Fleureme v. City of Atlanta

900 S.E.2d 625

FLEUREME

v.CITY OF ATLANTA et al.

A24A0316

Court of Appeals of Georgia.

April 12, 2024

Maxwell Kent Thelen, Seth Aaron Lowry, for Appellant.

Laura Tate Yellig, Hermise Pierre, Tracey Lenore Hackett, for Appellee.

Hodges, Judge.

Roodson Fleureme sued the City of Atlanta (the "City") and city employee Dwayne De Jonge, alleging he was injured when De Jonge "failed to yield" and "ran over" him with a city vehicle while he was on a public sidewalk. The City moved to dismiss the complaint, asserting that Fleureme’s ante litem notice was not properly served on the mayor or the chairperson of the city council as required by OCGA § 36-33-5 (f).¹ The trial court agreed and granted the City’s motion to dismiss. Fleureme appeals from this order. Finding no error, we affirm.

[1, 2] A plaintiff seeking to sue a municipality for monetary damages must notify the municipality by giving notice ("ante litem notice"). See OCGA § 36-33-5 (a). "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.) City of Albany v. GA HY Imports, 348 Ga. App. 885, 888, 825 S.E.2d 385 (2019). The crux of this appeal involves an interpretation of the ante litem service requirement delineated in OCGA § 36-33-5 (f):

A claim submitted under this Code section shall be served upon the mayor or the chairperson of the city council or city commission, as the case may be, by delivering the claim to such official personally or by certified mail or statutory overnight delivery.

This particular subsection was added to the statute in 2014. See Ga. L. 2014, p. 125, § 1. "[T]he prior version of the statute did not specify any particular individuals or entities to be served with the plaintiff's ante litem notice. Rather, under the prior version of the statute, parties were simply directed to ‘present the claim in writing to the governing authority of the municipal corporation for adjustment.’ " (Punctuation omitted.) Albany, 348 Ga. App. at 889 (1), 825 S.E.2d 385; see OCGA § 36-33-5 (b) (2013). Accordingly, this Court held in cases decided under the prior version of the ante litem statute that notice was sufficient if presented to any department or official of the municipal government. See, e.g., Canberg v. City of Toccoa, 245 Ga. App. 75, 78 (1), 535 S.E.2d 854 (2000). That is no longer the case.

In construing subsection (f) of the amended statute, this Court has concluded:

By electing to add a separate subsection that expressly and specifically directed that claims under OCGA § 36-33-5 "shall be served upon the mayor or the chairperson of the city council or city commission, as the case may be," we conclude that the General Assembly intended to reduce uncertainty by limiting the pool of individuals or entities upon which ante litem notice could be served for purposes of satisfying the notice requirements of the statute.

(Citation and emphasis omitted.) Albany, 348 Ga. App. at 890 (1), 825 S.E.2d 385. Specifically, we noted that the statute’s "use of the directive ‘shall’ … is a mandatory com- mand" requiring that the mayor or the chairperson of the city council or city commission must be served with the notice, and a claimant must strictly comply with this service requirement. Id. at 888, 891 (1), 825 S.E.2d 385. In addition, we reiterated that governing officials cannot waive statutory ante litem notice requirements, either expressly or by conduct, and therefore, even if a city official conducts an investigation into the claim, that action does not waive the lack of proper notice. Id. at 888-889, 825 S.E.2d 385.

[3] With these guiding principles in mind, we turn to the relevant facts in this case, conscious that: (i) "[o]ur review of a trial court’s grant of a motion to dismiss is de novo, and we construe the allegations of the complaint in the light most favorable to the plaintiffs[,]" Wallace v. City of Atlanta, 368 Ga. App. 260, 261, 889 S.E.2d 438 (2023); and (ii) "[t]he interpretation of a statute is a question of law, which we review de novo[,]" Ussery v. Goodrich Restoration, 341 Ga. App. 390, 391 (1), 800 S.E.2d 606 (2017). So viewed, Fleureme’s complaint indicates that "[s]ervice may be perfected upon Defendant City of Atlanta, Georgia by service upon the honorable Mayor Andre Dickens, City of Atlanta, Executive Offices, 55 Trinity Avenue, Atlanta, Fulton County, Georgia 30303." The complaint further alleges that prior to filing his lawsuit, Fleureme served notices of claim to: "Defendant City of Atlanta, Georgia via Federal Express Priority Overnight delivery by letter addressed to … City of Atlanta Mayor or President of Atlanta City Council, and City of Atlanta Office of the Mayor[.]"² Exhibit "A" attached to the complaint³ shows a Federal Express overnight mailing label addressed to:

Atlanta City Hall

Atlanta City Council

with an inside letter including a salutation "To Whom it May Concern" and a header noting: "Atlanta City Hall[,] Mayor or President. of Atlanta City Council." The exhibit contains another Federal Express overnight mailing label addressed to:

City of Atlanta Office of the Mayor

City of Atlanta

with an inside letter including a salutation "To Whom it May Concern" and a header noting: "City of Atlanta[,] Office of the Mayor."

