text:
    A15A2407.
    COLUMBUS, GEORGIA BOARD OF TAX ASSESSORS v. THE MEDICAL CENTER HOSPITAL AUTHORITY.
    (783 SE2d 182)
   BARNES, Presiding Judge.

The Columbus, Georgia Board of Tax Assessors (“Tax Board”) appeals the trial court’s grant of summary judgment to The Medical Center Hospital Authority. The trial court found that eight parcels of real estate owned by the Hospital Authority were exempt from ad valorem property taxes for the years 2009 through 2012. The Tax Board argues that the trial court erred in concluding that the parcels were “public property” exempt from taxation regardless of how the property was being used. For the reasons that follow, we affirm.

The Medical Center Hospital Authority in Columbus submitted to the Columbus, Georgia Board of Tax Assessors a “Request for Non-Taxability” for eight parcels of real estate for the years 2009 through 2012. The Tax Board denied the requests. The Hospital Authority appealed the denial of nontaxability to the Muscogee County Board of Equalization, which granted the request as to one parcel, and denied it as to the other seven parcels. The Tax Board appealed the single grant of nontaxability to the superior court, and the Hospital Authority appealed the denial of the other seven parcels to the superior court, which consolidated all of the actions. Following a hearing, the superior court granted the Hospital Authority’s motion for summary judgment, holding that “[a]ll eight of the parcels of real property . . . whose taxability for ad valorem property tax purposes was properly before this court, are determined to be exempt from ad valorem property taxation.”

The Tax Board argues that the trial court erred by holding that all of the parcels at issue were “ ‘public property’ exempt from ad valorem property taxation, regardless of how these parcels are used by the Authority, its lessee Doctors Hospital, and a private, for-profit sublessee.” The Board also argues that the trial court erred in holding that the medical office building occupied by a for-profit clinic was tax-exempt.

The trial court’s holding was not as specific as the Tax Board’s description, however. While the court outlined the parties’ arguments — the Hospital Authority’s that its real property was exempt as “public property” under OCGA § 48-5-41 (a) (1) (A), and exempt for the operation of facilities similar to those of cities and counties under OCGA § 31-7-72 (e) (1), and the Tax Board’s argument that the property was not being used for a hospital or related purpose — the court simply concluded that the properties were exempt from ad valorem property taxation without explicating its reasons.

We conduct a de novo review of the law and the evidence when considering a trial court’s grant or denial of a motion for summary judgment, and affirm the court’s grant of the motion if it is right for any reason. Alta Anesthesia Assocs. of Ga. v. Bouhan, Williams & Levy, 268 Ga. App. 139, 142-143 (1) (601 SE2d 503) (2004).

As early as 1877, Georgia’s Constitution allowed our legislature to exempt “public property” from taxation. Penick v. Foster, 129 Ga. 217, 222 (58 SE 773) (1907). This exemption

rests upon the most fundamental principles of government, being necessary in order that the functions of government be not unduly impeded, and that the government be not forced into the inconsistency of taxing itself in order to raise money to pay over to itself, which money could be raised only by other taxation.

Id. at 225.

The 1983 Georgia Constitution preserved all existing ad valorem tax exemptions “until otherwise provided for by law.” Ga. Const. Art. VII, Sec. II, Par. IV. One such pre-existing statutory exemption in the Georgia Public Revenue Code provides that “all public property” is exempt from “all ad valorem property taxes in this state.” OCGA § 48-5-41 (a) (1) (A). The Hospital Authorities Law contains another pre-existing statutory ad valorem tax exemption, granting to Authorities “the same exemptions and exclusions from taxes as are now granted to cities and counties for the operation of facilities similar to facilities to be operated by hospital authorities as provided for under this title.” OCGA § 31-7-72 (e) (1).

The first question framed by the Tax Board in this appeal is whether all real property owned by a hospital authority is automatically exempt from ad valorem taxes “regardless of the factual circumstances surrounding how these parcels are used.” The second question is whether a medical office building leased to a for-profit clinic, which is located on the same parcel of property occupied by a nonprofit hospital, was subject to ad valorem taxes. To answer these questions, we must review the statutes and case law.

Hospital authorities are quasi-governmental entities first created by statute 75 years ago.

In 1941, the State of Georgia amended its Constitution to allow political subdivisions to provide health care services. 1941 Ga. Laws p. 50. The State concurrently enacted the Hospital Authorities Law . . . , [OCGA] § 31-7-70 et seq. (2012), “to provide a mechanism for the operation and maintenance of needed health care facilities in the several counties and municipalities of [this] state.” [OCGA] § 31-7-76 (a). The purpose of the constitutional provision and the statute based thereon was to create an organization which could carry out and make more workable the duty which the State owed to its indigent sick. As amended, the Law authorizes each county and municipality, and certain combinations of counties or municipalities, to create “a public body corporate and politic” called a “hospital authority.” [OCGA §] 31-7-72 (a), (d). Hospital authorities are governed by 5- to 9-member boards that are appointed by the governing body of the county or municipality in their area of operation. [OCGA] § 31-7-72 (a).

(Citation and punctuation omitted.) Fed. Trade Commission v. Phoebe Putney Health System, _U. S._(133 SCt 1003, 1007, 185 LE2d 43) (2013) (holding that State’s grant of general corporate powers to hospital authorities does not include permission to use those powers anti-competitively).

In 1964, the Georgia legislature amended the Hospital Authorities Law to grant to hospitals run by hospital authorities the same tax relief granted to hospitals run by the government. Undercofler v. Hosp. Auth. of Forsyth County, 221 Ga. 501, 503-504 (1) (145 SE2d 487) (1965) (specifically addressing exemption from sales and use tax); OCGA § 31-7-72 (e) (1). Our Supreme Court determined that the 1964 legislation

was intended as a remedy for the evil of the law as [previously] construed by the Court of Appeals whereby this means of protecting the health of cities and counties [(services provided by hospital authorities)] was made to pay taxes while the identical services by cities and counties were exempt.

Undercofler, 221 Ga. at 504 (1).

