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March 30, 2016
In the Court of Appeals of Georgia
A15A1802. IN THE INTEREST OF THE ESTATE OF JOE
LEONARD, JR.
MCFADDEN, Judge.
In this negligence action, Joe Leonard, Jr. sued Melvin Cecil Cooper and
Whitfield County, Georgia (“the County”) to recover for the injuries he sustained
while being transported in a bus driven by Cooper and operated by the County.
During the course of the litigation, Leonard passed away and Janice L. Croy,
Leonard’s daughter and the executor of his estate, was substituted as party plaintiff.
(Leonard and the Estate are collectively referred to herein as “Leonard.”) The trial
court granted summary judgment in favor of the County based upon Leonard’s failure
to provide timely ante litem notice in accordance with OCGA § 36-11-1.1 In his
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In a prior order, the trial court granted summary judgment to Cooper based
upon his immunity as a County employee. That order is not at issue in this appeal.
appeal, Leonard argued that the trial court erred in granting summary judgment for
two reasons: because he substantially complied with the statutory requirement
regarding the time for presentation of claims and, alternatively, because the time
period for the requisite notice was tolled by Leonard’s incapacity. Neither argument
has merit. Accordingly, we affirm the trial court’s ruling that the County was entitled
to summary judgment because the ante litem notice was untimely.
1. Facts and procedural posture.
On appeal from the grant or denial of a motion for summary
judgment, we conduct a de novo review of the law and evidence,
viewing the evidence in the light most favorable to the nonmovant, to
determine whether a genuine issue of material fact exists and whether
the moving party was entitled to judgment as a matter of law.
Warnell v. Unified Govt. of Athens-Clarke County, 328 Ga. App. 903 (763 SE2d 284)
(2014) (citation omitted).
So viewed, the evidence shows that on January 30, 2012, Joe Leonard, Jr., then
82 years old, was being transported in a bus driven by Cooper and operated by the
County. Leonard used a motorized wheelchair and was traveling with an attendant.
Once Leonard boarded the bus, Cooper assisted him in securing his wheelchair using
straps designed for that purpose. Leonard alleged in the lawsuit that Cooper rounded
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a curve at a high rate of speed, causing the security straps to detach and his
wheelchair to overturn. Leonard was thrown to the floor and sustained two broken
legs, which required surgery. Shortly thereafter and allegedly as a result of the injury,
Leonard was permanently confined to a managed-care facility.
On June 5, 2012, Leonard’s counsel sent an ante litem notice letter to the
County Attorney for Whitfield County, Robert A. Smalley, III, at the address of
Smalley’s law office. Leonard filed suit on January 21, 2014. Thereafter, Cooper and
the County filed an answer in which they asserted that Leonard failed to give a timely
and/or adequate ante litem notice as required by OCGA § 36-11-1 (“All 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.”).
Following discovery, the County first moved for summary judgment on the
grounds that the ante litem notice failed to substantially comply with OCGA § 36-11-
1 because Leonard failed to serve it on an agent authorized to accept service on the
County’s behalf. See generally Coweta County v. Cooper, 318 Ga. App. 41, 43 (733
SE2d 348) (2012) (presentation of notice under OCGA § 36-11-1 generally is
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sufficient when given to an in-house county attorney or any department or official of
a county; it is not sufficient, however, when given to outside legal counsel who has
not been authorized by the county to accept notice on the county’s behalf). The trial
court found that a factual issue remained on this issue and denied the motion. After
the trial court denied the County’s first motion for summary judgment, counsel for
Leonard personally served the complaint on several County commissioners.
The County then filed a second motion for summary judgment, along with an
affidavit from Smalley, in which he averred that, “[a]t all material times, the Whitfield
. . . County Board [of] Comissioners ha[d] taken no formal action to authorize [him]
to accept ante litem notices on behalf of Whitfield County, Georgia.” The trial court
granted this second motion, holding that service to Smalley did not substantially
comply with OCGA § 36-11-1. The trial court rejected Leonard’s alternative
argument alleging that a mental incapacity tolled the 12-month period for filing the
ante litem notice. (The trial court also denied Leonard’s cross-motion for summary
judgment.) This appeal followed.
