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                               http://www.gaappeals.us/rules


                                                                    March 30, 2016




In the Court of Appeals of Georgia
 A15A1802. IN THE INTEREST OF THE ESTATE OF JOE
     LEONARD, JR.

      MCFADDEN, Judge.

      In this negligence action, Joe Leonard, Jr. sued Melvin Cecil Cooper and

Whitfield County, Georgia (“the County”) to recover for the injuries he sustained

while being transported in a bus driven by Cooper and operated by the County.

During the course of the litigation, Leonard passed away and Janice L. Croy,

Leonard’s daughter and the executor of his estate, was substituted as party plaintiff.

(Leonard and the Estate are collectively referred to herein as “Leonard.”) The trial

court granted summary judgment in favor of the County based upon Leonard’s failure

to provide timely ante litem notice in accordance with OCGA § 36-11-1.1 In his

      1
       In a prior order, the trial court granted summary judgment to Cooper based
upon his immunity as a County employee. That order is not at issue in this appeal.
appeal, Leonard argued that the trial court erred in granting summary judgment for

two reasons: because he substantially complied with the statutory requirement

regarding the time for presentation of claims and, alternatively, because the time

period for the requisite notice was tolled by Leonard’s incapacity. Neither argument

has merit. Accordingly, we affirm the trial court’s ruling that the County was entitled

to summary judgment because the ante litem notice was untimely.

      1. Facts and procedural posture.

             On appeal from the grant or denial of a motion for summary
      judgment, we conduct a de novo review of the law and evidence,
      viewing the evidence in the light most favorable to the nonmovant, to
      determine whether a genuine issue of material fact exists and whether
      the moving party was entitled to judgment as a matter of law.


Warnell v. Unified Govt. of Athens-Clarke County, 328 Ga. App. 903 (763 SE2d 284)

(2014) (citation omitted).

      So viewed, the evidence shows that on January 30, 2012, Joe Leonard, Jr., then

82 years old, was being transported in a bus driven by Cooper and operated by the

County. Leonard used a motorized wheelchair and was traveling with an attendant.

Once Leonard boarded the bus, Cooper assisted him in securing his wheelchair using

straps designed for that purpose. Leonard alleged in the lawsuit that Cooper rounded

                                          2
a curve at a high rate of speed, causing the security straps to detach and his

wheelchair to overturn. Leonard was thrown to the floor and sustained two broken

legs, which required surgery. Shortly thereafter and allegedly as a result of the injury,

Leonard was permanently confined to a managed-care facility.

      On June 5, 2012, Leonard’s counsel sent an ante litem notice letter to the

County Attorney for Whitfield County, Robert A. Smalley, III, at the address of

Smalley’s law office. Leonard filed suit on January 21, 2014. Thereafter, Cooper and

the County filed an answer in which they asserted that Leonard failed to give a timely

and/or adequate ante litem notice as required by OCGA § 36-11-1 (“All 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.”).

      Following discovery, the County first moved for summary judgment on the

grounds that the ante litem notice failed to substantially comply with OCGA § 36-11-

1 because Leonard failed to serve it on an agent authorized to accept service on the

County’s behalf. See generally Coweta County v. Cooper, 318 Ga. App. 41, 43 (733

SE2d 348) (2012) (presentation of notice under OCGA § 36-11-1 generally is

                                           3
sufficient when given to an in-house county attorney or any department or official of

a county; it is not sufficient, however, when given to outside legal counsel who has

not been authorized by the county to accept notice on the county’s behalf). The trial

court found that a factual issue remained on this issue and denied the motion. After

the trial court denied the County’s first motion for summary judgment, counsel for

Leonard personally served the complaint on several County commissioners.

      The County then filed a second motion for summary judgment, along with an

affidavit from Smalley, in which he averred that, “[a]t all material times, the Whitfield

. . . County Board [of] Comissioners ha[d] taken no formal action to authorize [him]

to accept ante litem notices on behalf of Whitfield County, Georgia.” The trial court

granted this second motion, holding that service to Smalley did not substantially

comply with OCGA § 36-11-1. The trial court rejected Leonard’s alternative

argument alleging that a mental incapacity tolled the 12-month period for filing the

ante litem notice. (The trial court also denied Leonard’s cross-motion for summary

judgment.) This appeal followed.

