Mary E. Harrell v. City of Griffin

• Court: Court of Appeals of Georgia
• Decided: June 27, 2018
• Docket: A18A0415
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., RAY and RICKMAN, 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

June 27, 2018

In the Court of Appeals of Georgia A18A0415. HARRELL v. CITY OF GRIFFIN.

RICKMAN, Judge.

Those desiring to file suit for damages against a municipality must provide ante

litem notice of the claim to the municipality within six months of the related injury.

See OCGA § 36-33-5. Two months after Mary Harrell was involved in an automobile

collision with a City of Griffin police officer, an amendment to the ante litem notice

requirement, new subsection (e), became effective, thereby requiring that the notice

include “the specific amount of monetary damages being sought . . . [which] shall

constitute an offer of compromise.” Ga. L. 2014, p. 125, § 1. Over two months after

the amendment became effective, Harrell gave ante litem notice to Griffin but failed

to include the specific information required by the amendment. The trial court granted Griffin’s motion to dismiss Harrell’s complaint for that reason. Harrell appeals. For

the reasons that follow, we affirm.

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.” (Citation and punctuation omitted.) Babalola v. HSBC

Bank, USA, N. A., 324 Ga. App. 750, 752 (2) (751 SE2d 545) (2013). “[W]e construe

the pleadings in the light most favorable to the plaintiff with any doubts resolved in

the plaintiff’s favor.” (Citation and punctuation omitted.) Georgia Dept. of

Community Health v. Data Inquiry, LLC, 313 Ga. App. 683 (722 SE2d 403) (2012).

So construed, the record shows that on May 2, 2014, Harrell was a passenger

in a truck driven by her husband and that she was injured in an accident with a police

car being driven by a police officer acting within the scope of her employment with

the City of Griffin Police Department. On September 16, 2014, Harrell provided the

city ante litem notice of her intention to file suit. In the letter, Harrell provided,

among other things, information about the time, place, and extent of the injury, and

she alleged the negligence that caused the injury. With regard to the “[a]mount of loss

claimed,” Harrell stated that she sought “[f]ull recovery allowed by Georgia law,

2 including, but not limited to, damages for past and future pain and suffering, past and

future medical expenses, and past and future lost wages.” The city attorney for Griffin

replied to the notice indicating that the city had “conducted a preliminary

investigation of this matter”; that the city “acknowledg[ed] receipt of your claim”;

that the claim had been filed with the Georgia Interlocal Risk Management Agency;

and that a claims representative would “conduct a further investigation and manage

the claim on the City’s behalf.”

Harrell filed suit on February 2, 2016, and Griffin eventually filed a motion to

dismiss on the ground that Harrell’s ante litem notice was insufficient. The trial court

granted the motion on the ground that Harrell failed to provide “the specific amount

of monetary damages being sought from [Griffin]” as required by OCGA § 36-33-5

(e). On appeal, Harrell argues that her ante litem notice substantially complied with

the statute, including subsection (e), and that application of subsection (e) to her

claim constitutes an improper retroactive application of law. We agree with the trial

court that Harrell did not provide the required information and that the amendment

can be applied to her claim.

At the time of Harrell’s injury, a claimant was required to include the following

information in the ante litem notice: “the time, place, and extent of the injury, as

3 nearly as practicable, and the negligence which caused the injury.” OCGA § 36-33-5

(b) (2012). In 2014, the Code section was amended to include new subsections (e)

and (f). See Ga. L. 2014, p. 125, § 1. New subsection (e) adds a requirement that

[t]he description of the extent of the injury required in subsection (b) of this Code section shall include the specific amount of monetary damages being sought from the municipal corporation. The amount of monetary damages set forth in such claim shall constitute an offer of compromise. In the event such claim is not settled by the municipal corporation and the claimant litigates such claim, the amount of monetary damage set forth in such claim shall not be binding on the claimant.

(Emphasis supplied.) OCGA § 36-33-5 (e).1 This new requirement became effective

July 1, 2014,2 approximately two months after Harrell’s injury and a little over two

months prior to when she gave ante litem notice to Griffin.

1 New subsection (f) provides to whom the notice must be delivered and in what manner. OCGA § 36-33-5 (f). 2 See OCGA § 1-3-4 (a) (“Unless a different effective date is specified in an Act . . . [a]ny Act which is approved by the Governor or which becomes law without his approval on or after the first day of January and prior to the first day of July of a calendar year shall become effective on the first day of July[.]”). The 2014 act amending OCGA § 36-33-5 did not specify a different effective date. See Ga. L. 2014, p. 125, § 1.

4 1. Harrell contends the trial court erred in dismissing her suit because her ante

litem notice substantially complied with OCGA § 36-33-5. See City of Greensboro

v. Rowland, 334 Ga. App. 148, 151 (2) (778 SE2d 409) (2015) (addressing subsection

(b) but not subsection (e); holding that “substantial compliance with OCGA § 36-33-5

is all that is required”) (citation omitted); Owens v. City of Greenville, 290 Ga. 557,

561 (4) (722 SE2d 755) (2012) (same). Even if only substantial compliance is

required for subsection (e), we hold that the notice provided here was not

substantially sufficient.

“[T]here is no precise standard for determining whether any given ante-litem

notice is substantively sufficient.” (Citation and punctuation omitted.) Owens, 290

Ga. at 561 (4), But in Owens, our Supreme Court looked to the relevant language of

OCGA § 36-33-5 (b) to determine whether a particular ante litem notice substantially

complied with that subsection. Id. at 561-562 (4). The court noted that subsection (b)

required a description of “the time, place, and extent of the injury, as nearly as

practicable.” (Citation and punctuation omitted; emphasis supplied.) Id. at 562 (4).

