USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 21-11099
Non-Argument Calendar
________________________
D.C. Docket No. 1:20-cv-01666-CAP
CHELLIS A. HOWARD,
Individually and as Guardian of the Person
and Conservator of the Property of
KWAME K. HOWARD, an Incapacitated
Adult other Kwame K. Howard,
Plaintiff - Appellant,
versus
KIMLEY-HORN AND ASSOCIATES, INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 29, 2021)
Before JILL PRYOR, LUCK, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 2 of 14
Chellis A. Howard appeals the district court’s order dismissing Count 1 of the
complaint—a personal injury claim on behalf of her husband—after the district court
granted Kimley-Horne and Associate’s motion for partial judgment on the pleadings.
Howard filed the complaint in both her individual capacity and as guardian and
conservator of Kwame K. Howard, her mentally incapacitated husband. Chellis
Howard contends that the district court erred in finding that the tolling of the statute
of limitations for mentally incapacitated individuals provided for by O.C.G.A § 9-
3-90(a) ended when Howard filed a lawsuit on behalf of her husband as “next
friend.” In making its finding, the district court relied on several Georgia Court of
Appeals cases.
In the alternative, Howard asks us to certify that question of state law to the
Georgia Supreme Court, claiming that Georgia law is unsettled on this issue. For
the reasons discussed below, we affirm the district court’s order and deny the motion
to certify a question of state law to the Georgia Supreme Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2016, Atlanta Gas Light Company (“AGL”) retained Kimley-Horn to
provide engineering services and design drawings for a new thirty-six-inch diameter
gas main line to run along and under portions of Interstate 20 (“I-20”) in DeKalb
County, Georgia. Kimley-Horn issued a design plan in July 2016, and AGL applied
to the Georgia Department of Transportation (“GDOT”) in August 2016 for a permit
2
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 3 of 14
for the project. GDOT approved the permit with the inclusion of a special exception
letter requiring that the project follow two specific safety standards to protect
motorists on the interstate: (1) if a tunnel was bored and abandoned, it must be filled
with grout immediately; and (2) the interstate be monitored by visual inspection for
any irregularities during boring operations. Work on the gas line project began in
November 2016.
On December 7, 2016, an obstruction was encountered, and a decision was
made to abandon the bore and commence boring a new tunnel approximately twelve
feet away. The abandoned bore, however, was not immediately filled as required by
the safety standard; instead, contractors began filling the abandoned bore with grout
on April 17, 2017. This process resulted in cracking and buckling of the pavement
in I-20’s travel lanes. Kwame Howard was operating a motorcycle on I-20 when
this occurred, and upon encountering the disruption in the pavement, he lost control
of his motorcycle and was thrown into the air, landing on the concrete roadway. As
a result of the accident, Kwame Howard suffered serious injuries, including
traumatic and permanent brain injury and spinal injury. Chellis Howard was
subsequently appointed as the guardian and conservator of Kwame Howard on
January 29, 2018, by the Probate Court of DeKalb County, Georgia.
On April 17, 2020, Chellis Howard, individually and as guardian and
conservator of Kwame Howard, filed a complaint against Kimley-Horn, raising a
3
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 4 of 14
personal injury claim on behalf of her husband as well as a loss of consortium claim
on her own behalf. In her complaint, Chellis Howard stated that she had previously
filed the same cause of action on behalf of her husband in the Superior Court of
DeKalb County, Georgia, on January 8, 2020, and that the case was dismissed
without prejudice on January 30, 2020. In response, Kimley-Horn filed an answer
and affirmative defenses, to which it attached a complaint for damages that Chellis
Howard filed as Kwame Howard’s “next friend” on August 29, 2017, in the State
Court of DeKalb County, Georgia (the “2017 Lawsuit”). That complaint was
brought against seven defendants that were allegedly involved in the same gas line
project, but Kimley-Horn was not named as a defendant in the 2017 Lawsuit.
