Pickens v. City of Waco

• Decision Date: 24 September 2019
• Docket Number: A19A1084
• Court: Georgia Court of Appeals
• Parties: PICKENS v. CITY OF WACO.

352 Ga.App. 37

833 S.E.2d 713

PICKENS

v.CITY OF WACO.

A19A1084

Court of Appeals of Georgia.

September 24, 2019

Certiorari Denied May 4, 2020

Albert Aldrich Myers III, Conyers, for Appellant.

Lokey Mobley & Doyle, G. Melton Mobley, Atlanta, for Appellee.

DILLARD, P. J., GOBEIL and HODGES, JJ.

GOBEIL, Judge.

Brenda Pickens appeals from the dismissal of her civil negligence complaint against the City of Waco ("the City") and a John Doe defendant on the ground that she failed to include a specific amount of monetary damages being sought from the City in accordance with the ante litem notice requirements of OCGA § 36-33-5 (e). Pickens argues that the trial court erred in dismissing the complaint because (1) the notice specified the amount of damages sought at the time of the notice; (2) the notice substantially complied with the requirements of OCGA § 36-33-5 (e) ; and (3) Pickens specifically requested that the City notify her if the notice was defective so that corrections could be made, but the City failed to do so, and her complaint should not be dismissed where the City failed to show that it was harmed by the defective notice. For the reasons that follow, we affirm.

Before a party may bring suit against a municipality, it must give the city advance notice (i.e., ante litem notice). See OCGA § 36-33-5 (a).¹ "The giving of the ante litem notice in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim." Clark v. City of Smyrna , 212 Ga. App. 598, 599 (1), 442 S.E.2d 461 (1994) (citations and punctuation omitted). A challenge to the sufficiency of the ante litem notice provided in a given case may be properly raised in a motion to dismiss. See Harrell v. City of Griffin , 346 Ga. App. 635, 636, 816 S.E.2d 738 (2018).

We 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.

Id. (citations and punctuation omitted).

So construed, the record shows that on February 5, 2018, Pickens sent her ante litem notice to the City notifying it that, on September 9, 2017, while attending a street festival in the City, Pickens suffered a broken leg

and required surgery after she stepped into a hole in the crosswalk area of Wall Street. According to the letter, the hole was adjacent to a water main valve, and residents previously had complained of the hole to the City, but it failed to repair the dangerous condition until after Pickens’s injury. She alleged that the City was negligent in the installation and maintenance of the adjacent water valve. Pickens indicated that she was still undergoing physical therapy, might require additional surgery in the future, and was expected to suffer permanent impairment due to the injury. Finally, Pickens asserted:

To the extent that you require [me] to provide a dollar value for this claim, [I] believe that the value of this claim may exceed $300,000.00. If you contend that this letter does not provide you with sufficient notice pursuant to [OCGA] § 36-33-5, or comply with any notice provision statute, please advise me immediately in writing, and I will correct any deficiencies.

Prior to receiving a response from the City, Pickens filed the underlying complaint in Haralson County Superior Court on April 5, 2018. Subsequently, on April 20, 2018, the attorney for the City sent Pickens’s counsel a letter in response to the ante litem notice. The letter stated, in relevant part, that the City had "conducted an initial review of the incident and concluded that liability was doubtful under the circumstances. Based on that preliminary investigation the City does deny liability to your client."

Thereafter, the City filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted, asserting that Pickens’s ante litem notice was insufficient because it failed to include the specific amount of monetary damages sought from the City as required by OCGA § 36-33-5 (e). Rather, the City maintained that Pickens had provided only an estimate of the damages, as evidenced by her statement in the ante litem notice that "the value of this claim may exceed $300,000.00" The City also simultaneously filed its answer denying each of the associated factual allegations.

In response, Pickens argued that the City’s motion to dismiss should be denied because the ante litem notice "clearly set forth a dollar value of the amount of monetary damages, $300,000." Specifically, she maintained that she noted that the value of the claim may exceed $300,000 because she was still undergoing medical treatment, but that the reference of $300,000 was a specific monetary amount as contemplated by the notice requirements of OCGA § 36-33-5 (e). Furthermore, she argued that, even if her notice failed to strictly comply with the requirements of OCGA § 36-33-5 (e), it substantially complied, which is all that is required. Finally, she argued that the City failed to show that it suffered any harm as a result of the alleged defective notice because it had denied liability and had not contacted Pickens regarding any deficiencies in the notice.

The City then filed a reply brief and a supplemental brief in support of its motion to dismiss, and Pickens filed a sur-reply and response to the supplemental brief. After reviewing all of the briefs and relevant legal authority, the trial court granted the City’s motion, concluding that, although Pickens specified a dollar amount of $300,000 in her notice, the qualifying comment that the damages "may exceed" that sum confirmed that this was not a specific monetary amount that would constitute an offer that the City could accept. Thus, the court concluded that the ante litem notice failed to comply with the requirements of OCGA § 36-33-5 (e) and dismissed Pickens’s complaint. This appeal followed.

As relevant for purposes of this appeal, at the time of Pickens’s injury in 2017, the ante litem notice statute provided as follows:

(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.

OCGA § 36-33-5 (b), (e) (emphasis supplied). Subsection (e) was added to the statute in 2014. See Ga. L. 2014, p. 125, § 1 (effective July 1, 2014).

"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." Davis v. City of Forsyth , 275 Ga. App. 747, 749 (1), 621 S.E.2d 495 (2005) (citation and punctuation omitted). The ante litem notice statute, however, "is in derogation of the common law, which did not require such ante litem notice; therefore it must be strictly construed and not extended beyond its plain and explicit terms." City of Atlanta v. Benator , 310 Ga. App. 597, 601 (3), 714 S.E.2d 109 (2011) (citation and punctuation omitted).

[Further, w]hen we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read [it] in its most natural and reasonable way, as an ordinary speaker of the English language would.

Deal v. Coleman , 294 Ga. 170, 172-173 (1) (a), 751 S.E.2d 337 (2013) (citations and punctuation omitted). With these principles in mind, we turn to the enumerations of error in this appeal.

1. In two interrelated enumerations of error, Pickens argues that the trial court erred in dismissing her complaint because she complied with the express requirements of OCGA § 36-33-5 (e) when she included a specific monetary amount of $300,000. Alternatively, she argues that, at a minimum, her notice substantially complied with the requirements of OCGA § 36-33-5 (e), which is all that is required.

To determine what is required of a claimant under OCGA § 36-33-5 (e), it is necessary first to review the language and history of the statute. Prior to the 2014 revisions, OCGA § 36-33-5 (b) set forth the sole requirements concerning the form and substance of ante litem notice to municipalities. See Ga. Code Ann § 69-308 (1956). Thus, in the pre-2014 context, the ante litem notice statute did not include any explicit requirement for the specification of monetary damages. See id. Nor did the statute provide that specified monetary damages would constitute an offer of compromise to the municipality. Id. Further, in addressing this pre-2014 version of OCGA § 36-33-5, we held that "[s]ubstantial compliance with the requirements of OCGA § 36-33-5 is all that is necessary" to satisfy the form and substance requirements of the statute. Canberg v. City of Toccoa , 245 Ga....