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 occurred." Id. The trial court granted the motion to dismiss based on notice grounds. Id. at 42-43. The Court 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. The Court 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.