Johnny Moats v. Effrain Mendez , 824 S.E.2d 808 ( 2019 )

WHOLE COURT
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 14, 2019
In the Court of Appeals of Georgia
A18A1721. MOATS et al. v. MENDEZ.
DILLARD, Chief Judge.
Efrain Mendez sued Polk County Sheriff Johnny Moats, in his official capacity,
and Deputy Sheriff Kathryn Allred, in her individual and official capacities, alleging
that he suffered injuries in an automobile accident caused by Allred’s negligent
driving of a county-owned vehicle. Moats and Allred moved jointly for dismissal,
arguing that Mendez’s claim against Allred is barred by OCGA § 36-92-3 (a) and that
his claim against Moats is barred by his failure to provide the Sheriff’s Office with
an ante-litem notice. The trial court denied the defendants’ motion to dismiss, and,
in this interlocutory appeal, Moats and Allred contend that it erred in doing so. For
the reasons set forth infra, we reverse.1
On August 15, 2015, Mendez was driving his vehicle toward the intersection
of South Main Street and Case Road in Cedartown, Georgia. As Mendez’s vehicle
entered the intersection, Deputy Allred—who was on-duty and driving a county-
owned patrol vehicle—approached the intersection from the opposite direction and
attempted to make a left-hand turn without yielding to oncoming traffic. As a result,
her patrol vehicle collided with Mendez’s vehicle, and Mendez suffered injuries.
On January 21, 2016, Mendez’s counsel sent an ante-litem notice, via certified
mail, to Polk County, informing the chairman of its Board of Commissioners of
Mendez’s claims against Allred; but counsel did not send an ante-litem notice to
Sheriff Moats. Subsequently, on August 9, 2017,2 Mendez filed a lawsuit against
1
The Georgia Trial Lawyers Association filed an amicus brief in support of
Mendez, and Moats filed a response to this amicus brief without seeking leave to do
so. Although Court of Appeals Rule 26 permits “[a]micus curiae briefs to be filed
without leave of Court,” a party that wishes to respond to an amicus brief must seek
leave under Court of Appeals Rule 27 (a) before doing so. Nevertheless, we have
considered Moats’s responsive brief.
2
Mendez originally filed his lawsuit in November 2016, and initially did not
name Allred as a defendant. But for reasons not relevant to this appeal, he dismissed
his original lawsuit without prejudice and re-filed it as a renewal action on August 9,
2017.
2
Moats and Allred, alleging that he suffered injuries in an automobile accident caused
by Allred’s negligent driving of a county-owned patrol vehicle and that Moats was
vicariously liable for his employee’s negligence. Shortly thereafter, Mendez served
his complaint upon Moats and Allred.
On September 9, 2017, Moats and Allred filed separate answers. And on that
same date, they filed a consolidated motion to dismiss, arguing that (1) Mendez’s
claims against Allred were barred by OCGA § 36-92-3 (a), and (2) Mendez’s failure
to send an ante-litem notice to Moats or the Polk County Sheriff’s Office barred any
claim against Moats or Allred. Mendez filed a response to the motion, and several
rounds of reply briefing ensued. On March 16, 2018, the trial court denied the motion
to dismiss, but, ten days later, it granted Moats and Allred a certificate of immediate
review. The defendants then filed an application for interlocutory appeal, which we
granted.
This Court, of course, “conducts a de novo review of a trial court’s ruling on
a motion to dismiss.”3 In doing so, we are tasked with determining whether “the
allegations of the complaint, when construed in the light most favorable to the
3
RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713, 714 (798 SE2d 315)
(2017); accord Dove v. Ty Cobb Healthcare Sys., Inc., 316 Ga. App. 7, 9 (729 SE2d
58) (2012).
3
plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty
that the plaintiff would not be entitled to relief under any state of provable facts[.]”4
But importantly, “we need not adopt a party’s legal conclusions based on these
facts.”5 With these guiding principles in mind, we turn now to the defendants’
specific claims of error.
1. The defendants first contend that the trial court erred in denying their motion
to dismiss Mendez’s claim against Allred on the ground that it is barred by OCGA §
36-92-3 (a). We agree.
It is well established that a lawsuit against a sheriff in his official capacity is
considered “a suit against the county, and the sheriff is entitled to assert any defense
or immunity that the county could assert, including sovereign immunity.”6
4
Rowland, 340 Ga. App. at 714 (punctuation omitted).
