In Re ESTATE OF JOE LEONARD, JR.
336 Ga. App. 768
Ga. Ct. App.2016Background
- On Jan. 30, 2012, 82‑year‑old Joe Leonard, Jr., using a motorized wheelchair, was injured when a county bus allegedly rounded a curve too fast, causing his wheelchair to overturn and fracturing his legs; he later entered a managed‑care facility and eventually died during litigation.
- Leonard’s counsel mailed an ante litem notice to Robert Smalley III (outside counsel designated as County Attorney) on June 5, 2012; suit was filed Jan. 21, 2014.
- Whitfield County moved for summary judgment, arguing the ante litem notice was untimely under OCGA § 36‑11‑1 because it was not presented to an agent authorized to accept service for the County; an initial motion was denied but a later motion accompanied by Smalley’s affidavit succeeded.
- The trial court found Smalley was not authorized by formal county action to accept ante litem notices and that Leonard had not shown tolling due to incapacity; summary judgment was granted for the County. Cooper had previously been dismissed on immunity grounds (not at issue here).
- Leonard appealed, arguing (1) substantial compliance with the ante litem statute and (2) tolling of the 12‑month period due to mental incapacity; the court affirmed summary judgment for the County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ante litem notice substantially complied with OCGA § 36‑11‑1 | Leonard: timely mailed notice to County’s outside county attorney (Smalley) satisfied presentment requirement | County: notice was sent to outside counsel who lacked authority to accept notice for the County; not substantial compliance | Held: No substantial compliance; notice to outside counsel not sufficient where county shows counsel lacked authorization (affirmed) |
| Whether Smalley had apparent/or actual authority to accept notice | Leonard: Smalley was the designated County Attorney, accepted the notice, discussed claim with commissioners and later acknowledged service, so had apparent authority | County: Smalley’s affidavit shows County took no formal action authorizing him to accept ante litem notices | Held: Court credited affidavit and found no authorization; apparent‑authority argument rejected |
| Whether the ante litem period was tolled by Leonard’s alleged mental incapacity | Leonard: suffered dementia/stroke predating accident; tolling under disabilities statutes should apply | County: Leonard demonstrated post‑accident capacity by retaining counsel, sending notice, engaging insurer, attending medical appointments and filing suit; no guardian was sought | Held: Tolling denied — evidence showed capacity to manage affairs; limitation not tolled |
| Whether summary judgment was appropriate on the expanded record | Leonard: earlier denial precluded later grant | County: supplemental affidavit creating no genuine issue permits later grant | Held: Grant on second motion proper; later‑filed affidavit may support summary judgment on expanded record |
Key Cases Cited
- Warnell v. Unified Govt. of Athens‑Clarke County, 328 Ga. App. 903 (2014) (standard of review on appeal from summary judgment)
- Coweta County v. Cooper, 318 Ga. App. 41 (2012) (notice to outside counsel insufficient absent county authorization)
- Dept. of Corrections v. Grady Mem. Hosp. Corp., 333 Ga. App. 315 (2015) (plaintiff bears burden to show substantial compliance with ante litem statute)
- Carter v. Glenn, 243 Ga. App. 544 (2000) (ante litem notice statute may be tolled for incapacity; plaintiff must prove incapacity)
- Jacobs v. Littleton, 241 Ga. App. 403 (1999) (standard for mental incapacity tolling; test whether person could manage ordinary affairs)
- Burton v. DeKalb County, 202 Ga. App. 676 (1992) (purpose of presentment requirement is to allow county investigation and resolution before suit)