Small v. Chatham Cnty.

Decision Date01 July 2021
Docket NumberA21A0360
Citation360 Ga.App. 500,861 S.E.2d 437
CourtGeorgia Court of Appeals
Parties SMALL v. CHATHAM COUNTY et al.

Brown Barnwell, Chauncey N. Barnwell, Atlanta, for Appellant.

R. Jonathan Hart, Jennifer R. Davenport; Ellis Painter Ratterree & Adams, Quentin L. Marlin ; Jones Boykin & Associates, Noble L. Boykin, Jr., for Appellees.

Phipps, Senior Appellate Judge.

Rashawnda Small sued Kim H. Birge, Chatham County, South State Bank, formerly known as Savannah Bank ("South State Bank"), and others, alleging that Small was the beneficiary of insurance proceeds paid to her upon her father's death (the "funds"); that the Probate Court of Chatham County served as the custodian of the funds and held them in an account at South State Bank; and that Birge, the former clerk of the probate court, absconded with the funds. The trial court eventually dismissed all of the parties except for Birge. Small obtained a judgment against Birge. Small appeals following the entry of the final judgment, contending that the trial court erred in dismissing South State Bank and Chatham County. For the reasons that follow, we affirm.

On appeal,

this Court conducts a de novo review of a trial court's ruling on a motion to dismiss. In doing so, our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff's favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts; however we need not adopt a party's legal conclusions based on these facts.

Campbell v. Cirrus Education, Inc. , 355 Ga. App. 637, 638, 845 S.E.2d 384 (2020) (citation and punctuation omitted). Likewise,

[o]n appeal from a grant of judgment on the pleadings, we conduct a de novo review of the trial court's order to determine whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. The grant of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. For purposes of the motion, all well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false. But the trial court need not adopt a party's legal conclusions based on these facts. Moreover, in considering a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings, including exhibits attached to the complaint or the answer. Nevertheless, we are mindful that a motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.

BCM Constr. Group, LLC v. Williams , 353 Ga. App. 811, 811-812, 840 S.E.2d 51 (2020) (citations and punctuation omitted).

So viewed, the record shows that Small, a minor, received insurance proceed funds as the beneficiary of her father's life insurance policy after his death in 2009. In 2010, a petition for conservatorship was filed with the Probate Court of Chatham County, requesting that Small's mother be appointed as the conservator over the funds. However, in 2011, Birge sent a letter to Assurant Employee Benefits asking that they send the funds to the Probate Court of Chatham County. In February 2011, the Probate Court of Chatham County then entered an order naming itself as the custodian of the funds, and the funds were apparently deposited into an account at South State Bank.

Birge later withdrew the funds and used them for her own benefit. Birge's actions were discovered, and in November 2014, Probate Court of Chatham County Judge Harris Lewis terminated Birge's employment. Small sued Birge, Chatham County, South State Bank, Judge Lewis, and Stephanie L. Gaines, who was Birge's chief assistant and the comptroller of the probate court. Relevant to this appeal, Small asserted negligence, failure to audit, and breach of contract claims against Chatham County and claims for negligence, breach of contract, conversion, and person entitled to enforce instrument against South State Bank.

South State Bank filed an answer to the complaint wherein it attached as exhibits and incorporated by reference an account agreement and a corporate authorization resolution between the Probate Court of Chatham County and South State Bank. South State Bank then filed a "Motion to Dismiss and Motion for Judgment on the Pleadings," which it later amended. Chatham County and Gaines filed a joint motion to dismiss, and Judge Lewis also filed a motion to dismiss. In separate orders, the trial court granted the motions filed by South State Bank, Chatham County and Gaines, and Judge Lewis. A trial was held, a jury returned a verdict against Birge, and the trial court entered a judgment against her. Small now appeals the trial court's dismissals of South State Bank and Chatham County. For the following reasons, we affirm.

1. Small contends that the trial court erred by finding that her claims against Chatham County were barred by sovereign immunity.1 Specifically, Small argues four reasons that sovereign immunity to her claims has been waived: (a) Georgia's Due Process Clause, (b) OCGA § 29-6-8, (c) an absolute duty to return the funds, and (d) because she was a third-party beneficiary to a contract entered into between Chatham County and South State Bank. We conclude that the trial court properly applied sovereign immunity to bar Small's claims against Chatham County.

