SEIBERT v. ALEXANDER, Jr. Et Al. ( 2019 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN 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
June 26, 2019
In the Court of Appeals of Georgia
A19A0508. SEIBERT v. ALEXANDER, JR. et al.
MILLER, Presiding Judge.
Proceeding pro se, Steven Jacob Seibert appeals from the trial court’s order
dismissing his mandamus petition and tort claims against Gwinnett County’s Clerk
of Superior Court and the “Gwinnett Co. Court Clerk’s Office.” Among other
contentions, Seibert argues that the clerk, Richard T. Alexander, Jr., failed to properly
record and report his discharge under the First Offender Act, OCGA § 42-8-60 et seq.
Although we affirm the trial court’s dismissal of Seibert’s claims for damages, we
determine that Seibert was entitled to have the record properly reflect his discharge
under the First Offender Act. Therefore, we affirm in part and reverse in part.
“We review the grant of a summary judgment motion de novo, viewing the
evidence and all reasonable inferences and conclusions drawn from it in the light
most favorable to the nonmovant.” (Citation omitted.) Teston v. SouthCore Constr.,
Inc., 336 Ga. App. 733, 734 (783 SE2d 921) (2016).
In September 1999, Seibert was indicted on one count of crossing of guard
lines with weapons, and, after a bench trial, he received a first-offender sentence. The
trial court sentenced him to serve 18 months in confinement, and the sentencing sheet
provides, “[u]pon fulfillment of the terms of probation, or upon release of the
defendant by the Court prior to the termination of the period thereof, the defendant
shall stand discharged of said offense charged and shall be completely exonerated of
guilt of said offense charged.” Seibert successfully completed his first-offender
sentence on May 9, 2001.
In February 2007, a jury found Seibert guilty of two counts of aggravated
stalking (OCGA § 16-5-91), and one count of abandoning a dependent child (OCGA
§ 19-10-1). The trial court sentenced him to a 21-year term, consisting of 15 years’
confinement, with the remainder of the sentence to be served on probation. Years
later, Seibert was convicted of two counts of aggravated stalking (the “2011” criminal
case), but this Court reversed these convictions. Seibert v. State, 321 Ga. App. 243
(739 SE2d 91) (2013). While incarcerated, Seibert filed a December 11, 2014 “motion
to compel court clerk to properly record and report successful completion of First-
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Offender status.” In the motion, Seibert argued his belief that he was being repeatedly
denied parole and work release on his 2007 sentence for aggravated stalking because
the clerk had never recorded that he had successfully completed his first-offender
sentence in May 2001.
Days after he filed this motion, the trial court issued an “order of discharge.”
The trial court found that Seibert completed his first-offender sentence without an
adjudication of guilt, ordered that he receive a discharge that completely exonerated
him of any criminal purpose, and directed that the Georgia Crime Information Center
(“GCIC”) be notified of the discharge in accordance with the First Offender Act. The
order was filed on December 30, 2014. The clerk then made an entry “on the criminal
docket and all other records of the [c]ourt,” explaining the exoneration effect of the
discharge. The clerk’s entry was dated December 31, 2014, and the clerk reported the
record of discharge to the GCIC. Gwinnett County Superior Court’s electronic
records pertaining to Seibert read as follows: “First Offender Completed on 12-22-
14” and “1st Offender Discharge on 12-30-14.”
In April 2015, Seibert filed a motion to amend the order of discharge in the
underlying criminal case, requesting that the trial court’s order be amended to show
that his discharge date was actually May 9, 2001, when he completed his sentence.
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He also asked that the clerk properly record and report the discharge date. The trial
court denied the motion without explanation. Subsequently, Seibert moved to hold
the district attorney, an assistant district attorney, and the clerk in contempt for failure
to comply with the discharge order and for failure to properly record his first-offender
discharge. The trial court denied the motion, concluding, inter alia, that the clerk’s
office appropriately identified Seibert’s first-offender discharge in its records.
Seibert then brought the present mandamus and tort action. In March 2017, he
filed a petition for mandamus and injunctive relief against the “Gwinnett Co. Court
Clerk’s Office” and Richard T. Alexander, Jr., the clerk of Gwinnett County Superior
Court. Seibert argued that the clerk’s office did not properly report the successful
completion of his sentence and requested that the trial court compel the clerk and the
clerk’s office to record and report the discharge date as May 9, 2001. After the
defendants moved for summary judgment, Seibert amended his complaint, adding
negligence claims for compensatory and punitive damages and purporting to add
subordinate employees in the trial court clerk’s office and the former trial court clerk
as defendants.
