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Wright v. City of Greensboro

Court of Appeals of Georgia, Second Division

June 21, 2019

WRIGHT et al.
v.
CITY OF GREENSBORO.

          MILLER, P. J., RICKMAN and REESE, JJ.

          Reese, Judge.

         Raymond Wright, Sr., Laquita Pope, and their three minor children, along with Amineh Wright Dickson, Connie Wright Alexander, and Cornelius Wright III[1](collectively, the "Appellants") sued the City of Greensboro ("City"). In their complaint, the Appellants alleged that the City's negligence in maintaining a sewer line that ran through their property ("Property") resulted in a continuing nuisance that damaged the Property and created a serious health hazard. The trial court granted the City's motion to dismiss the Appellants' claim for monetary damages arising from the alleged continuing nuisance, ruling that the Appellants' ante litem notices had failed to specify the amount of money damages they were seeking from the City and, thus, had failed to comply with the notice requirements of OCGA § 36-33-5 (e). The Appellants appeal, asserting that the trial court erred in dismissing their claim for monetary damages because their complaint was based upon a continuing nuisance and, therefore, OCGA § 36-33-5 (e) did not apply. For the reasons set forth, infra, we affirm.

         The pleadings, [2] when viewed in the light most favorable to the Appellants, [3]show the following facts. The Appellants are the co-owners and/or residents of the Property. As part of its sewer system, the City owns and operates a sewage pipeline that traverses the Property, and a manhole that leads to the pipeline is present on the Property. On January 9, 2015, the Appellants sent a letter to the City's mayor and council notifying them that, over the past few days, raw (untreated) sewage had been flowing out of the manhole from the pipeline and had flooded part of the Property. Not only did this sewage damage the Property and create a serious health hazard, but it attracted a "large number of buzzards," which roosted in the nearby trees and "shower[ed]" the Property with excrement. According to the notices, the sewage flooding constituted a continuing nuisance, trespass, and negligence per se and, if the problem was not alleviated, it could entitle the Appellants to compensatory damages, remediation of the affected areas of the Property, attorney fees, and litigation expenses. The Appellants demanded that the City take whatever actions were necessary to permanently abate the nuisance.

         Over two years later, on March 20, 2017, the Appellants again sent a letter to the City notifying it that its lack of maintenance of its sewage system continued to cause raw sewage to flood their Property. According to the notice, the actions the City had taken to address the problem during the prior two years had "not reduced or fixed the problem to any extent[.]" The Appellants asserted that, in addition to creating an ongoing health hazard, the continuing nuisance had reduced the value of their individual interests in the Property and had interfered with their use and enjoyment of the Property in an amount "to be determined by a jury of their peers as allowed and provided by law." The Appellants asked that the City fix the problem "quickly and completely" in order to "totally eliminat[e] this nuisance and trespass situation," but added that eliminating the problem at that point would not reduce the damages they had already incurred. Then, on April 19, 2017, [4] the Appellants sent an "Update" letter to the City concerning the "serious health issue[ ] created by the [C]ity's lack of maintenance of [its] sewage [system and] manhole for a lengthy period of time," and asking for written documentation on "how the [C]ity proposes and plans to handle this problem and fix it[.]"

         Two days later, on April 21, 2017, the Appellants sued the City, alleging that the City had failed to properly construct and maintain its sewage pipelines that traversed the Property, as well as the manhole leading to the pipelines, and that, as a result, untreated sewage repeatedly flooded the Property, causing property damage and creating a health hazard. According to the complaint, the sewage overflows constituted a continuing nuisance and trespass.[5] As relief, the Appellants sought monetary damages, an injunction requiring the City to permanently and completely abate the continuing nuisance, attorney fees, and litigation costs.

         The City moved to dismiss the complaint, arguing that the Appellants had failed to sufficiently comply with the applicable ante litem notice requirements by failing, inter alia, to put the City on notice of the claims of each named plaintiff. Following a hearing, the trial court ruled that the Appellants' ante litem notices sufficiently apprised the City of the claims of each individual plaintiff, [6] so dismissal of the entire complaint was not required on that basis. The court also apparently refused to dismiss the Appellants' equitable claim for a permanent injunction.[7] As for the Appellants' claim for monetary damages, however, the trial court ruled that the claim must be dismissed because the Appellants' ante litem notice had not complied with OCGA § 36-33-5 (e), which required the Appellants to include in their ante litem notice the specific amount of monetary damages they were seeking from the City.[8]This appeal followed.[9]

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.[10]

         With these guiding principles in mind, we turn now to the Appellants' specific claims of error.

         1. The Appellants contend that the trial court erred in dismissing their claim for monetary damages arising from the continuing nuisance created by the City, arguing that their failure to identify a specific amount of damages in their ante litem notices did not bar their claim. According to the Appellants, the applicable ante litem notice statute, OCGA § 36-33-5, only applies to claims for monetary damages arising from negligence, and, thus, does not apply to a claim for damages arising from a continuing nuisance, such as their claim in this case.

