                               FIRST DIVISION
                                DOYLE, C. J.,
                          PHIPPS, P. J, and BOGGS, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  November 12, 2015




In the Court of Appeals of Georgia
 A15A1095. CROSBY et al. v. JOHNSON et al.                                    DO-055

      DOYLE, Chief Judge.

      Roy Crosby, the Coroner of Bacon County, appeals the denial of his motion to

dismiss a lawsuit filed against him in his individual and official capacities by Johnny

Johnson, personally and as administrator of the estate of Dewey Johnson (deceased);

Frances Johnson; Candace Medders; Jennifer Johnson; Johnny Johnson, Jr.; Roy

Johnson; Theresa Johnson; and Cindy Thompson, as parent and guardian of Dewey

Johnson, Jr., and Kamie Deanna Johnson. Crosby contends that the trial court erred

by ruling that (1) Crosby is a county official instead of a state official, (2) Crosby is

not entitled to sovereign immunity, and (3) Crosby is not entitled to official immunity

because his allegedly tortuous conduct was ministerial. For the reasons that follow,

we reverse.
      “On appeal, we review a trial court’s decision to grant or deny a motion to

dismiss de novo. And in reviewing the grant of a motion to dismiss, an appellate court

must construe the pleadings in the light most favorable to the appellant with all

doubts resolved in the appellant’s favor.”1

      The plaintiffs’ complaint as amended alleges that at approximately 5:30 a.m.

on September 8, 2007, Dewey Johnson died. His body was discovered at

approximately 6:12 p.m. on the same day, and the Georgia Bureau of Investigation

responded to the scene to investigate the circumstances of death. Shortly after

midnight, Crosby took custody of the body in his capacity as Coroner, but instead of

taking the body to a refrigerated hospital morgue, Crosby transported it to a shed

behind a private funeral home he operated, Crosby Funeral Homes, Inc.

      The complaint further alleges that the plaintiffs contracted with Crosby to

provide funeral and burial services, but by the time the family attempted to hold an

open casket viewing on September 12, four days later, the body had decomposed to

the point of being in an inappropriate condition for viewing. Over the family’s




      1
       (Citation, footnote, and punctuation omitted.) Thomas v. Gregory, 332 Ga.
App. 286, 287 (772 SE2d 382) (2015).

                                          2
objection, Crosby did not allow them to view the body, and the funeral and burial

were conducted with a closed casket.

      Based on these events, the plaintiffs sued Bacon County, Crosby Funeral

Homes, and Crosby, naming him in his individual capacity and his official capacity

as Coroner, alleging claims for breach of contract, breach of the covenant of good

faith and fair dealing, breach of fiduciary duty, fraudulent conduct, negligence and

negligence per se, willful interference with remains, negligent interference with

remains, intentional infliction of emotional distress, negligent infliction of emotional

distress, and negligent performance of a ministerial duty.

      Pursuant to OCGA § 9-11-12 (b) (6), Crosby and Bacon County moved to

dismiss the claims against them to the extent they derived from Crosby’s acts as

Coroner for the County. The motion noted that Crosby had also been sued with

respect to his non-governmental position at the funeral home, and it did not seek

dismissal as to claims against Crosby in that capacity. Following a hearing, the trial

court denied the motion as to Crosby, noting that the parties had agreed that Bacon

County was not properly subject to suit, apparently on sovereign immunity grounds.

Crosby now appeals.



                                           3
      1. Crosby contends that the trial court erred by characterizing him as a county

official, instead of a state officer who would enjoy protection from liability under the

Georgia Tort Claim Act (“GTCA”). We disagree.

      The GTCA provides that “[a] state officer or employee who commits a tort

while acting within the scope of his or her official duties or employment is not subject

to lawsuit or liability therefor.”2 The GTCA defines “state officer or employee,” in

relevant part, as “an officer or employee of the state, elected or appointed officials,

law enforcement officers, and persons acting on behalf or in service of the state in any

official capacity.”3 There is a dearth of case law on whether coroners fall within this

category, so we turn to the statutory scheme governing coroners.

      OCGA § 45-16-1 provides, in relevant part:

      (a) Coroners are elected, commissioned, and removed as are clerks of
      the superior courts; and coroners shall hold their offices for four years.


      (b) (1) No person shall be eligible to offer for election to or to hold the
      office of coroner unless he or she:


      ...


      2
          See OCGA § 50-21-25 (a).
      3
          OCGA § 50-21-22 (7).

                                            4
      (B) Is a resident of the county in which he or she seeks the office of
      coroner for at least two years prior to his or her qualifying for the
      election to the office and remains a resident of such county during his
      or her term of office[.]