Five years later, the Supreme Court of Georgia found no constitutional restraint upon a hospital authority’s ability to issue revenue anticipation certificates to finance the construction of a new hospital, then lease it to a nonprofit hospital that would repay the debt from its revenue. Bradfield v. Hosp. Auth. of Muscogee County, 226 Ga. 575 (176 SE2d 92) (1970). That year, the court also addressed the issue squarely before us in this case, and held that real property owned by a hospital authority that produces income used to further the authority’s mission is exempt from ad valorem taxes, in Hosp. Auth. of Albany v. Stewart, 226 Ga. 530 (175 SE2d 857) (1970). Specifically, the Supreme Court considered the following certified question from the Court of Appeals: whether

real property held and owned by a public hospital authority, created under and by virtue of the Hospital Authorities Law, [is] “public property” within the meaning of the Constitution of 1945, Art. VII, Sec. I, Par. IV (Code Ann. § 2-5404) and Ga. L. 1946, p. 12, as amended (Code Ann. § 92-201) so as to be exempt from ad valorem taxation, where the property itself is not a part of the hospital but its income is properly devoted to public purposes (hospital operations) in the furtherance of the legitimate functions of the hospital authority[.]

Id. at 531.

Comparing the situation before it to that in Undercofler, 221 Ga. 501, the Supreme Court in Stewart reasoned as follows:

While that case dealt with the Sales and Use Tax Act[,] the same reasoning would apply as to ad valorem taxes. The exemption to cities and counties is because their property is public property. The same exemption for a hospital authority of necessity would be because its property is public property.

226 Ga. at 538; OCGA § 31-7-72 (e) (1).

The Tax Board in this case points out that Stewart does not expressly hold that a hospital authority’s use of its property was wholly irrelevant to its tax exempt status. While we agree that Stewart does not expressly so hold, it does hold that a hospital authority’s use of income from property that was not part of the hospital is relevant to the taxability of that property. The opinion itself contains little information about the nature of the property at issue, but the certified question indicated that the property was not part of the hospital, and that its income was “devoted to public purposes (hospital operations) in the furtherance of the legitimate functions of the hospital authority.” 226 Ga. at 531. The Supreme Court concluded that, because the income was used to operate the hospital, the property from which the income was derived was “public property” exempt from ad valorem taxes.

In this case, the record establishes that only one of the eight parcels at issue generated any income during the tax years in question, that being the parcel on which both Doctors Hospital and the Columbus Clinic were located. The Hospital Authority leased the property to the nonprofit Doctors Hospital, which subleased a portion to the for-profit Columbus Clinic. The issue as to that parcel was whether, consistent with Stewart, the income it produced was devoted to hospital operations “in the furtherance of the legitimate functions of the hospital authority.” Stewart, 226 Ga. at 531. If it was, the parcel was not taxable.

The other seven parcels produced no income. The issue as to those parcels was whether their use, rather than any income derived from their use, was devoted to public purposes in furtherance of the Hospital Authority’s legitimate functions. If they were, then the authority owed no ad valorem taxes to the Tax Board and the trial court did not err.

1. While the Tax Board argues that the superior court granted summary judgment “without any consideration of how the Authority is using any of the eight parcels at issue” and that “fact issues exist” as to the Authority’s use, it has not identified what those factual issues might be. In its motion for summary judgment, the Hospital Authority argued that “real property owned by a Georgia hospital authority is wholly exempt from ad valorem property taxation because it is ‘public property,’ ” but it also submitted evidence describing how the parcels were used. The Tax Board produced no evidence that the properties were being used in a different manner.

To support its motion for summary judgment, the Hospital Authority submitted the affidavit of its assistant treasurer, who stated that the Authority has no employees and does not actively manage or operate the healthcare facilities it owns, but instead leases them to entities who are then responsible for the facilities’ management. The Authority is exempt from federal income taxes as both a governmental entity and a nonprofit company under § 501 (c) (3) of the Internal Revenue Code. The Hospital Authority financed the 2008 purchase of these eight parcels of real property by issuing income-tax-exempt debt instruments. Seven of the parcels were purchased from Columbus Doctors Hospital, Inc. One parcel, which the Authority leases to the nonprofit Doctors Hospital, Inc., contains both Doctors Hospital and a medical office building containing the for-profit Columbus Clinic. Doctors Hospital, Inc., manages and operates the hospital and sublets the medical office building to the Columbus Clinic. A multi-level parking deck is located on four of the parcels, produces no income, and is available to patients, visitors, and employees of both the hospital and the clinic. The last two parcels are paved parking lots that are also available at no charge to patients, visitors, and employees.

The eighth parcel at issue is one of three conveyed to the Hospital Authority when it bought Hughston Hospital in 2008 and is a wooded area with walking trails that is part of the hospital grounds. That parcel generates no income. According to the assistant treasurer, the Tax Board granted the Hospital Authority’s Request for Nontaxability on the other two parcels, one containing Hughston Hospital itself and the other also containing the wooded walking trails.

In its motion for summary judgment, the Hospital Authority argued its property was exempt from ad valorem taxation as long as the property or any income produced by it was “properly devoted to public purposes, and to the furtherance of the legitimate functions of a hospital authority.” The Authority also argued that all of the parcels supported and complemented the provision and receipt of medical services, although it also argued that their use need not be related to the provision of medical services to be exempt. In response, the Tax Board argued that exemptions from taxation must be strictly construed, and that the Authority had failed to demonstrate that the parcels — which included “undeveloped acreage” next to Hughston Hospital or the remote parking lots near Doctors Hospital — were being used to further its legitimate functions.

