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Seibert v. Alexander

Court of Appeals of Georgia, Second Division

June 26, 2019

SEIBERT
v.
ALEXANDER, JR. et al.

          MILLER, P. J., RICKMAN and REESE, JJ.

          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 S.E.2d 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 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.

         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. 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 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.

         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 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 ...


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