      ...


      (c) Notwithstanding any other provision of law, any person holding
      office as the mayor of a municipality with a population of 5,000 or less
      according to the United States decennial census of 1980 or any future
      such census is specifically authorized to serve simultaneously as
      coroner; and any person holding the office of coroner is specifically
      authorized to serve simultaneously as mayor of a municipality with a
      population of 5,000 or less according to the United States decennial
      census of 1980 or any future such census.


Thus, on the face of this Code section, coroners are subject to county elections, not

state-wide, and appear to be closely tied to their counties as opposed to the State.

      This view is supported by other portions of the Code, which provide that

coroners may in some circumstances act in the place of the county sheriff,4 a post

which this Court has held to be a county official and not a state officer.5 Also, the



      4
          See OCGA §§ 45-16-5; 45-16-8.
      5
          See Nichols v. Prather, 286 Ga. App. 889, 893 (1) (650 SE2d 380) (2007).

                                          5
Code requires the “coroner of each county” to appoint a deputy coroner “for each

county.”6 The county governing authority (not the State) is authorized to approve the

appointment of additional deputy coroners for the county.7 The Code requires a

county coroner’s salary to be paid “from the funds of the coroner’s county,”8 and

authorizes county governing authorities to provide for contingent expense allowances

“from county funds.”9 The General Assembly may, through the passage of a local law,

abolish the office of coroner and create the office of medical examiner for a particular

county, but in such a case, the new medical examiner

      shall be appointed by the governing authority of that county, shall serve
      at the pleasure of that governing authority, shall be compensated in an
      amount determined by that governing authority, and all expenses of the
      office of such medical examiner shall, subject to county budgetary
      limitations, be paid from the general funds of that county.10




      6
          (Emphasis supplied.) See OCGA § 45-16-7 (a).
      7
          See OCGA § 45-16-7 (c).
      8
          OCGA § 45-16-11 (a) (1).
      9
          OCGA § 45-16-11.2.
      10
           OCGA § 45-16-80 (e).

                                           6
      Based on this statutory scheme, we conclude that for purposes of immunity

under the GTCA, coroners are county officials, not state officers.11 Accordingly, this

enumeration presents no basis for reversal.

      2. Crosby next contends that the trial court erred by ruling that he is not entitled

to assert a sovereign immunity defense to the extent he was sued in his official

capacity. We agree.

      The complaint names Crosby as a defendant in his official capacity and in his

individual capacity, and it alleges that Crosby committed negligent acts while he

acted as Coroner (choosing to transport the body to a place other than a refrigerated

hospital morgue) and while he acted in a non-governmental function on behalf of the

funeral home (allegedly allowing the body to unduly decompose prior to burial). The

claims related to the non-governmental funeral home operations were not subject to

the motion to dismiss and are still pending. Thus, the claims against Crosby for his

conduct as Coroner are the sole focus of this appeal.

      With respect to the motion to dismiss filed by Crosby and the County, the trial

court’s order states that “[t]he parties have indicated that they are in agreement that

      11
          Cf. Nichols, 286 Ga. App. at 893 (1) (holding that sheriffs are county
officials in part because they are subject to county elections and paid by county
treasuries subject to county commission funding).

                                           7
Bacon County is not a proper party to this lawsuit,” apparently on the ground that the

County is entitled to sovereign immunity. Nevertheless, the court’s order goes on to

hold that “Defendant Crosby’s Motion to Dismiss, in his official capacity, is hereby

DENIED.” This result conflates the concepts of a suit against Crosby in his official

and individual capacities. When a claim is filed against a county official in his official

capacity, the claim is, “in essence, . . . against [the] County[,] and [the official] may

raise any defense available to the county, including sovereign immunity.”12

Accordingly, with respect to the claims against Crosby in his official capacity, they

are essentially against the County, which is entitled to sovereign immunity.13 As noted

by the trial court, the plaintiffs do not argue that the County has waived its immunity,

nor do they, on appeal, identify any statutory waiver of immunity on the part of the

County. It is well settled that “[s]overeign immunity is not an affirmative defense that

must be established by the party seeking its protection. Instead, immunity from suit

is a privilege and the waiver must be established by the party seeking to benefit from

      12
           Gilbert v. Richardson, 264 Ga. 744, 746, n. 4 (452 SE2d 476) (1994)
      13
          See, e.g., id. at 747-748 (2) & (3) (holding that the State’s sovereign
immunity extends to counties, absent a statutory waiver of immunity on the part of
counties). See also Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001)
(“Suits against public employees in their official capacities are in reality suits against
the state and, therefore, involve sovereign immunity.”) (punctuation omitted).