The court concluded that the emphasized language showed that “absolute exactness

need not be had.” (Citation and punctuation omitted.) Id.

5 But subsection (e) of OCGA § 36-33-5 contains markedly different language

than subsection (b); it expressly requires additional “specific” information: “The

description of the extent of the injury required in subsection (b) of this Code section

shall include the specific amount of monetary damages being sought . . . [which] shall

constitute an offer of compromise.” OCGA § 36-33-5 (e). Further, the remainder of

subsection (e) directly implies that the defendant may accept such an offer, thereby

creating a binding settlement. Id. (“In the event such claim is not settled by the

municipal corporation and the claimant litigates such claim, the amount of monetary

damage set forth in such claim shall not be binding on the claimant.”). 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.3

Here, Harrell’s notice did not include any specific amount of monetary

damages being sought from Griffin that could constitute an offer of compromise.

Accordingly, the trial court did not err by concluding that Harrell’s notice did not

comply with OCGA § 36-33-5 (e). Cf. Simmons v. Mayor & Alderman of City of

3 This required specificity also serves to distinguish cases such as Atlanta Taxicab Co. Owners Assoc. v. City of Atlanta, 281 Ga. 342, 352 (5) (638 SE2d 307) (2006), which hold that “[t]he 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.”

6 Savannah, 303 Ga. App. 452, 455 (693 SE2d 517) (2010) (ante litem notice did not

substantially comply with OCGA § 36-33-5 (b) where it “failed to properly or even

generally identify where the incident actually occurred”).

2. Harrell contends the trial court erred in dismissing her suit because the

amendment to OCGA § 36-33-5, adding subsection (e), cannot be applied to torts

occurring prior to the amendment’s effective date.

(a) “The general rule is that laws prescribe only for the future, and usually will

not be given retrospective operation. They will be given a retrospective operation,

however, when the language imperatively requires it, or when an examination of the

act as a whole leads to the conclusion that such was the legislative purpose.” Canton

Textile Mills, Inc. v. Lathem, 253 Ga. 102, 103 (1) (317 SE2d 189) (1984).

Accordingly, courts first look to the statutory text for a clear indication of whether the

legislature intended a statute to apply retroactively. See Deal v. Coleman, 294 Ga.

170, 174-175 (1) (b) (751 SE2d 337) (2013).

In the 2014 Act amending OCGA § 36-33-5, the legislature did not expressly

state whether the amendment applied to all torts that occurred after July 1, 2014 or

only to all ante litem notices issued after that date. But the amendment’s effect is to

alter the information required in the ante litem notice itself and to indicate how and

7 on whom the notice must be served. Thus, the amendment pertains to the notice itself

and not to the underlying tort. We therefore conclude that the amendment applies

prospectively, i.e., to all ante litem notices issued after the effective date of the

amendment. Accordingly, the trial court correctly applied OCGA § 36-33-5 (e) to the

case at hand.

(b) In the alternative, Harrell contends that applying the amendment to an ante

litem notice filed after the effective date of the amendment but arising out of a tort

that occurred prior to the effective date constitutes an improper retrospective

application of the amendment. We disagree.

“[A] statute does not operate retrospectively in its legal sense simply because

it relates to antecedent facts, it must be intended to affect transactions which occurred

or rights which accrued before it became operative as such, and which ascribe to them

essentially different effects, in view of the law at the time of their occurrence.”

(Citations and punctuation omitted.) DeKalb County v. State, 270 Ga. 776, 778 (1)

(512 SE2d 284) (1999). “That is, retrospective operation takes away or impairs vested

rights acquired under existing laws or creates a new obligation, imposes a new duty,

or attaches a new liability in respect to transactions or considerations already past.

8 (Citations and punctuation omitted.) Fowler Properties v. Dowland, 282 Ga. 76, 77-

78 (1) (646 SE2d 197) (2007); see generally Deal, 294 Ga. at 183 (2) (b) (vested

rights are private rights that “refer to an individual’s common law rights in property

and bodily integrity, as well as in the enforcement of contracts”).

“[L]egislation which involves mere procedural or evidentiary changes may

operate retrospectively.” (Citation omitted.) Fowler Properties, 282 Ga. at 77-78 (1).

“The distinction is that a substantive law creates rights, duties, and obligations while

a procedural law prescribes the methods of enforcing those rights, duties, and

obligations.” Id.; see also Mason v. Home Depot U.S.A., 283 Ga. 271, 278 (4) (658

SE2d 603) (2008) (“there are no vested rights in any course of procedure”) (citation

and punctuation omitted).

Here, the 2014 amendment to OCGA § 36-33-5 merely refines one aspect of

the procedure for enforcing the rights Harrell had arising out of his tort cause of

action. It simply requires those desiring to file suit for damages against a municipality

to include certain specific information in the required ante litem notice, namely “the

specific amount of monetary damages being sought.” Ga. L. 2014, p. 125, § 1. And

although the specified amount “shall constitute an offer of compromise,” that could

be accepted by the municipality, such an offer of compromise does not affect the

9 measure of damages that Harrell would be entitled to at law.4 In sum, the amendment

affects only a procedure or remedy, and not any vested rights. See generally Pritchard

v. Savannah St. &c R. Co., 87 Ga. 294 (13 SE 493) (1891) (examining the difference

between procedures and vested rights). We therefore find no constitutional violation.

Judgment affirmed. McFadden, P. J., and Ray, J., concur.

4 Unlike the offer-of-settlement provision of the Tort Reform Act, OCGA § 9- 11-68 (b), which provides, under certain circumstances, for an assessment of attorney fees and expenses of litigation against a plaintiff who rejects an offer of settlement by a defendant, OCGA § 36-33-5 does not provide for any penalty arising out of the required “offer of settlement” provided therein.