Kimley-Horn then filed a motion for partial judgment on the pleadings as to
the personal injury claim (Count 1). In its motion, Kimley-Horn asserted that the
personal injury claim was time-barred under O.C.G.A. § 9-3-33 because: (1) the
filing of the 2017 Lawsuit by Chellis Howard as Kwame Howard’s next friend ended
the tolling of the statute of limitations for the claim under O.C.G.A. § 9-3-90(a); and
(2) the claim was filed more than two years after the complaint filed in the 2017
Lawsuit. In support of its motion, Kimley-Horn attached the state court docket for
the 2017 Lawsuit and a February 6, 2018, consent order allowing the filing of a
second amended complaint in the 2017 Lawsuit. Chellis Howard opposed the
motion.
4
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 5 of 14
The district court granted Kimley-Horn’s motion and took judicial notice of
the state court documents in the 2017 Lawsuit. Of relevance to this appeal, the
district court rejected Challis Howard’s argument that the statute of limitations did
not apply to the personal injury claims, as it was tolled so long as her husband
remained incapacitated. The district court explained that the Georgia Court of
Appeals had found that the tolling period under section 9-3-90 was limited when a
guardian or next friend acts on behalf of an incapacitated individual in three separate
cases: Cline v. Lever Brothers Co.,
183 S.E.2d 63 (Ga. Ct. App. 1971), Price v.
Department of Transportation,
446 S.E.2d 749 (Ga. Ct. App. 1994), and Harper v.
Patterson,
606 S.E.2d 887 (Ga. Ct. App. 2004). The district court also rejected
Chellis Howard’s argument that the Georgia Court of Appeals had created judicially-
made exceptions to the statute’s language and that the Georgia Supreme Court would
overturn Cline, Price, and Harper as engaging in “hypotheticals.” The district court
further explained that it was unpersuaded that the Georgia Supreme Court “would
disturb the historic and long-standing role of the next friend” by allowing the tolling
to continue indefinitely. The district court also found Chellis Howard’s argument
that the Georgia Supreme Court was inconsistently applying section 9-3-90 in cases
concerning minors and incompetent persons unpersuasive, noting that the Georgia
Court of Appeals had already rejected this position in Price and that Chellis Howard
had not provided it with any Georgia Supreme Court authority directly on point for
5
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 6 of 14
her argument. As such, the district court explained that it must apply case law from
the Georgia Court of Appeals to the case. And because Chellis Howard had filed
the complaint in her case more than two years after she filed the complaint as next
friend in the 2017 Lawsuit, the district court dismissed the personal injury claim.
On March 19, 2021, Chellis Howard filed an unopposed motion for entry of
final judgment pursuant to Federal Rule of Civil Procedure 54(b). The district court
granted the motion, finding that the personal injury claim was finally adjudicated for
Rule 54(b) purposes as that claim and Chellis Howard’s individual loss of
consortium claim were separately enforceable under Georgia law. The district court
further determined that there was no just reason to delay the appeal and, as such,
entered judgment pursuant to Rule 54(b) on the personal injury claim and stayed the
loss of consortium claim. This appeal ensued.
II. STANDARDS OF REVIEW
We review de novo a district court’s order granting a motion for judgment on
the pleadings. Perez v. Wells Fargo N.A.,
774 F.3d 1329, 1335 (11th Cir. 2014).
“Judgment on the pleadings is appropriate where there are no material facts in
dispute and the moving party is entitled to judgment as a matter of law.”
Id. (quoting
Cannon v. City of West Palm Beach,
250 F.3d 1299, 1301 (11th Cir. 2001)). “In
determining whether a party is entitled to judgment on the pleadings, we accept as
6
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 7 of 14
true all material facts alleged in the non-moving party’s pleading, and we view those
facts in the light most favorable to the non-moving party.”
Id.