Under the Georgia Constitution, the State's sovereign immunity, which extends to counties, "can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); see Gilbert v. Richardson , 264 Ga. 744, 746-747 (2), 452 S.E.2d 476 (1994). "Although no special or magic words must be used by the legislature when enacting a statutory waiver of sovereign immunity, implied waivers are not favored, and it must be clear from the statute that immunity is waived and the extent of such waiver." Georgia Lottery Corp. v. Patel , 353 Ga. App. 320, 322, 836 S.E.2d 634 (2019). "Thus, where the plain language of a statute does not provide for a specific waiver of sovereign immunity and the extent of the waiver, the courts do not have the power to imply a waiver." Id. "And statutes providing for a waiver of sovereign immunity are in derogation of the common law and thus are to be strictly construed against a finding of waiver." Id. (citation and punctuation omitted).

(a) Waiver of sovereign immunity based on Georgia ’s Due Process Clause. Small contends that Chatham County, through Birge's theft, deprived her of her property without due process of law and that these claims are not barred by sovereign immunity. We disagree.

The Georgia Supreme Court already has expressly rejected the contention that the Due Process Clause of Georgia's Constitution waives sovereign immunity. In Lathrop v. Deal , 301 Ga. 408, 427-428 (III) (A), 801 S.E.2d 867 (2017) (citations and punctuation omitted), our Supreme Court stated that

[u]nlike the Takings Clause, many constitutional guarantees of right do not identify in specific and explicit terms a justiciable remedy for violations of the guarantee, nor are they without meaning in the absence of a right of action against the government itself. The Due Process Clause, for instance, guarantees that "[n]o person shall be deprived of life, liberty, or property except by due process of law," Ga. Const. of 1983, Art. I, Sec. I, Par. I, but what is to be done to remedy a deprivation of due process is not set forth in the constitutional text, and due process often can be vindicated by raising it defensively in proceedings commenced by the government. Consistent with that understanding, this Court—more than a hundred years ago—squarely rejected the notion that the Due Process Clause expressly or by implication affords a right of action against the government.... [W]e find no compelling reason to reverse course now and hold that those guarantees imply a right of action against the government sufficient to overcome the constitutional doctrine of sovereign immunity.

Thus, Small's contention that Georgia's Due Process Clause waives sovereign immunity for her claims against Chatham County is incorrect. Id.

(b) Waiver of sovereign immunity based on OCGA § 29-6-8. Small also argues that Chatham County's sovereign immunity is waived based on the mismanagement of settlement funds under OCGA § 29-6-8. We disagree.

OCGA § 29-6-8 states:

Judges of the probate courts shall be held accountable on their official bonds for the faithful discharge of their duties pursuant to Code Section 29-6-1 as custodians and for the proper distribution of funds coming into their hands as such custodians. It is the judge's responsibility to increase his or her official bond if necessary.

In turn, OCGA § 29-6-1 sets forth as follows:

The judges of the probate courts are, in their discretion, made the legal custodians and distributors of all moneys up to $15,000.00 due and owing to any minor or incapacitated adult who is in need of a conservator but who has no legal and qualified conservator; and the judges are authorized to receive and collect all such moneys arising from insurance policies, benefit societies, legacies, inheritances, or any other source....

Here, Small's reliance on OCGA § 29-6-8 is misplaced, and our opinion in Bartow County v. Southern Dev., III , 325 Ga. App. 879, 756 S.E.2d 11 (2014), is instructive. In Southern Dev., III , we rejected the plaintiff's argument that OCGA § 48-4-5, which provides how parties can obtain a distribution of excess funds from a tax sale "made by the tax commissioner, tax collector, or sheriff, or other officer holding excess funds," waives sovereign immunity for a county, stating that "there is no such waiver of immunity in OCGA § 48-4-5, particularly...

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    ...of the common law and thus are to be strictly construed against a finding of waiver." (Citation omitted.) Small v. Chatham County , 360 Ga. App. 500, 503 (1), 861 S.E.2d 437 (2021). The Supreme Court of Georgia did nothing to modify this framework in affirming the Glass decision, Gates v. G......
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    ...any state of provable facts; however we need not adopt a party's legal conclusions based on these facts. Small v. Chatham County , 360 Ga. App. 500, 500-501, 861 S.E.2d 437 (2021) (citation and punctuation omitted).1. Atwood contends that the trial court erred in granting VFH's motion to di......
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