5
Id. at 714 (punctuation omitted); accord Dove, 316 Ga. App. at 9; see Trop,
Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) (764 SE2d 398) (2014) (“While a trial
court is required to consider a non-moving party’s factual allegations to be true, it is
not required to accept the legal conclusions the non-party suggests that those facts
dictate.”).
6
Strength v. Lovett, 311 Ga. App. 35, 38 (1) (714 SE2d 723) (2011); see
Gilbert v. Richardson, 264 Ga. 744, 746 (2) n.4 (452 SE2d 476) (1994) (noting that
because sheriff was sued in his capacity as Walker County sheriff, plaintiff’s claims
are, in essence, claims against Walker County and the sheriff may raise any defense
available to the county, including sovereign immunity).
4
Nevertheless, the Georgia Constitution provides that “the General Assembly may
waive the immunity of counties, municipalities, and school districts by statute.”7 And
one such waiver is illustrated by OCGA § 36-92-2 (a), which provides: “The
sovereign immunity of local government entities for a loss arising out of claims for
the negligent use of a covered motor vehicle is waived up to the following limits. . .
.” But while the General Assembly waived sovereign immunity for local government
entities in such circumstances, OCGA § 36-92-3 (a) provides: “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.”8 And recently, in Davis v. Morrison,9 this Court specifically held
that a county sheriff’s deputies are included among the “local government officer[s]
7
Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341 (2001); see Strength,
311 Ga. App. at 38 (1) (“Under our Constitution, Georgia counties enjoy sovereign
immunity, and can be sued only if they have waived their immunity.” (citation
omitted)).
8
(Emphasis supplied).
9
344 Ga. App. 527 (810 SE2d 649) (2018).
5
or employee[s]” not subject to liability under the plain meaning of OCGA § 36-92-3
(a), and, therefore, tort claims against such deputies arising out of their use of a
county vehicle in the course of their employment are barred as a matter of law.10
Mendez, nevertheless, asserts (and the trial court apparently agreed) that Allred
is subject to liability in this instance because the County purchased insurance
coverage for the sheriff’s vehicles and, thus, under OCGA § 33-24-51, has waived
sovereign immunity. But similar to OCGA § 36-92-2 (a), OCGA § 33-24-51 (b)
draws a distinction between employees and entities, providing that “sovereign
immunity of local government entities for a loss arising out of claims for the
negligent use of a covered motor vehicle is waived as provided in Code Section
36-92-2.”11 Suffice it to say, Allred is not a governmental entity. Rather, she is an
employee. Indeed, similarly to the facts of Davis, Allred is employed as a Polk
County sheriff’s deputy, she was on duty, and she was driving a county-owned patrol
vehicle when the accident that injured Mendez occurred.12 Given these particular
10
See id. at 530-31 (1) (holding that plaintiff’s negligence claim against
sheriff’s deputy, who was driving a county-owned vehicle in the scope of his
employment, was barred by OCGA § 36-92-3 (a)).
11
(Emphasis supplied).
12
See Davis, 344 Ga. App. at 527-28.
6
circumstances, “under the plain language of OCGA § 36-92-3 (a), [Allred] is not
subject to liability for the accident, and [Mendez’s] claims against [her] are barred.”13
Accordingly, the trial court erred in denying the defendants’ motion to dismiss Allred
on the ground that Mendez’s tort claim against her is barred by OCGA § 36-92-3 (a).
2. The defendants also contend that the trial court erred in denying their motion
to dismiss on the ground that Mendez’s claim against Moats is barred by his failure
to provide the Sheriff’s Office with an ante-litem notice. Again, we agree.
OCGA § 36-11-1 provides that “[a]ll claims against counties must be presented
within 12 months after they accrue or become payable or the same are barred,
provided that minors or other persons laboring under disabilities shall be allowed 12
months after the removal of the disability to present their claims.” Here, it is
undisputed that Mendez did not serve Moats or the Polk County Sheriff’s Office with
an ante-litem notice. Nonetheless, he argues that, under OCGA § 36-11-1, his service
of such notice on Polk County officials sufficiently provided Moats with notice as
13
Davis, 344 Ga. App. at 530 (1); see also Wilcox v. Fenn, 289 Ga. 750, 751-52
(716 SE2d 144) (2011) (holding that OCGA § 36-92-3 (a) barred plaintiff’s lawsuit
against two individual county police officers); DeLoach v. Elliott, 289 Ga. 319,
321-22 (1) (710 SE2d 763) (2011) (holding that OCGA § 36-92-3 (a) barred
plaintiff’s lawsuit against individual city police officer).
