MENDEZ v. MOATS

FINAL COPY


              S19G1095. MENDEZ v. MOATS et al.

                           Order.

     After careful consideration of the full record and the briefs of
the parties, the Court has determined that the writ of certiorari
issued in Case No. S19G1095 was improvidently granted.
Accordingly, the writ is vacated, and the petition for certiorari in
Case No. S19C1095 is denied.

   All the Justices concur, except Melton, C. J., who dissents, and
McMillian, J., disqualified.




     NAHMIAS, Presiding Justice, concurring.

     Our Court granted a writ of certiorari in this case to address

two important questions presented by the divided opinion of the

Court of Appeals in Moats v. Mendez, 

 (

) (2019), regarding the interpretation of OCGA § 36-11-1, which

says in pertinent part that “[a]ll claims against counties must be

presented within 12 months after they accrue or become payable or
the same are barred”:

          (1) Does OCGA § 36-11-1 apply to official-capacity
     claims against a county sheriff for negligent use of a
     covered motor vehicle?

          (2) If so, does the proper presentment of such claims
     to the county commission satisfy the claimant’s duty
     under the statute?

Having now received the full record, and after review of the parties’

briefs and oral arguments, the Court has determined that the writ

of certiorari was improvidently granted, so it vacates the writ and

denies Efrain Mendez’s petition for certiorari. I concur in that

decision — although as I explain below, I do so with some reluctance

— because the questions we asked should be addressed in a case

that more properly presents them.

     The record shows that Mendez did not argue in the trial court

or the Court of Appeals (until some passing references in his motion

for reconsideration) that OCGA § 36-11-1 does not apply to official-

capacity claims against sheriffs, and in his brief here, he embraces

the Court of Appeals’ holding that the presentment statute does

apply. Although I have doubts about that holding, as I discuss below,

                                 2
we should not decide this difficult question in a case where it has

not been properly raised by the petitioner or adequately briefed.

     Assuming that OCGA § 36-11-1 does apply to official-capacity

claims against sheriffs, I think it is clear that the Court of Appeals

decided the second question we asked incorrectly. As I explain

below, it makes no sense legally or logically to hold on the one hand

that sheriffs equal counties to make § 36-11-1 apply to claims

against sheriffs, while holding on the other hand that counties do

not equal sheriffs with regard to the presentment requirement of the

statute. But I understand the Court’s reticence to make that

prerequisite assumption; we should decide the second question only

if we agreed with the Court of Appeals as to the first question, and

again, the first question is not well-presented by this case.

Accordingly, the Court will need to await a case that appropriately

presents these important questions.

     1. The Court of Appeals summarized the pertinent facts of this

case as follows.

          On August 15, 2015, Mendez was driving his vehicle

                                  3
     toward the intersection of South Main Street and Case
     Road in Cedartown, Georgia. As Mendez’s vehicle entered
     the intersection, Deputy [Sheriff Kathryn] Allred — who
     was on-duty and driving a county-owned patrol vehicle —
     approached the intersection from the opposite direction
     and attempted to make a left-hand turn without yielding
     to oncoming traffic. As a result, her patrol vehicle collided
     with Mendez’s vehicle, and Mendez suffered injuries.
           On January 21, 2016, Mendez’s counsel sent an
     ante-litem notice, via certified mail, to Polk County,
     informing the chairman of its Board of Commissioners of
     Mendez’s claims against Allred; but counsel did not send
     an ante-litem notice to [Polk County] Sheriff [Johnny]
     Moats. Subsequently, on August 9, 2017, Mendez filed a
     lawsuit against Moats and Allred, alleging that he
     suffered injuries in an automobile accident caused by
     Allred’s negligent driving of a county-owned patrol
     vehicle and that Moats was vicariously liable for his
     employee’s negligence. Shortly thereafter, Mendez served
     his complaint upon Moats and Allred.
           On September 9, 2017, Moats and Allred filed
     separate answers. And on that same date, they filed a
     consolidated motion to dismiss, arguing that (1) Mendez’s
     claims against Allred were barred by OCGA § 36-92-3 (a),
     and (2) Mendez’s failure to send an ante-litem notice to
     Moats or the Polk County Sheriff’s Office barred any
     claim against Moats or Allred. Mendez filed a response to
     the motion, and several rounds of reply briefing ensued.
     On March 16, 2018, the trial court denied the motion to
     dismiss, but, ten days later, it granted Moats and Allred
     a certificate of immediate review. The defendants then
     filed an application for interlocutory appeal, which [the
     Court of Appeals] granted.

