FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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 14, 2015
In the Court of Appeals of Georgia
A15A1145. CITY OF GREENSBORO, GEORGIA v. ROWLAND et al.
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 Rowland and Flenard Rowland (the
“Rowlands”), asserting claims for inverse condemnation, trespass, intentional tort,
and nuisance,1 arising out of the City’s construction and maintenance of a drainage
ditch across their properties.
1
In their complaint, the Rowlands seek to recover compensatory and punitive
damages, as well as obtain injunctive relief. The trial court granted the City’s motion
to dismiss as to the claim for punitive damages, but denied the motion as to the
remaining claims.
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
2
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 OCGA § 36-33-5. The trial court rejected these arguments without
explanation, and this appeal followed.
1. The City first asserts that the trial court erred in denying their 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
2
This paragraph provides: “[t]he General Assembly may waive the immunity
of counties, municipalities, and school districts by law.”
3
itself. See City of Atlanta v. Mitcham, 296 Ga. 576, 577 (1) (769 SE2d 320) (2015);
Sustainable Coast, 294 Ga. at 599. 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 sued for damages and enjoined for creating or maintaining
a nuisance.” Id.
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
3
This section provides:
4
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
Except as specifically provided in this Paragraph, sovereign immunity
extends to the state and all of its departments and agencies. The
sovereign immunity of the state and its departments and agencies can
only be waived by an Act of the General Assembly which specifically
provides that sovereign immunity is thereby waived and the extent of
such waiver.
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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 OCGA § 36-33-5 identifying the specific events underlying their
claims.
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.
4
Because we find that sovereign immunity does not apply, it is unnecessary for
us to undertake an analysis of whether sovereign immunity has been waived under
OCGA § 36-33-1, which “for more than a century been interpreted to mean that
municipal corporations are immune from liability for acts taken in performance of a
governmental function but may be liable for the negligent performance of their
ministerial duties.” Mitcham, 296 Ga. at 577-578 (1).
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OCGA § 36-33-5 (b). Because this statute is in derogation of the common law, “[i]t
is well settled . . . that substantial compliance with OCGA § 36-33-5 is all that is
required.” (Citation and punctuation omitted.) Simmons v. Mayor & Aldermen of the
City of Savannah, 303 Ga. App. 452, 454 (693 SE2d 517) (2010). Nevertheless,
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 complaint as Exhibit 1 is a copy of a letter dated October 11, 2013
from the Rowlands’ counsel to the City. The letter states that it is in response to “the
City’s Notice of Early Public Review of Floodplain Compliance,” and asserts that the
5
Although the City notes that the Complaint does not specifically allege that
the Rowlands complied with OCGA § 36-33-5, they have not pointed us to any
authority requiring such detailed pleading.
7
Rowlands “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
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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 OCGA § 36-33-5 (b), we find that the letters were sufficient to put the
City “on notice of the general character of the complaint,” namely the claim of a
continuing nuisance on the Property caused by the City’s water drainage system, and
“in a general way, of the time, place, and extent of the injury,” (i.e., that the flooding
was ongoing and that the damage amounted to a taking of the Property). Owens, 290
Ga. at 562 (4).
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 OCGA § 35-33-5 (b). But as our Supreme Court recognized in City
of Chamblee v. Maxwell, 264 Ga. 635, 636 (452 SE2d 488) (1994), a claim like the
Rowlands’ for repeated instances of flooding is a claim for continuing trespass or
nuisance, “predicated upon the happening of a continuous series of ‘events,’” and
9
“[w]here a trespass is continuing in nature, . . . a new cause of action arises daily.”
(Citations and punctuation omitted.) Id. Accordingly, the Rowlands were not required
to give notice of a specific date of each injury. Rather, the date of the notice limits the
extent of recovery for damages incurred prior to the notice. Therefore,
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
of OCGA § 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.
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