D.C. County v. Branton

• Decision Date: 04 October 2010
• Docket Number: No. A10A0625.,A10A0625.
• Citation: 695 S.E.2d 674,304 Ga.App. 149
• Parties: COLUMBIA COUNTY et al.v.BRANTON et al.
• Court: Georgia Court of Appeals

304 Ga.App. 149

695 S.E.2d 674

COLUMBIA COUNTY et al.v.BRANTON et al.

No. A10A0625.

Court of Appeals of Georgia.

May 20, 2010.

Certiorari Denied October 4, 2010.

Hull & Barrett, James B. Ellington, Augusta, for appellant.

Finch, McCranie & Brown, Richard W. Hendrix, Atlanta, for appellees.

ELLINGTON, Judge.

Columbia County and Clay N. Whittle, in his official capacity as Sheriff of Columbia County(“the county defendants”), appeal from an order of the Superior Court of Richmond County denying their motion for summary judgment.The superior court found that plaintiffJohn J. Branton's claims were not barred by his failure to serve a timely ante litem notice because the time for filing the ante litem notice had been tolled.We granted the county defendants' application for interlocutory appeal to consider whether the superior court erred in concluding that OCGA §§ 9-3-96and9-3-99 applied under the circumstances of this case to toll the time for filing the ante litem notice.For the reasons that follow, we reverse the order of the superior court.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.We review de novo a trial court's grant of summary judgment.

(Citations and punctuation omitted.)Jones v. City of Willacoochee,299 Ga.App. 741, 683 S.E.2d 683(2009).So viewed, the record reveals the following relevant facts.

On June 4, 2006, the plaintiff's wife, Margaret Branton, was killed in an automobile collision that occurred in Columbia County.The collision occurred when Tiara Smith, a shoplifter who was fleeing the scene of her crime, sped through a red light and collided with the car in which Mrs. Branton was a passenger.

A Columbia County Sheriff's deputy, Kenny Curtis, saw Smith's black Ford Explorer speed by him as he was riding his motorcycle in the opposite direction.Deputy Curtis activated his lights and siren, turned around, and followed the vehicle.Deputy Curtis deposed that he did not know whether Smith had seen him.No one monitoring radio traffic heard Deputy Curtis say he was engaged in “a pursuit.”When Deputy Curtis finally caught up to Smith, the collision had already occurred.

Immediately after the collision, Lieutenant Andy Shedd of the Columbia County Sheriff's Office spoke with Deputy Curtis and the drivers of two other cars that had been tangentially involved in the accident.Lieutenant Shedd asked Deputy Curtis if he had pursued Smith's car, and Deputy Curtis told him: “No, I did not.I never had a chance to catch up to them.”The two other drivers also told the lieutenant that Deputy Curtis arrived on the scene after “a lull in the action.”The lieutenant also reviewed a number of witness statements gathered by other deputies.Lieutenant Shedd deposed that the “ large majority” of these statements supported his conclusion that Deputy Curtis had not been involved in a pursuit as that term was understood by employees of the Sheriff's Office, ¹ and he shared that conclusion with the media when he was asked whether a pursuit had occurred.Lieutenant Shedd averred that he made the statement under the belief that it was true and that he had no intention to deceive anyone about the circumstances surrounding the collision.

Smith, however, did see the deputy.Smith made calls from the Columbia County Detention Center in which she admitted having seen the deputy and having attempted to elude him.These calls were recorded.Based on Smith's admissions, an investigator took out a warrant for Smith's arrest on July 20, 2006, charging her with felony murder.The Columbia County District Attorney's Office indicted Smith for felony murder, which was predicated on the felony attempt to elude the deputy.The indictment was filed with the Columbia County Clerk of Court on August 9, 2006, two months after the collision.Smith pleaded guilty on September 21, 2007, and is now serving a life sentence.

