SECOND DIVISION

MILLER, 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

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

May 28, 2021

In the Court of Appeals of Georgia

A21A0322. TANKS v. NESMITH et al.

HODGES, Judge.

Jazzilyn Tanks filed an action for damages against the City of South Fulton,

Georgia (the “City”) and one of its employees after that employee was involved in a

motor vehicle collision with Tanks. The City moved to dismiss, arguing that Tanks’

ante litem notice was “insufficient” because it “fails to provide the specific amount

of monetary damages being sought” from the City as required by OCGA § 36-33-5

(e). After a hearing, the trial court granted the motion. and Tanks appeals.

1 For the

reasons that follow, we affirm.

1 The trial court also found that both Tanks and the City agreed that the City’s

employee who had been sued, Robert Nesmith, was acting within the scope of his

employment at the time of the accident and that, pursuant to OCGA § 36-92-3 (a),

was not subject to liability or suit. Tanks does not contest this on appeal. 
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.) Manzanares v. City of Brookhaven, 352 Ga. App.

293 (834 SE2d 358) (2019). So viewed, the record shows that Tanks sent the City an

ante litem notice on July 2, 2018, notifying it of a “30-day opportunity for adjustment

of a tort claim against the City” as a result of a May 2018 motor vehicle collision

involving the City’s employee allegedly caused by “[f]ailure to yield when entering

a roadway.” Tanks averred thatshe had suffered “[b]ack pain, leftside area pain, neck

pain, knee pain and bruises[.]” The notice stated that Tanks would not initiate

litigation until after the 30 days had passed or after the City rejected the claim,

whichever occurred first. The part of the notice on which this litigation turns stated:

“Amount of Loss Claim: $75,000.00, Grady Memorial Hospital bill in excess of

$10,000[.]” 

Tanks filed suit against the city and its employee in January 2020. The City

answered and filed a motion to dismiss, arguing that the ante litem notice failed to

2
state the specific amount of monetary damages sought, in contravention of the

requirements of OCGA § 36-33-5 (e). The City argued that the portion of Tanks’

claim that read “Grady Memorial Hospital medical bill in excess of $10,000” “could

range from$10,000 to infinity. Since there is no definite amount, the ante litemnotice

does not comply with the basic requirement of [OCGA § 36-33-5](e).” The trial court

found that the addition of the language about the claimfor the Grady Hospital bill “in

excess” of $10,000 “introduced an ambiguity in determining the specific amount of

damages”sought and that Tanks’ ante litem notice was, therefore, deficient. It then

granted the City’s motion to dismiss. This appeal followed.

Tanks argues on appeal that the trial court erred because she complied with

OCGA § 36-33-5 (e) in that, “if the City had accepted the offer . . . of the ante litem

letter and sent Ms. Tanks’[] counsel a check for $75,000, a binding and enforceable

settlement would have been reached.”2 We disagree.

2 Tanks also asserts that the trial court erred in “fail[ing]to apply basic contract

law” to the ante litem notice to analyze whether the “in excess of $10,000” language

introduced an ambiguity that rendered the ante litem letter incapable of acceptance

by the City as an offer of compromise.” Tanks cites no authority for the proposition

that contract law applies in the context of an ante litem notice. An ante litem notice,

by its own terms, functions as a notice of the “specific amount” of damages claimed;

it constitutes an offer; and if that offer is not accepted, the amount of damages

claimed in the notice “shall not be binding” in the ensuing litigation. (Emphasis

supplied.) OCGA § 36-33-5 (e).

3
Under OCGA § 36-33-5 (b), a person who seeks to assert a claim against a

municipal corporation for money damages must, within six months of the event on

which the claim is based, “present the claim in writing to the governing authority of

the municipal corporation for adjustment, stating the time, place, and extent of the

injury, as nearly as practicable, and the negligence which caused the injury.” 

OCGA § 36-33-6 (e) provides that

The description of the extent of the injury required in subsection (b) of

thisCode 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.) Whether OCGA § 36-33-5 (e) requires substantial or strict

compliance is not clear; neither we nor our Supreme Court has expressly decided the

issue. See City of Lafayette v. Chandler, 354 Ga. App. 259, 261 (840 SE2d 638)

(2020). “[E]ven if only substantial compliance is required for subsection (e), . . . a

notice does not substantially comply with subsection (e) unless a specific amount is

4
given. . . .” (Citation and punctuation omitted.) Manzanares, 352 Ga. App. at 296 (1).