7
well. But this Court has explicitly held—and recently reiterated—“that OCGA §
36-11-1 applies both to the counties and to the sheriffs, when sued in their official
capacities.”14 Indeed, as we stated in Branton—and reiterated in Davis—“claims
against [a sheriff] are not sustainable without the ante-litem notice.”15
The dissent notes that Branton did not specifically focus on the issue before us
but, rather, decided that the statutes, which tolled the limitations period for a crime
victim and a plaintiff deterred by fraud to file a tort action, respectively, did not toll
the one-year limitations period for a plaintiff to serve an ante-litem notice on the
county and sheriff required by OCGA § 36-11-1.16 The dissent then reasons that
14
Davis, 344 Ga. App. at 532 (2); see Columbia Cty. v. Branton, 304 Ga. App.
149, 151 (695 SE2d 674) (2010) (holding that OCGA § 36-11-1 “applies both to
Columbia County and to Sheriff Whittle, who was sued in his official capacity only”),
overruled in part on other grounds by Harrison v. McAfee, 338 Ga. App. 393, 402
(3) (788 SE2d 872) (2016).
15
Branton, 304 Ga. App. at 151 n.2; see Davis, 344 Ga. App. at 532 (2)
(holding that the claims against the sheriff are not sustainable without the ante-litem
notice); see also Martin v. Monroe Cty. No. 5:18-cv-252 (MTT), 2018 WL 6579165*3 (M.D. Ga. Dec. 13, 2018) (citing Davis and noting that plaintiff’s argument that
Davis misapplied precedent lacked merit).
16
See Branton, 304 Ga. App. at 152-54 (1), (2) (holding that because neither
OCGA § 9-3-96 nor OCGA § 9-3-99 tolled the time during which plaintiff was
required to serve the ante-litem notice on the county defendants, plaintiff’s action was
time-barred).
8
because a claim against a sheriff is essentially a claim against the county17 and OCGA
§ 36-11-1 only generally refers to “claims against counties,”18 presentment of such
a claim solely to the county, even when the claim is actually against the sheriff,
satisfies the statute. The dissent, thus, opines that our conclusion reached here and in
Davis is incorrect. But in reaching its conclusion, the dissent both minimizes the fact
that OCGA § 36-11-1 fails to specify to whom presentment must be made and elides
the fact that the Georgia Constitution and our well-established case law treats the
county and sheriff as separate and distinct entities. Accordingly, we find the dissent’s
reasoning unpersuasive.19
17
See Gilbert v. Richardson, 264 Ga. 744, 746 (2) n.4 (452 SE2d 476) (1994)
(noting that the plaintiffs’ claims against the sheriff in his official capacity “are, in
essence, claims against [the county] . . .”); Seay v. Cleveland, 270 Ga. 64, 65 (1) (508
SE2d 159) (1998) (same); Strength v. Lovett, 311 Ga. App. 35, 38 (1) (714 SE2d 723)
(2011) (“A lawsuit against a sheriff in his official capacity is considered a suit against
the county . . .”); Nichols v. Prather, 286 Ga. App. 889, 893 (2) (650 SE2d 380)
(2007) (same).
18
See OCGA § 36-11-1.
19
The dissent does not “believe that presentment to the sheriff, if that had been
done, would be insufficient” because “[t]he presentment sometimes may be submitted
to the governing authority by delivering it to subordinate officers of the county
government . . . .” But as explained infra, sheriffs can in no way be characterized as
“subordinate officers of the county government,” even if our Constitution refers to
them as county officers. Thus, the dissent’s reasoning, when taken to its logical end,
requires one of two conclusions: OCGA § 36-11-1 does not apply to sheriffs at all or
9
The Constitution of the State of Georgia designates the sheriff as a “county
officer,” but grants the General Assembly the exclusive authority to establish the
sheriff’s “qualifications, powers, and duties.”20 And because sheriffs are “elected by
county voters, it is not surprising that [our] Constitution labels sheriffs as county
officers.”21 Nevertheless,
given how [our] Constitution also makes the sheriff’s office a
constitutional office independent from the county entity itself, precludes
all county control, and grants only the State control over sheriffs, this
‘county officer’ nomenclature necessarily reflects a geographic label
defining the territory in which a sheriff is elected and mainly operates.22
the statute mandates that presentment of an ante-litem notice to the sheriff must be
made only to the county. And in our view, neither of these interpretations of the
statute is sound.
