City of Atlanta v. MLK Properties

904 S.E.2d 79

CITY OF ATLANTA

v.MLK PROPERTIES, LLC.

A24A0416

Court of Appeals of Georgia.

June 27, 2024

Robert David Steinberg, Atlanta, Tracey Lenore Hackett, for Appellant.

Andrea Lynn Pawlak, Atlanta, for Appellee.

Padgett, Judge.

[1, 2] MLK Properties, LLC ("MLK Properties") sued the City of Atlanta ("the City"), alleging the City had wrongfully demolished its property. The City moved to dismiss based on insufficient ante litem notice and sovereign immunity. The trial court denied the motion, and the City sought interlocutory review of the ruling. We granted the application, and this appeal follows. For the reasons below, we affirm in part, reverse in part, and remand.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) 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; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Williams v. DeKalb County, 308 Ga. 265, 270 (1), 840 S.E.2d 423 (2020). This Court reviews de novo a trial court’s ruling on a motion to dismiss, accepting as true all well-pled material allegations in the complaint and resolving any doubts in favor of the plaintiff. Id.

So viewed, MLK Properties owns property at 870 Martin Luther King Jr. Boulevard SW, Atlanta, Georgia 30314 ("the Property"). In 2019, MLK Properties’ president and CEO worked with the City to resolve code violations with the building ("the Building") on the Property. According to MLK Properties, it took all actions needed to bring the Building and Property into compliance. However, on January 25, 2021, the City demolished the Building.

Subsequently, the City filed a "Claim of Lien" on the Property in the amount of $671,128.42, which the City claimed was payment for an asbestos survey and the cost of demolition. MLK Properties sent ante litem notice to the City pursuant to OCGA § 36-33-5. In the notice, MLK Properties alleged, among other things, that the City failed to comply with certain procedural requirements before demolishing the Building. MLK Properties also contended the City acted wrongfully and that its actions constituted an unconstitutional taking of its property. Regarding the damages, the notice provided:

The total amount of loss is not fully known at this time, but it is expected to exceed $671,128.42 due to the Claim of Lien on the property as well as the improper demolition of the Building. MLK Properties, LLC is also incurring attorney’s fees in this matter to respond to the City’s negligence. MLK Properties, LLC seeks compensation of existing damages and payment of its attorney’s fees in this matter.

MLK Properties subsequently filed suit against the City, alleging claims related to negligence, intentional torts, declaratory judgment, injunctive relief, and attorney fees. The City filed motions to dismiss, arguing that the ante litem notice did not comply with OCGA § 36-33-5 (e) in that MLK Properties did not seek a specific amount of monetary damages. The City also argued it was entitled to sovereign immunity.

After a hearing, the trial court denied the City’s motions. Although the trial court recognized that ante litem notice was required for MLK Properties’ claims of negligence and negligence per se, the trial court found that the ante litem notice sufficiently complied with OCGA § 36-33-5. The trial court further found that sovereign immunity did not bar any of MLK Properties’ remaining claims. We granted the City’s application for interlocutory appeal from this order, and this appeal follows.

1. According to the City, the trial court erred in finding that MLK Properties’ ante litem notice complied with OCGA § 36-33-5 (e). We agree.

Pursuant to OCGA § 36-33-5, the ante litem notice statute, anyone who intends to assert a claim against a municipal corporation for monetary damages arising from personal injuries or property damage must first provide written notice of the claim within six months of the event on which the claim is based. OCGA § 36-33-5 (a), (b). Such notice must include "the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury." OCGA § 36-33-5 (b). OCGA § 36-33-5 (e) provides:

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 monetarydamage set forth in such claim shall not be binding on the claimant.

(emphasis added).

[3, 4] "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." City of Albany v. GA HY Imports, 348 Ga. App. 885, 888, 825 S.E.2d 385 (2019) (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." Id. (citation and punctuation omitted).