Clearly, the mere fact that property is owned by a Hospital Authority does not exempt it from property taxes. Also clearly, under Stewart, 226 Ga. at 531, the property need not actually contain a healthcare facility to be exempt, as long as the use of the property or its income furthers “the legitimate functions of the hospital authority.” Id. The Tax Board endorses a reading of the law that would require a Hospital Authority to justify its use of property as a free benefit to patients that might otherwise generate income, but that is not required. No evidence in the record creates an issue of fact regarding the usage of the properties, but rather the evidence establishes as a matter of law that all of the parcels at issue in this case further the legitimate function of the Hospital Authority. None of the properties are used for a purpose “wholly unrelated” to the Hospital Authority’s function. The parking lots obviously further the function of the hospital by providing free parking for Doctors Hospital patients, visitors, and employees, and one parcel contains the hospital itself. Further, the walking trails in the wooded lot on the Hughston Hospital grounds are available to patients, visitors, and employees. The trial court did not err in finding that the parcels were exempt from ad valorem taxation.

2. The Tax Board also argues that the trial court should not have granted summary judgment to the Hospital Authority on the taxability of the parcel on which both Doctors Hospital and the Columbus Clinic were located.

While OCGA § 31-7-72 (e) (1) grants the property tax exemption to hospital authorities as described earlier, OCGA § 31-7-72 (e) (2) provides that the property tax exemption does not apply to any real property in which 50 percent or more of the floor space is leased to a for-profit entity. The Tax Board argues that if the Authority had complied with its request to divide the parcel containing both the hospital and the clinic when it bought the property, then the portion on which the clinic was located would clearly have been taxable, because 100 percent of the floor space was occupied by a for-profit company.

Decided March 22, 2016 —

Reconsideration denied April 13, 2016

Robert R. Lomax; Troutman Sanders, Charles F. Palmer, Kevin G. Meeks, for appellant.

Rothschild & Rothschild, Jerome M. Rothschild, Andrew A. Rothschild, for appellee.

But when the Hospital Authority bought the parcel, it already contained both facilities. The Authority did not merge two parcels and then argue that it was entitled to an exemption because the clinic was less than half the size of the hospital. And to support its motion for summary judgment, the Hospital Authority included the affidavit of a registered land surveyor establishing that the square footage of the clinic was less than half of the hospital’s square footage. While the Tax Board argues that the two buildings are separate and that the Authority should not be allowed to exclude the property from taxation by “artful line-drawing,” it cites to no record evidence regarding that issue. And under the plain terms of the statute, the exemption was not lost, because less than 50 percent of the floor space on that parcel of land was leased to a for-profit company. Accordingly, the trial court did not err in finding the parcel exempt from ad valorem property taxes.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       The Supreme Court revealed in a later case that the hospital authority property found exempt from taxation in Stewart consisted of “several city lots, some pecan groves and some farming acreage.” Teachers’ Retirement System of Ga. v. City of Atlanta, 249 Ga. 196 (288 SE2d 200) (1982). In Teachers’, the Court held that property owned by a public corporation for income-producing purposes was public property exempt from taxation.


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A15A2026.
    PRIBEAGU et al. v. GWINNETT COUNTY.
    (785 SE2d 567)
   McMillian, Judge.

This Court granted the application of Corneliu and Sanda Pribeagu for interlocutory review of the trial court’s order granting a motion in limine filed by Gwinnett County, Georgia (the “County”) in the Pribeagus’ action against the County for inverse condemnation.

The Pribeagus’ complaint alleged that the County failed to maintain the road and storm water drainage system serving the Pribeagus’ residence, resulting in repetitious flooding of their home and property. The County moved for summary judgment on these claims, but the trial court denied the motion. The County then filed a motion in limine, asserting that sovereign immunity barred the Pribeagus’ claims for damage to personal property, cost of repair, emotional upset, and attorney fees. Following a hearing, the trial court granted the County’s motion in limine and excluded the testimony of two of the Pribeagus’ expert witnesses. However, the trial court granted the Pribeagus a certificate of immediate review of its ruling, which led to this appeal. The Pribeagus argue on appeal that the trial court erred in excluding evidence relating to their claims for damages to personal property and for attorney fees and in barring the testimony of two of their experts relating to damage to personal property and cost of repair.

“A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Citation and punctuation omitted.) Webster v. Desai, 305 Ga. App. 234, 235 (1) (699 SE2d 419) (2010). “Admission of evidence lies in the sound discretion of the trial court, and we will not reverse in the absence of a showing of abuse of discretion.” (Citation and punctuation omitted.) Huckaby v. Cheatham, 272 Ga. App. 746, 752 (2) (612 SE2d 810) (2005). See also Blackwell v. Potts, 266 Ga. App. 702, 705 (1) (598 SE2d 1) (2004) (appellate courts review a ruling on a motion in limine for an abuse of discretion).

The Pribeagus’ inverse condemnation claim is based on allegations that the County created a continuing nuisance, resulting in repeated flooding to their property. In Georgia, “[a] county, unlike a municipality, is not . . . generally liable for creating nuisances.” Duffield v. DeKalb County, 242 Ga. 432, 434 (2) (249 SE2d 235) (1978). Rather, a county is only liable when it “causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes.” (Citation and punctuation omitted.) DeKalb County v. Orwig, 261 Ga. 137, 138 (1) (402 SE2d 513) (1991) (“Orwig II’). See also Columbia County v. Doolittle, 270 Ga. 490, 491 (1) (512 SE2d 236) (1999) (recognizing that counties may be sued in inverse condemnation for a continuing nuisance); Duffield, 242 Ga. at 433 (1) (counties may be subject to liability under a theory of inverse condemnation). Thus, “a county cannot be liable for a nuisance which does not rise to the level of a taking of property” under the Georgia Constitution. Orwig II, 261 Ga. at 138 (1).

