Jones v

City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983). Notice of a personal injury claim by a tenant is not sufficient as ante litem notice of a property damage claim by the landlord under O.C.G.A. § 36-33-5. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983). There is no requirement as to name and address of claimant in this section; failure to state either does not render the notice insufficient or noncompliant with this section. Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972). Even if claim requirement, unlike this section, demands address of claimant, that requirement is deemed satisfied if an address is given at which or through which the claimant may be found in order that the local government officials may make such investigation of the merits of the claim as may be desired. Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972). Waiver and Estoppel Knowledge of claim alone cannot work waiver of notice. — That the city governing authorities may have had knowledge of the fact that a party had a claim which the party expected to assert against the city, either from communications which do not meet the requisites of written notice under this section, or from a reference of the claim to an insurance carrier which undertook an investigation and settlement, cannot work a waiver of the notice, an estoppel to assert lack thereof, or toll the time for giving the notice. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969); Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986). Notice not required when city, as party to contract, aware of claims. — Ante litem notice to a municipality is required for claims ‘‘on account of injuries to person or property.’’ Property rights in contracts being intangible in nature rather than tangible, the notice was not 592 required where the city, as a party to the contract or negotiations leading up to the contract in question, was well aware of the conflicting claims, if any, arising out of the contract. Holbrook v. City of Atlanta, 139 Ga. App. 510, 229 S.E.2d 21 (1976). Notice not required for claims that were not for injury to person or property. — No ante litem notice to the city under O.C.G.A. § 36-33-5 was required for city water customers’ claims for unjust enrichment, money had and received, and breach of the city code because the claims were not claims for injuries to a person or property covered under § 36-33-5. City of Atlanta v. Benator, 310 Ga. App. 597, 714 S.E.2d 109 (2011), overruled on other grounds, FDIC v. Loudermilk, 2019 Ga. LEXIS 186 (Ga. 2019). Individual acts of city official will not create estoppel or waiver of this section when it is not shown that such city official had the actual or delegated authority of the governing body to waive such municipal rights. Peek v. City of Albany, 101 Ga. App. 564, 114 S.E.2d 451 (1960). Statutory requirements for ante litem notice to the governing authority of the city generally may not be waived by the city or by an individual, even if that individual is the official directly responsible for the injury or for claims adjustment. City of LaGrange v. USAA Ins. Co., 211 Ga. App. 19, 438 S.E.2d 137 (1993). City’s insurer. — City did not waive the ante litem notice requirement because the appellant’s claim was referred to the city’s insurer. Clark v. City of Smyrna, 212 Ga. App. 598, 442 S.E.2d 461 (1994). Notice sent to wrong party. — City waived the city’s claim that the subject ante litem notice did not comply with O.C.G.A. § 36-33-5 by sending the notice to a city claims investigator, rather than the city attorney or the mayor. City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 421 S.E.2d 113 (1992). City not estopped from invoking notice requirement by city attorney’s unauthorized declarations. — Any unauthorized declarations on the part of the city attorney to the effect that no written ante litem notice would be required in view of the fact that the matter had already been brought to the city’s attention 36-33-5 would not estop the city from invoking the statutory notice requirement since there was no evidence that the city attorney had any authority to waive the statutory notice requirement on behalf of the city. Gillingwater v. City of Valdosta, 177 Ga. App. 241, 339 S.E.2d 287 (1985). Governing officials of municipal corporation have no right to waive provisions of this section, and the municipality cannot be estopped by the representations of the municipality’s governing officials to a claimant that the claim will be settled without litigation. City of Calhoun v. Holland, 222 Ga. 817, 152 S.E.2d 752 (1966); Allen v. City of Macon, 118 Ga. App. 88, 162 S.E.2d 783 (1968). Municipality not liable when no notice and defect has not existed long enough to substitute for notice. — When the defective condition of a sidewalk is due to a failure to repair or to negligent acts of third persons, a city is not liable unless the city has had actual notice of the defect, or unless the city appears from the facts in the case that the defect could have