III. ANALYSIS
On appeal, Chellis Howard argues that the district court erred in dismissing
the personal injury claim because the “plain language” of O.C.G.A. § 9-3-90(a) tolls
the normal statute of limitations for mentally incapacitated individuals until “their
disability is removed.” Because her husband’s mental disability has not been
removed, she contends that the tolling of the limitations period has not ended. She
asserts that the three cases issued by the Georgia Court of Appeals as to the statute—
Cline, Price, and Harper—are “Outlier Cases” that ignored the statutory text and
added a judicially-created rule that ends the tolling once a guardian or next friend
acts on behalf of the mentally incapacitated individual. Alternatively, she moves for
this Court to certify the state law question at issue in this case to the Georgia
Supreme Court, claiming that “Georgia law is unsettled because the Outlier Cases
are in conflict with the governing statute and other controlling decision of the
Georgia Supreme Court and this Court.” We address these arguments in tandem.
O.C.G.A. § 9-3-33 provides that, “[e]xcept as otherwise provided in this
article, actions for injuries to the person shall be brought within two years after the
right of action accrues.” O.C.G.A. § 9-3-90(a), however, provides that
7
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 8 of 14
“[i]ndividuals who are legally incompetent because of intellectual disability or
mental illness, who are such when the cause of action accrues, shall be entitled to
the same time after their disability is removed to bring an action as is prescribed for
other persons.” In analyzing the statute, the district court relied on three cases from
the Georgia Court of Appeals in determining that the tolling provided by section 9-
3-90(a) ended when Chellis Howard filed the 2017 Lawsuit on behalf of her husband
as next friend. First, in Cline, the plaintiff brought an action as next friend of a
claimant who was mentally incapacitated, and the Georgia trial court dismissed the
plaintiff’s complaint as to one defendant for being outside the statute of limitations.
See
183 S.E.2d at 65. In reversing the dismissal, the Georgia Court of Appeals
explained:
Where, as a result of an occurrence giving rise to a cause of action, the
person injured becomes mentally . . . incapacitated so as to be incapable
of acting for himself in carrying on his business and in prosecuting his
claim, and where no guardian is appointed for him, the statute of
limitation for the bringing of an action is tolled until such time as he
regains capacity to act for himself or until such time as a guardian is
appointed and actually does act for him, or until such time as one bona
fide acting for him as next friend thereafter, during the continuance of
the disability of plaintiff, brings an action seeking recovery for the
injury sustained.
Id. at 65–66 (emphasis added).
Subsequently, in Price, the Georgia Court of Appeals reaffirmed its holding
in Cline. 446 S.E.2d at 752. The plaintiff in Price, who was severely and
permanently injured in an automobile accident, had filed suit against the defendants
8
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 9 of 14
in her own name initially but later amended her complaint “to proceed through her
mother as next friend due to her incapacity from brain damage.” Id. at 750. More
than two years after the mother entered the case as next friend, the plaintiff sought
to add new claims against new defendants to her suit. See id. at 751. The Georgia
trial court, however, granted those defendants’ motion for summary judgment,
finding that, despite section 9-3-90, the statute of limitations had run. Id. On appeal,
the plaintiff argued that the statute remained tolled because the cause of action lied
with the incapacitated individual, not her next friend. See id. at 751. However, the
Georgia Court of Appeals rejected this argument, relying on its holding in Cline and
explaining that it could not agree “that the statute of limitation continued
indefinitely.” Id. at 752. Thus, the court concluded that the mother’s entry into the
case as next friend started the running of the limitations period. Id. In doing so, the
Georgia Court of Appeals noted—without expressing disagreement—that the trial
court had recognized, under section 9-3-90, “in the instance of a minor, the disability
is not removed until she attains her lawful majority, any actions taken on her behalf
by a guardian or next friend notwithstanding,” but had nevertheless “determined that
the difference in the tolling provisions for minors and legal incompetents was
rational, since while a person's status as a minor terminated at a certain time, with
legal incompetency the condition might remain a lifetime.” See id. at 751.