Accordingly, the Pribeagus are “only entitled, if [they are] entitled to damages at all, to those damages recoverable under a theory of inverse condemnation.” Orwig II, 261 Ga. at 139 (3). “Damages recoverable in an inverse condemnation are a substitute for the damages recoverable in a condemnation proceeding, and are measured by the same standard.” (Citation and punctuation omitted.) Dept. of Transp. v. Edwards, 267 Ga. 733, 737 (1) (b) (482 SE2d 260) (1997). See also Howard v. Gourmet Concepts Intl., Inc., 242 Ga. App. 521, 524 (3) (529 SE2d 406) (2000) (measure of damages in an inverse condemnation case same as in condemnation cases). In condemnation actions, only two elements of damages are considered: “first, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner’s property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned.” (Citation and punctuation omitted.) Simon v. Dept. of Transp., 245 Ga. 478, 478 (265 SE2d 777) (1980). See also Dept. of Transp. v. White, 270 Ga. 281, 282 (508 SE2d 407) (1998); Flo-Rob, Inc. v. Colonial Pipeline Co., 170 Ga. App. 650, 651 (317 SE2d 885) (1984). Cf. OCGA § 22-2-109 (c). “Consequential damages ... are shown by the difference between the fair market value of the remaining property prior to the taking and the fair market value of the remaining property after the taking.” (Citation and punctuation omitted.) Dept. of Transp. v. Ogburn Hardware & Supply, Inc., 273 Ga. App. 124, 126 (1) (614 SE2d 108) (2005).

1. The Pribeagus assert that the trial court erred in finding that they were not entitled to recover for damages to their personal property under their inverse condemnation claim and in excluding the testimony of their expert Wayne McKinley, “a personal property loss adjuster,” whom they identified as an expert to testify on their personal property losses. They argue that the trial court erred in relying on the Supreme Court’s opinion in Orwig II to find that they were not entitled as a matter of law to recover damages to personal property. We agree.

In their complaint, the Pribeagus asserted that the County is liable for all “direct, consequential, special and emotional damages” arising out of the repeated flooding of their home. Following the hearing on the motion in limine, the Pribeagus submitted a schedule prepared by McKinley listing the personal property, including furniture and other household items, as to which they are seeking damages. The trial court subsequently granted the motion in limine as to their claim of damage to such property finding that under Orwig II, as “[a] gainst a county, the only damages recoverable are for the reduction in value of the affected property.”

In Orwig II, the plaintiff sought to recover damages against DeKalb County resulting from two instances of sewage backing up into her home, and the jury entered a verdict awarding her damages to her real and personal property and for attorney fees. 261 Ga. at 137. In addition, the plaintiff had asserted claims to recover damages for mental and emotional distress and attorney fees, and this Court held in DeKalb County v. Orwig, 196 Ga. App. 255, 259 (2), (3) (395 SE2d 824) (1990) (“Orwig I”), that such damages were recoverable against the county. It also held that the trial court erred in refusing to let the jury consider certain evidence relevant to the claim of mental distress. Id. at 261 (7). This Court based its determination on a finding that the plaintiff did not have to prove a constitutional taking in order to recover against the county, id. at 258 (1), and her recovery was not limited to only those damages recoverable in a condemnation proceeding. Id. at 258 (2).

As noted above, however, the Supreme Court held in Orwig II that a county is only liable for nuisances that amount to a constitutional taking of property. 261 Ga. at 138 (1). Thus, the Supreme Court reversed this Court’s holding to the contrary and stated that “[i]t follows from our holding that damages in cases such as this one cannot include such items as damages for mental distress and expenses of litigation.” Id. But neither this Court’s opinion nor the Supreme Court’s opinion in the Orwig case specifically addressed the issue of whether a plaintiff can recover for damages to personal property in an inverse condemnation action. Accordingly, we find that the trial court abused its discretion in relying on Orwig IIto grant the County’s motion in limine as to such damages.

Moreover, we note that the eminent domain provisions of the Georgia Constitution provide that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Ga. Const. of 1983, Art. I, Sec. Ill, Par. I (a). Our Supreme Court has held that as used in this provision, “[t]he term ‘property’ is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subj ect to be owned and enjoyed.” (Citation and punctuation omitted.) Bowers v. Fulton County, 221 Ga. 731, 737 (2) (146 SE2d 884) (1966). Thus, the Court criticized certain earlier decisions addressing condemnation damages, finding that they had “[failed] to perceive that the right of the owner to recover for damage done [to] his property was inclusive of damages to every species of property, real and personal, corporeal and incorporeal.” Id. The Court then concluded that

[t]he constitutional provision is susceptible to no construction except the condemnee is entitled to be compensated for all damage to his property and expense caused by the condemnation proceedings. Such damages and expenses are separate and distinct items from the amount which he is entitled to recover as the actual value of his building.

Id. at 738 (2). Accordingly, the Court held that the condemnee in that case was entitled to recover business losses and the cost of removing equipment, fixtures, and supplies from the condemned property. Id. at 738-39 (2). See also Woodside v. City of Atlanta, 214 Ga. 75, 83 (3) (103 SE2d 108) (1958) (noting comprehensive definition of property); R. E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800, 804 (2) (189 SE2d 114) (1972) (citing Bowers in allowing recovery for lost rental income).

Based on the foregoing, we reverse the grant of the County’s motion in limine as to the Pribeagus’ claim for damage to personal property.

2. The Pribeagus also assert that the trial court erred in limiting the evidence that could be presented at trial regarding damages to their real property by excluding evidence of the cost of repair and the testimony of their expert, David Bennett, a contractor with “30 years of experience in the residential and commercial building trades.” Although the Pribeagus have not cited us to Bennett’s testimony in the record, we have nevertheless reviewed the affidavit he submitted in support of their opposition to the County’s motion for summary judgment. In that affidavit, he asserts that he prepared an estimate of the cost of restoring and repairing the damaged property in the amount of $45,540.81 and further opined that the actions taken by the Pribeagus to their property had not caused or contributed to the flooding.

On appeal, the Pribeagus assert that they are seeking damages for both the diminution in value to their property affected by the flooding and consequential damages to the remainder and that they plan to introduce evidence of the cost of repair only to show how such costs adversely affected the fair market value of their property. See Edwards, 267 Ga. at 737 (1) (b) (upholding award of diminution in value of property and consequential damages in inverse condemnation proceeding); Ogburn Hardware, 273 Ga. App. at 127 (1) (same). Cf. Henry County Water and Sewer Auth. v. Adelson, 269 Ga. App. 206, 207 (1) (603 SE2d 714) (2004) (in considering consequential damages in condemnation action, trial court properly allowed evidence of future flooding to uncondemned portion of property arising from maintenance of reservoir on condemned portion of owner’s land).

