CITY OF GREENSBORO v. ROWLAND et al.
A15A1145
Court of Appeals of Georgia
DECIDED OCTOBER 14, 2015
778 SE2d
McMILLIAN, Judge.
The City of Greensboro, Georgia (the “City“) appeals the trial court‘s denial of its motion to dismiss a complaint filed by Tony
As factual support for the Rowlands’ claims, the complaint alleges that the Rowlands each own real property on Martin Luther King, Jr. Drive (“MLK Drive“) in the City (the “Property“). After receiving a $500,000 Community Development Block Grant (“CDBG“) in 2011 for improvements to its water and drainage system, the City amended the CDBG to provide for drainage improvements along MLK Drive (the “Project“). The pre-existing drainage ditch in the area had a history of flooding the property downstream, and the CDBG project increased the water flow and the volume rate onto the affected areas. The City began to install expansion piping in the drainage ditch to remedy this problem, and as part of this Project, the City installed the expansion pipe ditch directly through the Property. The Rowlands informed the City that the manner in which the Project was being undertaken was flooding the Property, “causing environmental, sanitation, health safety, and pecuniary damage.”
The Rowlands assert that the City violated federal regulations, local ordinances, and local health and safety codes in implementing the Project. They allege that although the City is fully aware of the damage to the Property caused by the Project, it continues to damage it by maintaining its water system on their land. And although the City has purchased several easements from other properties through which the drainage apparatus runs, it has not obtained an easement from the Rowlands or compensated them in any way for the damage to the Property.
The City moved to dismiss the Rowlands’ complaint, arguing that they had failed to plead and prove waiver of the City‘s sovereign immunity as to their claims and that they had failed to substantially comply with the requirement for ante litem notice under
1. The City first asserts that the trial court erred in denying its motion to dismiss on sovereign immunity grounds, and we review this argument de novo. See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) (755 SE2d 184) (2014). See also Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014) (appellate review of trial court‘s ruling on motion to dismiss is de novo).
Under Georgia law, municipalities are protected by sovereign immunity pursuant to Article IX, Section II, Paragraph IX2 of the Georgia Constitution unless that immunity is waived by the General Assembly or by the terms of the Constitution itself. See City of Atlanta v. Mitcham, 296 Ga. 576, 577 (1) (769 SE2d 320) (2015); Sustainable Coast, 294 Ga. at 599 (2). In Sustainable Coast, our Supreme Court explained that although in City of Thomasville v. Shank, 263 Ga. 624, 625 (437 SE2d 306) (1993), the Court had recognized a “nuisance exception” to sovereign immunity and had “reaffirm(ed) the longstanding principle that a municipality is liable for creating or maintaining a nuisance which constitutes either a danger to life and health or a taking of property,” Shank actually stands for the proposition that “the Constitution itself requires just compensation for takings and cannot, therefore, be understood to afford immunity in such cases.” 294 Ga. at 600 (2). In that discussion, the Court cited with approval Columbia County v. Doolittle, 270 Ga. 490 (1) (512 SE2d 236) (1999), explaining “that the eminent domain provision of the Georgia Constitution waives sovereign immunity in an inverse condemnation action, and therefore, a county may be
Although the sovereign immunity discussion in Sustainable Coast was with respect to the waiver of sovereign immunity for the State under Article I, Section II, Paragraph IX (e) of the Georgia Constitution,3 we see no reason why the rationale of Sustainable Coast does not equally apply to waivers of sovereign immunity under Article IX, Section II, Paragraph IX, particularly where Sustainable Coast relied upon and clarified its decision in Shank, which dealt with sovereign immunity for municipalities. Moreover, our Supreme Court has specifically found that “where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable.” (Emphasis in original.) Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).
Here, because the Rowlands assert that the damage from the City‘s drainage system amounts to an unlawful taking of their Property, sovereign immunity has been waived by the terms of the Constitution.4 Therefore, the trial court properly denied the City‘s motion to dismiss on this ground.
2. The City further asserts that the trial court erred in denying its motion to dismiss on the ground that the Rowlands failed to provide the City with a timely ante litem notice under
Subsection (b) of that statute provides:
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.
there is no precise standard for determining whether any given ante[] litem notice is substantively sufficient.... 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 nearly 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 SE2d 755) (2012).
The Rowlands’ original complaint alleged that “[r]equisite notice of the claims herein has been submitted to [the City], after which the same were rejected.”5 Attached to the
again wish to impart notice of damages to real property and unlawful taking by the run-off of drainage water on their property caused by the City‘s actions, which effectively devalue their property and subject them to flooding, insect and reptile infestation, and environmental and sanitation degradation.
The complaint also attached as Exhibit 2 a letter from an attorney for the City to the Rowlands’ counsel in response to the October 11 letter, stating the City‘s position that any damage to the Property is not the result of any action by the City, but rather is the “direct result of actions by Mr. Rowland and his failure to maintain a pipe which he has installed in the ditch, which is a natural drain.”
In response to the City‘s motion to dismiss, the Rowlands amended their complaint to include two further exhibits “as part of ante litem notice.” These exhibits each contain a letter, dated September 16, 2013 and sent to City officials. These letters specifically reference the street addresses of each of the Rowlands’ properties and inform the City that the Rowlands had retained counsel in connection with “run-off of waste water on their property as a result of a project undertaken by the City of Greensboro, which has ultimately resulted in an unlawful taking of their property rights.” The letters indicate that counsel had been authorized to settle the case before the initiation of formal litigation. The Rowlands’ second amended complaint additionally attached as an exhibit an affidavit from the Rowlands’ counsel averring that she mailed the September 16 and October 11 letters to the City officials “with proper and adequate postage thereon, to ensure delivery.”
Although the City asserts that the Rowlands’ letters are not adequate ante litem notice under
The City further argues, however, that the ante litem notice is insufficient because it fails to state any specific event, “the happening of which gives rise to a claim of trespass, nuisance, or inverse condemnation,” making it impossible to determine whether the Rowlands gave notice within six months of the event as required under
upon giving the six-month notice required by
OCGA § 36-33-5 , a property owner who incurs damage as a result of a continuing nuisance or trespass maintained by a municipality is entitled, within [the applicable limitations period], to recover only those damages incurred during the six months preceding the giving of such notice. The recovery of any damages incurred prior thereto would be barred, where no timely notice of a claim therefor was given in accordance with the provisions ofOCGA § 36-33-5 .
Id. at 637. See also Savage v. E. R. Snell Contractor, Inc., 295 Ga. App. 319, 324-325 (3) (a) (672 SE2d 1) (2008).
We find, therefore, that the trial court properly denied the City‘s motion to dismiss for failure to give proper ante litem notice. Judgment affirmed. Barnes, P. J., and Ray, J., concur.
McMILLIAN
Judge