2. Substantial compliance.
(a) Leonard enumerates as error the trial court’s grant of summary judgment
to the County and denial of summary judgment to him. Although this enumeration
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contains certain surplus language, it is sufficient for us to consider both his
substantial compliance argument and his tolling argument on appeal. See Felix v.
State, 271 Ga. 534, 539-540 (523 SE2d 1) (1999).
(b) The trial court did not err in ruling that Leonard failed to substantially
comply with OCGA § 36-11-1, which pertinently requires that “[a]ll claims against
counties must be presented within 12 months after they accrue or become payable or
the same are barred[.]” Leonard bore the burden of proving substantial compliance
with OCGA § 36-11-1. See Dept. of Corrections v. Grady Mem. Hosp. Corp., 333 Ga.
App. 315, 317 (2) (775 SE2d 773) (2015); Coweta County v. Cooper, 318 Ga. App.
41, 42 (733 SE2d 348) (2012); Barngrover, 250 Ga. App. at 596 (4). This, he failed
to do.
Leonard sent a purported ante litem notice to a “private law firm hired by the
County to represent the County as outside legal counsel.” See Coweta County, 318
Ga. App. at 43. Here, the outside county attorney’s affidavit confirmed that, as in
Coweta County, he was not authorized by the County to accept service of ante litem
notices on behalf of the County. See id. at 42. Despite the dissent’s characterization
of the attorney’s affidavit as “carefully worded” and “self-serving,” these criticisms
do not mandate that the affidavit may not be considered in support of the County’s
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motion for summary judgment, particularly since Leonard failed to present facts to
satisfy its burden to show timely ante litem notice. See generally Coweta County, 318
Ga. App. at 42. The dissent’s apparent concern with the filing of the outside county
attorney’s affidavit after the denial of the County’s first motion for summary
judgment is also of no moment. See T. L. Rogers Oil Co. v. South Carolina Nat. Bank,
203 Ga. App. 605, 606 (2) (417 SE2d 336) (1992) (“The previous denial of summary
judgment does not preclude a subsequent granting thereof on the basis of an expanded
record.”).
Prior negotiations between Leonard’s counsel and the county attorney did not
authorize the attorney to accept service of the ante litem notice. OCGA § 36-11-1 is
not satisfied when a party sends a purported ante litem notice to a county’s insurer or
there are verbal discussions concerning the notice. See Dept. of Corrections, 333 Ga.
App. at 317 (2); Cobb v. Bd. of Commrs. of Roads & Revenue of Tift County, 151 Ga.
App. 472, 473 (2) (260 SE2d 496) (1979); Doyal v. Dept. of Transp., 142 Ga. App.
79, 80 (234 SE2d 858) (1977). Even when viewed in a light most favorable to
Leonard, the evidence reveals only that he sent a purported ante litem notice to a
“private law firm hired by the County to represent the County as outside legal
counsel.” Coweta County, 318 Ga. App. at 43. Because this case is controlled by
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Coweta County, the trial court did not err in granting the County’s motion for
summary judgment due to Leonard’s failure to properly serve the County with an ante
litem notice. It follows that the trial court’s judgment should be affirmed.
3. Tolling.
Furthermore, the trial court correctly rejected Leonard’s alternative argument
that the ante litem notice period was tolled by an alleged incapacity that was not
resolved until his executrix was appointed following his death. OCGA § 36-11-1
states that “[a]ll claims against counties must be presented within 12 months after
they accrue or become payable or the same are barred. . . .” However, “[t]he ante
litem notice statute, like a statute of limitation, may be tolled.” Carter v. Glenn, 243
Ga. App. 544, 548 (2) (533 SE2d 109) (2000). See also OCGA § 36-11-1 (“persons
laboring under disabilities shall be allowed 12 months after the removal of the
disability to present their claims”); Jacobs v. Littleton, 241 Ga. App. 403, 406 (3) (b)
(525 SE2d 433) (1999). To that end, OCGA § 9-3-90 provides, in pertinent part, that
[i[ndividuals who are legally incompetent because of intellectual
disability or mental illness, who are such when the cause of action
accrues, shall be entitled to the same time after their disability is
removed to bring an action as is prescribed for other persons.