In analogous circumstances, this Court has found that “evidence of damage to the property as a result of the taking (represented by a cost to cure) may be considered a factor in establishing the reduced fair market value of the remaining property after the taking.” (Citation and punctuation omitted.) Ogburn Hardware, 273 Ga. App. at 126 (1). See also Steele v. Dept. of Transp., 295 Ga. App. 244, 247 (2) (671 SE2d 275) (2008) (cost to cure cannot be considered as a separate element of damages, but may be used to show how the cost to cure adversely affected the value of their remaining property); Dept. of Transp. v. Morris, 263 Ga. App. 606, 608 (1) (588 SE2d 773) (2003) (evidence of damage to a fence as a result of taking may be considered as a factor in the fair market value of the property after the taking); Dept. of Transp. v. 2.953 Acres of Land, 219 Ga. App. 45, 47 (1) (463 SE2d 912) (1995) (“evidence as to the cost to cure maybe admissible as a factor to be considered in determining the amount of recoverable consequential damages to the remainder”) (citation and punctuation omitted). See also DeKalb County v. Heath, 331 Ga. App. 179 (770 SE2d 269) (2015) (allowing consideration of evidence of cost of repairs in inverse condemnation action arising from flooding of plaintiff’s land resulting from County’s maintenance of sewer and storm water drainage system). However, where evidence of cost of repair “[plays] no part in the appraiser’s calculation of the fair market value” of the property, such evidence does not support a claim of damages in a condemnation proceeding. Morris, 263 Ga. App. at 609 (1).

Accordingly, we find that the trial court erred in excluding the Pribeagus’ evidence, including Bennett’s testimony, regarding the cost of repair and hold that such evidence is admissible to the extent that it is offered as a factor in determining the amount of any diminution in value to the Pribeagus’ property (i.e., the difference between the fair market value of the property prior to the taking and the fair market value of the property after the taking) and not as a separate element of damages.

3. The Pribeagus next contend that the trial court erred in excluding evidence on their claim for attorney fees. We agree.

The trial court again misapplied Orwig II in excluding the Pribeagus’ evidence in support of their claim for attorney fees. In Orwig II, the plaintiffs apparently sought attorney fees as part of their claim for just and adequate compensation arising out of the taking of their property, as no other basis is cited for such an award. See OrwigII, 261 Ga. at 137; Orwig I, 196 Ga. App. at 259 (3). The law was well settled at the time of Orwig II that attorney fees are not included as an element of just and adequate compensation under our Constitution’s eminent domain provisions, DeKalb County v. Trustees, Decatur Lodge No. 1602, B. P. O. Elks, 242 Ga. 707, 708 (251 SE2d 243) (1978), and thus the Orwigs were not entitled to attorney fees on the basis of their inverse condemnation claim alone.

However, the Pribeagus do not seek attorney fees under the theory of inverse condemnation, but rather assert their claim under OCGA § 13-6-11, alleging that the County acted in bad faith, was stubbornly litigious, and caused them unnecessary trouble and expense. After Orwig II, the Supreme Court of Georgia expressly held that a county is subject to a fee award under OCGA § 13-6-11, Forsyth County v. Martin, 279 Ga. 215, 219 (2) (a) (610 SE2d 512) (2005), and further that attorney fees under that statute may be recoverable in an inverse condemnation proceeding. Edwards, 267 Ga. at 737 (1) (b). See also DeKalb County v. Daniels, 174 Ga. App. 319, 321-22 (6) (329 SE2d 620) (1985) (upholding award of OCGA § 13-6-11 damages in an inverse condemnation proceeding against a county). Accordingly, the trial court erred in excluding evidence relating to the Pribeagus’ claim for attorney fees.

Decided April 13, 2016.

Larry E. Stewart, for appellants.

Forrest S. Fields, Jr., for appellees.

Judgment reversed.

Barnes, P. J., and Rickman, J., concur.

       Although it is well settled that counties in this State are subject to the protections of sovereign immunity granted by Article I, Section II, Paragraph IX (e) of the Georgia Constitution, Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994), a claim for the inverse condemnation of property arises under a separate provision of the Georgia Constitution that “itself requires just compensation for takings.” Ga. Dept. of Natural Resources v. Center for a

        Sustainable Coast, Inc., 294 Ga. 593, 600 (2) (755 SE2d 184) (2014). See also Ga. Const. of 1983, Art. I, Sec. Ill, Par. I (a). Thus, sovereign immunity does not apply in such cases. Sustainable Coast, 294 Ga. at 600 (2).

       However, the Pribeagus’ attorney conceded at the hearing on the motion in limine that they could not state a claim for emotional damages.

       We note that in their original briefing, the Pribeagus failed to cite us to this schedule or to any document in the record addressing the content and nature of McKinley’s testimony. However, in their motion for reconsideration, the Pribeagus provided record citations to the schedule and argument addressing McKinley’s testimony. The record in this case consists of 14 volumes and over 4,300 pages, and we reiterate that it is not the duty of this Court to cull the record on a party’s behalf to locate information in support of the party’s argument. Carlisle v. Abend, 288 Ga. App. 150,151 (1) (653 SE2d 388) (2007). Rather, it is the party’s duty in the first instance to cite to “such parts of the record or transcript essential to a consideration of the errors complained of,” and such “[r]ecord and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.” (Emphasis supplied.) Ga. Court of Appeals Rule 25 (a) (1).

       The County asserts, in the alternative, that the motion in limine was properly granted because the County did not have notice that dangerous conditions existed before the Pribeagus’ property flooded. We express no opinion as to what the evidence may or may not show at trial as to the County’s notice or whether the alleged nuisance rose to the level of a taking of property.

       The County does not dispute that recovery for such consequential damages maybe a part of just and adequate compensation in an inverse condemnation proceeding, but it disputes that the Pribeagus can establish their claim to recover any damages.