In either case, we need not resolve the issue here because under either standard,

Tanks’ ante litem notice did not state a specific amount sought.

In Davis v. City of Valdosta, 357 Ga. App. 900 (852 SE2d 859) (2020), this

Court found that an ante litem notice very similar to the one at issue here failed to

comply with OCGA § 36-33-5 (e)’srequirement that the plaintiff set forth a “specific

amount of monetary damages.” The notice in Davis stated:

Takeila Davis hereby claims damages covering the past, present and

future medical bills associated with these injuries, in [the] amount of

$30,000.00. Takeila Davis additionally hearby claims general damages

for pain and suffering, in an amount not less than $20,000.00.

(Emphasis supplied.) Davis, 357 Ga. App. at 900. Like the ante litem notice in the

instant case, which identifies an “Amount of Loss Claim: $75,000.00, Grady

Memorial Hospital bill in excess of $10,000,” the Davis ante litem letter also states

both a definitive amount ($30,000 in Davis; $75,000 in the instant case) and an

indefinite amount (“not less than $20,000” in Davis; “in excess of $10,000” in the

instant case).

Likewise, in Manzanares, thisCourtfound a notice to be insufficiently specific

where the notice stated: “While our investigation is still ongoing, we believe that the

5
value of this claim may exceed $250,000.00.” (Emphasis in original and supplied.)

352 Ga. App. at 296 (1); accord Pickens v. City of Waco, 352 Ga. App. 37, 41 (1)

(833 SE2d 713) (2019) (holding ante litem notice seeking damages that “may exceed

$300,000.00” wasinsufficient under OCGA § 36-33-5 (e) because the amountsought

was too indefinite to constitute a binding offer of settlement) (emphasis in original).

In these types of cases, this Court has concluded that “[e]ven under a standard of

substantial compliance, . . . this statement [failed to] convey[] the specific amount of

monetary damages sought from the City, nor was it specific enough to constitute an

offer of compromise that could be accepted by the City.” (Emphasis in original.)

Manzanares, 352 Ga. App. at 296 (1). 

Tanks contends that $75,000 is a “certain, definite, and clear amount” and that

the “in excess of $10,000” language only refers to “incurred medical bills[.]” There

is indeed a difference between the amount of damages incurred and the amount of

damages claimed. OCGA § 36-33-5 (e) refers specifically to the amount of monetary

damages “sought,” i. e., claimed. But Tanks’ argument is belied by the very heading

of the ante litem notice language at issue here. That language identifies both the

$75,000 and the “amount in excess of $10,000” as the “Amount of Loss Claim[.]”

(Emphasis supplied.)

6
Tanks’ assertion that City of Lafayette is “nearly identical” to the instant case

is unavailing for the very reason outlined above: there is a difference between

damages incurred and damages sought. The ante litem letter in City of Lafayette

provided, in pertinent part, that the plaintiff “incurred well over $100,000.00 in

medical expenses to date. As a result of the nature and extent of [plaintiff’s] injuries

and the aforementioned special medical damages we will seek to recover

$1,000,000.00 (one million dollars) in monetary damages on his behalf.” (Emphasis

supplied.) 354 Ga. App. at 259. This Court found that the clear differentiation

between the amount of damagesincurred ($100,000) and the total amount of damages

sought ($1 million) in City of Lafayette meant that the plaintiff had stated a specific

amount in its claim for $1 million. Id. at 261-262. There is no such differentiation

between damagesincurred and damagessought in the instant case given that both the

$75,000 and the “amount in excess of $10,000” are identified asthe amount claimed.

As we have found, “[t]his falls short of providing a “specific amount of

monetary damages that could constitute an offer of compromise.” (Punctuation

omitted.) Davis, 357 Ga. App. at 901, citing Manzanares, 352 Ga. App. at 296 (1).

We disagree with [Tanks’] contention that she was making an offer to

settle her claim for [$75,000]. The notice indicates that the value of the

7
claim issome unknown number above [$75,000, because it also adds an

unspecified amount in excess of $10,000] and makes no statement with

regard to the [total] amount being sought. An unknown number above

[$75,000] is too indefinite to constitute a binding offer of settlement.

(Citation and punctuation omitted.) Davis, 357 Ga. App. at 901-902. As a result, we

affirm the trial court’s order dismissing Tanks’ lawsuit against the City upon finding

that Tanks’ ante litem notice failed to comply with OCGA § 36-33-5 (e).

Judgment affirmed. Miller, P. J., and Pipkin, J., concur.

8