      2. Substantial compliance.

      (a) Leonard enumerates as error the trial court’s grant of summary judgment

to the County and denial of summary judgment to him. Although this enumeration

                                           4
contains certain surplus language, it is sufficient for us to consider both his

substantial compliance argument and his tolling argument on appeal. See Felix v.

State, 271 Ga. 534, 539-540 (523 SE2d 1) (1999).

         (b) The trial court did not err in ruling that Leonard failed to substantially

comply with OCGA § 36-11-1, which pertinently requires that “[a]ll claims against

counties must be presented within 12 months after they accrue or become payable or

the same are barred[.]” Leonard bore the burden of proving substantial compliance

with OCGA § 36-11-1. See Dept. of Corrections v. Grady Mem. Hosp. Corp., 333 Ga.

App. 315, 317 (2) (775 SE2d 773) (2015); Coweta County v. Cooper, 318 Ga. App.

41, 42 (733 SE2d 348) (2012); Barngrover, 250 Ga. App. at 596 (4). This, he failed

to do.

         Leonard sent a purported ante litem notice to a “private law firm hired by the

County to represent the County as outside legal counsel.” See Coweta County, 318

Ga. App. at 43. Here, the outside county attorney’s affidavit confirmed that, as in

Coweta County, he was not authorized by the County to accept service of ante litem

notices on behalf of the County. See id. at 42. Despite the dissent’s characterization

of the attorney’s affidavit as “carefully worded” and “self-serving,” these criticisms

do not mandate that the affidavit may not be considered in support of the County’s

                                            5
motion for summary judgment, particularly since Leonard failed to present facts to

satisfy its burden to show timely ante litem notice. See generally Coweta County, 318

Ga. App. at 42. The dissent’s apparent concern with the filing of the outside county

attorney’s affidavit after the denial of the County’s first motion for summary

judgment is also of no moment. See T. L. Rogers Oil Co. v. South Carolina Nat. Bank,

203 Ga. App. 605, 606 (2) (417 SE2d 336) (1992) (“The previous denial of summary

judgment does not preclude a subsequent granting thereof on the basis of an expanded

record.”).

      Prior negotiations between Leonard’s counsel and the county attorney did not

authorize the attorney to accept service of the ante litem notice. OCGA § 36-11-1 is

not satisfied when a party sends a purported ante litem notice to a county’s insurer or

there are verbal discussions concerning the notice. See Dept. of Corrections, 333 Ga.

App. at 317 (2); Cobb v. Bd. of Commrs. of Roads & Revenue of Tift County, 151 Ga.

App. 472, 473 (2) (260 SE2d 496) (1979); Doyal v. Dept. of Transp., 142 Ga. App.

79, 80 (234 SE2d 858) (1977). Even when viewed in a light most favorable to

Leonard, the evidence reveals only that he sent a purported ante litem notice to a

“private law firm hired by the County to represent the County as outside legal

counsel.” Coweta County, 318 Ga. App. at 43. Because this case is controlled by

                                          6
Coweta County, the trial court did not err in granting the County’s motion for

summary judgment due to Leonard’s failure to properly serve the County with an ante

litem notice. It follows that the trial court’s judgment should be affirmed.

      3. Tolling.

      Furthermore, the trial court correctly rejected Leonard’s alternative argument

that the ante litem notice period was tolled by an alleged incapacity that was not

resolved until his executrix was appointed following his death. OCGA § 36-11-1

states that “[a]ll claims against counties must be presented within 12 months after

they accrue or become payable or the same are barred. . . .” However, “[t]he ante

litem notice statute, like a statute of limitation, may be tolled.” Carter v. Glenn, 243

Ga. App. 544, 548 (2) (533 SE2d 109) (2000). See also OCGA § 36-11-1 (“persons

laboring under disabilities shall be allowed 12 months after the removal of the

disability to present their claims”); Jacobs v. Littleton, 241 Ga. App. 403, 406 (3) (b)

(525 SE2d 433) (1999). To that end, OCGA § 9-3-90 provides, in pertinent part, that

      [i[ndividuals who are legally incompetent because of intellectual
      disability or mental illness, who are such when the cause of action
      accrues, shall be entitled to the same time after their disability is
      removed to bring an action as is prescribed for other persons.