20
Ga. Const., Art. IX, § I, ¶ III (a)-(b); accord Lawson v. Lincoln Cty., 292 Ga.
App. 527, 529 (664 SE2d 900) (2008); see Teasley v. Freeman, 305 Ga. App. 1, 4 (1)
(699 SE2d 39) (2010) (noting that a county commission does not control the sheriff’s
execution of his duties); Brown v. Dorsey, 276 Ga. App. 851, 855-56 (1) (625 SE2d
16) (2005) (noting that although the county commission sets the sheriff’s budget, the
commissioners may not dictate to the sheriff how that budget will be spent in the
exercise of his or her duties).
21
Manders v. Lee, 338 F3d 1304, 1312 (III) (11th Cir. 2003).
22
Id. (emphasis supplied); see also Freeman v. Brandau, 292 Ga. App. 300,
301 (664 SE2d 299) (2008) (noting that the “sheriff . . . is an elected constitutional
county officer, not a county employee.”).
10
Indeed, in interpreting this constitutional provision, the Supreme Court of Georgia
has explicitly noted that the sheriff “is an elected, constitutional officer; he is subject
to the charge of the General Assembly and is not an employee of the county
commission.”23 This constitutionally mandated distinction is crucial in this context
because among the chief reasons for requiring an ante-litem notice or presentment are
to provide the governmental entity or officer being sued—here, the sheriff—with “the
opportunity to investigate potential claims, ascertain the evidence, and avoid
unnecessary litigation”24 by compromising a claim before suit is filed. This, the
county may not do,25 and thus any presentment of an ante-litem notice to the county
23
Bd. of Comm’rs. of Randolph Cty. v. Wilson, 260 Ga. 482, 482 (396 SE2d
903) (1990); accord Channell v. Houston, 287 Ga. 682, 684 (699 SE2d 308) (2010);
Bd. of Comm’rs. of Dougherty Cty. v. Saba, 278 Ga. 176, 177 (598 SE2d 437) (2004);
Lawson, 292 Ga. App. at 529.
24
City of Columbus v. Barngrover, 250 Ga. App. 589, 596 (4) (552 SE2d 536)
(2001); accord Burton v. DeKalb Cty, 202 Ga. App. 676, 678 (415 SEE2d 647
(1992); see Croy v. Whitfield Cty., 301 Ga. 380, 385 (2) (801 SE2d 892) (2017)
(noting that the purpose of OCGA § 36-11-1 “is to afford the county an opportunity
to investigate the claim and ascertain the evidence and to avoid the incurrence of
unnecessary litigation.” (citations and punctuation omitted)).
25
See, e.g., Saba, 278 Ga. at 177 (holding that a county may not dictate how
a sheriff’s budget will be spent).
11
is entirely ineffectual.26 The acknowledgment of this constitutional distinction is also,
importantly for our purposes, reflected in a well-established line of jurisprudence,
holding that “[t]he sheriff, and not the county, is liable for the misconduct of his
deputies.”27 Consequently, the county “cannot be held vicariously liable for [a
sheriff’s] alleged negligence.”28
Turning back to OCGA § 36-11-1, our Supreme Court has recently noted that
“the statute does not say exactly how presentment is to be made.”29 And focusing on
this lack of specificity, the dissent argues that presentment of a claim to the sheriff
when the sheriff is being sued is, therefore, not required. But the dissent’s argument
26
See supra notes 19-21.
27
Nichols, 286 Ga. App. at 895 (3) (punctuation omitted); accord Brown v.
Jackson, 221 Ga. App. 200, 201 (2) (470 SE2d 786) (1996); Wayne Cty. v. Herrin,
210 Ga. App. 747, 751 (3) (437 SE2d 793) (1993).
28
Nichols, 286 Ga. App. at 895 (3); see Lowe v. Jones Cty., 231 Ga. App. 372,
373 (2) (499 SE2d 348) (1998) (holding that because deputies are employees of the
sheriff and not the county, a vicarious liability claim against the county for a deputy’s
conduct is precluded); Brown, 221 Ga. App. at 201 (2) (holding that because deputy
was the employee of the sheriff and not the county, sheriff and not the county would
have been the proper party to have sued under a theory of respondeat superior).