       On appeal, the County concedes that “on the proper facts, a county may be liable for an award of attorney’s fees in an inverse condemnation case,” asserting only that the Pribeagus failed to present any evidence of bad faith.


author: BARNES, Presiding Judge.

text:
    A15A1662.
    NEWMAN v. THE STATE.
    (786 SE2d 688)
   BARNES, Presiding Judge.

Following his conviction for loitering, obstruction of an officer, possession of marijuana, and possession of a firearm by a convicted felon, Dorsey Newman III appeals. Newman contends that insufficient evidence supported his conviction for loitering and that his trial counsel rendered ineffective assistance for failing to file a motion to suppress. For the following reasons we affirm.

1. Newman contends that the State presented insufficient evidence to support his conviction for loitering.

When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Lopez-Vasquez v. State, 331 Ga. App. 570 (1) (771 SE2d 218) (2015); Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that in June 2013, a police officer was patrolling downtown Rome when he observed Newman in a parking lot behind a parking deck around 3:30 in the morning. Newman was standing near the driver’s side of a parked vehicle, and the officer thought at first that Newman was peering into the vehicle. The officer testified that there had been a rash of car break-ins in the area and the motion-activated street light was on over the car, so he thought Newman may have been trying to break into it. When the officer drove up to Newman with his window open, the officer “could smell the pungent odor of green marijuana emitting from around [Newman].” When the officer asked Newman if he was okay and why he was back there, Newman explained he was calling for a cab.

The officer asked Newman for identification because of the marijuana smell, and while he waited for his computer to check Newman’s information, “the entire time this marijuana smell [was] just reeking into [the officer’s] car.” The officer then got out of his patrol car, told Newman, with whom he had attended high school, that he smelled marijuana, and asked Newman to empty his pockets. As Newman complied with the request, the officer noticed that he avoided one of the big cargo pockets on his pants that bulged and “kind of sagged a bit.” At this point, the officer asked Newman to put his hands on the patrol car to pat him down.

As the officer “went for” the pocket Newman had been avoiding, Newman ran away. A backup officer assisted the first officer in finding Newman hiding in the vicinity, and he was handcuffed and returned to the patrol car. The backup officer searched Newman’s possible escape route and found a loaded handgun, a large amount of cash, and a digital scale. The officers also found a bag of marijuana stuck behind a downspout near the parking lot where Newman was stopped. The officers then searched Newman pursuant to arrest and found more cash on him. Newman was arrested, and he was charged with and found guilty of loitering, possession of marijuana, obstruction of an officer, and possession of a firearm by a convicted felon.

Newman argues that the evidence was insufficient to sustain his loitering conviction.

A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

OCGA § 16-11-36 (a).

Specifically, as a threshold matter, the statute requires at least some manifestation of aberrant behavior and the circumstances must be such that this behavior warrants alarm for the safety of persons or property in the vicinity. Our Supreme Court [has] concluded that while perspectives may differ as to what conduct is “usual” for law-abiding citizens, the statute narrows the construction of this phrase by making it clear the conduct must be that which would alarm a reasonable person that danger exists to person or property.

In the Interest of J. B., 314 Ga. App. 678, 683-684 (1) (725 SE2d 810) (2012) (reversing trial court’s denial of motion to suppress and adjudication of delinquency when only evidence to support second-tier citizen-police encounter was that the juvenile was walking from a vacant lot and appeared to be sweaty and out of breath).

OCGA § 16-11-36 (b) offers guidelines that a rational trier of fact may consider while pondering whether a person’s conduct gave reasonable alarm, such as “the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or some object.” OCGA § 16-11-36 (b); Bell v. State, 252 Ga. 267, 271 (1) (313 SE2d 678) (1984). Furthermore, OCGA § 16-11-36 (b) requires that the police officer, if able, must “afford the person an opportunity to dispel any alarm or immediate concern.” OCGA § 16-11-36 (b). If a rational trier of fact does not think the explanation is sufficient to dispel the police officer’s concern, it may find the defendant guilty of loitering. Franklin v. State, 258 Ga. App. 281, 283 (574 SE2d 361) (2002).

The evidence authorized the jury to find that the patrol officer’s concern for the safety of the property in the parking lot was warranted due to recent break-ins, the time of night, and his initial belief that Newman had been peering into a parked car over which the street light was illuminated. The officer gave Newman an opportunity to explain his presence in the parking lot, to which he replied he was waiting for a cab, which the officer found odd because usually people waited for cabs on the more brightly-lit streets. That evidence, along with Newman’s concealment of items in his pants pocket and his subsequent flight when the officer tried to pat him down, was sufficient to permit a reasonable trier of fact to find Newman guilty of loitering.

2. Newman also contends that his trial counsel rendered ineffective assistance for failing to file a motion to suppress. “[T]o prevail on a claim of ineffective assistance of counsel, [Newman] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense.” Allen v. State, 296 Ga. 785, 792 (10) (770 SE2d 824) (2015); Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” Richardson v. State, 276 Ga. 548, 553 (3) (580 SE2d 224) (2003). Newman failed to make such a showing in this case.

Decided March 9, 2016 —

Reconsideration denied April 14, 2016

Lee & Ziegler, Konrad G. W. Ziegler, for appellant.

Leigh E. Patterson, District Attorney, F. Kevin Salmon, Assistant District Attorney, for appellee.

While Newman argues that his trial counsel was ineffective for failure to file a motion to suppress the evidence because the stop was illegal under Terry v. Ohio, 392 U. S. 1 (III) (88 SCt 1868, 20 LE2d 889) (1968), regardless of the legality of the stop, there was no evidence seized from Newman. The officer found no contraband on Newman, and Newman disavowed ownership of the gun, drugs, cash, and digital scale found along his exit route. Those items “were abandoned property, and therefore, seizure of those items did not implicate the Fourth Amendment.” Williams v. State, 310 Ga. App. 90, 92 (2) (712 SE2d 113) (2011). A defendant has no proprietary interest in or legitimate expectation of privacy regarding items found discarded on public property, because “[t]he constitutional protection of the Fourth and Fourteenth Amendments does not apply to property which has been abandoned.” (Citation and punctuation omitted.) McKinnon v. State, 305 Ga. App. 871, 872-873 (700 SE2d 875) (2010). See also Burgeson v. State, 267 Ga. 102, 105 (3) (b) (475 SE2d 580) (1996); Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193) (1997) (“[W]hen drugs are discarded during flight or before the suspect is ‘seized,’they are admissible as evidence even if there is an issue about the officer’s probable cause or articulable suspicion.”).

