Redmond v. City of Asheville

209 S.E.2d 820, 23 N.C. App. 739, 1974 N.C. App. LEXIS 2208

• Court: Court of Appeals of North Carolina
• Decided: November 20, 1974
• Docket: No. 7428SC693
• Status: Published

Opinion

VAUGHN, Judge.

Plaintiffs contend that their letter to the City Manager should be adjudged substantial compliance with the charter requirement that the claim be presented to the City Council. The Supreme Court of North Carolina has decided otherwise. “The statute and the decided cases do not permit the court to repeal the plain wording of the requirement that notice in writing be given to the named officials . . . Relaxation of the rules is within the jurisdiction of the agency that makes them- — that is the General Assembly.” Johnson v. City of Winston-Salem, 282 N.C. 518, 523, 193 S.E. 2d 717, 721. In Johnson, the claim was barred because it was not filed with the board of aldermen or mayor even though the claimant had carried on extensive negotiations with a full time “Claims Investigator” for the city and with the city attorney and had every reason to believe that his claim was in the process of settlement. The Court held that “ [A] nything short of a written claim signed by the plaintiff or his attorney and filed with the board of aldermen or the mayor within the ninety days, required a dismissal of the action.” 282 N.C., at 523, 193 S.E. 2d, at 721. See also Nevins v. Lexington, 212 N.C. 616, 194 S.E. 293, where in an action arising out of a contract, the Court held that notice to the City Manager was not sufficient under a statute which required only notification of “the proper municipal authorities.”

In the case before us plaintiffs failed to give the required notice prior to the commencement of the action. Defendant was entitled to judgment as a matter of law. It was proper, therefore, for the Court to grant summary judgment in defendant’s favor.

Affirmed.

Judges Campbell and Britt concur.