Moats, 349 Ga. App. at 812 (footnote omitted).

                                  4
     In its subsequent whole-court opinion, the Court of Appeals

reversed the trial court’s judgment. The Court of Appeals first held

unanimously in Division 1 that Mendez’s claims against Deputy

Sheriff Allred were barred by OCGA § 36-92-3 (a), which grants

immunity to a “local government officer or employee who commits a

tort involving the use of a covered motor vehicle while in the

performance of his or her official duties.” See Moats, 349 Ga. App. at

813-814. Mendez did not seek review of this holding in his petition

for certiorari.

     The Court of Appeals divided, however, as to Division 2. The

majority held that Mendez’s claims against Sheriff Moats were also

barred, because Mendez failed to properly present his claims as

required by OCGA § 36-11-1, which says in full:

     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.1

     1 In this and other cases, the Court of Appeals has referred to OCGA §

36-11-1 as requiring “ante-litem notice.” Moats, 349 Ga. at 811-817. OCGA §
36-11-1’s mandate is properly termed “presentment,” because a plaintiff may

                                    5
Mendez argued that the presentment of his claims to Polk County

through the chairman of its Board of Commissioners sufficiently

presented the claims against Sheriff Moats. See Moats, 349 Ga. App.

at 814-815. The majority opinion, however, rejected that argument.

      The majority first held succinctly that “‘OCGA § 36-11-1

applies both to the counties and to the sheriffs, when sued in their

official capacities.’” Moats, 349 Ga. App. at 815 (quoting Davis v.

Morrison, 

, 532 (

) (2018), and citing

Columbia County v. Branton, 

 (

)

(2010), overruled on other grounds by Harrison v. McAfee, 

 (

) (2016)).

      The majority then noted that “OCGA § 36-11-1 fails to specify


satisfy the statute either by providing pre-litigation (ante-litem) notice of his
claim or by filing and serving his complaint within the 12-month time limit.
See Dement v. DeKalb County, 

 (

) (1895) (“[The
predecessor to OCGA § 36-11-1] does not provide in what form the claim shall
be presented, nor does it warrant the construction that a formal presentation
of the claim shall be a condition precedent to the bringing of the suit. It is
enough, we think, if the claim be presented in the shape of an action. Indeed,
at last, [the statute] is only a statute of limitations.”); Burton v. DeKalb County,

 (

) (1992) (“[OCGA § 36-11-1] is not truly
an ante litem notice statute because if a complaint is filed and properly served
within the 12-month time limit, the requirements of the statute are met.”).
                                         6
to whom presentment must be made”; discussed various Georgia

constitutional provisions and case law that “treat[ ] the county and

sheriff as separate and distinct entities”; and reasoned that sheriffs,

rather than counties, are vicariously liable for the negligence of their

deputies, so Mendez would be “legally precluded from even naming

[the] county as a proper defendant.” Moats, 349 Ga. App. at 815-817.

Concluding that Mendez’s presentment of his claims to the county

rather than the sheriff’s office was “entirely ineffectual,” the

majority opinion held that his claims against Sheriff Moats were

barred under OCGA § 36-11-1. Moats, 349 Ga. App. at 817-818.

     In a brief concurrence, Judge Mercier, joined by six other

judges, agreed fully with the majority but wrote to emphasize that

a unanimous panel of the court just 13 months earlier had decided

Davis, which “explicitly determined” that a sheriff sued in his official

capacity must be presented with a plaintiff’s claims in accordance

with OCGA § 36-11-1. Moats, 349 Ga. App. at 818. The concurrence

said that “[a]lthough the dissent’s arguments are appealing and not

unreasonable, the majority’s analysis and the clear precedent

                                   7
established in Davis are sound,” and considering the doctrine of

stare decisis, there is “no reason to revisit Davis’s clear holding.”

Moats, 349 Ga. App. at 818.

     Presiding Judge Doyle, joined by three other judges, dissented

as to Division 2. See Moats, 349 Ga. App. at 819-823. The dissent

argued first that Branton, upon which Davis relied, did not actually

address whether presentment to the county, rather than the sheriff,

is sufficient under OCGA § 36-11-1, and that “Davis improperly

extended Branton” and should be overruled. Moats, 349 Ga. App. at

820, 823. Noting that the sheriff, not the county, is the proper

defendant in a lawsuit alleging respondeat superior claims for a

deputy sheriff’s negligence, the dissent questioned whether OCGA §

36-11-1 even applies to lawsuits against sheriffs. See Moats, 349 Ga.

