In re Dennis
| Decision Date | 13 November 2013 |
| Docket Number | No. A13A0909.,A13A0909. |
| Citation | 751 S.E.2d 469,324 Ga.App. 659 |
| Parties | Alice V. DENNIS, Guardian and Conservator of Adult Ward, Gloris R. Mason v. CITY OF ATLANTA. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Martin & Jones, Samuel Lydell Starks, for Appellant.
Eric Allen Richardson, Torrey Dennis Smith, for Appellee.
Alice Dennis, as guardian and conservator of an adult ward, Gloris R. Mason (“plaintiff”), appeals from the trial court's grant of the City of Atlanta's motion to dismiss her complaint on the grounds that it was barred by the terms of a release. The plaintiff contends that the trial court erred because: (1) the release does not bar future unknown claims which were not brought in the previous complaint; (2) it should have treated the motion to dismiss as one for summary judgment and granted her an opportunity to submit a complete record of a 2006 lawsuit; and (3) the release violated public policy. For the reasons explained below, we affirm.
On appeal, we review the trial court's grant of a motion to dismiss de novo. South Point Retail Partners v. North American Properties, 304 Ga.App. 419, 420, 696 S.E.2d 136 (2010).
A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.
(Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525, 525–526(1), 668 S.E.2d 723 (2008).
The record shows that in 2006, the plaintiff, along with other nearby homeowners, sued the City for failing to adequately maintain the sewer and storm water drainage system serving their homes and neighborhood. In 2008, the plaintiff settled her claim for $220,922.47 and executed 1 a document titled “FULL, COMPLETE AND GENERAL RELEASE.” This document provides:
The undersigned ... do hereby release and forever discharge ... the CITY OF ATLANTA, GEORGIA, ... from any and all actions, causes of action, cause of action, suits, proceedings, damages, costs, loss of services, expenses, obligations, claims and demands whatsoever, whether in law or in equity, known or unknown, foreseen or unforeseen, which RELEASORS may have or which may hereafter accrue, in any way resulting from or arising out of any incident referenced in and/or any allegations brought or which could have been brought in the [2006] Complaint filed by ... Dennis. [Emphasis supplied.]
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... RELEASORS understand and agree that this payment is intended to and does extinguish any and all claims ... against any released party, which it may not have for any injuries resulting from or arising out of the matters referenced in the [2006 action].
The 2006 complaint included the following allegations:
As part and parcel of the CITY OF ATLANTA's duty to protect the health, safety, and welfare of its citizens and property, the CITY OF ATLANTA has a duty to properly maintain a sewer and storm water drainage system....
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The CITY OF ATLANTA's sewer and storm water drainage system serving Plaintiffs' homes and neighborhood has not been maintained in any appreciable way since the date of its construction, despite continuing growth and development in this area.
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The aforementioned sewer and storm water drainage system is in such a deteriorated condition that it fails to function as originally designed.
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The continuing and persistent flooding of Plaintiffs' homes and neighborhood results from the CITY OF ATLANTA's failure to resolve problems with its sewer and storm water drainage system, as follows:
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(b) the CITY OF ATLANTA has failed to update the sewer and storm water drainage system to meet the demands of continuing growth and development in Plaintiffs' neighborhood, which causes and contributes to sewer backups and storm water flooding;
(c) the CITY OF ATLANTA has failed to properly repair, replace and maintain its aging and deteriorating sewer and storm water drainage system, which causes and contributes to sewer backups and storm water flooding;
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The CITY OF ATLANTA, at all times relevant to this action, had a legal duty to construct, replace and/or maintain the sewer and storm water drainage system in Plaintiffs' neighborhood in such a manner that it does not create a nuisance.
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As a result of this continuing and persistent flooding in the [area] where Plaintiffs' homes are located, the utility and value of MS. MASON's home is substantially diminished. In addition, her home and property are contaminated.
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The CITY OF ATLANTA is chargeable with the continuous and persistent failure to update its sewer and storm water drainage system to meet the demands of continuing growth and development in Plaintiffs' neighborhood, which has created continuous and regularly repetitious sewer and storm water leaks, overflows, backups and blowouts, causing hurt, inconvenience and injury to Plaintiffs....
The CITY OF ATLANTA is chargeable with the continuous and persistent failure to properly repair, replace and maintain its aging and deteriorating sewer and storm water drainage system, which has created continuous and regularly repetitious sewer and storm water leaks, overflows, backups and blowouts, causing hurt, inconvenience and injury to the plaintiffs.
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The CITY OF ATLANTA has created and maintained a continuing nuisance within, around and among the neighborhood, homes and property of Plaintiffs, which diminishes the value of their homes and property; which interferes with their use and enjoyment of their homes and property; and which results in injury, annoyance and harm to Plaintiffs.
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Plaintiffs have suffered and continue to suffer from sewer and storm water flooding ..., which diminishes the value of their homes and property; interferes with their use and enjoyment of their homes and property; and causes injury, annoyance and harm to Plaintiffs.
In 2012, Plaintiff, represented by the same attorney, filed a nearly identical complaint against the City that included the following allegations:
For many years, the neighborhood where Plaintiff's property is located has been plagued with continuing and persistent sewer backups, resulting from the CITY OF ATLANTA's failure to construct and maintain a functional sanitary sewer system in her neighborhood.
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The CITY OF ATLANTA's sewer system serving Plaintiff's home and neighborhood has not been expanded or maintained in any appreciable way since the date of its construction, despite continuing growth and development in the area.
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Due to the failure and inadequacies of the CITY OF ATLANTA's sanitary sewer system, as described herein, sewage frequently backups [sic] into Plaintiff's home and other homes in the neighborhood.
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The CITY OF ATLANTA is chargeable with the continuous and persistent failure to make needed and necessary repairs to prevent the sewer system from creating continuous and regularly repetitious sewer problems and backups at Plaintiff's home, causing hurt, inconvenience and injury to Plaintiff.
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The CITY OF ATLANTA has created and maintained a continuing nuisance within, around and among Plaintiff's neighborhood and property, which diminishes the value of Plaintiff's property; which interferes with the use and enjoyment of her property; and which results in injury, annoyance and harm to plaintiff.
The plaintiff also asserted a claim for the City's failure to comply with two consent decrees obligating the City “to evaluate and implement short and long-term plans for eliminating water quality violations, resulting from...
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