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Davis v. City of Forsyth9/9/2005
ipality in Cundy v. City of Smyrna, holding that the plaintiff's claims arising from a 1999 sewage overflow incident, which occurred more than six months prior to her 2001 ante litem notice, were barred as a matter of law under OCGA § 36-33-5. In Canberg v. City of Toccoa, the City filed a motion for partial judgment on the pleadings as to the sufficiency of the ante litem notice. The trial court considered matters outside the pleadings, including certain affidavits, thus converting the motion into one for summary judgment. The use of the summary judgment method was not challenged on appeal, although the case was reversed on the merits based on the plaintiffs' substantial compliance with the ante litem notice requirements.
But the year after Canberg was decided, we held in Nicholas v. Van that the appropriate method for disposing of the defendant city's assertion that the ante litem notice was untimely was dismissal of the claims against the city rather than summary judgment. Finally, contrary to the City's argument in the case at bar, our recent decision in Rabun v. McCoy did not attempt to resolve this issue, noting only that the trial court had considered the defendant city's motion for summary judgment as one to dismiss, relying on Nicholas. However, on appeal, we analyzed the case in the summary judgment context because of the need to consider evidence in the record.
The cases illustrate the need for flexibility in determining whether compliance with the ante litem notice requirements is properly considered a matter in abatement, which should be raised in a motion to dismiss. Although technically, a city's assertion of noncompliance merely questions "the propriety of the remedy rather than . . . denying the injury ," there are cases which raise issues requiring the consideration of matters outside the pleadings, in which case a summary judgment analysis will be appropriate.
In the case at bar, the facts are aligned with City of Maxwell and Cundy, which are binding precedents. Moreover, the trial court's order recites that the court considered all evidence of record, which presumably includes the Davises' depositions. Therefore, the trial court correctly utilized summary judgment standards in finding in favor of the City as to the claims for personal injury and property damage based on sewage overflows that occurred prior to November 9, 2000.
Judgment affirmed. Andrews, P. J., and Phipps, J., concur.
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