Following a hearing, the trial court granted the defendants’ motion for
summary judgment and dismissed Seibert’s case in its entirety. The trial court first
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dismissed the clerk’s office as a party to the action, determining that it was not a legal
entity capable of being sued. The trial court also found that the clerk, Alexander, had
not been served, that Seibert had failed to act with reasonable diligence in
effectuating service, and that dismissal was warranted under OCGA § 9-11-12 (b) (5).
Regarding Seibert’s request to have the discharge date changed to May 9, 2001,
the trial court found that the clerk correctly reported the date as December 30, 2014,
the entry date of the order. The trial court reasoned that Seibert’s discharge could not
have been automatic when he completed his sentence because, under OCGA § 42-8-
60 as it existed at the time, the trial court was first required to review Seibert’s
criminal record before granting a discharge and that review only occurred in 2014.
The trial court further determined that Seibert’s attempt to compel the clerk to undo
an act, through mandamus, was contrary to law, and that collateral estoppel also
presented a procedural bar to Seibert’s “claims for relief.” The trial court ruled that
the clerk fully discharged his duty to record and report this Court’s 2013 reversal of
Seibert’s aggravated stalking convictions, and that Seibert’s tort claims were barred
by the two-year statute of limitations under OCGA § 9-3-33. We granted Seibert’s
application for discretionary review, and this appeal followed.
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1. First, the trial court correctly dismissed the case as against the clerk’s office
on the basis that it is not a legal entity subject to suit.
“[I]n every suit there must be a legal entity as the real plaintiff and the real
defendant. This state recognizes only three classes as legal entities, namely: (1)
natural persons; (2) an artificial person (a corporation); and (3) such quasi-artificial
persons as the law recognizes as being capable to sue.” (Citation omitted.) Georgia
Insurers Insolvency Pool v. Elbert County, 258 Ga. 317, 318 (1) (368 SE2d 500)
(1988). And, as the trial court properly recognized, there is no legal provision that
designates a trial court clerk’s office as either a person or corporation capable of
being sued. Although the Georgia Constitution recognizes the “clerk of the superior
court” as an officer of the county, and designates each county as “a body corporate
and politic,” Ga. Const. of 1983, Art. IX, Sec. I, Par. I, III, neither the Georgia Code
nor the Georgia Constitution establishes the clerk’s office as a separate legal entity.
Cf. Taylor v. Fulton County, No. 1:08-CV-3242-RLV (N.D. Ga. May 5, 2011) (noting
that, “[i]n establishing the position of sheriff, the Georgia Code did not create the
Office of the Sheriff, a legal entity capable of suing and being sued,” and the fact that
the sheriff is constitutionally elected did not mean that his office was a distinct legal
entity); Lawal v. Fowler, 196 Fed. Appx. 765, 768 (11th Cir. 2006) (noting that
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sheriff’s departments and police departments are not usually considered legal entities
subject to suit). See also Cott Index Co. v. Jagneaux, 685 So2d 656, 658 (La. Ct. App.
1996) (“The office of the clerk of court has no legal status and is simply the
functional organization by and through which the clerk of court carries out his/her
official duties. As with the office of the sheriff, . . . it [cannot] be a legal party to
litigation. Instead, it is the clerk, as the office holder, . . . who is the party to
litigation.”). Thus, the trial court properly dismissed the clerk’s office as a defendant
to the lawsuit.
2. We agree with Seibert, however, that Alexander was properly served.
A trial court’s finding of insufficient service of process is reviewed for an
abuse of discretion. Williams v. Patterson, 306 Ga. App. 624, 626 (1) (703 SE2d 74)
(2010). Simultaneously, “[w]hen a defendant in a lawsuit challenges the sufficiency
of service, he bears the burden of showing improper service. And this is a heavy
burden. Return of service constitutes a prima facie showing of personal service. The
defendant is apprised by the return of what he must contest.” (Footnotes omitted.)
Baughan v. Alaoui, 240 Ga. App. 661, 663 (1) (524 SE2d 536) (1999). See OCGA
§ 9-11-4 (e) (7) (personal service shall be effected by delivering a copy of the
summons and complaint to the defendant personally). “The return can only be set
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aside upon evidence which is not only clear and convincing, but the strongest of
which the nature of the case will admit.” (Citations omitted.) Earley v. Dyson, 220
Ga. App. 586 (469 SE2d 841) (1996).
