Seay v. Cleveland

• Decision Date: 16 October 1997
• Docket Number: No. A97A2236,A97A2236
• Citation: 228 Ga.App. 836,493 S.E.2d 30
• Parties: , 97 FCDR 3851 SEAY v. CLEVELAND et al.
• Court: Georgia Court of Appeals

Page 30

493 S.E.2d 30

228 Ga.App. 836, 97 FCDR 3851

SEAY v. CLEVELAND et al.

No. A97A2236.

Court of Appeals of Georgia.

Oct. 16, 1997.

Certiorari Granted May 29, 1998.

Smith, Howard & Ajax, Harvey S. Gray, Atlanta, Michael D. St. Amand, for appellant.

Baker & Whitaker, Elliott R. Baker, William E. Whitaker, William G. Hasty, Jr., Jonathan A. Pope, Canton, for appellees.

ELDRIDGE, Judge.

Defendant John Seay, Sheriff of Cherokee County, appeals the trial court's grant of a directed verdict to plaintiffs Arthur J. Cleveland and Annie Cleveland, and the court's denial of his own motion for a directed verdict. We affirm.

On October 1, 1991, the Clevelands successfully bid at a Sheriff's sale to purchase a home in Woodstock, Cherokee County, for $58,000. The sale was conducted by Shelley Laughhunn, Deputy Sheriff of Cherokee County, pursuant to a judgment and fieri facias. Following the sale, an administrative clerk in the Sheriff's office deducted the county's costs of the sale and paid the balance of the proceeds directly to the attorney for the plaintiff in execution, Peachtree Mortgage, Inc. The attorney then failed to use the proceeds to satisfy existing, superior liens on the property, subjecting the Clevelands to an obligation to pay off the loans or lose both the property and their $58,000 investment. ¹

On September 30, 1992, the Clevelands filed suit against Seay in his official capacity as Sheriff of Cherokee County for conversion, fraud, misrepresentation, and negligence, asking for compensatory damages in the amount of $54,803.41 in principal and interest; they also named Cherokee County, Peachtree Mortgage, Inc., and the attorney as co-defendants. Seay moved for a directed verdict at the end of the plaintiffs' case and at the end of trial; both motions were denied. However, the trial court granted the plaintiffs' motion for a directed verdict after finding that the official actions of Seay's employees were ministerial in nature, so that Seay was not entitled to the protection of sovereign immunity. Seay timely appealed. Held:

1. (a) Seay asserts that the trial court erred in granting the plaintiffs' motion for a directed verdict, claiming that he was entitled to the sovereign immunity in the same manner as Cherokee County, which previously had been granted summary judgment by the trial court upon its finding that the county was entitled to sovereign immunity under a 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983. See Gilbert v. Richardson, 264 Ga. 744, 747, 452 S.E.2d 476 (1994); see also OCGA § 50-21-22(5); Woodard v. Laurens County, 265 Ga. 404, 456 S.E.2d 581 (1995); Donaldson v. Dept. of Transp., 262 Ga. 49, 53, 414 S.E.2d 638 (1992) (amendment became effective on January 1, 1991); Coffee County School Dist. v. Snipes, 216 Ga.App. 293, 294, 454 S.E.2d 149 (1995) and cases cited therein.

This amendment reads as follows: "Except as specifically provided by the General Assembly in a State Tort Claims Act, ² all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions." (Emphasis supplied.) A "ministerial" function has been defined as "one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. [Cits.]" Vertner v. Gerber, 198 Ga.App. 645, 646, 402 S.E.2d 315 (1991). Further, the term "official function" has been interpreted to mean "any act performed with the officer's or employee's scope of authority, including both ministerial and discretionary acts. Under [these] definition[s], the 1991 amendment provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure." (Emphasis supplied.) Gilbert, supra at 753, 452 S.E.2d 476.