Because Newman failed to show that a motion to suppress would have been granted, he has failed to show that his trial counsel provided ineffective assistance of counsel for failing to file one. McLeod v. State, 297 Ga. 99, 105 (4) (772 SE2d 641) (2015).

Judgment affirmed.

Rickman, J., concurs. McMillian, J., concurs fully in Division 1 and in the judgment.


author: Branch, Judge. MILLER, Presiding Judge,

text:
    A15A1681.
    THE EICHHOLZ LAW FIRM, P.C. v. TATE LAW GROUP, LLC et al.
    (783 SE2d 466)
   Branch, Judge.

This is the second appearance of this case before this Court. In Eichholz Law Firm v. Tate Law Group, 310 Ga. App. 848 (714 SE2d 413) (2011) (“Eichholz T), we affirmed the partial grant of summary-judgment to defendant Tate Law Group (“the Tate firm”) on the suit of plaintiff The Eichholz Law Firm, P.C. (“the Eichholz firm”) to enforce fee-splitting agreements arising from the firms’ joint venture to represent clients in oral sodium phosphate (“OSP”) product liability actions. In affirming the partial grant of summary judgment, we held that although the Eichholz firm could not enforce the fee-splitting agreements themselves, the Eichholz firm could seek recovery in quantum meruit for services it provided to the Tate firm pursuant to the joint venture. Id. at 853 (1). On remand, the Tate firm moved for summary judgment on this issue, arguing inter alia that the Eichholz firm had failed to provide any evidence of the reasonable value of its services. On appeal from the grant of the Tate firm’s motion, the Eichholz firm argues that a question of fact remains on its quantum meruit claim. We disagree and therefore affirm.

As we noted in Eichholz I, Benjamin Eichholz and Mark Tate agreed in February 2009 to provide joint representation to clients in product liability actions involving OSP. In August 2009, however, Benj amin Eichholz “was indicted in federal court for various offenses.” 310 Ga. App. at 849-850. As a result of Benjamin Eichholz’s indictment, the OSP clients decided to discharge both Eichholz and his firm and to be represented only by Tate and his firm. Id. On remand from our decision affirming the partial grant of summary judgment as to the Eichholz firm’s contract claim, the Tate firm moved for summary judgment on the quantum meruit claim on the grounds that the Eichholz firm had unclean hands, was not entitled to an equal share of any fees because its work was limited to client origination, and had not produced any evidence of reasonable value in support of its claim. The Eichholz firm responded that the Tate firm also had unclean hands and that without the Eichholz firm’s initial work, including the request and review of clients’ medical records,' the Tate firm would never have received any portion of the fees eventually collected. The trial court granted summary judgment to the Tate firm on the grounds that the Eichholz firm had “failed to show any legal services it provided that would advance the clients [’] claim” and had failed to notify the clients of any fee-sharing arrangement. This appeal followed.

As a preliminary matter, we note the parties’ continuing dispute over the import of Eichholz I, in which we concluded that although the Eichholz firm was not authorized to enforce the joint venture and fee-splitting agreements between the two firms because the clients terminated that firm’s representation “before any contingency giving rise to the fees occurred,” the Eichholz firm “may seek to recover in quantum meruit for services it provided to the Tate firm pursuant to their joint venture.” Eichholz I, 310 Ga. App. at 853 (1). We also note that the question of the extent of fees recoverable pursuant to contingency and fee-sharing agreements remains to be answered in full. See, e.g., Tolson v. Sistrunk, 332 Ga. App. 324, 334 (772 SE2d 416) (2015) (discussing Eichholz I, and holding that “[origination or procurement of a case — in other words, rainmaking — is not a service by an attorney that confers value upon a client or that is rendered to or for the benefit of the client”). But the interest of this or other questions should not distract us from the simpler issue before us — that is, whether the Tate firm was entitled to summary judgment on the Eichholz firm’s quantum meruit claim because the Eichholz firm failed to produce any evidence of the reasonable value of the services it rendered to either the Tate firm or the firms’ mutual clients.

As our Supreme Court has emphasized,

a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Cowart v. Widener, 287 Ga. 622, 623 (1) (697 SE2d 779) (2010), citing Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991) and OCGA § 9-11-56 (e). Specifically, a plaintiff asserting a claim for quantum meruit must provide evidence of

(1) his performance as agent of services valuable to the defendants; (2) either at the request of the defendants or knowingly accepted by the defendants; (3) the defendants’ receipt of which without compensating claimant would be unjust; and (4) claimant’s expectation of compensation at the time of the rendition of the services.

Razavi v. Shackelford, 260 Ga. App. 603, 605-606 (2) (580 SE2d 253) (2003) (footnote omitted). It follows from these requirements that “fpjroofofthe reasonable value of services rendered to and accepted by a defendant is an element essential to recovery on a quantum meruit basis.” Diegert v. Cedarbrook Homes, 267 Ga. App. 264, 265 (599 SE2d 211) (2004) (citation, punctuation and footnote omitted; emphasis supplied). Thus, a defendant is entitled to summary judgment on a plaintiff’s quantum meruit claim if that defendant points to an absence of evidence as to the reasonable value of the benefit conferred by that defendant on that plaintiff. Id. (vacating trial court’s grant of a new trial on quantum meruit claim, and remanding for consideration of the legal question whether plaintiff had presented sufficient evidence of the benefit it had conferred on a defendant).

