Holding a government employee responsible for injuries in Georgia: Ante litem notices

 

If you’re hurt by a police officer involved in a high-speed pursuit or county employee negligently driving a government truck, you must follow a complicated set of procedures to recover for your injuries. This is because the government and/or its employees are protected under the doctrine of sovereign immunity. Not closely following these procedures will cause you to quickly lose your claim on a technicality.

The blog deals with the very first requirement, which is sending an ante litem notice. An ante litem notice is a letter sent to the government entity that describes the details of the incident, explains why the government entity is responsible, and states the injuries sustained. In theory, an ante litem notice is required to give the government entity an opportunity to timely investigate the allegations. With few exceptions, failure to timely send an ante litem notice to the correct entity ends a claim for injuries.

Generally, claims vary by the type of government entity: for example, counties, cities/municipalities, state entities, or federal entities. Below is a quick overview of some basic aspects of ante litem notice requirements.

With respect to a county entity (for example, a county sheriff’s office), an ante litem notice must be presented within 12 months of the injury. Each county is set up a little differently, but generally notice should go to the county attorney and county board of commissioners. With respect to a city or municipality, an ante litem notice must be presented within six months of the injury. Notice is normally sent to the mayor and the city attorney. Ante litem notices to the State of Georgia must be presented within twelve months after the injury. The notice must be delivered to the Risk Management Division of the Department of Administrative Services as well as the government office that is the basis for the claim. Finally, claims against the Federal Government and/or its employees requires submitting a Form 95 administrative claim to the responsible federal agency within two years of the injury.

Even though in our 20 plus years of practicing law we’ve personally never known a government agency take any action in response to an ante litem notice, Georgia courts strictly apply these rules and they must be carefully followed.

Excess Tax Sale Funds in Georgia

Following up on a previous blog regarding whether redeeming parties get priority to claim excess tax sale funds (they don’t), this blog discusses the process of disbursing excess funds following a tax sale.

Under Georgia law, a tax commissioner holds excess funds generated by a tax sale in a fiduciary capacity. Alexander Investment Group v. Jarvis, 263 Ga. 489, 491-492 (1993). Georgia statutory law, in O.C.G.A. § 48-4-5, describes the process of disbursing excess tax sale funds.

If there are any excess funds after paying taxes, costs, and all expenses, within 30 days of the tax sale, written notice is sent by first-class U.S. Mail to the following parties: (1) the owner of the property (delinquent taxpayer), (2) security deed holder, and (3) parties with a properly recorded interest in the property.

The notice of excess tax funds shall describe the land sold, the date sold, the name and address of the tax sale purchaser, the total sale price, and the amount of excess funds. The notice shall also state that the excess funds are available for distribution to the owner or interest holders in the order of priority in which their interests exist on the public record.

If excess funds are unclaimed or a dispute arises regarding who’s entitled to the excess funds, the tax commissioner or sheriff is entitled to deposit the funds into the registry of the superior court so that the superior court can disburse the funds.

If the excess funds remain unclaimed for five years, the funds may be retained. After this time, only a court order from an interpleader action filed in the county where the tax sale occurred, by the claimant for the funds, shall serve as justification for release of the funds.

 

Langley: Important New Personal Injury Case

Langley v. MP Spring Lake, LLC, A18A0193 (May 1, 2018), just issued by the Georgia Court of Appeals, may have a big impact on many future Georgia personal injury cases. Langley involves a residential landlord-tenant relationship in which a tenant sued her landlord for injuries more than a year after the injuries occurred. Normally, in Georgia, an injured party has two years to file a personal injury lawsuit. However, in this case, the landlord moved to dismiss the case because the lease provided only one year to sue the landlord.  This is the exact language in the lease:

Limitation on Actions. To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.

Focusing on the word any, the Court of Appeals ruled that any legal action included not only breach of contract claims but also personal injury claims. Thus, the lease trumped Georgia’s statute of limitations. The Court reasoned that parties should be free to enter into contracts without interference from the courts.

At Gomez & Golomb, we practice personal injury and real estate litigation. Thus, for us, Langley cuts both ways. It’s bad for our personal injury clients, but good for our real estate and corporate clients. From now on, in personal injury cases, we will be looking even more closely at applicable contracts for language that may limit injury claims. For our real estate and corporate clients, we will be advising them that Langley opens the door to include terms in their contracts that limit liability.

Georgia Tax Deed Purchasers Are Responsible for Paying Association Dues

Under Georgia law, a tax deed purchaser is obligated to pay homeowners’ association assessments that come due after the tax sale. See Croft v. Fairfield Plantation Property Owners Assn., 276 Ga. App. 311, 314 (2005). This includes the period before the purchaser can foreclose on the right of redemption. Georgia courts have held that a tax deed purchaser acquires sufficient title to trigger automatic membership in the association. The rationale is that assessments and fees paid to a homeowners’ associations benefit a tax deed purchaser.

The good news for tax deed holders is that Georgia courts allow tax deed holders to include condominium association assessments paid as part of the redemption price. Harvest Assets, LLC v. Northlake Manor Condo. Assn., 340 Ga. App. 237 (2017).

Malicious Prosecution, Wrongful Arrest, and Infliction of Emotional Harm

It goes without saying that being arrested and prosecuted for something you didn’t do is a nightmare. In Georgia, if this happens to you, you have options for holding the responsible parties accountable. To win such a claim, it must be shown that (1) you were prosecuted for a criminal offense, (2) there was no probable cause for the prosecution, (3) the prosecution was instigated with malice, (4) the prosecution was under a valid warrant, (5) the charges were dismissed, and (6) you were damaged.

Whether you prosecuted for a crime under a valid warrant, whether the charges were dismissed, and whether you were damaged are straightforward factual issues. The more difficult issues to overcome are probable cause and malice.

Probable cause and malice exist when the information and facts provided to the police, which caused the charges to be brought, were lies or exaggerations. In other words, there is no probable cause when the complaining party knew the facts provided to the police were false or were not a fair, full, and complete statement of the facts.

A related claim is intentional infliction of emotional harm. This requires that the defendant’s conduct be (1) intentional or reckless, (2) extreme and outrageous, (3) the emotional distress was caused by the wrongful conduct, and (4) the emotional distress was severe. Like malicious prosecution, the key is whether the complaining party’s dishonesty  caused the charges to be brought against you. If so, a jury determines whether the conduct was outrageous enough to support a claim for intentional infliction of emotional distress.

If you’ve be wrongly arrested, please call us to discuss how we can help you hold the responsible parties accountable.