been ascertained by the exercise of ordinary care, as when the defect existed for such a length of the time that notice will be implied. City of Rome v. Stone, 46 Ga. App. 259, 167 S.E. 325 (1933). Two appearances by plaintiff insufficient to waive notice. — Although notice was in the possession of the governing body of the municipal corporation before whom the plaintiff twice appeared, that alone would be insufficient to waive written notice within the time limited. Holland v. Calhoun, 114 Ga. App. 51, 150 S.E.2d 155, rev’d on other grounds, 222 Ga. 817, 152 S.E.2d 752 (1966). Reply to plaintiff ’s claim acts as estoppel to assert defects in notice. — When neither the pleadings nor the evidence reveals the slightest suggestion of restrictions on counsel for the city, the presumption arises that the city attorney had authority to bind the client by the solemn acknowledgment to plaintiff after receipt of plaintiff ’s letter giving notice of plaintiff ’s injury that, after investigation, the conclusion had been reached that the city was not liable. This amounts to an acknowledgment that this section had 593 Waiver and Estoppel (Cont’d) been complied with and the ante litem notice was sufficient, clearing the way for the filing of the complaint and estopping the city to deny the validity of the notice. City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969). Evidence stricken when insufficient to show waiver or estoppel. — When allegations that the matter of plaintiff ’s injury was referred to a liability insurance carrier for investigation and settlement are insufficient to show waiver or any basis for estoppel, the allegations are improper in the pleadings of a tort action because the allegations are irrelevant to the issue and the allegations are properly stricken on motion. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969). Issue of lack of notice must be raised at trial. — While the notice required before a suit against a city cannot be waived by the city authorities and is a condition precedent to recovery, a city which fails to raise the issue at trial cannot take advantage of the failure of a claimant to plead compliance with this section. Horton v. City of Macon, 144 Ga. App. 380, 241 S.E.2d 311 (1977). Time of Notice and Action Requirement of ante litem notice in this section is a statute of limitations. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969); City of Barnesville v. Powell, 124 Ga. App. 132, 183 S.E.2d 55 (1971); Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975). Notice requirement subject to general laws tolling statute of limitations. — Requirement that the notice be given within six months from the date of the injuries, or else that the action therefor be forever barred, is itself a statute of limitations and subject to the general law of this state with respect to the tolling of statutes of limitations. City of Atlanta v. Barrett, 102 Ga. App. 469, 116 S.E.2d 654 (1960); Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971). Former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5) did not purport to curtail a two-year period of 36-33-5 limitations, in actions for personal injuries, as provided in former Code 1933, § 3-1004 (see now O.C.G.A. § 9-3-33). It required that, as claims relate to municipal corporations, ante litem claims prepared as fully set forth shall be presented to the governing authority for adjustment, and inhibits commencement of an action against municipalities until such claims shall have been presented. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941). Second proviso of this section is exception to general rule that statute of limitations runs and continues to run from time that a complete cause of action arose; that is, from the time that plaintiff could have sued. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941). Applicability of section providing for computation of time after commencement of action. — Ga. L. 1966, p. 609, § 6 (see now O.C.G.A. § 9-11-6) provided for the computations of time applicable to proceedings after commencement of the action. It did not apply in determining the time within which an action may be instituted, or when it may be barred by a statute of limitations. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969). Section contemplates statute of limitations for injuries to person. — Term statute of limitations as used in former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5) so employed, though not expressly naming it, contemplated former Code 1933, § 3-1004 (see now O.C.G.A. § 9-3-33). City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941). Claim still pending when not considered within 30 days. — When a governing authority does not consider and act upon a claim within 30 days from the time the action was commenced, it must follow that the claim will still be pending before the governing authority. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941). Suspension of statute of limitations while claim pending. — Proviso in this section respecting the suspension of the statute of limitations is to the effect that the running of the statute shall be suspended during the time that the demand for payment is pending before the author- 594 ities without action on the authorities’ part. This necessarily means that so long as the claim for damages is pending before the governing authorities of the municipality, and the authorities have not acted upon the claim, the statute of limitations is suspended. City of Atlanta v. Truitt, 55 Ga. App. 365, 190 S.E. 369 (1937). When a claim not having been acted on by the governing authority is still pending under the plain and unambiguous language of the second proviso of this section, the statute of limitations is suspended not merely for 30 days, no action on the claim having been taken, but after 30 days up to the institution of suit. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941) (see O.C.G.A. § 36-33-5). It was not intended by the legislature that a municipality by refusing or omitting to act upon a claim could thereby delay or prevent institution of suit, and have the statute of limitations operative against the other party during the same period. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941). Trial court erred by dismissing an arrestee’s suit against a city alleging false arrest and other claims as being time-barred for not being filed within the two-year limitation period established in O.C.G.A. § 9-3-33 because the arrestee established that the arrestee had provided a timely ante litem notice, pursuant to O.C.G.A. § 36-33-5(b), to the city and had properly included evidence of the notice in the record as an exhibit to the appellate brief. Simon v. City of Atlanta, 287 Ga. App. 119, 650 S.E.2d 783 (2007). Municipality’s failure to answer claim no bar to action. — When it appeared from the petition in which the plaintiff sought to recover for personal injuries alleged to have been received by plaintiff as a result of a city’s negligence in the maintenance of one of the city’s streets, that the cause of action accrued January 23, 1938, and a claim therefor was filed with the governing authority of the defendant municipal corporation on January 19, 1940 (within the period of limitations), and that the defendant had never acted upon the claim, the plaintiff ’s cause of action had not become barred by the statute of limitations upon the filing of 36-33-5 the suit on February 24, 1940. City of Rome v. Rigdon, 64 Ga. App. 625, 13 S.E.2d 709, aff ’d, 192 Ga. 742, 16 S.E.2d 902 (1941). Even though there was no evidence that plaintiff provided written notice of plaintiff ’s claim as is required by O.C.G.A. § 36-33-5 before filing suit since the trial court found that genuine issues of material fact remained regarding the city’s liability for continuing trespass summary judgment was proper only as to those trespasses or nuisances which occurred more than four years prior to the filing of the complaint. Maxwell v. City of Chamblee, 212 Ga. App. 135, 441 S.E.2d 257, modified on other grounds, 264 Ga. 635, 452 S.E.2d 488 (1994). Filing of suit after expiration of 30-day claim period. — While this statute only prevents suit being filed within the period of 30 days after the filing of the claim with the city authorities, the statute does not prevent the filing of the suit at any time after the expiration of the 30 days, irrespective of whether or not the city authorities have acted on the claim. City of Atlanta v. Truitt, 55 Ga. App. 365, 190 S.E. 369 (1937). When period begins to run. — Time within which the notice must be given in order to comply with the statute begins to run on the day the breach of the city’s duty occurred. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969). Suit may not be filed until 30 days from filing of claim. — This section clearly prevents the filing of a suit against the municipality until after the expiration of 30 days from the filing of the claim in writing with the municipal authorities as required. Of course, this claim must be filed within the period of the statute of limitations, and before the plaintiffs’ right of action is barred. City of Atlanta v. Truitt, 55 Ga. App. 365, 190 S.E. 369 (1937). O.C.G.A. § 36-33-5 contemplates that suit shall not be brought until after the municipal authorities have acted upon the claim, or have failed to take action thereon within 30 days. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983). Effect of only part of injury occurring within statutory period. — While 595 Time of Notice and Action (Cont’d) the ante litem notice required to be given by this section is a prerequisite to the maintenance of an action against a city, if it appears from the notice that a part of the injury from which the claim arises occurred within the six-month period immediately preceding the notice, a general demurrer (now motion to dismiss) will not lie for noncompliance with this statute. City of Gainesville v. Moss, 108 Ga. App. 713, 134 S.E.2d 547 (1963), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994). Municipality may answer claim after period elapsed. — Length of time in which to consider and act upon a claim against a municipal corporation under this section has reference to consideration and action by public officers as affecting the public interest. It is not declared that the governing authority may not consider and act upon the claim after 30 days have elapsed. It could be to the public interest to have longer than 30 days. The object is to facilitate adjustment without suit, and there is no express withdrawal of power to consider and act. Thus, the quoted part of the first proviso of this section is merely directory, and not a limitation of authority. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941). Effect of disability. — When the person to whom the claim belongs under former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5) is a person under disability as set forth in O.C.G.A. §§ 9-3-90 and 9-3-98, the limitation period does not begin to run until such time as the disability shall have been removed. City of Barnesville v. Powell, 124 Ga. App. 132, 183 S.E.2d 55 (1971); Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975); Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979); City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988); Jacobs v. Littleton, 241 Ga. App. 403, 525 S.E.2d 433 (1999). Mental and physical incapacitation tolls statute. — When a person has a cause of action for personal injuries against a municipal corporation for which, as a condition precedent to its enforce- 36-33-5 ment, the person is required to give the statutory notice provided for in this section, and where, as a result of the occurrence giving rise to the cause of action, such person becomes mentally and physically incapacitated so as to be incapable of acting individually in carrying on the person’s business and in prosecuting the person’s claim, the time limit for giving the statutory notice of the person’s claim is tolled until such time as the person regains the capacity to act individually or until such time as a guardian is appointed and actually does act for the person, or until such time as one bona fide acting for the person as next friend actually gives the defendant municipality such notice. When a suit is brought thereafter by such next friend during the continuing disability of the plaintiff showing a notice given to the defendant more than 30 days prior to the filing thereof it is not subject to general demurrer (now motion to dismiss) on the ground that such notice was not timely given. City of Atlanta v. Barrett, 102 Ga. App. 469, 116 S.E.2d 654 (1960). Plaintiff waiting past expiration of 30-day period protected. — When a plaintiff, though having the right to sue immediately after the expiration of the 30-day period, nevertheless waits longer pending action on the demand by the municipal authorities, the plaintiff does so by permission of the law as well as under guaranty of the law that so long as the claim was pending without action the statute would not run against the plaintiff. It necessarily follows that this case is not to be governed by the general rule as to computing the limitation period from the time the cause of action accrues, but that it is governed by the exception found in the second proviso to this section, so far as it relates to the statute of limitations. City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941). Effect of later discovery of additional injury. — Later discovery by plaintiff that plaintiff was suffering from additional injury from plaintiff ’s previous fall does not toll or extend the time for giving the requisite ante litem notice. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969). Effect of period ending on Sunday. — If the statutory six-months period for 596 the giving of the notice ends on a Sunday, it does not extend the time to the Monday following since the period is measured in months, not days. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969). When the plaintiff failed to give notice to a municipality within six months of the claim’s origin, the court did not err in dismissing the complaint. Perdue v. City Council, 137 Ga. App. 702, 225 S.E.2d 62 (1976); Anderson v. City of Glenwood, 893 F. Supp. 1086 (S.D. Ga. 1995). Tolling of claims against municipal corporations. — In a tort action brought by a passenger against a regional transportation authority, the reversal of the denial of the authority’s motion for judgment on the pleadings was upheld because by its terms, O.C.G.A. § 36-33-5(d) permitted the tolling of the period of limitation only for claims against municipal corporations and it was not a municipal corporation. Foster v. Ga. Reg’l Transp. Auth., 297 Ga. 714, 777 S.E.2d 446 (2015). Case of continuing nuisance. — Notice to a city alleged to have been given within six months from the expiration of the four-year statute of limitations period during which the nuisance sued on continuously caused damage to the petitioner’s property was given within the time prescribed by this section. Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316 (1960), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994). Upon giving the six-month notice required by O.C.G.A. § 36-33-5, a property owner who incurs damage as a result of a continuing nuisance or trespass maintained by a municipality is entitled within the four-year period of limitations, to recover only those damages incurred during the six-months preceding the giving of such notice. The recovery of any damages incurred prior thereto would be barred, since no timely notice of claim therefor was given pursuant to this section; overruling Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316 (1960); City of Gainesville v. Moss, 108 Ga. App. 713(2), 134 S.E.2d 547 (1963). City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994). 36-33-5 When a property owner failed to give any written notice to a city prior to filing a complaint for continuing trespass, summary judgment in favor of the city was proper as to the owner’s claim for damages resulting from any continuing trespass ‘‘event’’ which occurred more than six months prior to the filing of the complaint. Any claim for damages resulting from a continuing trespass ‘‘event’’ which occurred within six months of the filing of the complaint was subject to a plea in abatement, rather than a motion seeking substantive adjudication. City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994). Trial court properly granted summary judgment to the city on the claimant’s tort claims arising from the back up of a sewer that flooded the claimant’s home as no genuine dispute existed that the claimant did not file a written ante litem notice with the city within six months of the happening of the event that gave rise to the claim, the first flooding. The claimant was required to file written notice within that time even though the claimant alleged the flooding was a continuing nuisance as the city was entitled to notice arising from the first flooding so the city could attempt to fix the problem and the claimant’s failure to timely give the city written notice meant the city could not be held liable. Cundy v. City of Smyrna, 264 Ga. App. 535, 591 S.E.2d 447 (2003). Trial court properly determined that the property owners’ claims of property damage, based on a continuing nuisance due to sewage backup, that occurred more than six months prior to the filing of their ante litem notice pursuant to O.C.G.A. § 36-33-5(b) were barred as untimely; although a prior letter could have constituted an ante litem notice, the four-year limitations period under O.C.G.A. § 9-3-30 had run prior to the institution of the lawsuit such that any claims in the six months prior to that letter were also barred. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495 (2005). Disability of infancy is only removed when party affected reaches that party’s lawful majority. Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975). Statute will not run against minor rep- 597 Time of Notice and Action (Cont’d) resented in litigation by next friend or guardian ad litem. Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975). Appointment of a guardian does not operate to start the statute of limitations running against the minor or the guardian in cases when the title to the cause of action is in the minor. Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975). Notice to city employees not required. — O.C.G.A. § 36-33-5 requires notice only if the claim is against the municipality; the statute does not require ante litem notice to individual employees of a municipality. Jacobs v. Littleton, 241 Ga. App. 403, 525 S.E.2d 433 (1999). Procedure Necessity of alleging timely notice. — An action for damages for personal injuries against a municipality which fails to allege that the plaintiff ’s claim has been presented in writing to the municipality within six months of the occurrence of the injury is subject to general demurrer (now motion to dismiss). Jones v. City Council, 100 Ga. App. 268, 110 S.E.2d 691 (1959). That part of the holding in Dover v. City of Jackson, 246 Ga. App. 524 (2000), requiring an ante litem notice for a statutory claim for attorney fees and costs of litigation is overruled because it is contrary to the specific statutory language, which limits its applicability to claims brought ‘‘on account of injuries to person or property’’; the holding also ignores the courts’ duty to strictly construe the statute because it is in derogation of common law. Greater Atlanta Home Builders Ass’n, Inc. v. City of McDonough, 322 Ga. App. 627, 745 S.E.2d 830 (2013). Substantial compliance must be alleged. — In a claim for money damages against a municipal corporation on account of injuries to person or property, the petition must affirmatively allege a compliance with the provisions of this section and unless it does so, it should be dismissed on demurrer (now motion to dismiss). Saunders v. City of Fitzgerald, 113 Ga. 619, 38 S.E. 978 (1901); Hooper v. City of Atlanta, 26 Ga. App. 221, 105 S.E. 723 