MILLER, P. J., RICKMAN and REESE, JJ.
MILLER, PRESIDING JUDGE.
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.
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 S.E.2d 921)
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.
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 S.E.2d 91)
(2013). While incarcerated, Seibert filed a December 11, 2014
"motion to compel court clerk to properly record and
report successful completion of First- 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.
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."
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. 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.
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.
a hearing, the trial court granted the defendants' motion
for summary judgment and dismissed Seibert's case in its
entirety. The trial court first 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).
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
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.
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 S.E.2d 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 sheriff's departments and police departments are not
usually considered legal entities subject to suit). See also
Cott Index Co. v. Jagneaux, 685 So.2d 656, 658 (La.
Ct. App. 1996) ("The office of the clerk of court has no
legal status and is ...