29
Croy, 301 Ga. at 381 (2).
12
overlooks or ignores the fact that our appellate courts have required that other statutes
be applied to sheriffs despite similarly failing to specifically reference them. For
instance, OCGA § 33-24-51 does not mention sheriffs, but a sheriff’s entitlement to
sovereign immunity may be waived under its provisions.30 Additionally, OCGA § 36-
92-2 has been found applicable to sheriffs despite not explicitly referencing them.31
And we have also held that the Workers’ Compensation Act requires sheriffs to be
treated as a deputy’s employer despite the Act failing to specifically define them in
such a manner.32 Thus, our conclusion that OCGA § 36-11-1 is similarly applicable
to sheriffs is entirely consistent with our prior jurisprudential practices. No new
ground is being broken here.
30
See Wingler v. White, 344 Ga. App. 94, 100 (1) (808 SE2d 901) (2017)
(noting that the sovereign immunity afforded to a sheriff sued in his official capacity
is waived if the criteria in OCGA § 33-24-51 (b) have been satisfied).
31
See Strength, 311 Ga. App. at 38 (1) (holding that the waiver outlined in
OCGA § 36-92-2 applies to claims against a sheriff).
32
See Teasley, 305 Ga. App. at 3 (1) (“While the definition [in OCGA § 34-9-1
(3)] does not specifically enumerate what aspects of a ‘county’ are included, it is
logical in this context that a sheriff would be deemed a deputy’s employer by virtue
of (i) his status as a county officer, and (ii) the Act’s treatment of counties as
employers.”).
13
Given that in circumstances such as those at issue in this matter, a plaintiff is
legally precluded from even naming a county as a proper defendant, and given that
the language of OCGA § 36-11-1 does not mandate otherwise,33 we find that a
contextual assessment of the relevant constitutional and statutory provisions and
precedent, as well as simple logic, dictate that presentment of a claim for which the
sheriff can be held vicariously liable must be directed to the sheriff.34 Thus, Davis
was correctly decided and we need not revisit it.35 Accordingly, the trial court erred
in denying the defendants’ motion to dismiss on the ground that Mendez’s claim
against Moats is barred by his failure to provide the Sheriff’s Office with notice of
such claim under OCGA § 36-11-1.
33
See Croy, 301 Ga. at 381 (2) (noting that OCGA § 36-11-1 does not say
exactly how presentment is to be made).
34
See supra note 14.
35
Mendez has not asked this Court to revisit Davis, but merely disagrees that
its holding requires reversing the trial court. Silence in this regard is a consideration
of great significance, and, in addition to the factors discussed supra, leads us to
conclude that applying the doctrine of stare decisis with regard to Davis is the more
sound approach. See Benefield v. Tominich, 308 Ga. App. 605, 613 (708 SE2d 563)
(2011) (Blackwell, J., concurring dubitante) (observing that “the application of the
doctrine of stare decisis is essential to the performance of a well-ordered system of
jurisprudence,” and “it is the duty of appellate judges to make concessions to stare
decisis (punctuation omitted)).
14
For all these reasons, we reverse the trial court’s order denying the defendants’
motion to dismiss.
Judgment reversed. Reese, Coomer, and Hodges, JJ., concur. McMillian,
Rickman, Mercier, Brown, Gobeil, Goss, and Markle, JJ., concur fully and specially.
Barnes, P. J., Miller, P. J., Doyle, P. J., and McFadden, P. J., concur in part and
dissent in part.
15
A18A1721. MOATS et al. v. MENDEZ.
MERCIER, Judge, concurring fully and specially.
I concur fully in the majority’s opinion, but write separately to emphasize that
the issue raised in Division 2 was decided by a unanimous panel of this Court just 13
months ago in Davis v. Morrison, 344 Ga. App. 527 (810 SE2d 649) (2018).
Interpreting OCGA § 36-11-1, Davis explicitly determined that a county sheriff sued
in his or her official capacity must be served with an ante litem notice. See 344 Ga.