See also OCGA § 36-11-1.
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While a plaintiff need not be so mentally incompetent that he should be
confined, or require a guardian, he must be so mentally incompetent
(non compos mentis or insane), so unsound in mind, or so imbecile in
intellect, that he could not manage his ordinary affairs of life. The test
to be applied is whether the one claiming the disability has such
unsoundness of mind or imbecility as to incapacitate one from managing
the ordinary business of life.
Carter, 243 Ga. App. at 548-549 (2) (citing Jacobs, 241 Ga. App. at 406) (citations
and punctuation omitted). Such a determination “may be made by the trial court as a
matter of law, and the burden is on the plaintiff to prove incapacity.” Id.
In support of his argument, Leonard presented the affidavit of Dr. Stanford
Voegele, who discussed his evaluation and treatment of Leonard during a time period
that preceded Leonard’s accident. Voegele noted that Leonard suffered a stroke in
January 2009 and that an MRI and CT scans in February 2009, May 2010, and
October 2010 showed degeneration of the white matter in Leonard’s brain. Voegele
testified that the degeneration was a sign of “worsening dementia.” Voegele also
noted that Leonard’s daughters complained of Leonard’s worsening dementia and
loss of memory during a September 2009 office visit. As a result of the stroke “and
presenting in [Voegele’s] office on multiple occasions in 2009 and 2010 with loss of
memory and mood changes (agitation) around [Leonard’s] family,” Voegele
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diagnosed Leonard with Alzheimer’s disease in September 2009, December 2010,
and March 2011. Ultimately, Voegele opined that by September 2, 2009, Leonard was
“so weak of mind that he was incapable of understanding and acting with discretion
in the ordinary affairs of his life.” Voegele added that, “as of September 2, 2009 and
at all times thereafter, [Leonard] was not of sound mind and was not mentally
competent to handle his personal, business, health, legal and financial affairs.”
Although Voegele’s affidavit describes Leonard’s condition as progressive, Voegele
does not reveal any further discussion or treatment of Leonard’s condition after
September 21, 2011.
Against this backdrop, the trial court specifically cited evidence of Leonard’s
mental condition after the January 30, 2012, accident: the medical narrative of Dr.
James Lashley and Leonard’s exercise of his legal rights. The trial court noted that
Lashley initially met Leonard on February 1, 2012 (two days following Leonard’s
injuries) and treated him on multiple occasions thereafter, including performing
surgery to repair Leonard’s legs. Lashley last saw Leonard in September 2012. In the
interim, Lashley noted that Leonard appeared for each scheduled visit and that he had
been working with his caregivers to complete physical therapy as required. Absent
from Lashley’s report was any notation that Leonard did not understand his treatment
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plan; that he appeared agitated, confused, or suffered memory loss; or that he was
unable to make decisions concerning his health care.
The trial court found that Leonard was able to pursue his legal remedies. For
example, Leonard was able to retain counsel, send a purported ante litem notice,
engage the County’s insurer, make a settlement offer, and file a civil action against
the County. Moreover, Leonard asserted that, before the accident, he was able to live
at home, perform personal functions, and that his health “was good for a man of his
age.” Based upon this evidence, the trial court concluded that Leonard’s “mental
incapacity did not prevent him from sending ante litem notice within the limitation[]
period.”
Under these circumstances, we discern no error in the trial court’s conclusion.
First, it is particularly telling that, despite current claims of Leonard’s incapacity, no
relative of Leonard’s petitioned the probate court to appoint a guardian for Leonard
to pursue any legal rights or otherwise manage his affairs. See Pivic v. Pittard, 258
Ga. App. 675, 677 (575 SE2d 4) (2002). Second, Leonard’s ability to monitor his
health, appear for medical appointments, and participate in physical therapy as
ordered by his doctor point to Leonard’s capacity following the accident. See
generally Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452,
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460-461 (d) (504 SE2d 514) (1998) (mental capacity to admit self to hospital).
