FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, 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. https://www.gaappeals.us/rules
October 30, 2025
In the Court of Appeals of Georgia A25A1298. CITY OF BLUE RIDGE et al v. BR 01035, LLC.
PIPKIN, Judge.
Appellee BR 01035, LLC sued Appellants City of Blue Ridge and certain City
of Blue Ridge Officials, raising claims of trespass, continuing nuisance, inverse
condemnation, and attorney fees. Appellants moved to dismiss, arguing that
Appellee’s ante litem notice failed to meet the requirements of OCGA § 36-33-5 (e).
The trial court denied the motion but granted Appellants a certificate of immediate
review of that order. This Court granted Appellants’ application, and, on appeal,
Appellants argue that the trial court erred by denying their motion to dismiss. We
agree, and, consequently, we reverse the judgment of the trial court.
On appeal, we review the grant of any motion to dismiss de novo, and a motion to dismiss should not be granted unless 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. We construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.
(Citation and punctuation omitted.) Tanks v. Nesmith, 359 Ga. App. 596, 596 (859
SE2d 559) (2021). So viewed, the record shows that Appellee sent an ante litem notice
to Appellants alleging that the City had allowed an “ongoing water runoff issue” that
had adversely affected property owned by Appellee and that the water runoff was “a
daily occurrence.” The notice further asserted that “[t]he actions of the City have
resulted in continuing and ongoing damages in the amount of $1,500,000.00 to date.”
In December 2023, Appellee sued Appellants for trespass, nuisance, and inverse
condemnation arising out of the water runoff problem, filing an amended complaint
in February 2024.
Appellants moved to dismiss the operative complaint on the ground that
Appellee’s ante litem notice was insufficient because it failed to make a settlement
demand or state the amount of damages sought from the City. The trial court denied
the motion, concluding that the ante litem notice statute “does not necessarily require
that an express demand for a specific monetary amount be made” and that the notice
here properly “included a specific amount of monetary damages being sought.”
2 Appellants contend that the trial court erred by denying their motion to dismiss
because Appellee failed to identify a specific amount of monetary damages sought in
its ante litem notice as required by OCGA § 36-33-5 (e). We agree.
Under OCGA § 36-33-5 (a) “anyone who intends to assert a claim against a
municipal corporation for monetary damages arising from personal injuries or
property damage must first provide notice of the claim.” Wright, 350 Ga. App. at 688-
689.1 OCGA § 36-33-5 (b) requires that a claimant provide written notice of the claim
to the governing authority of the municipal corporation, and such notice must include
“the time, place, and extent of the injury, as nearly as practicable, and the negligence
which caused the injury.” Further, “[t]he description of the extent of the injury
required in subsection (b) . . . shall include the specific amount of monetary damages
1 Appellee contends that its claims were not subject to the ante litem notice requirements of OCGA § 36-33-5 because, Appellee argues, it did not bring any claims sounding in negligence. See West v. City of Albany, 300 Ga. 743, 747 (797 SE2d 809) (2017) (holding that the plain language of the ante litem statute “demonstrates [that] it applies only to damages caused by negligence, not intentional acts”). However, Appellee conceeds that the trial court did not rule on this issue; consequently, we will not review it on appeal. See Pneumo Abex v. Long, 357 Ga. App. 17, 29 (2) (849 SE2d 746) (2020) (“As we have repeatedly explained, this is a Court for the correction of errors of law, and if the trial court has not ruled on an issue, we will not address it. Indeed, without a ruling by the trial court on a particular issue, there is nothing for this Court to review upon appeal.” (citation and punctuation omitted)).
3 being sought . . . [which] shall constitute an offer of compromise.” OCGA § 36-33-5
(e). “It follows that a notice does not substantially comply with subsection (e) 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 SE2d 738)
(2018). It is important to note that OCGA § 36-33-5 (e) “does not require a potential
plaintiff to provide the actual dollar amount of the damages allegedly incurred, which
might be difficult to quantify. Instead, the provision requires the ante litem notice to
provide the specific amount of monetary damages being sought from the city, i.e., a
settlement offer.” (Citation and punctuation omitted.) City of Lafayette v. Chandler,
354 Ga. App. 259, 262 (840 SE2d 638) (2020). Indeed, this Court has explained that
there is “a difference between the amount of damages incurred and the amount of
damages claimed” for purposes of the ante litem notice statute. Tanks, 359 Ga. App.
at 599.