9
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 10 of 14
Then, in Harper, the Georgia Court of Appeals relied on Cline and Price to
conclude that the section 9-3-90 tolling for mentally incapacitated individuals ended
“when the plaintiffs, through their next friends, filed suit on their claims” in federal
court. See
606 S.E.2d at 890–91. Additionally, the court distinguished Harper,
which involved the actual filing of a suit by a next friend on behalf of the
incapacitated individual, from that “in which guardians were merely appointed
for . . . disabled children,”
id. at 891 (emphasis added), which occurred in its
decision in Whalen v. Certain-Teed Products Corp., see
134 S.E.2d 528, 529–30
(Ga. Ct. App. 1963).
Chellis Howard urges us not to apply these three cases, asserting that they are
contrary to the plain language of section 9-3-90, based on dicta, and against the
“understanding of the statute expressed by both the Georgia Supreme Court and this
Court.” However, we have held that “[a] federal court applying state law is bound
to adhere to decisions of the state’s intermediate appellate courts absent some
persuasive indication that the state’s highest court would decide the issue otherwise.”
Silverberg v. Paine, Webber, Jackson & Curtis, Inc.,
710 F.2d 678, 690 (11th Cir.
1983). And “[a] federal court is bound by this rule whether or not the court agrees
with the reasoning on which the state court's decision is based or the outcome which
the decision dictates.”
Id.
10
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 11 of 14
We conclude that we are bound by the Georgia Court of Appeals’s decisions
in Cline, Price, and Harper interpreting section 9-3-90, as we are not persuaded that
the Georgia Supreme Court would decide the issue—whether a next friend or
guardian filing a suit on behalf of a mentally incapacitated individual ends the tolling
of the limitations period—otherwise. Indeed, none of the cases relied upon by
Chellis Howard from the Georgia Supreme Court or this Court involve the filing of
a suit by a next friend or guardian of a mentally incapacitated individual, nor do they
indicate that the Georgia Supreme Court would not reach the same holding as Cline,
Price, and Harper. See Kumar v. Hall,
423 S.E.2d 653, 655–58 (Ga. 1992)
(interpreting O.C.G.A. § 9-3-73(b), which governs the statute of limitations for
medical malpractice claims by mentally incompetent individuals, by referencing the
language of an older version of section 9-3-90); Deen v. Stevens,
698 S.E.2d 321,
325 (Ga. 2010) (noting that “[t]he legally incompetent are generally permitted to toll
actions until their legal incompetence passes, but may not toll in cases of medical
malpractice” (quoting Deen v. Egleston,
597 F.3d 1223, 1229 (11th Cir. 2010)));
Thompson v. Corr. Corp. of Am., 485 F. App’x 345, 347–48 (11th Cir. 2012)
(examining whether a plaintiff met the mental incapacity standard set forth in section
9-3-90(a)); Lawson v. Glover,
957 F.2d 801, 805–06 (11th Cir. 1987) (same).
Chellis Howard also points to the statement by the Georgia Court of Appeals
in Whalen that “since all the parties enumerated in [a predecessor statute to section
11
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 12 of 14
9-3-90] are in the same class, it follows that the law applicable to a minor is equally
applicable to the other classes of persons enumerated.”
134 S.E.2d at 530. Based
on Whalen, she contends that because the incapacity of minors is not removed until
they reach the age of majority, the section 9-3-90 tolling for a mentally incapacitated
individual does not end until the disability causing the incapacity is removed.1
Similarly, she asserts that, because the filing of a suit by a next friend or guardian ad
litem on behalf of a minor does not start the running of the statute of limitations