See also OCGA § 36-11-1.

                                           7
      While a plaintiff need not be so mentally incompetent that he should be
      confined, or require a guardian, he must be so mentally incompetent
      (non compos mentis or insane), so unsound in mind, or so imbecile in
      intellect, that he could not manage his ordinary affairs of life. The test
      to be applied is whether the one claiming the disability has such
      unsoundness of mind or imbecility as to incapacitate one from managing
      the ordinary business of life.


Carter, 243 Ga. App. at 548-549 (2) (citing Jacobs, 241 Ga. App. at 406) (citations

and punctuation omitted). Such a determination “may be made by the trial court as a

matter of law, and the burden is on the plaintiff to prove incapacity.” Id.

      In support of his argument, Leonard presented the affidavit of Dr. Stanford

Voegele, who discussed his evaluation and treatment of Leonard during a time period

that preceded Leonard’s accident. Voegele noted that Leonard suffered a stroke in

January 2009 and that an MRI and CT scans in February 2009, May 2010, and

October 2010 showed degeneration of the white matter in Leonard’s brain. Voegele

testified that the degeneration was a sign of “worsening dementia.” Voegele also

noted that Leonard’s daughters complained of Leonard’s worsening dementia and

loss of memory during a September 2009 office visit. As a result of the stroke “and

presenting in [Voegele’s] office on multiple occasions in 2009 and 2010 with loss of

memory and mood changes (agitation) around [Leonard’s] family,” Voegele

                                          8
diagnosed Leonard with Alzheimer’s disease in September 2009, December 2010,

and March 2011. Ultimately, Voegele opined that by September 2, 2009, Leonard was

“so weak of mind that he was incapable of understanding and acting with discretion

in the ordinary affairs of his life.” Voegele added that, “as of September 2, 2009 and

at all times thereafter, [Leonard] was not of sound mind and was not mentally

competent to handle his personal, business, health, legal and financial affairs.”

Although Voegele’s affidavit describes Leonard’s condition as progressive, Voegele

does not reveal any further discussion or treatment of Leonard’s condition after

September 21, 2011.

      Against this backdrop, the trial court specifically cited evidence of Leonard’s

mental condition after the January 30, 2012, accident: the medical narrative of Dr.

James Lashley and Leonard’s exercise of his legal rights. The trial court noted that

Lashley initially met Leonard on February 1, 2012 (two days following Leonard’s

injuries) and treated him on multiple occasions thereafter, including performing

surgery to repair Leonard’s legs. Lashley last saw Leonard in September 2012. In the

interim, Lashley noted that Leonard appeared for each scheduled visit and that he had

been working with his caregivers to complete physical therapy as required. Absent

from Lashley’s report was any notation that Leonard did not understand his treatment

                                          9
plan; that he appeared agitated, confused, or suffered memory loss; or that he was

unable to make decisions concerning his health care.

      The trial court found that Leonard was able to pursue his legal remedies. For

example, Leonard was able to retain counsel, send a purported ante litem notice,

engage the County’s insurer, make a settlement offer, and file a civil action against

the County. Moreover, Leonard asserted that, before the accident, he was able to live

at home, perform personal functions, and that his health “was good for a man of his

age.” Based upon this evidence, the trial court concluded that Leonard’s “mental

incapacity did not prevent him from sending ante litem notice within the limitation[]

period.”

      Under these circumstances, we discern no error in the trial court’s conclusion.

First, it is particularly telling that, despite current claims of Leonard’s incapacity, no

relative of Leonard’s petitioned the probate court to appoint a guardian for Leonard

to pursue any legal rights or otherwise manage his affairs. See Pivic v. Pittard, 258

Ga. App. 675, 677 (575 SE2d 4) (2002). Second, Leonard’s ability to monitor his

health, appear for medical appointments, and participate in physical therapy as

ordered by his doctor point to Leonard’s capacity following the accident. See

generally Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452,

                                           10
460-461 (d) (504 SE2d 514) (1998) (mental capacity to admit self to hospital).

