Croy v. Whitfield Cnty.

• Decision Date: 19 June 2017
• Docket Number: S16G1452
• Citation: Croy v. Whitfield Cnty., 801 S.E.2d 892 (Ga. 2017)
• Parties: CROY v. WHITFIELD COUNTY.
• Court: Georgia Supreme Court

301 Ga. 380

801 S.E.2d 892

CROY

v.WHITFIELD COUNTY.

S16G1452

Supreme Court of Georgia.

Decided June 19, 2017

R. Leslie Waycaster, Jr., Waycaster, Morris & Dean, P.O. Box 628, Dalton, Georgia 30722-1678, Timothy H. Allred, Waycaster & Allred, 130 W. King St., Dalton, Georgia 30720, for Appellant.

Steven Mark Rodham, Ronald, R. Womack, Womack, Gottlieb & Rodham, P.C., P.O. Box 549, Lafayette, Georgia 30728, Robert Harris Smalley, III, McCamy, Phillips, Tuggle & Fordman, LLP, P.O. Box 1105, Dalton, Georgia 30722-1105, for Appellee.

Blackwell, Justice.

This case concerns OCGA § 36-11-1, which provides that "[a]ll claims against counties must be presented within 12 months after they accrue or become payable," and if they are not so presented, "the same are barred." Five years ago, our Court of Appeals said in Coweta County v. Cooper , 318 Ga. App. 41, 733 S.E.2d 348 (2012), that presentment may properly be made to the county attorney, but only if the county attorney is employed by the county in house. Last year, the Court of Appeals decided In re Estate of Leonard , 336 Ga. App. 768, 783 S.E.2d 470 (2016), and it again distinguished between inside and outside county attorneys, holding that presentment to an outside county attorney is not a proper presentment. We granted a petition for a writ of certiorari to review the decision in Leonard ,¹ and we now reverse. We hold that presentment to the county attorney—inside or outside—is presentment for the purposes of OCGA § 36-11-1.

1. In January 2012, Joe Leonard, Jr. allegedly sustained injuries while riding as a passenger aboard a Whitfield County Transit Services bus. Leonard hired a lawyer, and in June 2012, his lawyer sent a letter to Robert Smalley, an attorney in Dalton, Georgia. Although Smalley is engaged in the private practice of law, he also serves as the County Attorney for Whitfield County, a position to which he was appointed prior to his receipt of the letter in June 2012. In that letter, Leonard's lawyer referred to the injuries that Leonard allegedly sustained in January, and he asked that Smalley accept the letter as a presentment of Leonard's claim against the County.

Smalley thereafter discussed the matter with one or more members of the Whitfield County Board of Commissioners, but the record does not show whether Smalley actually gave the letter itself to the members of the Board.

In January 2014, Leonard filed a lawsuit against the County, seeking to recover damages for the injuries that he allegedly had sustained two years earlier. Soon after filing the lawsuit, Leonard died, and Janice Croy—his daughter and the executor of his estate—was substituted as plaintiff. The County then filed a motion for summary judgment under OCGA § 36-11-1, asserting that Leonard never properly presented his claim, and for that reason, it was barred. The County acknowledged the letter that Leonard's lawyer sent to Smalley in June 2012, but it argued that the letter was not a proper presentment because Smalley was not employed by the County in house.² The trial court awarded summary judgment to the County, and Croy appealed. Citing its earlier decision in Coweta County , the Court of Appeals affirmed. See Estate of Leonard , 336 Ga. App. at 770-771 (2) (b), 783 S.E.2d 470.³

2. The statutory presentment requirement of OCGA § 36-11-1 has been a part of our law for more than 150 years,⁴ and it is clear and certain as far as it goes—any claim against a county must be presented within 12 months—but the statute does not say exactly how presentment is to be made. See Shigley & Hadden, GA. LAW OF TORTS—TRIAL PREP. & PRAC. § 17:20 (2017). More than 100 years ago, this Court held that the presentment must be in writing, Powell v. Muscogee County , 71 Ga. 587, 588-589 (1883), and the presentment is properly directed to the governing authority of the county.⁵ See Maddox v. Randolph County , 65 Ga. 216, 218 (2) (1880). But how should a claimant go about submitting his presentment to the governing authority? In Powell , we said that a claim ought to be presented by laying a written presentment before the governing authority at a time when it was convened and in session. See 71 Ga. at 588-589. Other longstanding precedents indicate, however, that this is not the only way in which a claim may be presented. In Dement v. De k alb County , 97 Ga. 733, 735, 25 S.E. 382 (1896), this Court held that service of a lawsuit upon the members of the governing authority within the statutory period would suffice to present whatever claims were set forth in the pleadings. And more than 75 years ago, the Court of Appeals held in Davis v. Cobb County , 65 Ga. App. 533, 535, 15 S.E.2d 814 (1941), that delivery of a written presentment to the sole member of the governing authority was good enough, not withstanding that the governing authority was not in session at the time.

