Backensto v. Georgia Dept. of Transp.

Absent a transcript, the evidence presumably supported the trial court's finding of actual prejudice due to the plaintiffs' lack of timely notice and failure to certify mailing of the original complaint to the attorney general.

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Jami and Robert Backensto appeal from the trial court’s order granting the motion to dismiss filed by the Georgia Department of Transportation DOT, and striking the Backenstos’ amended complaint. Because the Backenstos have failed to provide this court with a transcript of the hearing on the motion to dismiss, we must affirm. This is the second appearance of this case before this court. In Backensto v. Dept. of Transp. , 284 Ga. App. 41 643 SE2d 302 2007, the Backenstos appealed from the trial court’s grant of the DOT’s motion to dismiss their complaint. The DOT had “moved to dismiss the complaint on the ground that the Backenstos did not comply with OCGA § 50-21-35 because they failed to mail a copy of the complaint to the attorney general and attach a certificate to the complaint certifying that the mailing to the attorney general had occured.” Id. The trial court granted the motion to dismiss based on notice grounds.1 Id. at 42-43. We could not determine from the trial court’s order, however, “whether it dismissed the complaint based on the conclusion that notice provided after the statute of limitation has expired is prejudicial as a matter of law, or whether it made an independent finding of prejudice.” Id. at 44. We therefore remanded the case to the trial court with direction that the court “apply a standard of actual prejudice before dismissing the Backenstos’ complaint for failing to comply with the requirements of OCGA § 50-21-35.” Id.

Following remand, the trial court found that “independent and actual prejudice had occured to the DOT due to the Backenstos’ lack of timely notice and the failure to certify mailing of the original complaint to the attorney general” and ordered that the Backenstos’ complaint be stricken. On appeal, the Backenstos once again argue that the trial court erred in granting the DOT’s motion to dismiss.

Backensto v. Georgia Dept. of Transp.

Absent a transcript, the evidence presumably supported the trial court's finding of actual prejudice due to the plaintiffs' lack of timely notice and failure to certify mailing of the original complaint to the attorney general.

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