36-33-5 (1921); Grooms v. City of Hawkinsville, 31 Ga. App. 424, 120 S.E. 807 (1923); Newton v. City of Moultrie, 37 Ga. App. 631, 141 S.E. 322 (1928). While giving of notice is a condition precedent to bringing an action, the giving of such notice is at once part and parcel of the enforcement of the right and it is an inseparable part of the bringing of the action. It is a part of the procedure for enforcing the right and as such it must affirmatively appear in the petition, either in the body thereof or by an exhibit thereto that such notice has been given. A petition which does not thus affirmatively show performance of the condition precedent is subject to general demurrer (now motion to dismiss). City of Atlanta v. Barrett, 102 Ga. App. 469, 116 S.E.2d 654 (1960); Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971). Compliance with this section must be alleged in the complaint or else the complaint cannot state a cause of action. City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969). Allegations of compliance are not subject to demurrer (now motion to dismiss) merely because no copy of a claim was attached to the petition. Habersham County v. Cornwall, 38 Ga. App. 419, 144 S.E. 55 (1928). When no allegation in complaint that notice given to city, claim not maintainable. — O.C.G.A. § 36-33-5 requires written notice of the charges to the municipal corporation. When a complaint does not make any allegation that written notice was given to a city, no claim based on state law can be maintained against the city. Dague v. Riverdale Athletic Ass’n, 99 F.R.D. 325 (N.D. Ga. 1983). Effect of allegation of notice in renewal petition. — An allegation in the renewal petition to the effect that prior to the institution of the former suit, which was against a municipal corporation, the plaintiff had served upon the defendant a written notice of claim, as provided by this section, in which the plaintiff claimed damages arising out of the same cause of action as that sued on in the renewal petition, is not an allegation as to the cause of action sued on in the former suit. Barber v. City of Rome, 39 Ga. App. 225, 146 S.E. 856 (1929). 598 Giving of notice is part of trial process. City of Atlanta v. Frank, 120 Ga. App. 273, 170 S.E.2d 265 (1969). Stipulation as to receiving notice. — In a nuisance suit by homeowners against the City of Atlanta with regard to recurrent flooding in a neighborhood, the trial court erred in granting the city’s motion for judgment notwithstanding the verdict as to one homeowner based on the homeowners’ alleged failure to put forth any evidence that those homeowners served the city with the statutorily required ante litem notice; because the record demonstrated that the city stipulated that one of the homeowners had provided ante litem notice, the trial court erred in granting a judgment notwithstanding the verdict as to that homeowner, but since there was no citation in the record as to the other homeowner providing ante litem notice to the city, granting of the city’s motion for judgment notwithstanding the verdict as to that homeowner was proper. City of Atlanta v. Broadnax, 285 Ga. App. 430, 646 S.E.2d 279 (2007), cert. denied, No. S07C1445, 2007 Ga. LEXIS 615, 648 (Ga. 2007), overruled on other grounds, Royal Capital Dev. LLC v. Md. Cas. Co., 291 Ga. 262, 728 S.E.2d 234 (2012). Failure to rebut allegation of notice in amended complaint. — When plaintiff, in plaintiff ’s amended complaint, alleged plaintiff gave the ante litem notice required by O.C.G.A. § 36-33-5, but the defendants failed to rebut the allegation in the amended complaint, the dismissal of the complaint under O.C.G.A. § 36-33-5 was improper. Harper v. Savannah Police Dep’t, 179 Ga. App. 449, 346 S.E.2d 891 (1986). Municipality required to consider claim. — After plaintiffs furnish a sufficient ante litem notice, the municipality is required to consider and act on the claim by settlement or denial. City of Claxton v. Claxton Poultry Co., 134 Ga. App. 679, 215 S.E.2d 718 (1975). Evasive answer treated as admission. — Petition alleged that notice of claim for damages was given to the defendant municipal corporation. The defendant being chargeable with knowledge of the service upon it of this notice, and its answer to this allegation of the petition 36-33-5 being evasive, the answer will be treated as an admission that the notice was given as alleged. Mayor of Madison v. Bearden, 22 Ga. App. 376, 96 S.E. 572, cert. denied, 22 Ga. App. 803 (1918). Availability of discovery. — Further discovery procedures are available to the city on the same basis offered by law to parties in all litigation proceedings. City of Claxton v. Claxton Poultry Co., 134 Ga. App. 679, 215 S.E.2d 718 (1975). Municipality may not demand additional information or hearing. — There is no requirement contemplated by the statute that after receipt of a notice of claim the municipality may require additional information, or that the city may demand that the complainant appear before the city’s council for an informational