Mendez v. Moats

310 Ga. 114

852 S.E.2d 816 (Mem)

MENDEZ

v.MOATS et al.

S19G1095

Supreme Court of Georgia.

Decided September 28, 2020

Reconsideration denied October 19, 2020

Walter W. Furlong, Atlanta, for appellant.

Womack, Gottleib & Rodham, La Fayette, Ronald R. Womack, Steven M. Rodham, Ryan L. Ray, for appellees.

Charles M. Cork III ; Walker Hulbert Gray & Moore, Kellye C. Moore, Warner Robins, Julian K. McLendon III, amici curiae.

Order.

After careful consideration of the full record and the briefs of the parties, the Court has determined that the writ of certiorari issued in Case No. S19G1095 was improvidently granted. Accordingly, the writ is vacated, and the petition for certiorari in Case No. S19C1095 is denied.

All the Justices concur, except Melton, C. J., who dissents, and McMillian, J., disqualified.

Nahmias, Presiding Justice, concurring.

Our Court granted a writ of certiorari in this case to address two important questions presented by the divided opinion of the Court of Appeals in Moats v. Mendez , 349 Ga. App. 811, 824 S.E.2d 808 (2019), regarding the interpretation of OCGA § 36-11-1, which says in pertinent part that "[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred":

(1) Does OCGA § 36-11-1 apply to official-capacity claims against a county sheriff for negligent use of a covered motor vehicle?

(2) If so, does the proper presentment of such claims to the county commission satisfy the claimant's duty under the statute?

Having now received the full record, and after review of the parties’ briefs and oral arguments, the Court has determined that the writ of certiorari was improvidently granted, so it vacates the writ and denies Efrain Mendez's petition for certiorari. I concur in that decision — although as I explain below, I do so with some reluctance — because the questions we asked should be addressed in a case that more properly presents them.

The record shows that Mendez did not argue in the trial court or the Court of Appeals (until some passing references in his motion for reconsideration) that OCGA § 36-11-1 does not apply to official-capacity claims against sheriffs, and in his brief here, he embraces the Court of Appeals’ holding that the presentment statute does apply. Although I have doubts about that holding, as I discuss below, we should not decide this difficult question in a case where it has not been properly raised by the petitioner or adequately briefed.

Assuming that OCGA § 36-11-1 does apply to official-capacity claims against sheriffs, I think it is clear that the Court of Appeals decided the second question we asked incorrectly. As I explain below, it makes no sense legally or logically to hold on the one hand that sheriffs equal counties to make § 36-11-1 apply to claims against sheriffs, while holding on the other hand that counties do not equal sheriffs with regard to the presentment requirement of the statute. But I understand the Court's reticence to make that prerequisite assumption; we should decide the second question only if we agreed with the Court of Appeals as to the first question, and again, the first question is not well-presented by this case. Accordingly, the Court will need to await a case that appropriately presents these important questions.

1. The Court of Appeals summarized the pertinent facts of this case as follows.

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 [Sheriff Kathryn] 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 [Polk County] Sheriff [Johnny] Moats. Subsequently, on August 9, 2017, Mendez filed a lawsuit against 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 [the Court of Appeals] granted.

Moats, 349 Ga. App. at 812, 824 S.E.2d 808 (footnote omitted).

In its subsequent whole-court opinion, the Court of Appeals reversed the trial court's judgment. The Court of Appeals first held unanimously in Division 1 that Mendez's claims against Deputy Sheriff Allred were barred by OCGA § 36-92-3 (a), which grants immunity to a "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." See Moats , 349 Ga. App. at 813-814, 824 S.E.2d 808. Mendez did not seek review of this holding in his petition for certiorari.

The Court of Appeals divided, however, as to Division 2. The majority held that Mendez's claims against Sheriff Moats were also barred, because Mendez failed to properly present his claims as required by OCGA § 36-11-1, which says in full:

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.¹

Mendez argued that the presentment of his claims to Polk County through the chairman of its Board of Commissioners sufficiently presented the claims against Sheriff Moats. See Moats , 349 Ga. App. at 814-815, 824 S.E.2d 808. The majority opinion, however, rejected that argument.

The majority first held succinctly that " ‘ OCGA § 36-11-1 applies both to the counties and to the sheriffs, when sued in their official capacities.’ " Moats , 349 Ga. App. at 815, 824 S.E.2d 808 (quoting Davis v. Morrison , 344 Ga. App. 527, 532, 810 S.E.2d 649 (2018), and citing Columbia County v. Branton , 304 Ga. App. 149, 151, 695 S.E.2d 674 (2010), overruled on other grounds by Harrison v. McAfee , 338 Ga. App. 393, 788 S.E.2d 872 (2016) ).

The majority then noted that " OCGA § 36-11-1 fails to specify to whom presentment must be made"; discussed various Georgia constitutional provisions and case law that "treat[ ] the county and sheriff as separate and distinct entities"; and reasoned that sheriffs, rather than counties, are vicariously liable for the negligence of their deputies, so Mendez would be "legally precluded from even naming [the] county as a proper defendant." Moats , 349 Ga. App. at 815-817, 824 S.E.2d 808. Concluding that Mendez's presentment of his claims to the county rather than the sheriff's office was "entirely ineffectual," the majority opinion held that his claims against Sheriff Moats were barred under OCGA § 36-11-1. Moats , 349 Ga. App. at 817-818, 824 S.E.2d 808.

In a brief concurrence, Judge Mercier, joined by six other judges, agreed fully with the majority but wrote to emphasize that a unanimous panel of the court just 13 months earlier had decided Davis , which "explicitly determined" that a sheriff sued in his official capacity must be presented with a plaintiff's claims in accordance with OCGA § 36-11-1. Moats , 349 Ga. App. at 818, 824 S.E.2d 808. The concurrence said that "[a]lthough the dissent's arguments are appealing and not unreasonable, the majority's analysis and the clear precedent established in Davis are sound," and considering the doctrine of stare decisis, there is "no reason to revisit Davis ’s clear holding." Moats , 349 Ga. App. at 818, 824 S.E.2d 808.

Presiding Judge Doyle, joined by three other judges, dissented as to Division 2. See Moats , 349 Ga. App. at 819-823, 824 S.E.2d 808. The dissent argued first that Branton , upon which Davis relied, did not actually address whether presentment to the county, rather than the sheriff, is sufficient under OCGA § 36-11-1, and that " Davis improperly extended Branton " and should be overruled. Moats , 349 Ga. App. at 820, 823, 824 S.E.2d 808. Noting that the sheriff, not the county, is the proper defendant in a lawsuit alleging respondeat superior claims for a deputy sheriff's negligence, the dissent questioned whether OCGA § 36-11-1 even applies to lawsuits against sheriffs. See Moats , 349 Ga. App. at 820-821, 824 S.E.2d 808. The dissent acknowledged, however, that this Court in a footnote in Gilbert v. Richardson , 264 Ga. 744, 452 S.E.2d 476 (1994), concluded that lawsuits against a sheriff in his official capacity " ‘are, in essence, claims against (the county).’ " Moats , 349 Ga. App. at 821, 824 S.E.2d 808 (quoting Gilbert , 264 Ga. at 746 n.4, 452 S.E.2d 476 ). The dissent then reasoned that if these types of lawsuit are treated as "claims against counties" for the purposes of OCGA § 36-11-1, "presentment to the county should suffice." Moats , 349 Ga. App. at 821, 824 S.E.2d 808 (emphasis in original).

Mendez filed a petition for certiorari, focusing on whether OCGA § 36-11-1 requires presentment of a claim against a...