In 2014, OCGA § 36-33-5 was amended to add subsection (e), requiring the claimant to "include the specific amount of monetary damages being sought." See Ga. L. 2014, p. 125, § 1. Before the enactment of subsection (e), the Georgia Supreme Court applied a "substantial compliance" standard to subsection (b)¹ because "[t]he act recognizes, by the use of the words ‘as nearly as practicable,’ that absolute exactness need not be had." Atlanta Taxicab Co. Owners Assn. v. City of Atlanta, 281 Ga. 342, 352 (5), 638 S.E.2d 307 (2006) (citation and punctuation omitted). But subsection (e) does not contain the same statutory language as subsection (b). See City of College Park v. Steele, 371 Ga. App. 649, —, 902 S.E.2d 223 (Case No. A24A0143 May 23, 2024). Neither this Court nor our Supreme Court has expressly addressed whether the former substantial compliance standard should be applied to subsection (e). See, e.g., City of Alpharetta v. Francis, 366 Ga. App. 454, 456 (1) n.2, 883 S.E.2d 400 (2023). However, this Court has held that even if only substantial compliance is required to fulfill a claimant’s obligation under subsection (e), "a notice does not substantially comply with [it] unless a specific amount is given that would constitute an offer that could be accepted by the municipality." Harrell v. City of Griffin, 346 Ga. App. 635, 638 (1), 816 S.E.2d 738 (2018). Thus, this Court has repeatedly held that ante litem notices did not comply with the statute where the notices stated that damages were expected to exceed a certain sum. For example, in Manzanares v. City of Brookhaven, 352 Ga. App. 293, 294, 834 S.E.2d 358 (2019), the plaintiff’s notice stated that her investigation was ongoing, but she believed "the value of th[e] claim may exceed $250,000.00." We concluded the notice did not comply with OCGA § 36-33-5 (e) because, although it stated a dollar figure, it did not convey the specific monetary damages being sought from the municipality and was not specific enough to constitute an offer of compromise that could be accepted by the municipality. Id. at 296-297 (1), 834 S.E.2d 358.

Similarly, in Pickens v. City of Waco, 352 Ga. App. 37, 833 S.E.2d 713 (2019), the plaintiff’s ante litem notice stated: "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." Id. at 38, 833 S.E.2d 713 (punctuation omitted). There, we found such notice insufficient, explaining that "an open-ended estimate of potential damages does not constitute a real offer of compromise which the [municipality] could have accepted as contemplated by the language and purpose of OCGA § 36-33-5 (e)." Id. at 44 (1), 833 S.E.2d 713.

[5] Here, MLK Properties’ ante litem notice was flawed in the same manner as those in Manzanares and Pickens because it lacked a specific amount of monetary damages being claimed that were exact enough to constitute an offer of compromise. Indeed, the ante litem notice made clear that MLK Properties did not know the amount of damages, but expected it to exceed $671,128.42. As MLK Properties provided only an open-ended estimate of potential damages, it did not make an offer capable of being accepted as required by OCGA § 36-33-5 (e). See Manzanares, 352 Ga. App. at 296-297 (1), 834 S.E.2d 358. Because MLK Properties’ ante litem notice did not comply with OCGA § 36-33-5, the trial court erred in denying the City’s motion to dismiss MLK Properties’ claims for negligence and negligence per se, and we reverse.

In a related argument, the City asserts that MLK Properties’ defective ante litem notice also bars MLK Properties’ trespass and inverse condemnation claims. We disagree.

[6] As we stated above, because the ante litem notice requirement in OCGA § 36-33-5 is in derogation of the common law, we construe the statute strictly. See City of Albany, 348 Ga. App. at 888, 825 S.E.2d 385. By its express terms, OCGA § 36-33-5 refers to damages caused by negligence. See West v. City of Albany, 300 Ga. 743, 748, 797 S.E.2d 809 (2017). In its complaint, MLK Properties alleged a trespass claim based on the City’s intentional interference with its property rights, and its inverse condemnation claim alleged that the City wrongfully and intentionally demolished the building. Given the allegations of intentional acts in the complaint, these claims do not fail as a matter of law based on the insufficiency of the ante litem notice. See id.; compare Wright v. City of Greensboro, 350 Ga....