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Greater Atlanta Home Builders Ass'n v. City of McDonough
Citations: 322 Ga. App. 627; 745 S.E.2d 830; 2013 Fulton County D. Rep. 2235; 2013 WL 3336655; 2013 Ga. App. LEXIS 576Docket: A13A0225
Court: Court of Appeals of Georgia; July 3, 2013; Georgia; State Appellate Court
The Greater Atlanta Home Builders Association, Inc. serves as the proposed class representative in a class action lawsuit against the City of McDonough, aimed at recovering impact fees assessed against developers from July 2002 to July 2003. The plaintiffs seek the return of approximately $370,000 in impact fees, and also pursue attorney fees and litigation expenses under OCGA § 13-6-11. The trial court certified the class under OCGA § 9-11-23 and granted summary judgment for the plaintiffs regarding the return of impact fees but denied their request for attorney fees due to a lack of ante litem notice provided to the City as required by OCGA § 36-33-5. The plaintiffs appealed this denial, asserting they were not obligated to give such notice for their claim for attorney fees and costs. Upon review, it was determined that the trial court's reliance on the ante litem notice requirement was misplaced. OCGA § 36-33-5 mandates notice only for claims pertaining to injuries to person or property, which does not encompass the plaintiffs' claims for attorney fees. Consequently, the appellate court reversed the trial court's denial of the plaintiffs' motion for summary judgment on the issue of attorney fees and costs, clarifying that the statute's requirements must be strictly construed and do not extend beyond its explicit terms. Plaintiffs sought reimbursement for pre-ordinance impact fees and attorney fees under OCGA § 13-6-11. Their claims do not pertain to 'injuries to person or property,' thus OCGA § 36-33-5, which requires ante litem notice, is not applicable. The trial court's reliance on Dover, where the plaintiffs sought a declaratory judgment regarding the constitutionality of a zoning ordinance, was misplaced. The court incorrectly categorized the claim for attorney fees as a claim for damages requiring ante litem notice. While the claim for fees is ancillary to equitable relief, it constitutes a claim for monetary damages. Consequently, the failure to provide ante litem notice under OCGA § 36-33-5 precludes the plaintiffs from seeking such damages. This interpretation contravenes the specific language of OCGA § 36-33-5, which is limited to claims for personal or property injuries, and emphasizes the need for strict construction of this statute. The decision in Dover v. City of Jackson is overruled. The trial court erred in denying the plaintiffs' motion for summary judgment regarding their claim for attorney fees and costs. The plaintiffs also argued they provided the necessary ante litem notice, but this was unnecessary due to the court's holding. The judgment is reversed.