hearing. City of Claxton v. Claxton Poultry Co., 134 Ga. App. 679, 215 S.E.2d 718 (1975). Compliance with section must be proven. — When, in an action for personal injuries against a city, compliance with this section is alleged, and such allegation is denied by the city, it is a necessary part of the plaintiff ’s case that plaintiff prove compliance with the statute, and on failure to show substantial compliance therewith it is not error to grant a nonsuit. City of Tallapoosa v. Brock, 138 Ga. 622, 75 S.E. 644 (1912); Bostwick v. City of Griffin, 141 Ga. 120, 80 S.E. 657 (1913). When the trial record did not clearly establish that six-months’ ante litem notice was not given, it was error to dismiss the claim against the municipal corporation. Brackett v. City of Atlanta, 149 Ga. App. 147, 253 S.E.2d 786 (1979). Plaintiff bound by acts alleged in notice. — Petition on which the plaintiff seeks recovery against the city must be based on the claimed negligent transaction as set out in the notice given to the city, and plaintiff cannot proceed against the city upon acts of negligence different from those set out in that notice. City of Atlanta v. Harris, 52 Ga. App. 56, 182 S.E. 202 (1935). Plaintiff ’s action for malicious prosecution was premature, as was plaintiff ’s ante litem notice to the defendant municipality, when plaintiff ’s indict- 599 Procedure (Cont’d) ment for theft of services had been dead-docketed, since termination of that prosecution in plaintiff ’s favor was a prerequisite to bringing of a malicious prosecution suit and dead-docketing of a case does not terminate a malicious prosecution case. Webster v. City of E. Point, 164 Ga. App. 605, 294 S.E.2d 588 (1982). Premature suit grounds for abatement, not summary judgment. — Compliance with O.C.G.A. § 36-33-5 is a condition precedent to filing suit against the city, but the filing of suit against the city prior to the expiration of 30 days from the time of filing the claim is a matter that is properly raised as a plea in abatement and not a proper subject for summary judgment. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983). Dismissal, rather than summary judgment, is appropriate in cases when the merits cannot be reached because of the plaintiff ’s failure to satisfy the notice requirements of O.C.G.A. § 36-33-5. Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986). Dismissal of premature suit is without prejudice. — In cases in which the merits could not have been reached because of the failure of the plaintiff to satisfy a precondition, such as when a suit is filed prior to the expiration of 30 days from the time of filing the claim, the appropriate action is dismissal of the case on motion. Such a dismissal should be without prejudice, and, having no res judicata effect, would not bar the filing of another suit. Jones v. City of Austell, 166 Ga. App. 808, 305 S.E.2d 653 (1983). Complaint properly amended after notice of claim given. — Claim by an association of taxicab owners that a city violated procedural due process by failing to provide the association’s members with proper notice of violations of regulations 36-33-5 was improperly dismissed for failure to comply with the ante-litem notice requirements of O.C.G.A. § 36-33-5 when the association failed to give notice of the claim before filing the association’s original complaint, withdrew the claim from the complaint, gave notice under O.C.G.A. § 36-33-5, and then amended the original complaint to add the claim; the notification could not have been accomplished simply by amending the complaint after the action was filed, and to the extent that City of Atlanta v. Fuller, 164 S.E.2d 364 (1968) held otherwise, that case was overruled, but the procedure followed by the association satisfied the procedural requirement of giving the city an opportunity to investigate the claim so as to determine whether to settle the claim without resorting to litigation, and the association was not procedurally barred from pursuing the association’s claim for the alleged due process violations that occurred in the six months before the ante-litem notice was given. Atlanta Taxicab Co. Owners Ass’n v. City of Atlanta, 281 Ga. 342, 638 S.E.2d 307 (2006). Effect of nonsuit on proof of notice. — In an action against a municipality for personal injuries, duly renewed after the grant of a nonsuit in a substantially similar former action in the superior court, the former judgment cannot be taken as having determined that the petition was insufficient, and that the plaintiff had no right to recover, because plaintiff ’s notice of injury to the municipality was legally insufficient under this section, especially since it is not made to appear that the sufficiency of the notice was in anywise determined or questioned in the former action by demurrer (now motion to dismiss) or otherwise, or that the nonsuit was granted for any reason other than that the evidence as to negligence was insufficient to authorize a recovery. Jones v. Mayor of Savannah, 52 Ga. App. 537, 184 S.E. 353 (1936).