App. at 820-821. The dissent acknowledged, however, that this

Court in a footnote in Gilbert v. Richardson, 

 (

) (1994), concluded that lawsuits against a sheriff in his official

capacity “‘are, in essence, claims against (the county).’” Moats, 349

Ga. App. at 821 (quoting Gilbert, 

 n.4). The dissent

                                  8
then reasoned that if these types of lawsuit are treated as “claims

against counties” for the purposes of OCGA § 36-11-1, “presentment

to the county should suffice.” Moats, 349 Ga. App. at 821 (emphasis

in original).

     Mendez filed a petition for certiorari, focusing on whether

OCGA § 36-11-1 requires presentment of a claim against a sheriff in

his official capacity to the sheriff rather than the county. He did not

directly challenge the holding that OCGA § 36-11-1 applies to such

claims, although Sheriff Moats defended that holding in his

response to the petition and an amicus curiae brief from the Georgia

Trial Lawyers Association disputed that holding. Because the

question of whether OCGA § 36-11-1 applies to this case is logically

antecedent to the question of whether presentment was properly

made under that statute, when this Court granted the petition for

certiorari, we asked the parties to address both questions.

     2. As I indicated above, the full record shows that Mendez did

not squarely argue below that OCGA § 36-11-1 does not apply to

official-capacity claims against county sheriffs for the negligence of

                                  9
their deputies, and despite our teeing up that issue in the first

question we asked, in his brief and at oral argument in this Court,

Mendez has not disputed and indeed embraces the Court of Appeals’

holdings in this and previous cases that OCGA § 36-11-1 does apply

to such claims. As I will explain, I have doubts about those holdings

— or, more precisely, doubts about this Court’s statements on which

those Court of Appeals’ decisions rest — but this issue is complicated

and may require consideration of stare decisis factors, and we should

not try to answer the question conclusively without the assistance

of robust briefing on the issue, which we unfortunately lack in this

case.

        (a) “The statutory presentment requirement of OCGA § 36-11-

1 has been a part of our law for more than 150 years.” Croy v.

Whitfield County, 

 (

) (2017). There

have been lawsuits alleging that sheriffs are responsible for the

negligent acts of their deputies for even longer than that. See, e.g.,

Holley v. Wallace, 

 (1851). See also Robinson v.

Bealle, 

 (1856) (explaining that “[a]ny act of

                                  10
negligence in the Deputy Sheriff, is an act of negligence in the

Sheriff”). Yet until the Court of Appeals decided Branton in 2010, it

appears that no case ever held that OCGA § 36-11-1’s presentment

requirement for “claims against counties” applies to official-capacity

claims against a sheriff for the alleged negligence of one of his

deputies.

     Branton involved a lawsuit against a county and its sheriff in

his official capacity for fatal injuries allegedly caused by his deputy

during a car chase; the defendants moved for summary judgment on

the ground that the plaintiff presented his claims more than 12

months after they had accrued, but the trial court denied the motion,

ruling that the time for presenting the claims under OCGA § 36-11-

1 had been tolled. See Branton, 

. The Court

of Appeals’ analysis focused almost entirely on whether the 12-

month presentment period had been tolled; the court ultimately

concluded that it had not. See 

.2



     2 Branton’s holding about how OCGA § 9-3-99 tolls a statute of limitation

has since been overruled. See Harrison, 

.
                                     11
     Near the outset of the opinion, however, the Court of Appeals

declared that OCGA § 36-11-1 “applies both to Columbia County and

to Sheriff Whittle, who was sued in his official capacity only.”

Branton, 

. In a footnote, the court noted that the

plaintiff had not argued that § 36-11-1 does not apply to sheriffs

until a response to a supplemental brief, and rejected that argument

by saying that the official-capacity claims against the sheriff were

“tantamount to a suit against the county.” Id. at 151 n.2. For that

proposition, Branton cited cases that trace back to our Court’s

decision in Gilbert. In Davis and in this case, the Court of Appeals

issued the same holding relying on Branton and cases that trace

back to Gilbert. See Moats, 349 Ga. App. at 813 & n.6, 815 & n.14;

Davis, 344 Ga. App. at 532 & n.19.