         Under the ante litem notice statute, OCGA § 36-33-5, anyone who intends to assert a claim against a municipal corporation for money damages arising from personal injuries or property damage must first provide notice of the claim.[11]Subsection (b) of the statute requires that, within six months of the event on which the claim is based, the claimant must provide written notice of the claim to the governing authority of the municipal corporation, and such notice must include "the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury."[12] Further, subsection (e) of the statute provides that, when describing the "extent of the injury" in the ante litem notice, as required in subsection (b), the notice must "include the specific amount of monetary damages being sought from the municipal corporation."[13] According to the statute, "[t]he 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."[14]

         "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."[15] In other words, requiring a claimant to provide the municipality with specific information about his or her claim and alleged injuries, as well as a demand for the specific amount of monetary damages the claimant is seeking as compensation for such injuries, allows the municipality to make an informed decision about whether to accept the "offer of compromise," make a counter-offer, or otherwise resolve the claim in order to avoid litigation.[16] Moreover, 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.[17] 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.[18] 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.[19]

         (a) In arguing that OCGA § 36-33-5 only applies to negligence cases, the Appellants rely on the Supreme Court of Georgia's decision in West v. City of Albany, [20] in which the Court held that "the statute's plain language demonstrates it applies only to damages caused by negligence, not intentional acts."[21] The Appellants argue, therefore, that their ante litem notices did not have to comply with the statute because their complaint is based on a continuing nuisance, not negligence. This argument lacks merit.

         Although a continuing nuisance may, in some cases, be caused by a defendant's intentional acts, [22] the Appellants' complaint in this case specifically alleges that the continuing nuisance at issue - the flooding of their Property by raw sewage from the City's sewage system - was caused by the City's negligence. For example, the complaint alleges that "[t]he City has failed to maintain [the sewage system's] manhole and the lines leading to and from it, to the extent that[, ] on numerous occasions[, ] raw, untreated sewage has bubbled up, leaked and flooded out of it into and around the backyard of the [Property.]" In addition, the complaint includes the following allegations:

The City failed to "take any action(s) sufficient to properly maintain the manhole and keep this condition from re-occurring";
"[t]his regularly repetitive nuisance condition, created by the action(s) or lack of proper maintenance and management action(s) by the City, has been allowed to continue"; and
"any action(s) taken by the [City] regarding solving this serious problem have not been sufficient or successful. Such failure(s) on the part of the [City] to properly and adequately maintain its active sewer manhole [on the Property] have directly caused or contributed to this continuing problem, and are a substantial factor in [the Appellants'] respective damages[.]"[23]

         Thus, the Appellants' complaint clearly alleges that the continuing nuisance at issue, and the resulting damages, were caused by the City's negligence in maintaining its sewage system and, later, in unsuccessfully attempting to abate the nuisance. Consequently, there is no merit to the Appellants' argument that OCGA § 36-33-5 does not apply to this case because they did not assert a negligence claim.

         (b) Moreover, numerous Georgia cases involving continuing nuisances very 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 continuing nuisance claims based on sewage overflows onto the plaintiffs' properties.[27] And, in City of Greensboro v. Rowland, [28]this Court held that the statute applied to claims for continuing nuisance, trespass, and inverse condemnation arising from repeated instances of flooding allegedly caused by the city's poorly constructed and maintained water drainage system.[29] Thus, the Appellants' argument that OCGA § 36-33-5 never applies to a nuisance claim is meritless.

         (c) Given our conclusion that the Appellants' claim for monetary damages arose, at least in part, from the City's negligence and that OCGA § 36-33-5 applies in this case, it necessarily follows that the Appellants were required to comply with subsection (e). As shown above, subsection (e) states that the ante litem notice's "description of the extent of the injury[, ]" which is required by subsection (b), "shall include the specific amount of monetary damages being sought from the municipal corporation." In this case, it is undisputed that none of the ante litem notices sent to the City by the Appellants included a claim for a specific amount of monetary damages. Consequently, the trial court did not err in concluding that the notices failed to comply with OCGA § 36-33-5 (e), and in dismissing the claim for monetary damages on that basis.[30]

         (d) Still, the Appellants argue that their ante litem notices "substantially complied" with OCGA § 36-33-5 and, thus, were sufficient to survive a motion to dismiss. The Appellants rely on this Court's opinion in Rowland[31] for this argument.[32]Such reliance is misplaced.

         In Rowland, after the city's water and sewage system continuously flooded the plaintiffs' property, the plaintiffs filed a claim for monetary damages arising from the continuing nuisance.[33] The city filed a motion to dismiss, arguing, inter alia, that the plaintiffs' ante litem notice letters did not substantially comply with OCGA § 36-33-5 (b), because the letters did not identify the "specific events" from which the plaintiffs' claim arose.[34] The trial court denied the motion, and this Court affirmed, holding that, because the plaintiff's continuing nuisance was "predicated upon the happening of a continuous series of events," a new cause of action arose every day the property was flooded.[35] In such a case, the plaintiffs' ante litem notice letters were not required to identify the specific date of each injury, i.e., each time their ...


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