Davis v. City of Forsyth, A05A1425.
| Decision Date | 06 October 2005 |
| Docket Number | No. A05A1425.,A05A1425. |
| Citation | 275 Ga. App. 747,621 S.E.2d 495 |
| Parties | DAVIS et al. v. CITY OF FORSYTH, Georgia. |
| Court | Georgia Court of Appeals |
Jeffery O. Monroe, Anderson, Walker & Reichert, LLP, Macon, for Appellant.
Harvey S. Gray, Laura J. Geissler, Gray, Rust, St. Amand, Moffett & Brieske, Atlanta, C. Robert Melton, Haygood, Lynch, Harris, Melton & Watson, Forsyth, for Appellee.
Ronald H. Davis and Beverly Davis filed an action against the City of Forsyth in 2001 seeking injunctive relief and damages for a continuing nuisance based on repeated sewage overflows onto their property dating to the early 1990s. The Davises amended their complaint in 2003 to add a personal injury claim.1 The City moved for partial summary judgment, which the trial court granted, ruling that the personal injury claim was barred due to the plaintiffs' failure to assert it in the ante litem notice given to the City on May 9, 2001.2 The court also ruled, in accordance with binding Supreme Court precedent,3 that all claims for property damage occurring prior to six months preceding the date of the notice were barred. The Davises appeal. Applying a de novo standard of review,4 we affirm.
1. The Davises assign error to the trial court's determination that their ante litem notice did not sufficiently state a claim for bodily injury. Although, on appeal from the grant of a summary judgment, we view the evidence, as well as all reasonable conclusions that may be drawn from it, in the light most favorable to the Davises,5 we agree with the trial court's ruling.
An ante litem notice is a prerequisite to the filing of suit against a municipality.6 The pertinent Code section, OCGA § 36-33-5(b), requires a claimant "[w]ithin six months of the happening of the event upon which a claim ... is predicated" to present the claim in writing, The purpose of the ante litem notice requirement is to give the municipality "the opportunity to investigate potential claims, ascertain the evidence, and avoid unnecessary litigation."7
The Davises, through counsel, provided ante litem notice to the City on May 9, 2001. The notice, a two-page letter, thoroughly details the history of the sewage backups dating to the early 1990s and the various unsuccessful measures taken to alleviate the problem. The letter states that it serves as notice that the City is maintaining a public and private nuisance by permitting an inadequate sewer line to serve the Davises' neighborhood. Significantly, the letter does not state that the Davises seek to recover for personal injuries. Although the notice states that the sewage backup has "caused an ongoing health hazard," it only requests "monetary damages in the form of lost rental income, lost wages, expenses, and aggravation." The letter attributes the lost wages to "lost time from work... in having to deal with this problem."
We recognize that "[s]ubstantial compliance with the requirements of OCGA § 36-33-5 is all that is necessary [and that] [t]he statute is in derogation of the common law and must be strictly construed against the municipality."8 But the notice must provide enough information to enable the municipality to conduct an investigation into the alleged injuries and determine if the claim should be settled without litigation.9 To that end, the statute requires the notice to state the "extent of the injury," which we have defined as "the nature, character, and particulars of the injury."10 A statement that sewage overflows pose a "health hazard" does not serve as notice of "the nature, character, and particulars" of a personal injury claim. The letter does not state that the claimants had suffered any injury to their persons. Therefore, the City could not determine whether any such claim should be settled without litigation. It follows that the Davises' notice did not substantially comply with the requirement that the claimant notify the City of the extent of such an injury.11
2. Nor did the trial court err in granting summary judgment with respect to the Davises' claims for property damage that occurred before November 9, 2000, which is six months preceding the ante litem notice. As noted above, a claimant must give written notice to a municipality of a suit for damages to person or property "[w]ithin six months of the happening of the event" upon which the claim is predicated.12 In City of Chamblee v. Maxwell,13 our Supreme Court construed this Code section as barring claims against municipalities based upon any event occurring more than six months before written ante litem notice was given, even if the event was part of a continuing trespass or nuisance.14 Specifically, the Court held that "upon giving the six-month notice required by OCGA § 36-33-5, a property owner who incurs damage as a result of a continuing nuisance or trespass maintained by a municipality is entitled . . . to recover only those damages incurred during the six months preceding the giving of such notice."15 According to the Court, this construction fulfills the statute's 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."16 City of Chamblee is apposite and controlling. Thus, the trial court correctly ruled that the Davises cannot recover damages for any injury to their property that happened prior to six months before May 9, 2001, the date on which they sent the notice.