Branton deposed that he was aware of Smith's indictment and guilty plea because the District Attorney's Office kept him informed of the prosecution against Smith.Moreover, although he deposed that he never spoke to anyone with the Sheriff's Office, Branton began hearing rumors shortly after the collision that led him to believe a pursuit had occurred.He heard these rumors “on a constant basis.”In his deposition he said: “[E]veryone found it very difficult to believe that there wasn't a chase.”Branton points out that at least two witnesses signed statements on the day of the collision in which they stated that they believed that Deputy Curtis was closely pursuing Smith at a high rate of speed.

On June 19, 2006, Branton sued Smith in the Superior Court of Columbia County.Unable to recover from the uninsured felon, Branton pursued and recovered uninsured motorist benefits through his own insurance company.Branton dismissed this suit without prejudice on October 12, 2007, and filed a complaint against Columbia County and Sheriff Whittle in the Superior Court of Columbia County on February 5, 2008.Smith was not named as a co-defendant in this action.Branton dismissed this second suit four months later.On June 6, 2008, he filed the instant action in Richmond County against Columbia County, Sheriff Whittle in his official capacity, and Smith.

Branton sent an ante litem notice to Columbia County on January 14, 2008.It is undisputed that the ante litem notice was sent more than one year following the June 4, 2006 events which gave rise to Branton's claims against the county defendants.The county defendants moved for summary judgment on the ground that the ante litem notice was not served within one year of the accrual of the claim, as required by OCGA § 36-11-1.Following a hearing, the superior court found that the time for filing the ante litem notice had been tolled by the application of both OCGA §§ 9-3-96and9-3-99 and, therefore, denied the motion.

On appeal, the county defendants contend that the trial court erred in finding that OCGA §§ 9-3-96and9-3-99 tolled the limitation period for serving an ante litem notice on the county defendants.

Under Georgia law, “[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.”OCGA § 36-11-1.This Code section applies both to Columbia County and to Sheriff Whittle, who was sued in his official capacity only.²Branton concedes that ordinarily, his failure to comply with the ante litem notice provision within the time required by law would result in the action being dismissed.³He argues, however, that the “ante litem notice statute, like a statute of limitation, may be tolled[,]”Carter v. Glenn,243 Ga.App. 544, 548(2), 533 S.E.2d 109(2000), and that both OCGA §§ 9-3-99and9-3-96 tolled the time during which he was required to serve his ante litem notice, rendering it timely.For the reasons set forth below, we hold that neither statute applies to toll the period for filing the ante litem notice under the facts of this case.

1.OCGA § 9-3-99, which was enacted as part of the “Crime Victims Restitution Act of 2005,”⁴ provides:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.

As we explained in Valades v. Uslu,301 Ga.App. 885(1), 689 S.E.2d 338(2009), this statute

tolls the statute of limitation for any cause of action in tort brought “by the victim of an alleged crime” while the prosecution of

the defendant is pending, for a period not to exceed six years.[The civil defendant] was not prosecuted for any crime arising out of this incident.Therefore, OCGA § 9-3-99 does not toll the two-year statute of limitation, and the [tort] claims ... are time-barred because they were filed more than two years after they accrued.

(Emphasis in original.)Id. at 888-889(1), 689 S.E.2d 338.

Likewise, the county defendants were not prosecuted for any crime arising out the collision.Although the county defendants and Smith may be joint tortfeasors for purposes of the instant lawsuit, they were not criminal co-defendants who shared joint criminal responsibility for acts that resulted in a criminal prosecution.Thus the county defendants' actions did not arise “out of the facts and circumstances relating to the commission of such alleged crime.”Because the county defendants were not criminal defendants in a prior prosecution, OCGA § 9-3-99 does not toll the time for filing the ante litem notice against them in the instant suit.SeeValades v. Uslu,301 Ga.App. at 889(1), 689 S.E.2d 338.Therefore, the trial court erred in finding that the time for filing the ante litem notice was tolled on this basis.

2.OCGA § 9-3-96 provides: “If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud.”Additionally, in a case such as this, “where the gravamen of the...