     (b) Gilbert was one of this Court’s first major cases interpreting

the 1991 amendment to the Georgia Constitution of 1983 that

instituted a somewhat new framework for sovereign and official

immunity. See 

. See generally Ga. Const. of 1983, Art.

I, Sec. II, Par. IX; Lathrop v. Deal, 

 (

867) (2017) (reviewing the history of sovereign immunity in Georgia

courts). The case involved negligence claims against a deputy sheriff

and a sheriff, who was sued in his official capacity for the alleged

negligence of the deputy. See Gilbert, 

. The Court held

that counties come within the term “the state and its departments

and agencies” in the new Article I paragraph, so that counties have

sovereign immunity and the General Assembly can waive that

sovereign immunity only as authorized by the new provision. See 

.3

     But the plaintiffs had not sued the sheriff’s county. So the

Court dropped a footnote saying that because the sheriff was sued

in his official capacity as the county’s sheriff, the claims against him

were “in essence, claims against [the county],” and the sheriff could

“raise any defense available to the county, including sovereign




     3  I and other Justices have previously expressed doubt about this
holding, particularly because Article IX, Section II, Paragraph IX of the
Constitution speaks directly to the “immunity of counties” and its waiver by
the General Assembly. See Wyno v. Lowndes County, 

 (

) (2019) (Nahmias, P. J., concurring, joined by Blackwell, Boggs, and
Peterson, JJ.).
                                     13
immunity.” 

 at 746 n.4. The Court proceeded to hold, however,

that even though the sheriff was “entitled to the benefit of [the

county’s] sovereign immunity defense,” that immunity was waived

by OCGA § 33-24-51 (b) to the extent that the county had liability

insurance coverage. Gilbert, 

.4 Thus, the

effect of the footnote in Gilbert was to proclaim that the sheriff could

assert the county’s sovereign immunity defense, only for the Court

to then find that defense waived based on the county’s purchase of

insurance; the Court might have just as well merely assumed that

the sheriff was entitled to assert the county’s sovereign immunity.

      Problematically, none of the four cases that Gilbert cited for the

proposition that official-capacity claims against a sheriff are

essentially claims against a county involved claims against sheriffs.

See Price v. Dept. of Transp., 

 (

)




      4 OCGA § 33-24-51 establishes among other things that a county,
municipal corporation, or other political subdivision of the state may secure
and provide insurance and that the sovereign immunity of such local
government entities for a loss arising out of claims for the negligent use of a
covered motor vehicle is waived under OCGA § 36-92-2 to the extent of the
amount of insurance purchased.
                                      14
(1987) (concluding that the state’s sovereign immunity under the

1983 Constitution extended to the acts of state Department of

Transportation employees in their official capacity); Hennessy v.

Webb, 

 (

) (1980) (holding that a

school principal was entitled to governmental immunity under the

common law for official-capacity negligence claims); Hiers v. City of

Barwick, 

 (

) (1992) (noting that a

city and its chief of police raised the defense of sovereign immunity

and holding that the city’s purchase of liability insurance

constituted a waiver of sovereign immunity under the 1983

Constitution); Roberts v. Barwick, 

 (

)

(1939) (holding that a lawsuit against the state commissioner of

agriculture was barred by the state’s common-law sovereign

immunity). Likewise, when a few pages later Gilbert said (in

language that came to be quoted in the cases upon which Branton

relied) that “‘suits against public employees in their official

capacities are in reality suits against the state and, therefore,

involve sovereign immunity,’” the Court again was quoting a case

                                 15
involving the attribution of official acts by state employees to the

state, not by a sheriff’s deputy to a county. Gilbert, 

(quoting Donaldson v. Dept. of Transp., 

 (

) (1992) (Hunt, J., concurring)).5

      In addition, the Court did not acknowledge in Gilbert that

although sheriffs are “county officers,” see Ga. Const. of 1983, Art.

IX, Sec. I, Par. III, they are distinct from and independent of

counties in many ways. Sheriffs are elected constitutional officers,

not employees of county commissions, and indeed their duties “are

beyond the control of county governing bodies, and those bodies may

not interfere with such duties.” Channell v. Houston, 

 (

) (2010). See also Bd. of Commrs. of Randolph

County v. Wilson, 

 (

) (1990)

(explaining that the county has the general authority to set the

sheriff’s budget but may not direct the hiring or firing of the sheriff’s

deputies). Furthermore, although Gilbert said in footnote 4 that



      5 Indeed, there appear to be no cases applying common-law sovereign

immunity to lawsuits against sheriffs or their deputies.
                                      16
official-capacity claims against sheriffs “are, in essence, claims

against [the county],” later in the opinion the Court held that

sheriffs, not counties, are liable in their official capacities for

respondeat superior claims alleging negligence against their

deputies. See Gilbert, 

. For these reasons, Gilbert’s

equation of official-capacity claims against sheriffs and claims

against counties seems questionable.

