City of Chamblee v. Maxwell

• Decision Date: 21 November 1994
• Docket Number: No. S94G0850,S94G0850
• Citation: City of Chamblee v. Maxwell, 452 S.E.2d 488, 264 Ga. 635 (Ga. 1994)
• Parties: CITY OF CHAMBLEE v. MAXWELL.
• Court: Georgia Supreme Court

Page 488

452 S.E.2d 488

264 Ga. 635

CITY OF CHAMBLEE v.MAXWELL.

No. S94G0850.

Supreme Court of Georgia.

Nov. 21, 1994.

Kirk R. Fjelstul, Jenkins & Eells, Atlanta, for City of Chamblee.

George G. Chenggis, Richardson & Chenggis, Jeffrey T. Wise, Sullivan, Hall, Booth & Smith, P.C., Atlanta, for Maxwell.

CARLEY, Justice.

Seeking damages for continuing trespass, appellee-plaintiff brought suit against appellant-defendantCity of Chamblee.The trial court granted the City's motion for summary judgment, based upon appellee's failure to have given any written ante litem notice in accordance with OCGA § 36-33-5.The Court of Appeals affirmed in part and reversed in part, holding as follows:

"Notice given within six months from the expiration of the four-year period during which a nuisance continuously caused damages to plaintiff's property is within the time prescribed and complies with ... (OCGA § 36-33-5).Vickers v. City of Fitzgerald, 216 Ga. 476, 483(5)(117 SE2d 316)[ (1960) ]."City of Gainesville v. Moss, 108 Ga.App. 713(2)(134 SE2d 547)[ (1963) ]....[T]he trial court found that genuine issues of material fact remain regarding the [C]ity's liability for continuing trespass.Consequently, summary judgment was proper "only (as to) those trespasses or nuisances which occurred more than four years prior to the filing of the complaint.[Cit.]"It follows that any claim [appellee] may have based on damages sustained within less than four years of any continuing trespass or nuisance is a matter of abatement and is not subject to substantive adjudication.

Maxwell v. City of Chamblee, 212 Ga.App. 135, 136-137(1), 441 S.E.2d 257(1994).This court granted the City's petition for certiorari to consider whether the failure to give the written ante litem notice required by OCGA § 36-33-5 would bar appellee's claim for damages which occurred more than six months, but less than four years prior to the filing of the complaint.

[1]OCGA § 36-33-5(b) requires, as a condition precedent to bringing suit against a municipal corporation for damages resulting from injuries to person or property, that the claim shall have been presented to the municipal authorities within six months of the "happening of the event upon which" the claim is predicated.Saunders v. City of Fitzgerald, 113 Ga. 619, 620, 38 S.E. 978(1901).See alsoStambaugh v. City of Demorest, 221 Ga. 527, 528(2), 145 S.E.2d 539(1965);Brown v. City of Chamblee, 211 Ga.App. 145, 148(2), 438 S.E.2d 396(1993).OCGA § 36-33-5 is not itself a six-month statute of limitations and does not curtail the applicable two-year or four-year period of limitations.SeeCity of Rome v. Rigdon, 192 Ga. 742, 745, 16 S.E.2d 902(1941).Rather, OCGA § 36-33-5 simply establishes that the time for satisfying the condition precedent of giving ante litem notice is limited to the six-month period which begins to run from "the happening of the event upon which" the claim is predicated.Thus, if the requisite ante litem notice has been given within the applicable six-month period, suit can thereafter be brought at any time within the applicable period of limitations.If, however, the requisite ante litem notice has not been given within the six-month period, suit cannot thereafter be brought even though the applicable period of limitations has not expired.

A claim for continuing trespass, such as appellee's, is predicated upon the happening of a continuous series of "events.""Where a trespass is continuing in nature, such as is the one here, a new cause of action arises daily....[Cits.]"Gleaton v. City of Atlanta, 131 Ga.App. 399, 402(3), 206 S.E.2d 46(1974).See alsoScott v. Dudley, 214 Ga. 565, 567(2), 105 S.E.2d 752(1958).Thus, each day that the trespass continues necessarily begins another six-month period during which ante litem notice must be given pursuant to OCGA § 36-33-5.So long as ante litem notice is given to a municipal corporation within six months of the happening of any continuing trespass "event," an action for trespass may thereafter be brought within four years of the happening of that "event."However, when an ante litem notice is given to a municipal corporation within six months of the happening of any continuing trespass "event", a subsequent suit would not necessarily be timely as to any act of trespass occurring earlier than six months prior to the notice.Without any ante litem notice having been given to the municipal corporation within six months of that prior "event," no action for trespass could be based thereon.

[3] Any other construction of OCGA § 36-33-5 would rob that statute of its meaning and frustrate fulfillment of its purpose, which is to afford city officials the opportunity to take proper steps to abate a continuing nuisance or trespass before the effects thereof become great or far-reaching.SeeCity of Gainesville v. Moss, supra108 Ga.App. at 715, 716(1, 2), 134 S.E.2d 547(wherein Vickers was followed but criticized).Indeed, the claimant could keep the continuing trespass a secret from the municipality until the four-year statute of limitations had almost run.SeeCity of Gainesville v. Moss, supra at 718, 134 S.E.2d 547(Felton, C.J., dissenting).

A contrary construction was given to OCGA § 36-33-5 in Vickers.However, that contrary construction is inconsistent with the construction given to OCGA § 36-11-1 by our appellate courts, although "the objects and purposes of the two statutes are similar.[Cit.]"Davis v. Cobb County, 65 Ga.App. 533, 535(1), 15 S.E.2d 814(1941).OCGA § 36-11-1 provides, in relevant part, that "[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred."Having given the 12-month notice required by OCGA § 36-11-1, a property owner who incurs damage as the result of a continuing nuisance...