As the basis for its ruling that Alexander was not served, the trial court
explained that the entry of service form showed that the deputy had checked the box
for service upon a corporation and wrote that service had been effected on the clerk’s
office. However, this same form shows that the deputy left a copy of the summons and
complaint with Alexander, as the individual “in charge of the office,” and there is no
dispute that Alexander received a copy of the summons and complaint. Indeed, as
discussed above, Seibert could not have even brought an action against the office. In
Montgomery v. USS Agri-Chemical Division, 155 Ga. App. 189, 191 (2) (270 SE2d
362) (1980), we explained that “[if] . . . the fact of service appears, and the officer’s
return is irregular or incomplete, it should not be treated as no evidence, but rather as
furnishing defective proof of the fact of service.” This is because “[i]t is the fact of
service which confers jurisdiction, and not the return, and the latter may be amended
to speak the truth.” Id. at 192 (2). Insofar as Alexander was sued in his official
capacity as the clerk and the entry of service form shows that a copy of the summons
and complaint were left with him — as the individual “in charge of” the clerk’s office
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— the facts show that Alexander was served, and we reverse the trial court’s ruling
to the contrary.
3. Next, we determine that regardless of whether mandamus was an appropriate
remedy in this case, Seibert was entitled to have the record properly reflect his
discharge under the First Offender Act.
Preliminarily, we note that “sovereign immunity is no bar to petitions for writs
of mandamus.” Lathrop v. Deal, 301 Ga. 408, 434 (III) (C) (801 SE2d 867) (2017).
“Mandamus will issue when the petitioner has a clear legal right to the relief sought
and the public officer commits a gross abuse of discretion.” (Footnote omitted.)
Henderson v. McVay, 269 Ga. 7 (1) (494 SE2d 653) (1998). Accordingly, “mandamus
will lie when the official act is purely ministerial . . . .” (Footnote omitted.) Id.
Beginning in 1982, the First Offender Act “provide[d] for confinement as a
permissible condition of first-offender treatment.” O’Ree v. State, 172 Ga. App. 51
(1) (322 SE2d 89) (1984). At the time of Seibert’s plea in 1999, the First Offender
Act provided,
in the case of a defendant who has not been previously convicted of a
felony, the court may, without entering a judgment of guilt and with the
consent of the defendant:
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(1) Defer further proceeding and place the defendant on probation as
provided by law; or
(2) Sentence the defendant to a term of confinement as provided by law.
OCGA § 42-8-60 (a) (1986).
Upon fulfillment of the terms of probation, upon release by the court
prior to the termination of the period thereof, or upon release from
confinement, the defendant shall be discharged without court
adjudication of guilt . . . and the defendant shall not be considered to
have a criminal conviction.
(Emphasis supplied.) OCGA § 42-8-62 (a) (1990). See O’Ree, supra, 172 Ga. App.
at 51 (1) (analyzing the statute as it existed at the time of the defendant’s plea).
OCGA § 42-8-62 (a) also mandated that the clerk “enter on the criminal docket and
all other records of the court pertaining thereto” a notice of the defendant’s discharge
and the legal effect thereof. State v. Mills, 268 Ga. 873, 874 (495 SE2d 1) (1998)
(citing OCGA § 42-8-62 (a)).
In 1998, the Supreme Court of Georgia reasoned that under the version of
OCGA § 42-8-62 in effect at that time, a discharge from first-offender probation was
automatic, as long as probation had been successfully completed. Mills, supra, 268
Ga. at 874. Pertaining to the duty of the clerk, the Supreme Court made clear that the
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clerk’s specified notice “evidences the probationer’s pre-existing automatic
discharge and does not constitute the ‘discharge’ itself.” (Emphasis supplied.) Id.
And, the Supreme Court has plainly stated that the duty to memorialize the pre-
existing fulfillment of a first-offender’s sentence is a ministerial act. Id.
Applying these principles to this appeal, we conclude that Seibert’s discharge
was automatic upon his “release from confinement,” as prescribed by OCGA § 42-8-
62 (a) (1990), and not upon any formalized certification by the trial court. See Mills,
supra, 268 Ga. at 874 (“[I]f a first-offender probationer is not ‘discharged’ pursuant
to OCGA § 42-8-62, it is only because he did not successfully complete his term of
probation, not because certification of that successful completion was not entered in
the records of the trial court ‘pursuant to Code Section 42-8-62.’”).