In the absence of an enforceable contingency fee agreement, an attorney seeking quantum meruit damages must show the number of hours the attorney worked on the matter, his hourly rate, or any other evidence sufficient to prove “the reasonable value of the attorney’s services.” Overman v. All Cities Transfer Co., 176 Ga. App. 436, 438 (336 SE2d 341) (1985). Although the Eichholz firm has pointed to its performance of “advertising, screening, and referral services” pursuant to the joint venture, the Eichholz firm has failed to cite any evidence on appeal as to the amount or value of the time its attorneys or workers devoted to the OSP cases at issue. On the contrary, David Eichholz admitted that his firm had not produced and could not produce any documentation as to the number of hours worked by any of his firm’s employees on them. As Eichholz testified at his deposition:

Q. Is there any way for you to give me any kind of general estimation or ball park ... as to the number of hours expended on the OSP cases?
A. No.
Q. Now, as far as this marketing, this media campaign, how many hours did the Eichholz law firm spend on that?
A. ... I don’t know the answer •— I don’t know.
Q. Is there any way to figure that out?
A. I don’t know.
Q. If you were required to figure it out, if someone told you[,] like a judge [, that] you’ve got to figure out the number of hours you spent on the media campaign, do you think you could do it?
A. I couldn’t do it.
Q. Who could?
A. I don’t know. . . .

Benjamin Eichholz also testified that he could not give “a specific amount” of money spent by his firm in gathering the OSP cases, and Karen Boutwell, the only employee of the Eichholz firm besides Benjamin Eichholz who claims to have performed any work on the OSP cases, was unable to testify as to how much time she worked on the cases.

“We will affirm a grant of summary judgment if it is right for any reason raised below.” McPherson v. McPherson, 307 Ga. App. 548, 550 (1) (705 SE2d 314) (2011), citing City of Gainesville v. Dodd, 275 Ga. 834, 836-837 (573 SE2d 369) (2002). As our Supreme Court has recently explained, “ ‘[a] grant of summary judgment mwsi be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.’ ” Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013) (emphasis supplied), quoting Anderson v. Jones, 323 Ga. App. 311, 312, n. 2 (745 SE2d 787) (2013).

The Tate firm’s brief in support of its motion for summary judgment pointed out an absence of evidence as to the reasonable value of the services rendered by the Eichholz firm to either the Tate firm or the firms’ mutual clients. Such evidence was an essential element of the Eichholz firm’s quantum meruit claim, and the firm has cited no evidence supporting that claim or showing that it did not have a fair opportunity to respond to the Tate firm’s motion. We must therefore deny the Eichholz firm’s request for a second chance to gather the evidence it was required to submit before the trial court ruled on the Tate firm’s motion.

Judgment affirmed.

Barnes, P. J., Ellington, P. J., McFadden, McMillian and Rickman, JJ., concur. Miller, P. J., dissents.

MILLER, Presiding Judge,

dissenting.

I respectfully dissent to the majority’s opinion, because the Eichholz firm has presented some evidence at the summary judgment stage to raise a question of fact for the jury with respect to the value of the services provided by the Eichholz firm.

As the majority correctly notes, the services provided in this case by the Eichholz firm go beyond mere rainmaking, and provided some value to the clients. The amount, if any, of fees recoverable for such services remains to be answered in full. Nevertheless, I cannot agree with the majority’s conclusion that the trial court properly granted summary judgment to the Tate firm. Contrary to the majority’s opinion, the Eichholz firm was not required to prove the value of the services it provided at the summary judgment stage of these proceedings. “Questions of value are peculiarly for the determination of the jury where there is any data in evidence upon which [the jury] may legitimately exercise their own knowledge and ideas.” (Citation and punctuation omitted; emphasis supplied.) Tolson v. Sistrunk, 332 Ga. App. 324, 334 (2) (b) (772 SE2d 416) (2015). There is evidence in the record of such data sufficient to put this case before a jury. Accordingly, I would reverse the grant of summary judgment in this case.

Decided March 30, 2016 —

Reconsideration denied April 14, 2016

Lloyd D. Murray, Sr.; Jackson & Schiauone, Michael G. Schiavone, for appellant.

Savage, Turner & Pinckney, Robert B. Turner; Scheer & Montgomery, Steven E. Scheer, for appellees.

       We also need not decide, for example, whether the Eichholz firm has unclean hands. See, e.g., Remediation Svcs. v. Georgia-Pacific Corp., 209 Ga. App. 427, 433-434 (2) (433 SE2d 631) (1993) (contractor whose officer was a dual agent of both that contractor and the party hiring the contractor could pursue a quantum meruit claim against the hiring party when the contract was not void but “voidable only at the election of the defrauded [hiring party]”).


author: McFadden, Judge. MILLER, Presiding Judge,

text:
    A15A1802.
    In re ESTATE OF JOE LEONARD, JR.
    (783 SE2d 470)
   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. In his 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 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 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 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] 11 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, 318 Ga. App. at 42; City of Columbus v. Barngrover, 250 Ga. App. 589, 596 (4) (552 SE2d 536) (2001). 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 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 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 (a) provides:

Individuals 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.

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 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 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, 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 v. Medical Dept. of DeKalb County Jail, 197 Ga. App. 563, 564 (5) (398 SE2d 837) (1990); 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.

Andrews, P. J., concurs in Divisions 1, 2 (b), and 3, and in judgment only in Division 2 (a). Ellington, P. J., Dillard and Branch, JJ., concur in judgment only. Barnes, P. J., and Miller, P. J., dissent.

MILLER, Presiding Judge,

dissenting.

I respectfully dissent to the majority5s 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 case is distinguishable on its facts from the decision in Coweta County v. Cooper, 318 Ga. App. 41, 43 (733 SE2d 348) (2012), 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.

Decided March 30, 2016 —

Reconsideration denied April 14, 2016

R. Leslie Waycaster, Jr., Timothy H. Allred, for appellant.

Womack, Gottlieb & Rodham, Ronald R. Womack, Steven M. Rodham, for appellee.

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.

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.

       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.