City of Greensboro v. Rowland

• Decision Date: 14 October 2015
• Docket Number: No. A15A1145.,A15A1145.
• Citation: 778 S.E.2d 409,334 Ga.App. 148
• Parties: CITY OF GREENSBORO, Georgia v. ROWLAND et al.
• Court: Georgia Court of Appeals

334 Ga.App. 148

778 S.E.2d 409

CITY OF GREENSBORO, Georgia

v.ROWLAND et al.

No. A15A1145.

Court of Appeals of Georgia.

Oct. 14, 2015.

Andrew J. Whalen III, Griffin, Jessica Whatley O'Connor, for Appellant.

Chandra T. Jones, for Appellee.

Opinion

McMILLIAN, Judge.

The City of Greensboro, Georgia (the “City”) appeals the trial court's denial of its motion to dismiss a complaint filed by Tony Rowland and Flenard Rowland (the “Rowlands”), asserting claims for inverse condemnation, trespass, intentional tort, and nuisance,¹ARISING OUT OF the city's constructIon and maintenance of a drainage ditch across their properties.

As factual support for the Rowlands' claims, the complaint alleges that the Rowlands each own real property on Martin Luther King, Jr. Drive (“MLK Drive”) in the City (the “Property”). After receiving a $500,000 Community Development Block Grant (“CDBG”) in 2011 for improvements to its water and drainage system, the City amended the CDBG to provide for drainage improvements along MLK Drive (the “Project”). The pre-existing drainage ditch in the area had a history of flooding the property downstream, and the CDBG project increased the water flow and the volume rate onto the affected areas. The City began to install expansion piping in the drainage ditch to remedy this problem, and as part of this Project, the City installed the expansion pipe ditch directly through the Property. The Rowlands informed the City that the manner in which the Project was being undertaken was flooding the Property, “causing environmental, sanitation, health safety, and pecuniary damage.”

The Rowlands assert that the City violated federal regulations, local ordinances, and local health and safety codes in implementing the Project. They allege that although the City is fully aware of the damage to the Property caused by the Project, it continues to damage it by maintaining its water system on their land. And although the City has purchased several easements from other properties through which the drainage apparatus runs, it has not obtained an easement from the Rowlands or compensated them in any way for the damage to the Property.

The City moved to dismiss the Rowlands' complaint, arguing that they had failed to plead and prove waiver of the City's sovereign immunity as to their claims and that they had failed to substantially comply with the requirement for ante litem notice under OCGA § 36–33–5. The trial court rejected these arguments without explanation, and this appeal followed.

1. The City first asserts that the trial court erred in denying their motion to dismiss on sovereign immunity grounds, and we review this argument de novo. See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc.,294 Ga. 593, 596(2), 755 S.E.2d 184 (2014). See also Liberty County School Dist. v. Halliburton,328 Ga.App. 422, 423, 762 S.E.2d 138 (2014)(appellate review of trial court's ruling on motion to dismiss is de novo).

Under Georgia law, municipalities are protected by sovereign immunity pursuant to Article IX, Section II, Paragraph IX²of the Georgia Constitutionunless that immunity is waived by the General Assembly or by the terms of the Constitution itself. See City of Atlanta v. Mitcham,296 Ga. 576, 577(1), 769 S.E.2d 320 (2015); Sustainable Coast,294 Ga. at 599, 755 S.E.2d 184. In Sustainable Coast,our Supreme Court explained that although in City of Thomasville v. Shank,263 Ga. 624, 625, 437 S.E.2d 306 (1993), the Court had recognized a “nuisance exception” to sovereign immunity and had “ ‘reaffirm(ed) the longstanding principle that a municipality is liable for creating or maintaining a nuisance which constitutes either a danger to life and health or a taking of property,’ ” Shankactually stands for the proposition that “the Constitution itself requires just compensation for takings and cannot, therefore, be understood to afford immunity in such cases.” 294 Ga. at 600(2), 755 S.E.2d 184. In that discussion, the Court cited with approval Columbia County v. Doolittle,270 Ga. 490(1), 512 S.E.2d 236 (1999), explaining “that the eminent domain provision of the Georgia Constitution waives sovereign immunity in an inverse condemnation action, and therefore, a county may be sued for damages and enjoined for creating or maintaining a nuisance.” Id.

Although the sovereign immunity discussion in Sustainable Coastwas with respect to the waiver of sovereign immunity for the State under Article I, Section II, Paragraph IX (e) of the Georgia Constitution,³we see no reason why the rationale of Sustainable Coastdoes not equally apply to waivers of sovereign immunity under Article IX, Section II, Paragraph IX, particularly where Sustainable Coastrelied upon and clarified its decision in Shank,which dealt with sovereign immunity for municipalities. Moreover, our Supreme Court has specifically found that “where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeatedflooding of property, a continuing, abatable nuisance is established, for which the municipality is liable.” (Emphasis in original.) Hibbs v. City of Riverdale,267 Ga. 337, 338, 478 S.E.2d 121 (1996).

Here, because the Rowlands assert that the damage from the City's drainage system amounts to an unlawful taking of their Property, sovereign immunity has been waived by the terms of the Constitution.⁴Therefore, the trial court properly denied the City's motion to dismiss on this ground.

2. The City further asserts that the trial court erred in denying its motion to dismiss on the ground that the Rowlands failed to provide the City with a timely ante litem notice under OCGA § 36–33–5identifying the specific events underlying their claims.

Subsection (b) of that statute provides:

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.

OCGA § 36–33–5(b). Because this statute is in derogation of the common law, “[i]t is well settled ... that substantial compliance with OCGA § 36–33–5is all that is required.” (Citation and punctuation omitted.) Simmons v. Mayor & Aldermen of the City of Savannah,303 Ga.App. 452, 454, 693 S.E.2d 517 (2010). Nevertheless,

there is no precise standard for determining whether any given ante[ ] litem notice is substantively sufficient.... The information supplied will be deemed sufficient if it puts a municipality on notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury. The act recognizes, by the use of the words [“]as nearly as practicable,[”] that absolute exactness need not be had.

(Citations and punctuation omitted.) Owens v. City of Greenville,290 Ga. 557, 561–562(4), 722 S.E.2d 755 (2012).

The Rowlands' original complaint alleged that “[r]equisite notice of the claims herein has been submitted to [the City], after which the same were rejected.”⁵Attached to the complaint as Exhibit 1 is a copy of a letter dated October 11, 2013 from the Rowlands' counsel to the City. The letter states that it is in response to “the City's Notice of Early Public Review of Floodplain Compliance,” and asserts that the Rowlands “again wish to impart notice of damages to real property and unlawful taking by the run-off of drainage water on their property caused by the City's actions, which effectively devalue their property and subject them to flooding, insect and reptile infestation, and environmental and sanitation degradation.” The complaint also attached as Exhibit 2 a letter from an...