App. at 531-532 (2). Although the dissent’s arguments are appealing and not
unreasonable, the majority’s analysis and the clear precedent established in Davis are
sound. I see no reason to revisit Davis’s clear holding. As we recently noted:
Even those who regard “stare decisis” with something less than
enthusiasm recognize that the principle has even greater weight where
the precedent relates to interpretation of a statute. Once the court
interprets the statute, the interpretation has become an integral part of
the statute. This having been done, any subsequent “reinterpretation”
would be no different in effect from a judicial alteration of language that
the General Assembly itself placed in the statute.
Callaway Blue Springs v. West Basin Capital, 341 Ga. App. 535, 542 (1) (n. 40) (801
SE2d 325) (2017) (punctuation and citation omitted, superseded by statute on other
grounds as stated in RES-GA McDonough v. Taylor English Duma, 302 Ga. 444, 448
(1) (807 SE2d 381) (2017)).
I am authorized to state that McMillian, Rickman, Brown, Gobeil, Goss, and
Markle, JJ., join in this special concurrence.
2
A18A1721. MOATS et al. v. MENDEZ.
DOYLE, Presiding Judge, concurring in part and dissenting in part.
Because I believe that Mendez’s notice to Polk County satisfied the
presentment requirement in OCGA § 36-11-1, I would affirm the trial court’s denial
of the consolidated motion to dismiss Sheriff Moats and Deputy Allred in their
official capacities. With respect to Deputy Allred in her individual capacity, I agree
that she is immune under OCGA § 36-92-3 (a).1 Accordingly, I fully concur with
Division 1 and respectfully dissent to Division 2.
This case arises in the context of a respondeat superior action against a sheriff
and his deputy based on the alleged negligence of the deputy in an on-duty
1
Mendez urges that the County should be substituted as the proper defendant
under OCGA § 36-92-3 (b), but as noted below, the sheriff (not the county) is the
proper defendant in a suit against a deputy in her official capacity asserting a
respondeat superior claim.
automobile collision. The plaintiff, Mendez, timely presented his claim to Polk
County and not the sheriff, so the question is whether this met his obligation under
the county presentment statute, OCGA § 36-11-1.
To answer this question, the majority primarily relies on Davis v. Morrison,2
which stands for the proposition “that [the presentment requirement in] OCGA §
36-11-1 applies both to the counties and to the sheriffs, when sued in their official
capacities.”3 Based on this principle, the Davis court held that a plaintiff was required
to present his claim against a deputy to the sheriff, so the plaintiff’s presentment to
the county was insufficient and fatal to his suit.4
In so holding, Davis relied on Columbia County v. Branton,5 which addressed
claims against a sheriff in his official capacity allegedly arising from a vehicle chase
involving a sheriff’s deputy and a fleeing suspect.6 The plaintiff presented the claim
to the county (and only the county) more than one year after the injury, so the issue
2
344 Ga. App. 527 (810 SE2d 649) (2018).
3
Id. at 532 (2).
4
See id.
5
304 Ga. App. 149 (695 SE2d 674) (2010), overruled in part on other grounds
by Harrison v. McAfee, 338 Ga. App. 393, 402 (3) (788 SE2d 872) (2016).
6
See Branton, 304 Ga. App. at 149-151.
2
in that case was, in part, whether the presentment requirement was tolled by certain
statements made by law enforcement officers that allegedly concealed the facts
supporting the claim.7 After analyzing the facts, this Court held that none of the
circumstances “tolled the time during which [the plaintiff] was required to serve the
ante litem notice upon the county defendants, [so] this action is time-barred” by the
plaintiff’s failure to timely meet the presentment requirement in OCGA § 36-11-1.8
The Branton court did not address the question presented here and in Davis —
whether timely presentment to the county (as opposed to the sheriff) is sufficient —
and I believe Davis improperly extended Branton in the present context.
Turning to the actual text of the presentment requirement, I note that
[w]hen we consider the meaning of a statute, we must presume that the
General Assembly meant what it said and said what it meant. To that
end, we must afford the statutory text its plain and ordinary meaning, we
must view the statutory text in the context in which it appears, and we
must read the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would.9
7
See id. at 153-154 (2). The plaintiff alleged that officers wrongfully denied
that the deputy was actively pursuing the suspect who injured the plaintiff.
8
Id. at 154 (2).
9
(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173
(1) (a) (751 SE2d 337) (2013).
