City of Albany v. Ga Hy Imports, LLC.

• Decision Date: 28 February 2019
• Docket Number: A18A1806
• Citation: 348 Ga.App. 885,825 S.E.2d 385
• Parties: CITY OF ALBANY v. GA HY IMPORTS, LLC.
• Court: Georgia Court of Appeals

348 Ga.App. 885

825 S.E.2d 385

CITY OF ALBANY

v.GA HY IMPORTS, LLC.

A18A1806

Court of Appeals of Georgia.

February 28, 2019

Freeman Mathis & Gary, Dana K. Maine, Matthew M. Weiss, for appellant.

Weinberg Wheeler Hudgins Gunn & Dial, John M. Hawkins, Joseph J. Minock, for appellee.

Gobeil, Judge.

In this interlocutory appeal, the City of Albany, Georgia ("the City"), appeals from the Dougherty County Superior Court's denial of the City's motion for judgment on the pleadings in a civil suit brought by GA HY Imports, LLC d/b/a AutoNation Hyundai-Albany ("AutoNation") against the City related to damages AutoNation suffered after its property flooded due to the City's alleged failure to adequately drain storm water. In its motion, the City maintained that AutoNation's ante litem notice failed to comply with several provisions of the ante litem notice statute, OCGA § 36-33-5. The trial court denied the motion, concluding that AutoNation's notice substantially complied with the requirements of the statute. On appeal, the City argues that (1) AutoNation failed to comply with OCGA § 36-33-5 (f) and the trial court erred in implicitly finding that the law requires only substantial compliance with this provision; (2) AutoNation's letters failed to present timely written notice of its claims to the City for adjustment, as required under OCGA § 36-33-5 (a) and (b) ; (3) AutoNation failed to provide an adequate description of its claim, as required under OCGA § 36-33-5 (b) and (e) ; and (4) the trial court erred in finding that the City's investigation and response to AutoNation constituted a waiver of the defective ante litem notice. For the reasons that follow, we reverse.

On March 18, 2016, counsel for AutoNation sent identical letters to the City Risk Manager, the City Attorney, and the City's Director of Engineering notifying those individuals that approximately 25 of AutoNation's vehicles were damaged following a flood on February 24, 2016, that "was caused by inadequately designed and/or maintained drainage features which are the responsibility of the City of Albany." The letters stated that the damages were "valued at over $800,000," and that AutoNation was "investigating the incident to prepare for a claim against the City of Albany if it is deemed liable for the damage." The letters further stated that "AutoNation hereby puts the City of Albany on notice of this claim and notifies the City of Albany that it will hold these vehicles for fourteen (14) days from the date of this letter before disposing of the vehicles for salvage so that the vehicles may be inspected if desired." On July 21, 2016, the City Attorney sent AutoNation a letter denying its claim because "the City is protected by sovereign immunity."

On November 22, 2016, AutoNation filed a complaint against the City, alleging claims for interference with enjoyment of its property, nuisance, trespass, negligence, and attorney fees. The City filed its answer, and then filed a motion for judgment on the pleadings, asserting that it was entitled to a judgment in its favor because AutoNation's ante litem notice did not meet the requirements of OCGA § 36-33-5. Specifically, the City argued that the letters were insufficient because they merely advised the City that AutoNation was investigating the incident to prepare for a claim, did not actually present a claim, and failed to provide a specific amount of monetary damages.

In response, AutoNation asserted that its letters substantially complied with the requirements of the ante litem notice statute, as further evidenced by the fact that, in response to the letters, the City conducted its own investigation and inspected the damaged vehicles on two separate occasions and formally denied AutoNation's claim. In support of its position, AutoNation attached a sworn affidavit from its counsel detailing his correspondence with the City Attorney and the City Risk Manager, the City's inspections of the subject vehicles, and the City's letter denying AutoNation's claim.

In reply, the City argued that AutoNation had not substantially complied with the requirements of the ante litem notice statute and that the cases cited by AutoNation all pre-dated amendments to the statute in 2014. Additionally, the City argued that AutoNation failed to serve the correct parties as set forth under the statute. The City then reiterated its argument that AutoNation's letters failed to present a claim and specify an amount of monetary damages, and, even though the City may have conducted an investigation, it was not estopped from asserting that the ante litem notice was defective.

