Manzanares v. City of Brookhaven

• Decision Date: 15 October 2019
• Docket Number: A19A1276
• Citation: 834 S.E.2d 358,352 Ga.App. 293
• Court: Georgia Court of Appeals
• Parties: MANZANARES v. CITY OF BROOKHAVEN.

352 Ga.App. 293

834 S.E.2d 358

MANZANARES

v.CITY OF BROOKHAVEN.

A19A1276

Court of Appeals of Georgia.

October 15, 2019

Certiorari Denied May 18, 2020

Craig T. Jones ; Wood & Craig, J. Blair Craig II ; Castro Law, Daniel F. Castro, for appellant. Lokey Mobley & Doyle, G. Melton Mobley, for appellee.

Brown, Judge.

Bernardina Manzanares appeals from the trial court's order dismissing her complaint against the City of Brookhaven based upon her failure to comply with the ante litem notice requirement in OCGA § 36-33-5. She contends: (1) that the first notice she provided to the City satisfied the statutory requirements, and (2) that her untimely amended notice should relate back to the date of her first timely notice. For the reasons explained below, we disagree and affirm.

On appeal,

[w]e review the grant of any motion to dismiss de novo, and a motion to dismiss should not be granted unless 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. We construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff's favor.

(Citations and punctuation omitted.) Harrell v. City of Griffin , 346 Ga. App. 635, 636, 816 S.E.2d 738 (2018). So construed, the record shows that on November 19, 2015, Manzanares was injured when the car she was driving collided with a car driven by a City police officer. On April 20, 2016, Manzanares’ attorney sent an ante litem notice to the City of Brookhaven stating that she suffered from the following injuries as a result of the accident: "Head pain, face pain, neck pain, left shoulder and right shoulder pain, back pain, hip pain, and left knee and right knee pain." Her attorney stated that he was

presenting her claim for general and special damages, both past and future, including but not limited to medical expenses, permanent disability, diminished earning capacity, lost wages, pain and suffering and any other damages allowed under Georgia law within the six-month period required by statute. While our investigation is still ongoing, we believe that the value of this claim may exceed $250,000.00.

On November 2, 2017, Manzanares filed a complaint against the City seeking to recover damages for her injuries in the accident; she voluntarily dismissed this complaint without prejudice on December 18, 2017. The following day and over two years after the accident, Manzanares sent a second ante litem notice letter to the City "in order to revise the amount of Plaintiff's claim based on her current medical status." The second notice stated "that the value of her claim is the City's full insurance policy limits of $1 million." Her renewal complaint, filed on December 27, 2017, asserts the second notice was an "amendment" and "relates back to the date of the original notice."

The City of Brookhaven filed a motion to dismiss the renewal complaint based upon Manzanares’ failure to comply with the ante litem notice statute, OCGA § 36-33-5. The trial court granted the motion based upon two conclusions: (1) the original notice was deficient for failing to state the specific amount of monetary damages being sought from the City; and (2) Manzanares could not cure this deficiency by voluntarily dismissing her first complaint, sending a second, more specific ante litem notice more than six months after the accident, and then filing a renewal complaint.

1. Manzanares contends that her first ante litem notice satisfied the requirements of OCGA § 36-33-5 based upon the concept of substantial compliance. We disagree.

This Code section provides:

(a) No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in this Code section.

(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. ...

(e) The description of the extent of the injury required in subsection (b) of this Code section shall include the specific amount of monetary damages being sought from the municipal corporation. The amount of monetary damages set forth in such claim shall constitute an offer of compromise. In the event such claim is not settled by the municipal corporation and the claimant litigates such claim, the amount of monetary damage set forth in such claim shall not be binding on the claimant.

Subsection (e) of this Code section was added by the General Assembly in 2014, with no changes made to subsection (b). Ga. L. 2014, p. 125, § 1. Manzanares argues that we should read the requirement in subsection (e) for a "specific amount of monetary damages" together with the statement in subsection (b) that the "extent of the injury" be stated "as nearly as practicable" to conclude that the first notice she provided substantially complied with the statute.

Under well established precedent existing before the 2014 amendment, the Supreme Court of Georgia recognized that

[t]here is no precise standard for determining whether any given ante-litem notice is substantively sufficient, since substantial compliance with the statute is all that is required. 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 near[ly] 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).

In Harrell , supra, 346 Ga. App. 635, 816 S.E.2d 738,¹ this Court addressed, for the first time, subsection (e)’s requirement that a notice state the "specific amount of monetary damages being sought." We concluded that, "[e]ven if only substantial compliance is required for subsection (e), ... a notice does not substantially comply with subsection (e) unless a specific amount is given that would constitute an offer that could be accepted by the municipality." Id. at 637-638 (1), 816 S.E.2d 738. We reasoned that "subsection (e) directly implies" that the amount of the monetary damages being sought constitutes an offer that can be accepted by the municipality, "thereby creating a binding settlement." Id. Because the notice provided by the plaintiff in Harrell , "did not include any specific amount of monetary damages being sought from [the city] that could constitute an offer of compromise," we affirmed the trial court's dismissal of her suit. Id. at 638 (1), 816 S.E.2d 738. See also Wright v. City of Greensboro , 350 Ga. App. 685, 692 (1) (c), 830 S.E.2d 228 (2019) (holding trial court did not err in dismissing complaint where ante litem notice did not include a claim for a specific amount of monetary damages being sought).

In this case, the notice provided by Manzanares did not state "the specific amount of monetary damages being sought from the municipal corporation" as required by OCGA § 36-33-5 (e). (Emphasis supplied.) Instead, it stated: "While our investigation is still ongoing, we believe that the value of this claim may exceed $250,000.00." (Emphasis supplied.) Even under a standard of substantial compliance, we cannot say that this statement conveys the specific amount of monetary damages being sought from the City, nor was it specific enough to constitute an offer of compromise that could be accepted by the City. See Herring v. Dunning , 213 Ga. App. 695, 697, 446 S.E.2d 199 (1994) (if a settlement "offer is in any case so indefinite as to make it impossible for a court to decide just what it means, and to fix the legal liability of the parties, its acceptance can not result in an enforceable agreement") (citation and punctuation omitted). As we explained in Wright ,

subsection (e) of the statute does not require a potential plaintiff to provide the actual dollar amount of the damages allegedly incurred, which might be difficult to quantify in a case involving a continuing nuisance. Instead, the provision requires the ante litem notice to provide "the specific amount of monetary damages being sought " from the city, i.e., a settlement offer. And, if the city rejects the offer or a settlement cannot be reached, the plaintiff is not bound by that initial offer once litigation begins.

(Citation and punctuation omitted; emphasis supplied.) 350 Ga. App. at 689-690 (1), 830 S.E.2d 228.

While the ante litem notice at issue here states a number, it fails to state a specific amount of monetary damages sought . Instead, it indicates that the value of the claim is some unknown number above $250,000 and makes no statement with regard to the amount being sought . An unknown number above $250,000 is too indefinite to constitute a binding offer of settlement. Accordingly, based upon the standard articulated by this Court in Harrell , we affirm the trial court's conclusion that Manzanares’ first ante litem notice did not comply with OCGA § 36-33-5 (e).

2. Manzanares argues in the alternative that because she amended her original notice before the City acted upon it, the amended notice relates back to the date of her original notice. In support of this argument, she relies upon subsections (c) and (d) of OCGA § 36-33-5, which provide:

(c) Upon the presentation of such claim, the governing authority shall consider and act upon the claim

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