3
Also, “the statutory requirement, being in derogation of the common law, is strictly
construed.”10
The statutory text at issue is brief: “All claims against counties must be
presented within 12 months after they accrue or become payable or the same are
barred. . . .”11 This language is plain enough on its face that it applies to “claims
against counties,” but it gives no other direction. In the context of a respondeat
superior claim, such as the instant case against a sheriff for his deputy’s alleged
negligence, it is well settled that the proper defendant for such a claim is the sheriff,
and not the county.12 Therefore, I question whether the statute as written should apply
to a suit against a sheriff when the county is not a proper defendant.13
10
Strickland v. Wilson, 205 Ga. App. 91, 93 (421 SE2d 94) (1992).
11
OCGA § 36-11-1.
12
See Gilbert v. Richardson, 264 Ga. 744, 754 (7) (452 SE2d 476) (1994)
(“Since deputy sheriffs are employed by the sheriff rather than the county, sheriffs
may be liable in their official capacity for a deputy’s negligence in performing an
official function.”); Brown v. Jackson, 221 Ga. App. 200, 201 (2) (470 SE2d 786)
(1996) (“[D]eputy sheriffs are employees of the sheriff rather than the county, and
therefore the county cannot be liable for their actions as their principal.”), citing
Gilbert, 264 Ga. at 754 (7) and Wayne County v. Herrin, 210 Ga. App. 747, 751 (3)
(437 SE2d 793) (1993) (“The sheriff, and not the county, is liable for the misconduct
of his deputies.”).
13
In light of the brevity of the statute and the conflicting interpretations by the
majority and this dissent, I believe that the county presentment statute is a good
4
Nevertheless, our case law holds that suits against a sheriff (i.e., a “county
officer”14) in his official capacity “are, in essence, claims against [the county].”15 In
light of this, this Court has ruled that OCGA § 36-11-1 applies to cases brought
against a sheriff in his official capacity.16
So if these cases are treated as “claims against counties” for purposes of the
county presentment statute, then presentment to the county should suffice, particularly
under a strict construction of the statute. As explained by the Supreme Court in Croy
v. Whitfield County,17 for more than 100 years, our courts have held that “presentment
candidate for clarification by the General Assembly. It is reasonable that a sheriff, a
county officer independent of the county, would be entitled to presentment of a claim
against him, but the current wording of the statute does not explicitly require it.
14
Ga. Const. of 1983, Art. IX, Sec. I, Par. III (a)-(b).
15
Gilbert, 264 Ga. at 746 (2) n.4.
16
See Branton 304 Ga. App. at 151 fn. 2 (holding that a suit against a sheriff
in his official capacity “is tantamount to a suit against the county”), citing Ward v.
Dodson, 256 Ga. App. 660, 662 (569 SE2d 554) (2002). Also, as appropriately noted
by the majority, we have held that other statutes are operable with respect to sheriffs
despite a lack of explicit reference to sheriffs. See Wingler v. White, 344 Ga. App. 94,
100 (1) (808 SE2d 901) (2017) (addressing OCGA § 33-24-51 (b)); Strength, 311 Ga.
App. at 38 (1) (addressing OCGA § 36-92-2 (a)); Teasley v. Freeman, 305 Ga. App.
1, 3 (1) (699 SE2d 39) (2010) (addressing OCGA § 34-9-11).
17
301 Ga. 380 (801 SE2d 892) (2017).
5
is properly directed to the governing authority of the county.”18 The county and the
sheriff are distinct, and the county leadership, not the sheriff, is the governing
authority.19 As such, the county is the entity responsible for allocating a budget to the
sheriff and ultimately funding any settlement or judgment.20 Further, the purpose of
the presentment statute is “to provide . . . the county officials . . . timely notice of all
demands against the county, in order that they might intelligently and advisedly take
the proper action concerning the same.”21 As county officers, sheriffs routinely
coordinate with their county on budgetary and related administrative affairs, and
counties and their attorneys are more than capable of effectively communicating with
a sheriff and his attorney when he is sued. Thus, consistent with more than a century
18
Id. at 381 (2).
19
See Bd. of Commrs. v. Saba, 278 Ga. 176, 177 (1) (598 SE2d 437) (2004)
(“[A]s a county officer, the sheriff’s budget and accounts are subject to the authority
of the county commission, which can amend or change estimates of required
expenditures presented by the county officer. The county commission has [discretion]
to cut the budget of an elected constitutional county officer [subject to judicial
review].”).