We recognize that the prior version of the First Offender Act read as follows:
“The court shall not sentence a defendant under the provisions of this article and, if
sentenced under the provisions of this article, shall not discharge the defendant upon
completion of the sentence unless the court has reviewed the defendant’s criminal
record as such is on file with the Georgia Crime Information Center.” OCGA § 42-8-
60 (c) (1986). The trial court, having considered this clause, found that it could not
discharge Seibert until reviewing his criminal record. Again, however, both the plain
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text of OCGA § 42-8-62 (a) and our precedent make clear that the trial court does not
order a discharge under OCGA § 42-8-62 (a); it is an automatic occurrence.
Because the trial court had neither revoked Seibert’s first-offender status nor
entered an adjudication of guilt, we conclude that Seibert was discharged upon his
release from confinement in May 2001. See Ailara v. State, 311 Ga. App. 862, 864
(717 SE2d 498) (2011) (noting that because the trial court never revoked defendant’s
first offender status, or entered an adjudication of guilt, the defendant was entitled to
discharge under the First Offender Act “upon fulfilment of [his] probationary
period”).
Further, even assuming that the trial court was correct that mandamus relief
was not an available remedy in this case, and that the clerk had no authority to “back-
date the Discharge Order,” the trial court should have construed Seibert’s request as
a motion to correct the “order of discharge.” This is because the effect of the trial
court’s judgment in this case was that the clerk’s records did not evidence Seibert’s
“pre-existing automatic discharge.” On the contrary, the clerk’s records explicitly and
incorrectly represented that Seibert was discharged in December 2014, reflecting
when the trial court’s order was dated and filed.
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It is well settled that “there is no magic in mere nomenclature, and pleadings
are construed to serve the best interests of the pleader, and are judged by function
rather than name.” Davis v. State, 330 Ga. App. 711, 712 (769 SE2d 133) (2015). See
OCGA § 9-11-8 (f) (“All pleadings shall be so construed as to do substantial
justice.”); Butts v. State, 149 Ga. App. 492, 493 (3) (254 SE2d 719) (1979)
(recognizing that the trial court has “authority at any time to correct an error on its
records” and that it is the “court’s duty to correct its own records to make them speak
the truth”). See Collins v. State, 338 Ga. App. 886, 888-889 (1) (792 SE2d 134)
(2016) (construing a defendant’s “motion for discharge and exoneration” as a motion
to correct a void sentence where the defendant challenged trial court’s order finding
his performance of his first-offender sentence unsatisfactory and denying him a first-
offender discharge).
Thus, presuming mandamus relief was not available, Seibert was nevertheless
entitled to have the trial court’s order reflect that he was discharged as of the date on
which he successfully completed his sentence, so that the clerk’s records, in turn,
would accurately reflect his discharge.1 See Ailara, supra, 311 Ga. App. at 864
(determining that although the defendant’s discharge was automatic, the trial court’s
1
Our conclusion renders moot Seibert’s thirteenth claim of error.
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erroneous order “sp[oke] for itself” and the defendant would benefit from the reversal
of the order).
4. Next, Seibert challenges the trial court’s dismissal of his amended complaint
on the basis that the statute of limitations period had expired as to his tort claims. The
trial court did not err in this regard.
“When a question of law is at issue, such as whether the statute of limitation
bars an action, we owe no deference to the trial court’s ruling and apply the plain
legal error standard of review.” (Citation omitted.) Harpe v. Hall, 266 Ga. App. 340
(596 SE2d 666) (2004). “The general rule for determining when a cause of action
accrues and the statute of limitation begins to run is well-settled in Georgia: The true
test to determine when a cause of action accrues is to ascertain the time when the
plaintiff could first have maintained his or her action to a successful result.” (Citation
omitted.) Demere Marsh Assoc., LLC v. Boatright Roofing & Gen. Contracting, Inc.,
343 Ga. App. 235, 238-239 (1) (808 SE2d 1) (2017). Under OCGA § 9-3-33, “actions
for injuries to the person shall be brought within two years after the right of action
accrues, except for injuries to the reputation, which shall be brought within one year
after the right of action accrues.”