     In identifying these concerns about Gilbert as an original

matter, however, I have not had the benefit of robust briefing that

might allay some or all of the concerns. Moreover, an edifice of

precedents and practices has been built on Gilbert over the past

quarter-century, so even if the Court determined that Gilbert’s

reasoning was flawed, consideration of stare decisis might weigh in

favor of upholding it. See generally Frett v. State Farm Employee

Workers’ Comp., 

 (

) (2020) (discussing

the doctrine of stare decisis and applying it in detail, over a dissent

by Justice Peterson regarding its application). That issue also has

not been adequately briefed.

                                  17
     If we ultimately adhered to Gilbert, the holding of the Court of

Appeals’ majority that OCGA § 36-11-1 applies to official-capacity

claims against a county sheriff for the negligent use of a covered

motor vehicle — that court’s answer to the first question we asked

— is likely correct. Because Mendez is not disputing that holding,

this is not the right case to address it, but for the reasons I have

outlined, the question may well merit review in a future case where

it is better presented and briefed.6


     6 In his brief here, Mendez seeks to rely on the statement in Gilbert’s

footnote 4 that a sheriff sued in his official capacity “may raise any defense
available to the county” to argue that Sheriff Moats cannot assert OCGA § 36-
11-1 as a defense. Mendez points to the last sentence of OCGA § 33-24-51 (b),
which says, with emphasis added:
       Neither the municipal corporation, county, or political subdivision
       of this state nor the insuring company shall plead governmental
       immunity as a defense [to claims for the negligent use of a covered
       motor vehicle where the government has purchased liability
       insurance]; and the municipal corporation, county, or political
       subdivision of this state or the insuring company may make only
       those defenses which could be made if the insured were a private
       person.
Mendez argues that this provision precludes Sheriff Moats from asserting that
Mendez’s claims are barred by OCGA § 36-11-1, because a private person could
not assert that presentment defense. The Court of Appeals once rejected that
argument in a case involving a claim against a county, saying only that “the
trial court found that OCGA § 33-24-51 (b) is expressly limited to defenses
relating to sovereign immunity” and thus “does not implicate the 12-month
presentation requirement under OCGA § 36-11-1,” Warnell v. Unified Govt. of

                                     18
      3. It would be good if a case properly presenting the first

question came before this Court, because if we decided that the

Court of Appeals’ holdings that treat claims against sheriffs as the

equivalent of claims against counties under OCGA § 36-11-1 are

right, it is clear to me that the Court of Appeals’ holdings treating

sheriffs as entirely distinct from counties with regard to the

presentment of such claims are wrong — and it appears that the

Court of Appeals is not inclined to correct its erroneous precedent,

leaving that task to this Court (or the General Assembly). Simply

put, presentment to the county governing authority of a claim to

which OCGA § 36-11-1 applies satisfies the statute’s presentment

requirement.

      (a) Until the Court of Appeals decided Davis two years ago, it

appears that no case in the more than 150 years since the enactment

of the statute that is now OCGA § 36-11-1 held that presentment of



Athens-Clarke County, 

 (

) (2014). That
reading of § 33-24-51 (b) looks dubious at first glance, but Mendez did not raise
the argument in the Court of Appeals, that court did not address the argument
in its opinion, and we did not grant certiorari to address that issue, so it too
will need to be properly presented in a future case.
                                       19
a plaintiff’s claim to the county governing authority was insufficient

to satisfy the statute. Although the statute does not specify to whom

presentment must be made, our appellate courts have consistently

construed OCGA § 36-11-1 and its predecessors to require

presentment of claims to the county governing authority. See Croy,

 (“More than 100 years ago, this Court held that . . .

the presentment is properly directed to the governing authority of

the county.”). This Court and the Court of Appeals have held that

presentment of claims to the county governing authority may

sometimes be done indirectly, by presenting the claims to

subordinate officers of the county government like the county

attorney or finance department insurance manager. See 

 at 382-

383. But before Davis, it appears that no Georgia court had ever held

that the presentment of claims to the county governing authority

itself was inadequate to satisfy OCGA § 36-11-1, or that

presentment to an entity other than the county governing authority

was required.