Finally, a party’s ability to participate in litigation and to otherwise manage legal

affairs, including the hiring of counsel and the pursuit of a settlement agreement,

demonstrates mental capacity and will not toll a limitation period. See Hayes, 197 Ga.

App. at 564 (5); Curlee v. Mock Enterprises, 173 Ga. App. 594, 599 (3) (327 SE2d

736) (1985).

      Because Leonard was not laboring under a disability that would toll the time

for filing an ante litem notice, the trial court did not err in granting summary

judgment to the County on the ground that the ante litem notice was untimely.

      Judgment affirmed. Branch, J., concurs; Andrews, P. J., concurs in Divisions

1, 2(b) and 3, and in the judgment only in Division 2(a); Ellington, P. J., and Dillard,

J., concur in the judgment only; Barnes, P. J., and Miller, P. J., dissent.




                                          11
 A15A1802. IN RE: THE ESTATE OF JOE LEONARD, JR..



      MILLER, Presiding Judge, dissenting.

      I respectfully dissent to the majority’s opinion because I would conclude that

Leonard complied with the statutory requirements for presentment of his ante litem

notice and that Smalley, in fact, had apparent authority to accept the notice.

      The purpose of presenting a claim to the County prior to filing suit is to give

the County an opportunity to investigate the claim, determine the evidence, and avoid

unnecessary litigation. See Burton v. DeKalb County, 202 Ga. App. 676, 678 (415

SE2d 647) (1992). Importantly, OCGA § 36-11-1 does not specify to whom the claim

must be presented. See id; compare OCGA § 36-33-5 (requiring claims against

municipal corporations to be presented to the municipal corporation’s “governing

authority”).
      In this case, Leonard sent a timely formal written ante litem notice of his claim

to Smalley, who admittedly was the designated County Attorney for Whitfield County

at all material times with regard to this case. Smalley accepted the notice and

discussed Leonard’s claim with the County commissioners. Leonard subsequently

filed and served his complaint on Smalley, who acknowledged service of the

summons and complaint on Whitfield County’s behalf. When the County answered

the complaint it did not raise insufficient service of process as a defense, even though

service of a complaint upon a county must be made upon a majority of the

commissioners, the chairman of the board of commissioners or an authorized agent.

See Burton, supra, 202 Ga. App. at 677-678.

      The majority focuses on Smalley’s carefully worded affidavit in which he

stated that the County took no formal action to authorize him to accept ante litem

notices on the County’s behalf. Importantly, Smalley’s sworn affidavit conveniently

stopped short of stating that he had no authority to accept ante litem notices. Rather,

the fact that Smalley acknowledged service of the complaint on behalf of the County

shows that he had apparent authority to act as the County’s agent with regard to

Leonard’s claim. See Burton, supra, 202 Ga. App. at 677-678 (service of a complaint

upon a county may be made on the county’s authorized agent). Consequently, this


                                           2
case is distinguishable on its facts from the decision in Coweta County, supra, 318

Ga. App. at 43, in which there was no evidence that the law firm in question was

authorized to act as the County’s agent for the purpose of accepting ante litem

notices.

      Unlike the majority, I would not read the decision in Coweta County so

narrowly as to hold that a designated county attorney from an outside law firm has no

apparent authority under any circumstances. Under any circumstances, it is patently

unreasonable for a designated county attorney to act in this manner, i.e., to

acknowledge timely service of a complaint against a county, discuss the claim with

the County, and wait until after expiration of the 12-month ante litem notice period

to deny his authority to accept such notice. Moreover, the judicial system in this State

is above this type of gamesmanship.

      This interpretation is consistent with the purpose of the presentment

requirement of OCGA § 36-11-1, and is, in fact, what happened in this case. The

County clearly had an opportunity to investigate Leonard’s claim, to determine the

evidence and to avoid unnecessary litigation in this case. See Burton, supra, 202 Ga.

App. at 678,




                                           3
      Viewing the evidence in the light most favorable to Leonard, as this Court

must, I would find that Smalley had apparent authority to act as the County’s agent

for the purpose of accepting Leonard’s ante litem notice and, therefore, I would find

that Leonard complied with the presentment requirement of OCGA § 36-11-1.

      I am authorized to state that Presiding Judge Barnes concurs in this dissent.




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