                                            8
the waiver.”14 Accordingly, the trial court erred to the extent that it denied the motion

to dismiss the claims against Crosby in his official capacity, i.e., against the County.

      3. Crosby also challenges the trial court’s ruling that he, in his individual

capacity, is not entitled to official immunity. We agree.

      When a county official is sued in his individual capacity, the doctrine of

official immunity (as opposed to sovereign immunity) is implicated.15

      The doctrine of official immunity, developed primarily in Georgia
      through case law, provides that while a public officer or employee may
      be personally liable for his negligent ministerial acts, he may not be held
      liable for his discretionary acts unless such acts are wilful, wanton, or
      outside the scope of his authority. Furthermore, a ministerial act is
      commonly one that is simple, absolute, and definite, arising under
      conditions admitted or proved to exist, and requiring merely the
      execution of a specific duty. A discretionary act, however, calls for the
      exercise of personal deliberation and judgment, which in turn entails
      examining the facts, reaching reasoned conclusions, and acting on them
      in a way not specifically directed.16




      14
         (Punctuation omitted.) Tattnall County v. Armstrong, 333 Ga. App. 46, 51,
n. 9 (775 SE2d 573) (2015).
      15
           See Austin v. Clark, 294 Ga. 773, 774 (755 SE2d 796) (2014).
      16
           (Citations and punctuation omitted.) Id. at 774.

                                            9
      Here, the plaintiffs argue, and the trial court held, that OCGA § 45-16-31

creates a ministerial duty on the part of coroners with respect to transport of deceased

bodies. That Code section provides as follows:

      When the deceased body lies in a place inconvenient for holding a
      medical examiner’s inquiry, the medical examiner or coroner shall be
      allowed to remove the body to the autopsy room of the nearest public
      hospital or morgue. If neither the coroner nor the medical examiner is
      immediately available, the peace officer may assume the authority to
      have the body moved to such facility. When such facility is not
      reasonably available, the body may be removed to such other suitable
      place as may be designated by the coroner or the medical examiner or by
      the peace officer in charge in the absence of the coroner or medical
      examiner. If the peace officer in charge is present, no such body shall be
      removed until photographs of the body and surrounding premises have
      been made and a thorough investigation of the premises has been made
      by the proper investigating authorities.17


Put succinctly, the Code provides that if the body location is “inconvenient” for

holding an inquiry, the coroner is “allowed” to remove the body to a nearby hospital




      17
           OCGA § 45-16-31.

                                          10
or morgue.18 And if a hospital or morgue is “not reasonably available, the body may

be removed to such other suitable place as may be designated by the coroner.”19

       Based on this language, the trial court held that if a body is in an inconvenient

location, the coroner “has an absolute, ministerial duty to ‘remove the body to the

autopsy room of the nearest public hospital or morgue,” unless it is not “reasonably

available.” But this conclusion interprets “shall be allowed” to mean “must.” Such an

interpretation is contrary to the plain meaning of the words “shall be allowed,” which

signify permission rather than creating a mandatory direction.20 Further, the Code

section first requires a determination by the coroner that the location is inconvenient,

which requires an exercise of discretion. The Code also requires a determination as

to whether the nearest public hospital or morgue is “reasonably available,” which

likewise requires an exercise of discretion. In sum, the Code section provides no


       18
            Id.
       19
            Id.
       20
           See, e.g., Longino v. Hanley, 184 Ga. 328, 330 (191 SE2d 101) (1937) (“The
words ‘are authorized to refund,’ according to ordinary signification, denote
permission only.”). See generally City of Atlanta v. City of College Park, 292 Ga.
741, 744 (741 SE2d 147) (2013) (“[T]he fundamental rules of statutory construction
. . . require us to construe [the] statute according to its terms, to give words their plain
and ordinary meaning, and to avoid a construction that makes some language mere
surplusage.”) (punctuation omitted).

                                            11
absolutes, instead using standards such as “inconvenient,” “reasonably available,” and

“suitable . . . as may be designated by the coroner.”21 All of this “calls for the exercise

of personal deliberation and judgment, which in turn entails examining the facts,

reaching reasoned conclusions, and acting on them in a way not specifically

directed,”22 and as such is discretionary not ministerial conduct. Accordingly, the trial

court erred by ruling that Crosby is not entitled to official immunity with respect to

the plaintiffs’ claims predicated on alleged violations of OCGA § 45-16-31.