     Davis’s holding that OCGA § 36-11-1 requires a plaintiff to

                                 20
present his official-capacity claims against a sheriff to the sheriff

instead of the county governing authority was based on, well,

nothing. Less than 12 months after Davis was injured in an auto

accident allegedly caused by a sheriff’s deputy, he presented his

claims to the county. See 344 Ga. App. at 528. In response to Davis’s

argument that his presentment of his claims to the county governing

officials was sufficient under OCGA § 36-11-1, the Court of Appeals

cited Branton for the propositions that “OCGA § 36-11-1 applies both

to the counties and to the sheriffs, when sued in their official

capacities” and that “we have held that claims against a sheriff are

not sustainable without the ante-litem notice.” Id. at 532. Fair

enough; that is what Branton held. But the court then concluded,

“[a]ccordingly,” that Davis had not satisfied the presentment

requirement. Id.

     In fact, Branton said nothing about to whom presentment of

official-capacity claims against a sheriff must be made, and it

certainly did not hold that OCGA § 36-11-1 requires presentment of

such claims to the sheriff rather than the county governing

                                 21
authority. That was not an issue in Branton, because the plaintiff

there had not presented his claims to anyone within the 12-month

period under OCGA § 36-11-1. See Branton, 

-

152.7 So there was no “[a]ccording[ ]” to Branton; Davis’s holding

that presentment must be made to the sheriff was instead an ipse

dixit — an assertion unsupported by authority.

      When the Court of Appeals’ dissent in this case pointed out that

Branton did not support the holding in Davis, the majority opinion

tried to salvage the holding by asserting that “the Georgia

Constitution and our well-established case law treat[ ] the county

and sheriff as separate and distinct entities.” Moats, 349 Ga. App.

at 815. The majority then discussed in detail various authorities


      7 If anything, Branton suggests that presentation to the county would be

appropriate. As noted above, the focus of the opinion in Branton was whether
OCGA § 36-11-1’s 12-month deadline for what the court called “ante litem
notice” was tolled, and the only (delayed) notice that the plaintiff had provided
was to the county, not the sheriff. See 

. Moreover, for the
proposition that “the claims against Sheriff Whittle are not sustainable
without the ante litem notice,” the court cited a case involving the municipal
ante-litem notice statute, in which the issue was failure to provide notice of an
official-capacity suit against a police officer to the city, not to the officer. See

 at 151 n.2 (citing Conley v. Dawson, 

 (

)
(2002)).

                                        22
that treat sheriffs and counties as disparate entities and indeed

prohibit plaintiffs “from even naming a county as a proper

defendant” in cases such as this one, because only the sheriff, not

the county, is vicariously liable for the negligent acts of his deputies.

Id. at 816-818.8



      8 This last statement by the majority, while amply supported by Court

of Appeals’ precedent, creates significant confusion when read in conjunction
with OCGA §§ 36-92-1 to 36-92-5, which regulate claims (like Mendez’s claim)
for the negligent use of a “covered motor vehicle” (a vehicle owned, leased, or
rented by a “local government entity”). OCGA § 36-92-2 waives “[t]he
sovereign immunity of local government entities for a loss arising out of
claims for the negligent use of a covered motor vehicle[,]” up to certain limits;
in turn, OCGA § 36-92-3 (a) provides immunity from liability to “[a]ny local
government officer or employee who commits a tort involving the use of a
covered motor vehicle while in the performance of his or her official duties[.]”
Indeed, § 36-92-3 (b) prohibits naming “the local government officer or
employee individually” as a party defendant; the defendant must be “the local
government entity for which the officer or employee was acting[,]” and if the
plaintiff instead names the officer or employee, the entity will be substituted
as the defendant.
      When Davis and Moats were decided, “local government entity” was
defined as “any county, municipal corporation, or consolidated city-county
government of this state[,]” and “local government officer or employee” was
defined as “[a]n officer, agent, servant, attorney, or employee of a local
government entity.” Former OCGA § 36-92-1 (3), (4). In Davis, the Court of
Appeals – relying on this Court’s statements equating sheriffs and counties in
Gilbert – interpreted former § 36-92-1 (3)’s definition of “local government
entity” to include sheriff’s offices, even though they were not expressly
defined as such, and held that the plaintiff’s negligence claims against the
sheriff’s deputy in that case were barred by § 36-92-3 (a) because the deputy
thus qualified as a “local government officer or employee.” See Davis, 