Appellee contends that its ante litem notice complied with the requirements of
OCGA § 36-33-5 (e) because it provided a finite number - i.e., $1,500,000 - and
because the inclusion of the phrase “to date” provided the required definiteness in
the monetary amount being sought. When viewed in the proper context, however, we
4 are not persuaded. Appellee’s ante litem notice advised Appellants that the water
runoff issue is “continuous and ongoing; it is a daily occurrence,” that “the actions
by [Appellants] are continuing and renewed each day,” and that “[t]he actions by
[Appellants] have resulted in continuing and ongoing damages in the amount of
$1,500,000.00 to date.” In other words, Appellee’s ante litem notice made it clear
that the damages incurred from the water runoff were continuous and ongoing. And
while the ante litem notice here stated that the plaintiff had incurred “continuing and
ongoing damages in the amount of $1,500,000.00 to date,” it did not specify that it
sought only $1,500,000 from the City. Instead, Appellee provided Appellants with “an
open-ended estimate of potential damages” which “does not constitute a real offer of
compromise which the City could have accepted as contemplated by the language and
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FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, 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. https://www.gaappeals.us/rules
October 30, 2025
In the Court of Appeals of Georgia A25A1298. CITY OF BLUE RIDGE et al v. BR 01035, LLC.
PIPKIN, Judge.
Appellee BR 01035, LLC sued Appellants City of Blue Ridge and certain City
of Blue Ridge Officials, raising claims of trespass, continuing nuisance, inverse
condemnation, and attorney fees. Appellants moved to dismiss, arguing that
Appellee’s ante litem notice failed to meet the requirements of OCGA § 36-33-5 (e).
The trial court denied the motion but granted Appellants a certificate of immediate
review of that order. This Court granted Appellants’ application, and, on appeal,
Appellants argue that the trial court erred by denying their motion to dismiss. We
agree, and, consequently, we reverse the judgment of the trial court.
On appeal, we review the grant of any motion to dismiss de novo, and a motion to dismiss should not be granted unless 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. We construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.
(Citation and punctuation omitted.) Tanks v. Nesmith, 359 Ga. App. 596, 596 (859
SE2d 559) (2021). So viewed, the record shows that Appellee sent an ante litem notice
to Appellants alleging that the City had allowed an “ongoing water runoff issue” that
had adversely affected property owned by Appellee and that the water runoff was “a
daily occurrence.” The notice further asserted that “[t]he actions of the City have
resulted in continuing and ongoing damages in the amount of $1,500,000.00 to date.”
In December 2023, Appellee sued Appellants for trespass, nuisance, and inverse
condemnation arising out of the water runoff problem, filing an amended complaint
in February 2024.
Appellants moved to dismiss the operative complaint on the ground that
Appellee’s ante litem notice was insufficient because it failed to make a settlement
demand or state the amount of damages sought from the City. The trial court denied
the motion, concluding that the ante litem notice statute “does not necessarily require
that an express demand for a specific monetary amount be made” and that the notice
here properly “included a specific amount of monetary damages being sought.”
2 Appellants contend that the trial court erred by denying their motion to dismiss
because Appellee failed to identify a specific amount of monetary damages sought in
its ante litem notice as required by OCGA § 36-33-5 (e). We agree.
Under OCGA § 36-33-5 (a) “anyone who intends to assert a claim against a
municipal corporation for monetary damages arising from personal injuries or
property damage must first provide notice of the claim.” Wright, 350 Ga. App. at 688-
689.1 OCGA § 36-33-5 (b) requires that a claimant provide written notice of the claim
to the governing authority of the municipal corporation, and such notice must include
“the time, place, and extent of the injury, as nearly as practicable, and the negligence
which caused the injury.” Further, “[t]he description of the extent of the injury
required in subsection (b) . . . shall include the specific amount of monetary damages
1 Appellee contends that its claims were not subject to the ante litem notice requirements of OCGA § 36-33-5 because, Appellee argues, it did not bring any claims sounding in negligence. See West v. City of Albany, 300 Ga. 743, 747 (797 SE2d 809) (2017) (holding that the plain language of the ante litem statute “demonstrates [that] it applies only to damages caused by negligence, not intentional acts”). However, Appellee conceeds that the trial court did not rule on this issue; consequently, we will not review it on appeal. See Pneumo Abex v. Long, 357 Ga. App. 17, 29 (2) (849 SE2d 746) (2020) (“As we have repeatedly explained, this is a Court for the correction of errors of law, and if the trial court has not ruled on an issue, we will not address it. Indeed, without a ruling by the trial court on a particular issue, there is nothing for this Court to review upon appeal.” (citation and punctuation omitted)).
