Williams v. Durden. ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 21, 2018
In the Court of Appeals of Georgia
A18A1543. WILLIAMS v. DURDEN.
BARNES, Presiding Judge.
Following an automobile collision, Doris Williams sued Juanita Durden for the
injuries she sustained. The trial court granted summary judgment to Durden on the
ground that Williams’s suit was barred by the two-year statute of limitation applicable
to personal injury claims, OCGA § 9-3-33. Williams appeals, contending that the trial
court erred in granting summary judgment to Durden because there was evidence that
the limitation period was tolled pursuant to OCGA § 9-3-99. For the reasons
discussed below, we agree with Williams and therefore reverse.
“On appeal from a grant of summary judgment, we conduct a de novo review
of the evidence to determine if there exists a genuine issue of material fact and
whether the undisputed facts, viewed in the light most favorable to the nonmoving
party, entitle the movant to judgment as a matter of law.” (Citation, punctuation, and
footnote omitted.) Wilson v. Obstetrics & Gynecology of Atlanta, 304 Ga. App. 300,
301 (696 SE2d 339) (2010). See OCGA § 9-11-56 (c). The movant on summary
judgment has the burden of proof regarding the affirmative defense of the running of
the statute of limitation, and once the movant presents evidence that the limitation
period has run, “[t]he burden of persuasion then shifts to the nonmovant to present
some evidence showing that an issue exists that the statute has not run but has been
tolled.” (Citation and punctuation omitted.) Smith v. Suntrust Bank, 325 Ga. App.
531, 539 (1) (754 SE2d 117) (2014). Summary judgment is improper if a genuine
factual dispute exists concerning whether the limitation period has been tolled. See
id. at 542 (1); Wilson, 304 Ga. App. at 305 (1).
Under Georgia law, with certain exceptions, “actions for injuries to the person
shall be brought within two years after the right of action accrues.” OCGA § 9-3-33.
However, the limitation period may be tolled for actions brought by crime victims
pursuant to OCGA § 9-3-99, which provides in relevant part:
The running of the period of limitations with respect to any cause of
action in tort that may be brought by the victim of an alleged crime
which arises out of the facts and circumstances relating to the
commission of such alleged crime committed in this state shall be tolled
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from the date of the commission of the alleged crime or the act giving
rise to such action in tort until the prosecution of such crime or act has
become final or otherwise terminated . . . .
“By its plain language, the statute contemplates extending the time in which a victim
may file a tort action where there are pending criminal charges arising out of the same
facts or circumstances.” Stopanio v. Leon’s Fence & Guardrail, LLC, 346 Ga. App.
18, 21 (1) (815 SE2d 232) (2018).1 OCGA § 9-3-99 applies to torts arising from
violations of the Uniform Rules of the Road. Beneke v. Parker, 285 Ga. 733, 734 (684
SE2d 243) (2009). Thus, the limitation period for a tort action arising from a traffic
violation is tolled until the prosecution for the violation is no longer pending. See
Forbes v. Smith, 338 Ga. App. 546, 548 (790 SE2d 550) (2016); McGhee v. Jones,
287 Ga. App. 345, 347 (2) (652 SE2d 163) (2007).
Guided by this legal framework, we turn to the record in this case. Viewed in
favor of Williams as the nonmovant, the record reflects that on October 16, 2014,
Williams and Durden were involved in an automobile collision on Highway 54 in
1
OCGA § 9-3-99 “applies regardless of whether the defendant in the case [is
the person] accused of committing the crime from which the cause of action arises.”
Harrison v. McAfee, 338 Ga. App. 393, 402 (3) (788 SE2d 872) (2016) (in case where
victim was shot in bar by third-party perpetrator, OCGA § 9-3-99 applied to tort
claim brought by victim against the alleged bar owners).
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Fayetteville, Georgia. The responding police officer issued Durden a uniform traffic
citation (“UTC” or “citation”) for following too closely, and the UTC listed
November 18, 2014 as the date for contesting the citation in the City of Fayetteville
Municipal Court. On October 27, 2014, Durden paid the traffic citation, which
resulted in a bond forfeiture on November 18, 2014, the court date set in the UTC.
Williams filed her personal injury suit against Durden on November 10, 2016.