      The problem with this reasoning, as suggested in my

discussion of the first certiorari question above, is that if sheriffs are

really that distinct from counties, then claims against sheriffs

cannot be “claims against counties” within the plain text of OCGA §

36-11-1, and the statute would not apply at all in this case. As a

matter of law and logic — as well as fairness to litigants and their

lawyers trying to figure out how to preserve their injury claims — it

cannot be both ways: sheriffs cannot equal counties so the statute




App. at 530-531. The Court of Appeals followed that holding in Division 1 of
its opinion in this case. See Moats, 349 Ga. App. at 813-814.
       In May 2019, shortly after the decision in Moats, the General Assembly
amended OCGA § 36-92-1 (4) to expressly include “[a] sheriff, deputy sheriff,
or other agent, servant, or employee of a sheriff’s office” in the definition of
“local government officer or employee.” See Ga. L. 2019, p. 781, § 1 (codified
as OCGA § 36-92-1 (4) (B)). The definition of “local government entity” was
not amended, however, although the preamble to the 2019 amendment
asserted that “a sheriff’s office shall be considered a local government entity.”
Id. So it is textually clear now that a “sheriff” is not a “local government
entity,” although perhaps his “office” is under the guise of the “county.” In
any event, going forward, it appears that a plaintiff injured by a sheriff’s
deputy negligently using a covered motor vehicle is statutorily prohibited
from suing the deputy or the sheriff; the plaintiff may sue only the pertinent
local government entity (which the statute says is the “county,” although the
preamble suggests might be called the “sheriff’s office”). Asking such a
plaintiff to understand that he must comply with OCGA § 36-11-1 by
presenting his claim to the sheriff (whom he cannot sue) rather than the
county (which the statute directs him to sue) is asking a lot.

                                       24
applies, but be different than counties when a plaintiff tries to

comply with the statute. See Moats, 349 Ga. App. at 823 (Doyle, P.

J., dissenting in part) (“[I]f this should be considered a suit against

the sheriff in a more narrow sense (and not a suit against the

county), then the county presentment statute should not apply at

all.”). There is no justification for holding, contrary to more than a

century of precedent, that presentment of “claims against counties”

covered by OCGA § 36-11-1 to the county governing authority is

insufficient to comply with the statute.9


      9 Georgia courts have sometimes looked to the purposes of OCGA § 36-

11-1 to determine whether presentment of claims against counties to someone
other than the county governing authority was sufficient. See, e.g., Croy, 

. The parties debate the best policy here. On the one hand, the county
owned the covered motor vehicle involved in the accident at issue and
purchased the insurance for it, and it appears that the county ultimately would
be responsible for a judgment against the sheriff in his official capacity. On the
other hand, the sheriff has considerable autonomy, including over his
personnel and records, which could be important in investigating the claim.
These factors could conceivably justify a holding that presentment of the sort
of claim at issue here to the sheriff (like the presentment of the claims to the
county attorney in Croy) is sufficient to present the claims to the county
governing authority (although the Court of Appeals majority opinion expressly
rejected that approach, see Moats, 349 Ga. App. at 815-816 n.19). But never
has such a policy evaluation led to the conclusion that presentment to the
county governing authority is not sufficient. See Croy, 

 (“Because
OCGA § 36-11-1 says nothing about the means by which a presentment
properly is to be submitted to the governing authority of a county, the courts for

                                       25
      Unfortunately, as I have explained above, this case is not well-

presented to allow the Court to reach the second question we asked,

so that we could overrule Davis’s unsupported and errant holding.

Fixing Davis must be left to a future case that comes before this

Court, unless the Court of Appeals reconsiders its precedent in light

of this opinion.10 Better yet, the General Assembly could step in to

amend OCGA § 36-11-1 to provide some useful textual clarity as to

whether the statute applies to official-capacity claims against



many years have looked to the purpose of the statute in assessing the
sufficiency of the manner of presentment.” (emphasis added)).
       10 Judge Mercier’s concurring opinion (joined by six other judges)

asserted that Davis’s holding should be followed as a matter of stare decisis
because “the majority’s analysis and the clear precedent established in Davis
are sound.” Moats, 349 Ga. App. at 818. I have explained why Davis’s holding
was in fact just an ipse dixit and that it fares no better under the majority
opinion’s reasoning, and the other stare decisis factors do not weigh in favor of
retaining Davis: its holding is still barely two years old; it has not been
entrenched in a long series of decisions or otherwise meaningfully relied on;
and while perhaps workable for those who understand it, it lays a trap for
unwary plaintiffs who miss this singular deviation from the otherwise
unbroken rule that “claims against counties” may be presented to the county
governing authority under OCGA § 36-11-1. See Ga. Ports Auth. v. Lawyer, 

