Nicholas v. Van

Plaintiff's suit against the city for negligent approval of a commercial development plan was barred for failure to provide timely anti litem notice.

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Anthony Nicholas brought this action against the City of Griffin and David and Vicki Van. The city was granted summary judgment on the ground that Nicholas failed to give proper ante litem notice of his claim within the six-month period prescribed by OCGA § 36-33-5 b. We agree that the claim was barred for failure to provide timely notice. But because the proper vehicle for disposing of the claim against the city was dismissal, we vacate the trial court’s judgment and remand this case to the trial court with direction that the court dismiss the claim against the city.

The facts are largely undisputed. In September, 1996, Nicholas sold a tract of commercial property, which was contiguous to his own remaining property, to David and Vicki Van.1 The Vans were also granted an easement of ingress and egress, and both parties reserved certain rights to develop their respective properties. On July 30, 1997, the Vans submitted a development plan to the city, which was approved October 27, 1997. Nicholas first saw the plan on February 17, 1998. On August 13, 1998, ante litem notice was delivered to the city on Nicholas’s behalf. The letter recited that the city relied on the Vans’ “misinterpretation” of the easement, which caused access and parking problems related to Nicholas’s property. The letter went on to notify the city of Nicholas’s claim that the city was negligent in approving the Vans’ development plan and stated the monetary damages suffered by Nicholas at that time.2 In January 1999, Nicholas filed this action against the Vans and the city, alleging among other things that the city’s approval of the development plan without consultation with Nicholas had deprived him of the use and enjoyment of his property and constituted a taking without just and adequate compensation. He further alleged that the city’s actions “had the effect of nullifying the agreement between” Nicholas and the Vans.

Nicholas v. Van

Plaintiff's suit against the city for negligent approval of a commercial development plan was barred for failure to provide timely anti litem notice.

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