In Gilbert, supra at 754, 452 S.E.2d 476, the plaintiff sued a sheriff in his official capacity for injuries received when a sheriff's deputy negligently performed a discretionary function as a peace officer, i.e., responding to an emergency call in such a manner as to cause a collision with the plaintiff. The Georgia Supreme Court held that, "[s]ince deputy sheriffs are employed by the sheriff rather than the county, sheriffs may be liable in their official capacity for a deputy's negligence in performing an official function" under the doctrine of respondeat superior. Id. at 754, 452 S.E.2d 476. In so finding, the Court held that the deputy's personal, official immunity did not protect the sheriff from liability, but that the sheriff was protected by the county's sovereign immunity for discretionary acts by his employees to the extent that the county had not waived its immunity by securing liability coverage. Id.

While this Court has concerns about whether or not a county's sovereign immunity protects a sheriff from liability and whether or not the requirement that the sheriff post a fidelity bond acts as a waiver of sovereign immunity, see Division 1(b), infra, we are bound by the Supreme Court's holding in Gilbert, supra, that the county's immunity extends to a sheriff in his performance of discretionary acts.

However, this case is distinguishable from Gilbert, supra, in that the trial court specifically found that defendant Seay, through his employees, had negligently performed statutorily-defined administerial functions. ³ As such, Seay was not entitled to the protections of sovereign immunity under the 1991 constitutional amendment. We agree.

OCGA § 9-13-60(c) specifically mandates certain procedures for performing a sheriff's sale of property. It requires that "[t]he proceeds of the sale [of the subject property] be applied first to the payment of liens superior to the claims taken up by the plaintiff in execution, next to the payment of principal advanced by the plaintiff in execution to put title in defendant, with interest to date of sale, and the balance to the execution under which the property was sold, and to other liens according to priority, to be determined as provided by law." OCGA § 9-13-60(c). This statutory mandate allows no discretion on the part of the sheriff or his employees regarding how to disperse the funds acquired during a sheriff's sale. The act is mandatory and not directory.

"Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case. [Cit.]" Woodard, supra at 407, 456 S.E.2d 581. "Generally, the determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is made on a case-by-case basis. [Cit.]" Crisp County School System v. Brown, 226 Ga.App. 800, 803, 487 S.E.2d 512 (1997). The evidence presented in this case supports the conclusion that Seay, through his deputy, negligently violated the provisions of this mandate by failing to satisfy superior liens on the property and, instead, by paying the proceeds of the sale directly to the plaintiff in execution after subtracting the county's costs of the sale. As such, there was no error in the trial court's finding that Seay negligently performed an official ministerial function by failing to perform the procedures mandated by statute, which is negligence per se. Therefore, Seay forfeited the protections of sovereign immunity, and the plaintiffs were entitled to a directed verdict on this issue.

(b) Further, we note that this suit involves a breach of the sheriff's statutory duty toward the Clevelands, i.e., a duty to ensure that the funds paid at the sheriff's sale are distributed as required by statute so that the Clevelands, as purchasers of the property, gain title free and clear of any existing, superior liens. See Alexander Investment Group v. Jarvis, 263 Ga. 489, 491, 435 S.E.2d 609 (1993). As such, the sheriff's relationship to the Clevelands was imposed by statute as either a bailee ⁴ or fiduciary. ⁵ The Code imposes this duty directly on the sheriff's office, as opposed to the county, and the duty runs specifically to the Clevelands, thereby protecting them from liability for the outstanding loans. Booth v. Firemen's Ins. Co., 223 Ga.App. 243, 246-247, 477 S.E.2d 376 (1996). Under this statutory duty, Seay was precluded from releasing the funds prior to satisfying the liens without incurring the loss of his own protection from suit by the Clevelands or by those holding liens on the property. Alexander Investment Group, supra at 491, 435 S.E.2d 609. Following such breach of his duty, Seay was subject to suit on his Sheriff's bond, an action which is ex contractu and therefore outside of the protection of sovereign immunity.

In Georgia, sheriffs are required to secure and maintain a fidelity bond in the amount of $25,000, "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." OCGA § 15-16-5. "The twin public policies recognized by the requirement that bonds be obtained are: (1) the county law enforcement officer should be held liable for tortious activity, even where connected with his official duties; and (2) he should be required to obtain insurance lest his liability should be rendered meaningless by his poverty."...