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After requesting permission in October 2017, Seibert filed an amended
complaint in January 2018, alleging “negligent performance” on the clerk’s part and
demanding “compensatory and punitive damages” stemming from the failure to report
his first offender discharge. More than two years prior, however, on February 26,
2015, the clerk had already updated the notice of the discharge order to the GCIC.
This was the latest time at which Seibert’s purported tort action accrued because he
had long since been automatically discharged and could have maintained an action
to a successful result. Therefore, by the time Seibert raised his tort claims, the
applicable two-year limitation period had lapsed.
We are unpersuaded by Seibert’s argument that because the clerk has not yet
“properly” performed his ministerial duty, the continuing tort doctrine applies so as
to toll the statute of limitations. Even if this doctrine applied, the Supreme Court of
Georgia has made clear that “in a continuing tort a cause of action accrues when a
plaintiff discovers, or with reasonable diligence should have discovered, both the
injury and the cause thereof.” (Citation omitted.) Waters v. Rosenbloom, 268 Ga. 482,
483 (2) (490 SE2d 73) (1997) (action was barred by the five-year statute of repose
because the plaintiff knew or through reasonable diligence should have discovered
the injury and the cause of such injury before the five years preceding the filing of the
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action). See King v. Seitzingers, Inc., 160 Ga. App. 318 (287 SE2d 252) (1981) (in
a continuing tort a cause of action accrues “so as to cause the statute of limitation to
run” when a plaintiff discovers or with reasonable diligence should have discovered
that he was injured). As early as April 2015, Seibert was complaining in filings in the
trial court that the clerk had recorded and reported to the GCIC an incorrect discharge
date, allegedly causing him harm. Seibert’s reliance on Hicks v. McGee, 283 Ga. App.
678 (642 SE2d 379) (2007) is unavailing because it is not apparent from that case that
the plaintiff knew (or should have known) before the expiration of the statute of
limitations that the clerk had failed to notify the Department of Corrections of his
sentence. Accordingly, by the time Seibert filed his purported tort claim in 2018, the
two-year limitations period had expired and the claim was time-barred.
5. We now address the trial court’s determination that the clerk properly
discharged his duties regarding the recording and reporting of Seibert’s 2011 criminal
case. Again, the trial court did not err.
The record contains an apparent printout from a Georgia Department of
Corrections website, dated September 5, 2014, which Seibert claims shows that he
was still sentenced on the aggravated stalking convictions that this Court reversed in
2013. Seibert’s position is that this document illustrates that the clerk failed to timely
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notify the Commissioner of the Georgia Department of Corrections of the reversal.
See OCGA § 42-5-50 (a) (“The clerk of the court shall notify the commissioner of a
sentence within 30 working days following the receipt of the sentence and send other
documents set forth in this Code section.”). However, this document does not evince
that the clerk failed to report that the 2011 convictions had been reversed. The
director of the records and reporting division with the clerk’s office averred that the
clerk, within 30 working days of our decision in Seibert, notified GCIC of this
Court’s reversal. Given the absence of evidence to the contrary, this enumeration
fails.
6. Lastly, in his twelfth and fourteenth enumerations of error, Seibert raises a
litany of issues that were not ruled on by the trial court and are therefore not properly
before us. Sherman v. Dev. Auth. of Fulton County, 320 Ga. App. 689, 695 (4) (740
SE2d 663) (2013) (“The law in Georgia is that because the appellate courts are for
correction of errors of law, issues which have not been ruled on by the trial court may
not be raised on appeal.”) (citation and punctuation omitted); Georgia Dept. of
Natural Resources v. Coweta County, 261 Ga. 484, 485 (405 SE2d 470) (1991)
(same). Thus, these claims provide nothing for us to review.
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In sum, although it erred in concluding that the clerk was not served, the trial
court properly determined that the clerk’s office was not subject to suit, that Seibert’s
tort claims were time barred, and that the clerk properly discharged his duties
regarding the recording and reporting of the conviction and sentence in Seibert’s
2011 criminal case. The trial court’s order denying Seibert’s March 2017 petition is
reversed in part, and this case is remanded for the entry of an order reflecting that
Seibert was discharged as of the date that he completed his first-offender sentence,
so the clerk can, in turn, fulfill his recording and reporting duties under statute. See
Collins, supra, 338 Ga. App. at 891 (3) (reversing the trial court’s order denying the
defendant’s motion and remanding for entry of an order of exoneration and discharge
consistent with the First Offender Act).
Judgment affirmed in part and reversed in part. Rickman and Reese, JJ.,
concur.
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