Before this case, we never have considered whether a claim properly might be presented to the governing authority by delivery of a presentment to anyone other than the members of the governing authority themselves. The Court of Appeals, however, has considered that question on several occasions. In Burton v. DeKalb County , 202 Ga. App. 676, 415 S.E.2d 647 (1992), the Court of Appeals considered whether the delivery of a presentment to a subordinate officer of the county government would suffice. There, counsel for the plaintiff presented her claim by way of a timely letter to the Insurance Manager in the Risk Management Division of the DeKalb County Department of Finance. The trial court concluded that this presentation of the claim did not satisfy the statutory requirement, but the Court of Appeals disagreed. In the absence of precedents addressing the delivery of presentment to a subordinate officer of the county government under OCGA § 36-11-1, the Court of Appeals looked to decisions construing and applying OCGA § 36-33-5 (b), which requires ante litem notice of claims against municipalities. See Burton , 202 Ga. App. at 677-678, 415 S.E.2d 647. Notwithstanding that OCGA § 36-33-5 (b) explicitly requires that notice be given to "the governing authority of the municipal corporation," the Court of Appeals noted that it previously had held in a number of cases that ante litem notice "to the city attorney or any department or official of the municipal government" is sufficient. Id. at 678, 415 S.E.2d 647. Guided by the municipal ante litem notice decisions, the Court of Appeals then concluded that the presentment by letter to county risk management personnel satisfied the presentment requirement of OCGA § 36-11-1. See Burton , 202 Ga. App. at 678-679, 415 S.E.2d 647. Citing Burton , the Court of Appeals in other cases has spoken approvingly of presentments of claims against counties to departments or officers of county governments, other than the governing authority itself. See, e.g., Coweta County , 318 Ga. App. at 43, 733 S.E.2d 348

("In general, presentation of notice under OCGA § 36-11-1 is sufficient when given to ... any department or official of a county."); City of Columbus v. Barngrover , 250 Ga. App. 589, 596-597 (4), 552 S.E.2d 536 (2001) (claim against consolidated government was adequately presented under OCGA § 36-11-1 by way of letter to "the City," which apparently was directed to the director of public services).

Burton was not the first case in which the Court of Appeals looked to cases interpreting and applying the municipal ante litem notice statute as an aid to its understanding of OCGA § 36-11-1, and looking to those cases in this particular context is, we think, conceptually sound. Indeed, in Davis , 65 Ga. App. at 535, 15 S.E.2d 814, the Court of Appeals looked to municipal ante litem notice cases in its consideration of the manner by which a presentment is to be put before the governing authority of a county. And in City of Chamblee v. Maxwell , 264 Ga. 635, 637, 452 S.E.2d 488 (1994), this Court cited Davis with approval, explaining that the municipal ante litem notice and county presentment statutes have similar "objects and purposes," and they generally ought to be construed consistently, except, of course, where the statutory text indicates otherwise.⁶ Cf. West v. City of Albany , 300 Ga. 743, 747-748, 797 S.E.2d 809 (2017) (explaining that where "ante litem [and presentment] statutes relating to different governmental entities" have differing provisions, the courts must respect those differences as "a matter of considered choice" on the part of the legislature). As to whom a presentment is to be directed, we have construed OCGA § 36-11-1 to require presentment to the governing authority, see Maddox , 65 Ga. at 218 (2), and OCGA § 36-33-5 (b) provides explicitly that notice is to be given to the governing authority. And as the Court of Appeals correctly noted in Burton , it has construed the municipal ante litem notice statute in numerous cases and for many years to permit the notice to be submitted to the governing authority indirectly, by way of delivery of the notice to various departments and officers of municipal governments, other than the governing authority itself. See Chiles v. City of Smyrna , 146 Ga. App. 260, 246 S.E.2d 117 (1978) ("In order for notice to be in compliance with [OCGA § 36-33-5 (b) ], it must be addressed to and received by the municipality or one of its departments or officials."). See also Tanner v. City of Gainesville , 162 Ga. App. 405, 290 S.E.2d 541 (1982) (notice to mayor); Mitchell v. City of St. Marys , 155 Ga. App. 642, 271 S.E.2d 895 (1980) (notice to mayor);

Hicks v. City of Atlanta , 154 Ga. App. 809, 270 S.E.2d 58 (1980) (notice to "Department of Environment & Streets (Water Bureau), City of Atlanta," as well as to city attorney); City of Atlanta v. Fuller , 118 Ga. App. 563, 164 S.E.2d 364 (1968) (notice to "City of Atlanta, Department of Law"); City of Lafayette v. Rosser , 53 Ga. App. 228, 185 S.E. 377 (1936) (notice to mayor); Davis v. City of Rome , 37 Ga. App. 762, ...