Durden later moved for summary judgment, contending that Williams’s lawsuit was
barred by the two-year statute of limitation imposed by OCGA § 9-3-33. Durden
further contended that even if the statute of limitation was tolled by OCGA § 9-3-99
based on the prosecution of her traffic violation in municipal court, the prosecution
was terminated when she paid the citation on October 27, 2014, such that the
limitation period began to run on that date and expired two years later, before
Williams filed her lawsuit.
Williams opposed the summary judgment motion, arguing that there was
evidence that the prosecution of Durden for the traffic violation remained pending
until November 18, 2014, the date the municipal court forfeited Durden’s bond, and
that the tolling period under OCGA § 9-3-99 did not end until that date. And, because
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that date was less than two years before she filed her personal injury lawsuit,
Williams argued that her suit was timely under OCGA § 9-3-33.
Following a hearing, the trial court granted Durden’s motion for summary
judgment, concluding that the prosecution of Durden for the traffic violation was
terminated on October 27, 2014, when she paid the traffic citation. Consequently, the
trial court ruled that Williams had filed her lawsuit more than two years after the
tolling period began to run and that her suit thus was time-barred under OCGA § 9-3-
33. This appeal by Williams followed.
Because Durden carried her burden of showing that Williams’s lawsuit was
filed more than two years after the cause of action accrued, the burden shifted to
Williams to produce some evidence that the limitation period had not run because the
suit was tolled under OCGA § 9-3-99. See Forbes, 338 Ga. App. at 547; Smith, 325
Ga. App. at 539 (1). Our review of the record leads us to conclude that Williams met
her burden in this case, and that the trial court therefore erred in granting summary
judgment to Durden based on the statute of limitation.
The UTC issued to Durden on October 16, 2014 commenced her prosecution
in municipal court for the traffic violation of following too closely. See OCGA §§ 17-
7-71 (b) (1) (“In all misdemeanor cases arising out of violations of the laws of this
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state, relating to . . . the operation and licensing of motor vehicles and operators . . .
the defendant may be tried upon the uniform traffic citation and complaint provided
for in Article 1 of Chapter 13 of Title 40.”); 40-13-1 (UTC “shall serve as the citation,
summons, accusation, or other instrument of prosecution of the offense or offenses
for which the accused is charged”); Forbes, 338 Ga. App. at 547 (noting that “the
UTC issued by the officer . . . commenced prosecution on the alleged misdemeanor
traffic offense”). Williams’s lawsuit therefore was tolled by OCGA § 9-3-99 until
Durden’s prosecution for the traffic violation was no longer pending in municipal
court. See Stopanio, 346 Ga. App. at 21 (1) (OCGA § 9-3-99 extends time for filing
tort action “where there are pending criminal charges”); Forbes, 338 Ga. App. at 548
(lawsuit tolled under OCGA § 9-3-99 while prosecution remains pending).
In opposing summary judgment, Williams produced evidence that the
prosecution of Durden for the traffic violation remained pending in municipal court
until November 18, 2014, which was less than two years before the lawsuit was filed.
In this regard, Williams submitted as an exhibit a certified copy of the UTC issued
to Durden, and the completed “Disposition and Sentence” section of the UTC listed
the “action” disposing of the case as a “bond forfeiture” and the “disposition date” as
November 18, 2014. Additionally, Williams submitted as an exhibit a certified copy
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of a docket record from the municipal court that listed the “court date” for Durden’s
traffic violation as November 18, 2014 and designated the “finding” in the case as a
“bond forfeiture.” These public records,2 construed in favor of Williams, would
support a finding that while Durden paid her traffic citation on October 27, 2018, the
prosecution of Durden for the traffic citation remained pending until November 18,
2018, when a municipal court judge forfeited Durden’s bond and disposed of the
case. See OCGA § 40-13-1 (UTC “shall serve as . . . the record of the disposition of
the matter by the court before which the accused is brought”); Beneke v. Parker, 293
2
Because Durden did not object to the aforesaid records submitted by Williams
in opposition to summary judgment, Durden waived any objection to the exhibits on
hearsay or authentication grounds. See OCGA § 24-8-802 (providing in part that “if
a party does not properly object to hearsay, the objection shall be deemed waived, and
the hearsay evidence shall be legal evidence and admissible”); Tselios v. Sarsour, 341
Ga. App. 471, 474, n. 3 (800 SE2d 636) (2017) (defendant waived authentication
objection to exhibit submitted at summary judgment stage by failing to object in trial
court); Mashburn Constr. v. CharterBank, 340 Ga. App. 580, 583 (2) (798 SE2d 251)
(2017) (in context of summary judgment proceedings, defendants waived hearsay
objection to exhibit attached to affidavit by failing to object in trial court). See
generally OCGA § 24-9-920 (“The certificate or attestation of any public officer
either of this state or any county thereof or any clerk or keeper of county,
consolidated government, or municipal records in this state shall give sufficient
validity or authenticity to any copy or transcript of any record, document, paper or
file, or other matter or thing in such public officer’s respective office, or pertaining
thereto, to admit the same in evidence.”); Paul S. Milich, Ga. Rules of Evidence, § 7.5
(Sept. 2017 update) (discussing authentication of public documents, including
Georgia municipal records).