3 being sought . . . [which] shall constitute an offer of compromise.” OCGA § 36-33-5
(e). “It follows that a notice does not substantially comply with subsection (e) 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 SE2d 738)
(2018). It is important to note that OCGA § 36-33-5 (e) “does not require a potential
plaintiff to provide the actual dollar amount of the damages allegedly incurred, which
might be difficult to quantify. Instead, the provision requires the ante litem notice to
provide the specific amount of monetary damages being sought from the city, i.e., a
settlement offer.” (Citation and punctuation omitted.) City of Lafayette v. Chandler,
354 Ga. App. 259, 262 (840 SE2d 638) (2020). Indeed, this Court has explained that
there is “a difference between the amount of damages incurred and the amount of
damages claimed” for purposes of the ante litem notice statute. Tanks, 359 Ga. App.
at 599.
Appellee contends that its ante litem notice complied with the requirements of
OCGA § 36-33-5 (e) because it provided a finite number - i.e., $1,500,000 - and
because the inclusion of the phrase “to date” provided the required definiteness in
the monetary amount being sought. When viewed in the proper context, however, we
4 are not persuaded. Appellee’s ante litem notice advised Appellants that the water
runoff issue is “continuous and ongoing; it is a daily occurrence,” that “the actions
by [Appellants] are continuing and renewed each day,” and that “[t]he actions by
[Appellants] have resulted in continuing and ongoing damages in the amount of
$1,500,000.00 to date.” In other words, Appellee’s ante litem notice made it clear
that the damages incurred from the water runoff were continuous and ongoing. And
while the ante litem notice here stated that the plaintiff had incurred “continuing and
ongoing damages in the amount of $1,500,000.00 to date,” it did not specify that it
sought only $1,500,000 from the City. Instead, Appellee provided Appellants with “an
open-ended estimate of potential damages” which “does not constitute a real offer of
compromise which the City could have accepted as contemplated by the language and
purpose of OCGA § 36-33-5 (e).” Pickens v. City of Waco, 352 Ga. App. 37, 44 (1) (833
SE2d 713) (2019) (holding ante litem notice seeking damages that “may exceed
$300,000.00” was insufficient under OCGA § 36-33-5 (e) because the amount sought
was too indefinite to constitute a binding offer of settlement); accord City of Conyers
v. Sampson, 362 Ga. App. 301, 302-304 (868 SE2d 283) (2022) (reversing denial of
motion to dismiss where ante litem notice failed to satisfy specific amount
5 requirement by stating: “The amount of the claim is $500,000.00, which Troy
Sampson believes to be within the limits of insurance”); Manzanares v. City of
Brookhaven, 352 Ga. App. 293, 294-297 (1) (834 SE2d 358) (2019) (affirming grant of
motion to dismiss where plaintiff’s ante litem notice failed to comply with OCGA §
36-33-5 (e) where it stated: “While our investigation is still ongoing, we believe that
the value of this claim may exceed $250,000.00”). Compare City of Lafayette v.
Chandler, 354 Ga. App. 259, 261 (840 SE2d 638) (2020) (holding that ante litem
notice complied with OCGA § 35-33-5 (e) where it stated that plaintiff would “seek
to recover $1,000,000.00 (one million dollars) in monetary damages”).
Here, the notice failed to comply with subsection (e) because it did not provide
a specific amount that would constitute a binding offer of settlement that could be
accepted by Appellants. Accordingly, the trial court erred in denying the Appellants’
motion to dismiss.
Judgment reversed. McFadden, P. J., and Hodges, J., concur.