period under Georgia law, see Barnum v. Martin,
219 S.E.2d 341, 344 (Ga. Ct. App.
1975), overruled on other grounds by Dep’t of Pub. Safety v. Ragsdale,
839 S.E.2d
541 (Ga. 2020), a next friend or guardian filing suit on behalf of a mentally
incapacitated individual likewise does not end the tolling provided by section 9-3-
90(a). However, the Georgia Court of Appeals has twice considered Whalen in
addressing this issue, see Price, 446 S.E.2d at 87–88 (referencing the trial court’s
discussion of Whalen); Harper,
606 S.E.2d at 891 (distinguishing Whalen), but has
nonetheless concluded that a next friend or guardian filing a suit on behalf of a
mentally incapacitated individual ends the tolling provided by section 9-3-90(a). We
therefore reject this argument.
1
O.C.G.A. § 9-3-90(b) provides that “individuals who are less than 18 years of age when
a cause of action accrues shall be entitled to the same time after he or she reaches the age of 18
years to bring an action as is prescribed for other persons.” Before a 2015 amendment was enacted
to section 9-3-90, the statute addressed both minors and mentally incompetent individuals in the
same subsection. See O.C.G.A. § 9-3-90(a) (2015).
12
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 13 of 14
For similar reasons, we deny Chellis Howard’s motion to certify this question
of law to the Georgia Supreme Court. “The decision whether to certify a question
of state law to a state supreme court is committed to this court’s discretion.” Smigiel
v. Aetna Cas. & Sur. Co.,
785 F.2d 922, 924 (11th Cir. 1986). Indeed, certification
is not “automatic or unthinking,” and “[w]e use much judgment, restraint and
discretion in certifying” a question of state law. Royal Cap. Dev., LLC v. Md. Cas.
Co.,
659 F.3d 1050, 1055 (11th Cir. 2011) (quoting State of Florida ex rel. Shevin
v. Exxon Corp.,
526 F.2d 266, 274–75 (5th Cir. 1976)). The most important factors
we consider in determining whether to certify is whether the question of state law is
unsettled and “the closeness of the question and the existence of sufficient sources
of state law . . . to allow a principled rather than conjectural conclusion.” See
id.
(alteration in original) (quoting Shevin,
526 F.2d at 274–75); cf. Escareno v. Noltina
Crucible & Refractory Corp.,
139 F.3d 1456, 1461 (11th Cir. 1998) (“We sometimes
will decide a question of state law, even when there is doubt as to how a state court
would resolve the issue.”). As previously noted, the Georgia Court of Appeals has
issued three separate decisions concluding that the filing of a suit by a next friend or
guardian on behalf of a mentally incapacitated individual ends the tolling of the
limitations period provided by section 9-3-90. In other words, the question of state
law before us is not unsettled, as the state intermediate appellate court has considered
and opined on the issue several times. And we are again not persuaded by Chellis
13
USCA11 Case: 21-11099 Date Filed: 09/29/2021 Page: 14 of 14
Howard’s arguments that the Georgia Supreme Court would disapprove of Cline,
Price, and Harper.
Here, it is undisputed that Chellis Howard filed the complaint in the 2017
Lawsuit as next friend of Kwame Howard against other defendants on August 29,
2017. Once she filed the 2017 Lawsuit as next friend, the tolling provided by section
9-3-90 ended, as explained by Cline, Price, and Harper, and the two year statute of
limitations for personal injury claims under Georgia law began to run. See O.C.G.A.
§ 9-3-33. Chellis Howard did not file the complaint in the instant case, however,
until April 17, 2020, i.e., more than two years after she filed the 2017 Lawsuit.
Therefore, the statute of limitations for the personal injury claim was already expired
when Chellis Howard filed the underlying complaint. Accordingly, the district court
did not err in granting Kimley-Horn’s motion for partial judgment on the pleadings
and dismissing the personal injury claim.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of Kimley-
Horn’s motion for partial judgment on the pleadings and dismissal of the personal
injury claim in Count 1 of the complaint, and we deny Chellis Howard’s motion for
certification to the Georgia Supreme Court.
AFFIRMED.
14