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Ga. App. 186, 187 (667 SE2d 97) (2008) (noting that the “traffic citation was not
resolved until . . . the bond forfeiture”), rev’d in part on other grounds, 285 Ga. 733(684 SE2d 243) (2009). Accordingly, there was evidence that Williams’s personal
injury action was tolled by OCGA § 9-3-99 until November 18, 2018 and that her
lawsuit thus was timely.3
3
Williams argues that Durden’s payment of the traffic citation constituted the
posting of a “cash bond” that was later forfeited in accordance with OCGA § 40-13-
58, which provides:
Where a defendant cited for a traffic violation posts a cash bond
according to the schedule set up by court order and fails to appear in
court at the term of court and on the day set in the original citation and
complaint, then and in that event, such failure shall be construed as an
admission of guilt and the cash bond may be forfeited without the
necessity for the statutory procedure provided for the forfeiture of
statutory bail bonds. A judgment of guilty may be entered accordingly,
ordering the case disposed of and settled. The proceeds of the cash bond
shall be applied and distributed as any fine imposed by said court would
be. Nothing in this Code section shall be construed as preventing the
judge from ordering the defendant to appear and stand trial.
But, that statute applies in the circumstance where a defendant posts a cash bond
“according to the schedule set up by court order,” and the statute is found in Article
3 of Chapter 13 of Title 40, which pertains to “traffic violations bureaus” established
by courts with jurisdiction over the violation of traffic laws or ordinances. See OCGA
§ 40-13-50. It is simply unclear from the record whether OCGA § 40-13-58 applies
here. We need not resolve that question, however, because this case does not turn on
a determination of the specific statutory authority for the bond forfeiture that occurred
in the municipal court.
8
In concluding that the Durden’s prosecution for the traffic violation terminated
for purposes of OCGA § 9-3-99 when she paid her traffic citation on October 27,
2018, the trial court relied on McGhee v. Jones, 287 Ga. App. 345, 347 (2) (652 SE2d
163) (2007), but that case is distinguishable. In McGhee, we affirmed the trial court’s
grant of summary judgment to the defendant on statute-of-limitation grounds based
on the conclusion that the defendant’s prosecution for a traffic violation terminated
for purposes of OCGA § 9-3-99 when she “paid the fine for her traffic ticket.”
McGhee, 287 Ga. App. at 347 (2). However, there is no indication in McGhee that the
defendant paid her ticket before the date scheduled for the hearing in traffic court, in
contrast to the present case. Furthermore, and most notably, we pointed out in
McGhee that the plaintiffs had procedurally abandoned any argument that the
defendant remained subject to prosecution after payment of the traffic ticket. Id. Thus,
McGhee did not involve a situation where, as in the instant case, evidence was
properly submitted that the prosecution of the defendant for the traffic violation
remained pending after payment of the traffic citation until the hearing date when the
defendant’s bond was forfeited.
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For these reasons, Williams met her burden of producing evidence that the two-
year limitation period applicable to her tort suit had not run because it was tolled.
Accordingly, the trial court erred in granting summary judgment to Durden.
Judgment reversed. McMillian and Reese, JJ., concur.
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