Finally, a party’s ability to participate in litigation and to otherwise manage legal
affairs, including the hiring of counsel and the pursuit of a settlement agreement,
demonstrates mental capacity and will not toll a limitation period. See Hayes, 197 Ga.
App. at 564 (5); Curlee v. Mock Enterprises, 173 Ga. App. 594, 599 (3) (327 SE2d
736) (1985).
Because Leonard was not laboring under a disability that would toll the time
for filing an ante litem notice, the trial court did not err in granting summary
judgment to the County on the ground that the ante litem notice was untimely.
Judgment affirmed. Branch, J., concurs; Andrews, P. J., concurs in Divisions
1, 2(b) and 3, and in the judgment only in Division 2(a); Ellington, P. J., and Dillard,
J., concur in the judgment only; Barnes, P. J., and Miller, P. J., dissent.
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A15A1802. IN RE: THE ESTATE OF JOE LEONARD, JR..
MILLER, Presiding Judge, dissenting.
I respectfully dissent to the majority’s opinion because I would conclude that
Leonard complied with the statutory requirements for presentment of his ante litem
notice and that Smalley, in fact, had apparent authority to accept the notice.
The purpose of presenting a claim to the County prior to filing suit is to give
the County an opportunity to investigate the claim, determine the evidence, and avoid
unnecessary litigation. See Burton v. DeKalb County, 202 Ga. App. 676, 678 (415
SE2d 647) (1992). Importantly, OCGA § 36-11-1 does not specify to whom the claim
must be presented. See id; compare OCGA § 36-33-5 (requiring claims against
municipal corporations to be presented to the municipal corporation’s “governing
authority”).
In this case, Leonard sent a timely formal written ante litem notice of his claim
to Smalley, who admittedly was the designated County Attorney for Whitfield County
at all material times with regard to this case. Smalley accepted the notice and
discussed Leonard’s claim with the County commissioners. Leonard subsequently
filed and served his complaint on Smalley, who acknowledged service of the
summons and complaint on Whitfield County’s behalf. When the County answered
the complaint it did not raise insufficient service of process as a defense, even though
service of a complaint upon a county must be made upon a majority of the
commissioners, the chairman of the board of commissioners or an authorized agent.
See Burton, supra, 202 Ga. App. at 677-678.
The majority focuses on Smalley’s carefully worded affidavit in which he
stated that the County took no formal action to authorize him to accept ante litem
notices on the County’s behalf. Importantly, Smalley’s sworn affidavit conveniently
stopped short of stating that he had no authority to accept ante litem notices. Rather,
the fact that Smalley acknowledged service of the complaint on behalf of the County
shows that he had apparent authority to act as the County’s agent with regard to
Leonard’s claim. See Burton, supra, 202 Ga. App. at 677-678 (service of a complaint
upon a county may be made on the county’s authorized agent). Consequently, this
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case is distinguishable on its facts from the decision in Coweta County, supra, 318
Ga. App. at 43, in which there was no evidence that the law firm in question was
authorized to act as the County’s agent for the purpose of accepting ante litem
notices.
Unlike the majority, I would not read the decision in Coweta County so
narrowly as to hold that a designated county attorney from an outside law firm has no
apparent authority under any circumstances. Under any circumstances, it is patently
unreasonable for a designated county attorney to act in this manner, i.e., to
acknowledge timely service of a complaint against a county, discuss the claim with
the County, and wait until after expiration of the 12-month ante litem notice period
to deny his authority to accept such notice. Moreover, the judicial system in this State
is above this type of gamesmanship.
This interpretation is consistent with the purpose of the presentment
requirement of OCGA § 36-11-1, and is, in fact, what happened in this case. The
County clearly had an opportunity to investigate Leonard’s claim, to determine the
evidence and to avoid unnecessary litigation in this case. See Burton, supra, 202 Ga.
App. at 678,
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Viewing the evidence in the light most favorable to Leonard, as this Court
must, I would find that Smalley had apparent authority to act as the County’s agent
for the purpose of accepting Leonard’s ante litem notice and, therefore, I would find
that Leonard complied with the presentment requirement of OCGA § 36-11-1.
I am authorized to state that Presiding Judge Barnes concurs in this dissent.
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