The Davises argue that a letter Ronald Davis sent to the City on September 6, 1994, constituted ante litem notice of their property damage claim, and, as a result, that they are entitled to recover damages for all nuisance "events" dating from six months preceding the 1994 letter until suit was filed in 2001.17 This argument is misplaced. Although the 1994 letter appears to be a proper ante litem notice, the four-year statute of limitation applicable to property damage claims, OCGA § 9-3-30, bars such claims based on flooding events which predate November 9, 2000. "A property owner who incurs damage as a result of a continuing nuisance or trespass maintained by a municipality is entitled, within the four-year period of limitations, to recover only those damages incurred during the six months preceding the giving of the notice required by OCGA § 36-33-5."18 Having failed to file an action until 2001, the Davises are barred from recovering for any damages sustained beginning from six months preceding the 1994 notice until November 9, 2000.
The Davises contend that the statute of limitation does not apply because the sewage overflows constituted a public nuisance. "The . . . statute of limitations does not run in favor of . . . public nuisances [because] of the impropriety of imputing laches to the public."19 The distinction between public and private nuisances is codified in OCGA § 41-1-2. 20 "[A] public nuisance must injure all members of the public who come in contact with it."21 "An illustration of a public nuisance is the unauthorized placing of an obstacle across a public highway."22
In the case at bar, there is no evidence in the record that the City's sewer line injured all members of the public who came in contact with it. In her deposition, Beverly Davis testified that when the sewage backups began in 1994, she was not sure whether any of her neighbors also experienced problems. Mrs. Davis also deposed that her neighbors across the street, who had verbally agreed to buy the Davises' property, were unaware of any sewage issues until 2001, when severe flooding occurred. The only time Mrs. Davis testified that the flooding affected any other neighbors was when she was questioned about names appearing on her witness list. Mrs. Davis testified that those neighbors knew about the flooding on the Davis property and had problems with sewage backups themselves. She did not testify when this flooding occurred. As there is no evidence that the sewer line at issue injured more than a few individuals who came into contact with it, it did not constitute a public nuisance.23
3. Finally, the Davises assert that the grant of partial summary judgment should be reversed because the issue of compliance with the ante litem notice requirements is a matter in abatement and should have been resolved on motion to dismiss. However, "if the [issue] is raised for resolution in the trial court and it has not otherwise been waived by the defendant, the nomenclature of the pleading which raises that issue should not be a material consideration."24 Moreover, reversal would not be required in the event that a trial court erred in resolving a matter in abatement on motion for summary judgment. The appropriate remedy would be to vacate and remand for the entry of an order dismissing the claims upon which judgment was granted.25
4. Nevertheless, the Davises correctly point out that much confusion exists surrounding the appropriate vehicle for disposing of a municipality's assertion that a plaintiff has failed to comply with the ante litem requirements of OCGA § 36-33-5(b).26 We endeavor to provide guidance on this issue, starting with the distinction between a motion for summary judgment and a plea in abatement.
Summary judgment is deemed appropriate only to matters relating to the merits of a proceeding and does not apply to matters in...
To continue reading
Request your trial
-
Parris v. 3M Company
...Under Georgia law, "ante litem notice is a prerequisite to the filing of suit against a municipality." Davis v. City of Forsyth , 275 Ga. App. 747, 747, 621 S.E.2d 495 (2005). The pertinent section, O.C.G.A. § 36-33-5(b), requires that a claimant, "[w]ithin six months of the happening of th......
-
Mayor & City Council of Richmond Hill v. Maia
...defined as 'the nature, character, and particulars of the injury.' " (Punctuation and footnote omitted.) Davis v. City of Forsyth, 275 Ga.App. 747, 748(1), 621 S.E.2d 495 (2005). The notice describes an injury to Sanders on account of the alleged distribution of photographs depicting Sander......
-
Wright v. City of Greensboro
...similar to the problem in the instant case support a finding that OCGA § 36-33-5 applies to the Appellants’ claim. For example, in Davis v. City of Forsyth ,24 City of Atlanta v. Landmark Environmental Indus. ,25 and Cundy v. City of Smyrna ,26 this Court held that the statute applied to co......
-
Hardigree v. Lofton
..."the opportunity to investigate potential claims, ascertain evidence, and avoid unnecessary litigation." Davis v. City of Forsyth, 621 S.E.2d 495, 498 (Ga. Ct. App. 2005) (citation omitted). Satisfaction of the ante litem notice requirement is a condition precedent to bringing suit against ......
-
Local Government Law - R. Perry Sentell, Jr.
...malice. Id. at 320, 615 S.E.2d 139. Thus, the court reversed the trial court's summary judgment, adverse to the city manager. Id. 130. 275 Ga. App. 747, 621 S.E.2d 495 (2005). 131. Id. at 747, 621 S.E.2d at 497. The plaintiffs provided notice and filed suit in 2001, seeking damages for over......