Maxwell v. City of Chamblee

Blackburn, Judge,

concurring specially.

I concur with the majority opinion that summary judgment for the city was proper as to the nuisances that occurred more than four years before the complaint was filed, and that any claim for a more recent nuisance was subject to dismissal in this case rather than/summary adjudication.

With regard to a claim for continuing nuisance not barred by the statute of limitation, “[although the trial court was correct in concluding that appellant had not complied with the ante litem notice requirements [of OCGA § 36-33-5], the judgment was incorrect insofar as it was styled as the grant of a summary judgment rather than as the grant of a motion to dismiss.” Jones v. City of Austell, 166 Ga. App. 808, 810 (305 SE2d 653) (1983). Compliance with OCGA § 36-33-5 is a condition precedent to filing suit against the city, and the failure to satisfy that condition is properly raised as a plea in abatement, not as a subject for summary judgment. Id.

In such cases, the appropriate action is dismissal, with the dismissal not operating as a bar to filing another suit. Id. Accordingly, although the trial court’s grant of summary judgment should be upheld for the nuisance that occurred more than four years before commencement of the action, the trial court’s judgment otherwise must be reversed and the case remanded for further action consistent with the above.