 (

) (2018) (“To decide whether a precedent ought to be
set aside, we consider the soundness of its reasoning, to be sure — it is, we
have said, the most important factor — but we also consider the age of the
precedent, the reliance interests involved, (and) the workability of the prior
decision.” (citation and punctuation omitted)). So perhaps there is hope that
the Court of Appeals will rectify its mistake when the occasion arises.

                                       26
sheriffs and, if so, to whom such claims must be presented. See

Moats, 349 Ga. App. at 821 n.48 (Doyle, P. J., dissenting in part).11

     For these reasons, I concur, reluctantly, in the Court’s decision

to dismiss the writ of certiorari as improvidently granted.

     I am authorized to state that Justice Bethel joins in this

concurrence.



     BETHEL, Justice, concurring.

     If a Georgia citizen was injured by the negligent operation of a

county-owned vehicle by a deputy Sheriff and bothered to look up

the statutory provisions applicable to gaining compensation for any

resultant injury, only sheer accident would result in that citizen

successfully obtaining relief — even though it is most likely

available. Through a series of actions by the General Assembly to

amend our Code provisions regarding such claims, and our appellate

courts’ attempts to elucidate and harmonize them, we find ourselves


     11 If the General Assembly clarifies OCGA § 36-11-1, it should also make

that statute consistent with the text of OCGA §§ 36-92-1 to 36-92-5. See
footnote 8 above.
                                    27
with a system where “county” sometimes means county or sheriff

(and, in at least one iteration, county and sheriff) and “notice” often

means notices. Further, while a Sheriff is a constitutional officer and

an autonomous and independent unit of local government, the board

of commissioners for his or her county can waive that autonomy for

certain claims via the purchase of automobile insurance. Of course,

only some of this is apparent in the actual text of our Code.

     Something ought to be done, but I am afraid this Court is ill-

fitted to do it. As the world now sits, attorneys who practice in this

area or who take the time to read the case law connected to what, on

its face, looks like it would not need much interpretation, have a

clear “guidebook” for how to procedurally protect their clients’ claim.

Were we to wade in, I suspect the doctrine of stare decisis would

favor our leaving at least some wrongly decided cases in place

because local governments have relied on them in structuring their

risk management strategies and investments. And that would leave

us unable to get back to the plain language of the statutes in

question. More importantly, I believe our treading into this mess

                                  28
(partly of our making) would not be consistent with the first law of

our siblings in the medical arts — first, do no harm.

     Thus, although I have serious misgivings that the result

reached by the Court of Appeals in Moats v. Mendez, 

, 814-818 (2) (

) (2019), ultimately reflects a correct

reading of Georgia law, specifically the requirements of OCGA § 36-

11-1, I join in the decision of this Court allowing that judgment to

stand and concur in the dismissal of our granted writ of certiorari.

     Given our action today in allowing the Court of Appeals’

fractured opinion in this case to stand, it appears that for the

foreseeable future, we are unlikely to see any further action from

our appellate courts to clarify the issues presented by this case.

While I agree with the sentiment and analysis expressed by the

Presiding Justice that some future case may provide an appropriate

vehicle for this Court to address the important questions posed in

our grant of certiorari in this case, I am not particularly hopeful that

the perfect case will arise nor that considerations of stare decisis will

result in a clean resolution. Thus, I agree with the dissenters below

                                   29
that the ante litem statute “is a good candidate for clarification by

the General Assembly.” Moats, 349 Ga. App. at 821 n.48 (Doyle, P.

J., dissenting).



                  DECIDED SEPTEMBER 28, 2020 —
              RECONSIDERATION DENIED OCTOBER 19, 2020.
       Certiorari to the Court of Appeals of Georgia — 

.
    Walter W. Furlong, for appellant.
    Womack, Gottleib & Rodham, Ronald R. Womack, Steven M.
Rodham, Ryan L. Ray, for appellees.
    Charles M. Cork III; Walker Hulbert Gray & Moore, Kellye C.
Moore, Julian K. McLendon III, amici curiae.




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