20
See id.; Lawson v. Lincoln County, 292 Ga. App. 527, 529 (664 SE2d 900)
(2008).
21
Croy, 301 Ga. at 385 (2).
6
of precedent, presentment to the county in this case is supported by the text of the
statute and advances the purpose of OCGA § 36-11-1.22
The presentment requirement is purely a creature of statute that exists in
derogation of common law.23 As such, the requirement should not be extended by
analogy or approximation nor made more specific,24 no matter how reasonable the
result nor how minimal the burden to plaintiffs.
22
In reaching this conclusion, I add that I do not believe that presentment to the
sheriff, if that had been done, would be insufficient. As explained in Croy, the county
presentment statute “does not always and inevitably require that the presentment be
directly laid in the hands of the members of the governing authority. The presentment
sometimes may be submitted to the governing authority by delivering it to
subordinate officers of the county government,” such as the county attorney in Croy.
Croy, 301 Ga. at 384 (2). While a sheriff is not considered a subordinate county
officer, there is no dispute that a sheriff is a “county officer.” As such, presentment
to the sheriff should suffice under the reasoning in Croy, particularly when the sheriff
is the defendant. See Croy, 301 Ga. at 384 (2). See also Teasley, 305 Ga. App. at 3
(1) (“it is self-evident that a sheriff is not an entity entirely separate from the county
for all purposes, rather he is an elected officer operating within the framework of a
county as composed by the Constitution and relevant statutes”). Accordingly, my
holding here is narrow: not that presentment must be made to the county governing
body and only that body; rather, that presentment to the county in this case (as
opposed to the sheriff) met Mendez’s burden under OCGA § 36-11-1.
23
See Strickland, 205 Ga. App. at 93.
24
Cf. Croy, 301 Ga. at 384 (2) (noting the lack of specificity in the presentment
statute such that it “does not always and inevitably require that the presentment be
directly laid in the hands of” a specific county body or officer) (emphasis supplied).
7
Unlike other similar ante litem statutes, the county presentment statute says
nothing about to whom presentment must be made,25 nor does the statutory text
support the conclusion that presenting “claims against counties”26 to the county is
somehow insufficient. Absent more specificity in the statue, allowing presentment to
the county here is the “most natural and reasonable”27 way to read the text, and I
believe we should overrule the contrary holding in Davis — a relatively recent and
isolated case without a long legacy of precedent associated with it.28 Indeed, if this
25
In this way, the presentment statute is different from ante litem notice statutes
such as the Georgia Tort Claims Act, OCGA § 50-21-26 (a) (2) (outlining a
requirement to notify the Risk Management Division of the Department of
Administrative Services and the state government entity alleged to be at fault), and
the municipal presentment statute, OCGA § 36-33-5 (b) (explicitly requiring notice
“in writing to the governing authority of the municipal corporation”). See generally
Croy, 301 Ga. at 383 n.6 (“There are important textual differences between the
municipal ante litem notice and county presentment statutes. No one should
misunderstand us to suggest that the statutes should be construed consistently in
every context.”).
26
OCGA § 36-11-1.
27
Deal, 294 Ga. at 172 (1) (a).
28
See State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (“Stare
decisis is an important principle that promotes the rule of law, particularly in the
context of statutory interpretation, where our incorrect decisions are more easily
corrected by the democratic process. However, stare decisis is not an inexorable
command, nor a mechanical formula of adherence to the latest decision. Stare decisis
is instead a principle of policy. In considering whether to reexamine a prior erroneous
holding, we must balance the importance of having the question decided against the
8
should be considered a suit against the sheriff in a more narrow sense (and not a suit
against the county), then the county presentment statute should not apply at all.
Accordingly, I respectfully disagree that Mendez failed to meet the presentment
requirement in OCGA § 36-11-1 when he timely presented his claim to the chairman
of the Polk County Board of Commissioners.
I am authorized to state that Presiding Judge Barnes, Presiding Judge Miller,
and Presiding Judge McFadden join in this dissent.
importance of having it decided right. In doing so, we consider factors such as the age
of the precedent, the reliance interests at stake, the workability of the decision, and,
most importantly, the soundness of its reasoning.”) (citation and punctuation omitted;
emphasis in original).
9