sustaining physical injury or the

authority to prevent Garrett from movement from her home. Accordingly, the trial

court did not err by dismissing the Plaintiffs’ claims against Fields.

      4. Finally, the Plaintiffs argue that the trial court erred by granting Fields’s

request for damages pursuant to OCGA 9-15-14. After dismissing all claims against

Fields, the trial court granted her request for attorney fees in a cursory order for

“[g]ood cause having been shown” and pursuant to OCGA § 9-15-14 (a) in the

amount of $5,851.00.



      18
           Twitty v. Akers, 218 Ga. App. 467, 469 (462 SE2d 418) (1995).

                                           11
      As this Court has explained, “an order awarding attorney fees pursuant to

OCGA § 9-15-14 must . . . make express findings of fact and conclusions of law as

to the statutory basis for any such award and the conduct which would authorize it.”19

Although the trial court correctly noted that it was awarding fees under subsection (a),

it failed to articulate any findings of fact or conclusions of law in support of such an

award. Accordingly, we vacate the trial court’s award of attorney fees and remand the

case for reconsideration of that award in light of this opinion..

      Judgment affirmed in part, vacated in part, and case remanded. McFadden, C.

J., and Hodges, J., concur.




      19
       (Punctuation and citation omitted.) Fulton County School Dist. v. Hersh, 320
Ga. App. 808, 814-815 (2) (740 SE2d 760) (2013).

                                          12