       We note that in Austin v. Clark,23 the Supreme Court concluded that a motion

to dismiss for failure to state a claim, as was filed here, was an unsuccessful way to

assert an official immunity claim based on the fact-specific analysis required in that

case to address the ministerial/discretionary dichotomy. In Austin, the Court

explained that “discovery in this case has been extremely limited[,] and the record,

to date, contains no job descriptions for the individuals being sued. At this time, it

cannot be said that the allegations of the complaint disclose with certainty that [the

plaintiff] would not be entitled to relief under any state of provable facts asserted in


       21
            OCGA § 45-16-31.
       22
            Austin, 294 Ga. at 774.
       23
            Id.

                                            12
support.”24 Here, however, the plaintiffs’ complaint,25 the motion to dismiss, and the

appellate briefing are explicitly premised on the scope of Crosby’s official immunity

for alleged violation of duties contained in OCGA § 45-16-31, and the trial court’s

ruling, so limited, only engaged in an analysis of the statute. Accordingly, with

respect to Crosby’s official immunity for alleged violation of a coroner’s alleged

duties as enumerated in the statute, the record is fully developed, and the issue is

properly resolved even in the current procedural posture.

      4. A remaining portion of Crosby’s appellate brief discusses the effect of

OCGA § 15-13-1, which provides as follows: “All sheriffs, deputy sheriffs, coroners,

jailers, constables, and other officers of court shall be liable to all actions and

disabilities which they incur in respect of any matter or thing relating to or concerning

their respective offices.” The plaintiffs argue that OCGA § 15-13-1 creates a private



      24
           Id. at 775.
      25
         The complaint specifically alleges that Crosby failed to carry out his duty
under “[t]he Georgia Death Investigation[] Act [OCGA § 45-16-20 et seq.] . . . as an
elected County Coroner, [to] take possession [of] the body, until the medical
examiner in Savannah could perform the autopsy, and take it to the nearby
refrigerated public hospital morgue. Defendant Crosby chose not to do so and, in
violation of the statute, instead chose to place the body in a poorly refrigerated shed
behind his temporary private mortuary services.” The plaintiffs do not argue that
Crosby violated an internal policy outside the scope of statutory analysis.

                                           13
right of action and functions as a waiver of “any immunity that may have applied,”

but they cite no case law so stating, and we have found none. “The cardinal rule of

statutory construction is to seek the intent of the Legislature, and language in one part

of a statute must be construed in the light of the legislative intent as found in the

statute as a whole.”26 Placed at the beginning of the statutory scheme governing

officers of court generally, OCGA § 15-13-1 establishes a background premise that

officers of court “shall be liable to all actions and disabilities which they incur”27

involving their offices. It does not purport to create or otherwise specify those

actions; instead, the Code sections that follow specify how sheriffs and other officers

of court can be subjected to certain actions.

      For example, OCGA § 15-13-2 creates an action for damages against a sheriff

for making a false return, neglecting to arrest a defendant, neglecting to levy on

property, neglecting to pay money collected by legal process, or neglecting to make

a proper return of process. Next, under OCGA § 15-13-3, named officers of court

(including sheriffs and coroners) are made subject to demands to pay the proper



      26
        (Punctuation omitted.) Colon v. Fulton County, 294 Ga. 93, 98 (2) (751 SE2d
307) (2013).
      27
           (Emphasis supplied.)

                                           14
parties money the officer may hold by virtue of his office. Under OCGA § 15-13-4,

officers of court are subject to rules nisi, which shall be answered pursuant to OCGA

§ 15-13-5. In light of this overall scheme, absent clear statutory language showing

that OCGA § 15-13-1 itself functions as an independent right of action or as a waiver

of official immunity, we decline to so hold.28 Instead, we read OCGA § 15-13-1 as

consistent with current case law holding that sheriffs and other similar officials can

be sued in their individual capacities and found personally liable for negligently

performed ministerial acts.29

      Judgment reversed. Phipps, P. J., and Boggs, J., concur.




      28
         Compare Barrett v. Marathon Inv. Corp., 268 Ga. App. 196, 199 (4) (601
SE2d 516) (2004) (action premised on failure to disburse money under OCGA § 15-
13-2 (4) was not barred by sovereign immunity).
      29
         See, e.g., Nichols, 286 Ga. App. at 896-898 (4). Cf. Chadwick v. Stewart, 94
Ga. App. 329 (2) (94 SE2d 502) (1956) (citing former Code § 24-201 and holding
that “[a] deputy sheriff transporting a prisoner in his custody from one place to
another owes the prisoner the duty to exercise ordinary care while driving the vehicle
in which the prisoner is required to ride”).

                                         15
