Bernardina Manzanares v. City of Brookhaven ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 15, 2019
In the Court of Appeals of Georgia
A19A1276. MANZANARES v. CITY OF BROOKHAVEN.
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 SE2d 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
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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:
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(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. 487, § 1. Manzanares argues that
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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
(4) (722 SE2d 755) (2012).
In Harrell, supra, 346 Ga. App. 635,1 this Court addressed, for the first time,
subsection (e)’s requirement that a notice state the “specific amount of monetary
1
All of the justices of the Supreme Court of Georgia concurred in a decision
to deny a petition for certiorari in Harrell. See Harrell v. City of Griffin, Case No.
S18C1542, decided March 4, 2019.
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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). 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). See also Wright v. City of Greensboro, 350 Ga. App. 685(1) (c) (830 SE2d 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 ongoing, we believe that the value of this claim may exceed
$250,000.00.” (Emphasis supplied.) Even under a standard of substantial compliance,
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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 SE2d 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.
(Punctuation and footnotes omitted; emphasis supplied.) Ga. App. (1).
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
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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 within 30 days from the
presentation; and the action of the governing authority, unless it results
in the settlement thereof, shall in no sense be a bar to an action therefor
in the courts.
(d) The running of the statute of limitations shall be suspended
during the time that the demand for payment is pending before such
authorities without action on their part.
In an early decision interpreting a predecessor of this Code section, the Supreme
Court of Georgia held that while a plaintiff has a right to sue immediately after the
expiration of the 30-day period, a plaintiff can also wait until the governing authority
acts on the claim to file suit without fear of the statute of limitation expiring during
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the pendency of the claim. See City of Rome v. Rigdon, 192 Ga. 742, 746-748 (16
SE2d 902) (1941). It has also explained that
OCGA § 36-33-5 is not itself a six-month statute of limitations and does
not curtail the applicable two-year or four-year period of limitations.
Rather, OCGA § 36-33-5 simply establishes that the time for satisfying
the condition precedent of giving ante litem notice is limited to the
six-month period which begins to run from the happening of the event
upon which the claim is predicated. Thus, if the requisite ante litem
notice has been given within the applicable six-month period, suit can
thereafter be brought at any time within the applicable period of
limitations. If, however, the requisite ante litem notice has not been
given within the six-month period, suit cannot thereafter be brought
even though the applicable period of limitations has not expired.
(Citation and punctuation omitted; emphasis supplied.) City of Chamblee v. Maxwell,
264 Ga. 635, 636 (452 SE2d 488) (1994). Based upon these decisions and the plain
language of the statute, it appears that Manzanares’ argument has no merit.
Indeed, Manzanares acknowledges that she can point to no cases holding that
the tolling provision in subsection (d) should also be applied to the six-month ante
litem deadline if the governing authority has not acted upon a previous ante litem
notice. In support of her argument, she relies upon decisions of this Court addressing
whether ante litem notice deadlines may be tolled based upon the application of other
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statutes tolling statute of limitation periods. See, e.g., Ga. Dept. of Public Safety v.
Ragsdale, 347 Ga. App. 827 (821 SE2d 58) (2018)2 (holding OCGA § 9-3-99 tolled
the period for presenting ante litem notice under Georgia Tort Claims Act, OCGA §
50-21-26 (a) (1)); Carter v. Glenn, 243 Ga. App. 544, 548 (2) (533 SE2d 109) (2000)
(holding plaintiff did not make sufficient showing of mental incompetency to toll ante
litem notice under OCGA § 9-3-30); City of Barnesville v. Powell, 124 Ga. App. 132(1) (183 SE2d 55) (1971) (holding that ante litem notice tolled by infancy). In these
decisions, we have stated generally that ante litem notices are “a statute of limitation,”
and it is upon this general language that Manzanares relies to assert that subsections
(c) and (d) should be used to somehow allow her amended ante litem notice to relate
back to the date of her first notice. See Nicholas v. Van, 252 Ga. App. 411, 412 (556
SE2d 497) (2001) (time requirement in OCGA § 36-33-5 “is a statute of limitation”);
Powell, 124 Ga. App. at 132 (1) (“The requirement of ante litem notice . . . stating
that before suit may be instituted against any municipal corporation for money
damages for injury to person or property, it must be notified in writing within [six]
2
The Supreme Court of Georgia has granted a petition for certiorari in this case
to address the following question: “Is the time for filing an ante litem notice under the
Georgia Tort Claims Act, see OCGA § 50-21-26 (a) (1), subject to tolling under
OCGA § 9-33-99?” See Dept. of Public Safety v. Ragsdale, Case No. S19C0422,
decided July 1, 2019.
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months of the event upon which the claim is predicated for opportunity to adjust the
same is a statute of limitation.”) (citation and punctuation omitted).
Setting aside the question of whether this Court has properly characterized the
time for giving notice under OCGA § 36-33-5 as a statute of limitation,3 we find that
the plain language of the statute does not contemplate that a municipality’s failure to
act upon a deficient notice given within the six-month time period mandated by
subsection (b) allows an untimely notice made during the municipality’s period of
inaction to relate back to the date of the first notice. Subsection (d) makes no mention
of amendments made during the time period of a municipality’s inaction relating back
to the date of a timely but insufficient notice, and we decline to craft a procedure not
contemplated by the plain language of the statute. “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.” (Citation and punctuation omitted; emphasis
3
The Supreme Court of Georgia has referred to the time limit in OCGA § 36-
33-5 as a condition precedent to bringing suit rather than a statute of limitation. See
Atlanta Taxicab Co. Owners Assn. v. City of Atlanta, 281 Ga. 342, 351 (5) (638 SE2d
307) (2006) (“the giving of ante-litem notice is a condition precedent to bringing suit
against a municipality”); Maxwell, 264 Ga. at 636 (“OCGA § 36-33-5 is not itself a
six-month statute of limitations”; rather it “simply establishes that the time for
satisfying the condition precedent of giving ante litem notice is limited to the
six-month period which begins to run from ‘the happening of the event upon which’
the claim is predicated”).
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supplied.) City of Albany v. GA HY Imports, 348 Ga. App. 885, 888 (825 SE2d 385)
(2019). As Manzanares failed to provide a sufficient ante litem notice “[w]ithin six
months of the happening of the event upon which a claim against a municipal
corporation is predicated,” OCGA § 36-33-5 (b), the trial court properly granted the
City’s motion to dismiss. Cf. Silva v. Ga. Dept. of Transp., 337 Ga. App. 116, 119-
120 (4) (787 SE2d 247) (2016) (affirming trial court’s conclusion that amendment to
ante litem notice under the Georgia Tort Claims Act must be made within 12 months
of the injury to be effective).
Judgment affirmed. Barnes, P. J., and Mercier, J., concur.
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