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Manzanares v. City of Brookhaven

Court of Appeals of Georgia, First Division

October 15, 2019

MANZANARES
v.
CITY OF BROOKHAVEN.

          BARNES, P. J., MERCIER and BROWN, JJ.

          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 ...

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