Lord v. Lowe

• Decision Date: 25 October 2012
• Docket Number: No. A12A1652.,A12A1652.
• Citation: 318 Ga.App. 222,741 S.E.2d 155
• Parties: LORD v. LOWE et al.
• Court: Georgia Court of Appeals

318 Ga.App. 222
741 S.E.2d 155

LORD
v.
LOWE et al.

No. A12A1652.

Court of Appeals of Georgia.

Oct. 25, 2012.

[741 S.E.2d 156]

James Wilson Smith, Athens, for Appellant.

Hall, Booth, Smith & Slover, Michael Curtis Pruett, Athens, for Appellees.

BARNES, Presiding Judge.

[318 Ga.App. 222]Royce Lord committed suicide while imprisoned in the Madison County jail. The administrator of his estate commenced this suit on [318 Ga.App. 223]a bond against former Madison County Sheriff Clayton Lowe (the “Sheriff”), alleging that the Sheriff should have taken steps to prevent the suicide and that the estate was entitled to recover the full amount of the bond as compensation for the Sheriff's failure to perform the duties of his office. The complaint also named as a defendant the Hartford Fire Insurance Company (“Hartford”), the surety on the bond. The defendants moved to dismiss the complaint on the ground that they were not liable under the bond as a matter of law, and the trial court granted the motion, resulting in this appeal. We agree with the trial court that dismissal was appropriate and affirm.¹

Under OCGA § 9–11–12(b)(6), a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.
(Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga.App. 394, 395, 724 S.E.2d 401 (2012). Nevertheless, where the face of the complaint demonstrates that the plaintiff can prove no set of facts to support an essential element of a claim, dismissal of that claim is appropriate. See Willis v. United Family Life Ins., 226 Ga.App. 661, 662(1), 487 S.E.2d 376 (1997). Even when a complaint is liberally construed, there still “must be some legal basis for recovery.” (Citation and punctuation omitted.) Pugh v. Frank Jackson Lincoln–Mercury, Inc., 151 Ga.App. 320, 322(2), 259 S.E.2d 711 (1979).

“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” OCGA § 9–11–10(c). Thus, in ruling on a motion to dismiss, a trial court is authorized to consider exhibits attached to and incorporated into the complaint. [318 Ga.App. 224]Gold Creek SL v. City of Dawsonville, 290 Ga.App. 807, 809(1), 660 S.E.2d 858 (2008). If there is any discrepancy between the allegations in the complaint and the attached exhibits, the latter control. H & R Block v. Asher, 231 Ga. 780, 781, 204 S.E.2d 99 (1974).

Mindful of these principles, we turn to the complaint and the bond agreement attached as an exhibit to it. They reflect that after taking office, the Sheriff obtained a “sheriff's bond” in the sum of $25,000 from Hartford that remained in effect when Lord committed suicide. The condition of the bond was that the Sheriff

shall ... faithfully perform the duties of said office or position during [his] said term, and shall pay over to the person

[741 S.E.2d 157]

authorized by law to receive the same all moneys that may come into his hands during the said term without fraud or delay, and at the expiration of said term, or in case of his resignation or removal from office, shall turn over to his successor all records and property which have come into his hands[.]

The complaint alleged that by not taking appropriate steps to prevent Lord's suicide, the Sheriff had failed to “faithfully and truly perform the duties of [his] office,” and thus had breached one of the conditions of the bond, entitling the estate to compensation.²

The Sheriff and Hartford answered, denying liability under the bond, and filed a motion to dismiss the complaint. The defendants argued, as discussed infra, that the complaint should be dismissed because the bond in question was a statutory bond issued under the authority of OCGA § 15–16–5, and the estate's allegations of wrongdoing, even if accepted as true, fell outside the coverage of the bond as a matter of law under the “read in/read out” rule for construing statutory bonds. The trial court agreed with the defendants and dismissed the administrator's complaint.

We conclude that the trial court committed no error in dismissing the complaint. OCGA § 15–16–5 requires all sheriffs to give a surety bond. The statute provides:

The sheriffs shall give a bond in the sum of $25,000.00, which amount may be increased in any county by local Act, conditioned for the faithful accounting for all public and other funds or property coming into the sheriffs' or their deputies' custody, control, care, or possession.

318 Ga.App. 225]As the plain language of the statute reflects, OCGA § 15–16–5 requires a sheriff to give a bond conditioned on his faithful accounting for funds and property.³

The bond obtained by the Sheriff from Hartford exceeded the requirement imposed by OCGA § 15–16–5 by adding another condition, namely, that the Sheriff “faithfully perform the duties of [his] office.” That additional condition, as the trial court properly concluded, is invalid and unenforceable under the “read in/read out” rule for construing statutory bonds.

Under Georgia law,

[w]here a bond is given under the authority of a statute in force when it is executed, in the absence of anything appearing to show a different intention it will be presumed that the intention of the parties was to execute such a bond as the law required, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with the statute and the construction given to the statute by the courts. Whatever is included in the bond, and is not required by the law, must be read out of it, and whatever is not expressed, and ought to have been incorporated, must be read as if inserted into it; but such rule applies only to matters of substance and not...