Following a hearing on the motion, the trial court denied relief, explaining as follows:

The [c]ourt hereby finds that [AutoNation's] letters substantially complied with the requirements of OCGA § 36-33-5, having presented timely written notice of Plaintiff's claim to Defendant for adjustment, by stating the time, place, and extent of Plaintiff's alleged injuries and the alleged negligence of Defendant which caused such injury. The [c]ourt further finds that following receipt of such notice from Plaintiff, Defendant undertook investigation of the subject flooding event (and the alleged damages caused thereby) by conducting no fewer than two separate inspections of Plaintiff's property on or about March 22, 2016, and April 11, 2016, after which time, the City Attorney ... transmitted a letter to Plaintiff's counsel, dated July 21, 2016, advising of the City's denial of Plaintiff's claim.

As such, Defendant has not shown good cause entitling it to judgment on the pleadings, and Defendant's Motion is accordingly denied. ... The trial court certified its order for immediate review, pursuant to OCGA § 5-6-34 (b), and we granted the City's application for leave to file an interlocutory appeal.

On appeal, we review de novo the trial court's decision on a motion for judgment on the pleadings

to determine whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. The grant of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. For purposes of the motion, all well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false. But the trial court need not adopt a party's legal conclusions based on these facts.

Caldwell v. Church , 341 Ga. App. 852, 855-56 (2), 802 S.E.2d 835 (2017) (citation and punctuation omitted).

However, where, as in this case,

the part[y] moving for judgment on the pleadings do[es] not introduce affidavits, depositions, or interrogatories in support of [its] motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff[ ] would not be entitled to relief under any state of facts which could be proved in support of [its] claim.

Southwest Health & Wellness, LLC v. Work , 282 Ga. App. 619, 623 (2), 639 S.E.2d 570 (2006) (citation and punctuation omitted). We review a trial court's ruling on a motion to dismiss de novo. Seay v. Roberts , 275 Ga. App. 295, 296, 620 S.E.2d 417 (2005).

Before a party may bring suit against a municipal entity, such as a city, it must give the city advance notice (i.e., ante litem notice). See OCGA § 36-33-5 (a).¹ "The giving of the ante litem notice in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim." Clark v. City of Smyrna , 212 Ga. App. 598, 599 (1), 442 S.E.2d 461 (1994) (citation and punctuation omitted). The ante litem notice statute, however, "is in derogation of the common law, which did not require such ante litem notice; therefore it must be strictly construed and not extended beyond its plain and explicit terms." City of Atlanta v. Benator , 310 Ga. App. 597, 601 (3), 714 S.E.2d 109 (2011) (citation and punctuation omitted).

As relevant for purposes of this appeal, the ante litem notice statute provides as follows:

...

(b) Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

...

(f) A claim submitted under this Code section shall be served upon the mayor or the chairperson of the city council or city commission, as the case may be, by delivering the claim to such official personally or by certified mail or statutory overnight delivery.

OCGA § 36-33-5 (b), (f). Subsection (f) was added to the statute in 2014. See Ga. L. 2014, p.125, Act 487, § 1 (effective July 1, 2014). "[G]overning officials cannot waive statutory ante litem notice requirements[,]" either expressly or by conduct. Clark , 212 Ga. App. at 599 (2), 442 S.E.2d 461 ; see also Goen v. City of Atlanta , 224 Ga. App. 484, 486 (2), 481 S.E.2d 244 (1997) (holding that fact that City had not waived the ante litem notice issue--even though the City had offered to buy the plaintiff's property and did not raise the ante litem notice issue pretrial--because "the failure to give such notice cannot be waived"). Thus, even if an official with the City conducted an investigation into the claim, such action "can not work a waiver of the notice, an estoppel to assert lack thereof, or toll the time for giving it." Clark , 212 Ga. App. at 599 (2), 442 S.E.2d 461 (citation and punctuation omitted); see...