The City filed a motion to dismiss Fleureme’s complaint, asserting that the City was not properly served with ante litem notice. The trial court granted the City’s motion to dismiss, specifically finding: (i) "Mailing a notice to ‘Atlanta City Council’ and listing ‘Mayor or President of Atlanta City Council’ only on the notice itself rather than the outside of the envelope does not follow the plain language requirement that one of those officials be served"; and (ii) "A letter to the 'Office of the Mayor’ rather than the mayor himself does not meet the requirements if that office employs multiple people." At issue on appeal is whether these mailings complied with the notice requirements mandated in OCGA § 36-33-5 (f).⁴

Fleureme argues on appeal that the trial court erred in dismissing his complaint for failure to comply with the ante litem notice provision regarding service. He specifically asserts that the City’s argument over the way the envelopes containing the notices were addressed amounts to "immaterial nitpicking," and the court’s statutory interpretation was flawed. Before addressing each mailing specifically, we turn to Fleureme’s general arguments regarding the trial court’s interpretation of the statutory requirement.

[4] 1. Fleureme asserts that the trial court’s analysis "goes off the rails" because the court failed to recognize that OCGA § 36-33-5 (f) "provides a disjunctive list of alternative, acceptable service methods to serve the official - (1) personally or (2) by certified mail or (3) by statutory overnight delivery - [and instead] erroneously blended the three into one personal service requirement[.]" (Emphasis in original.) According to Fleureme, the ante litem statute does not require service on the official personally if a claimant chooses to serve the official by certified mail or statutory overnight delivery; rather, service on the official’s office is sufficient if those two methods are utilized. While service on the mayor’s office or the chairperson of the city council or city commission’s office may, in fact, be sufficient under the statute if service is accomplished using certified mail or statutory overnight delivery, we hold that the statute requires that the notice must actually be addressed to one of these statutorily designated individuals and not merely his or her office. See Albany, 348 Ga. App. at 891 (1), 825 S.E.2d 385 (holding that failure to serve either the mayor or the chairperson of the city council or the city commission does not comply with the ante litem statute and is fatal to a claim).

[5–8] "[T]he fundamental rules of statutory construction require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage." (Citation and punctuation omitted.) Albany, 348 Ga. App. at 890 (1), 825 S.E.2d 385. As discussed previously, OCGA § 36-33-5 (f) mandates - through the use of the word "shall" - that the mayor or the chairperson of the city council or city commission must be served with the notice. Id. at 891 (1), 825 S.E.2d 385. The statute clarifies upon whom and how ante litem notice must be served to reduce uncertainty and ensure the proper individuals are aware of a claim. Id. at 890 (1), 825 S.E.2d 385.

If substantial compliance with subsection (f) was all that is required (i.e., service of notice on other individuals or entities associated with the municipal corporation other than those specified in subsection (f) would be sufficient), then there was no purpose in enacting subsection (f), at least not with the use of the directive ‘shall,’ which is a mandatory command.

Id. at 891 (1), 825 S.E.2d 385. Indeed, the statutory language is clear and unambiguous: "A claim submitted under this Code section shall be served upon the mayor or the chair-person of the city council or city commission, as the case may be[.]" (Emphasis supplied.) OCGA § 36-33-5 (f). The statute then delineates how such service may be accomplished: "by delivering the claim to such official personally or by certified mail or statutory overnight delivery." Id. "[W]e presume that the General Assembly meant what it said and said what it meant." (Citation and punctuation omitted.) Albany, 348 Ga. App. at 890 (I), 825 S.E.2d 385.

The statute does not, as argued by Fleureme, permit: (i) service on the mayor or the chairperson of the city council or city commission personally; or (ii) service "on the office, not the person" of one of these individuals by (a) certified mail, or (b) statutory overnight delivery. Such a reading does not comport with...